text:
    DAVID H. SHERMAN and MORILLO H. GILLETT, Respondents, v. THE INMAN STEAMSHIP COMPANY (Limited), Appellant.

      Company carrying passengers and freight in steamers — liability of, for property injured — when the liability is not taken away by the provisions of the bill of lading —Duty of the master of a steamer after its machinery has been disabled — when he should abandon the proposed voyage — evidence.
    The plaintiffs entered into a contract with the defendant, which was engaged in carrying freight and passengers for hire in steamers by regular trips between New York and Liverpool, by which they were entitled to ship meat in a space assigned to them, and in which they had constructed a refrigerator, paying therefor a certain sum for each cubical ton of the space so assigned to them. An agent was sent with the ship by the plaintiff, whose duty it was to care for and preserve the meat. The plaintiff shipped a quantity of beef and mutton in pursuance of the said contract, but the mutton was omitted from the terms of the bill of lading taken therefor.

      field, that the omission of the mutton from the bill of lading did not relieve the defendant from liability for a failure to safely carry and deliver it, as it was placed in the refrigerator under the authority of the contract made with the plaintiffs.
    That the liability of the defendant for property intrusted to its care was substantially that of a common carrier.
    By the terms of the bill of lading the defendant was exonerated from such loss as might result from the decay of the property.

      field, that the defendant was thereby relieved from such loss only as might be occasioned by the tendency of the property, in and of itself to decay, and not from such as might be occasioned by its own negligent acts or misconduct.
    On April 21, 1877, the plaintiffs shipped a quantity of meat and mutton upon one of the defendant’s steamers which left New York on that day for LiverpooL The ordinary time required for the voyage of such a vessel was from ten to eleven days, but to insure the preservation of the meat the plaintiff had furnished sufficient ice to last for a period of from fifteen to twenty days. On the twenty-third of April the propeller shaft of the vessel broke" and prevented her from continuing the voyage by machinery. She was then distant 490-miles from New York, 200 miles from Halifax and 385 miles from Boston. She was on the line of outgoing and incoming steamers and the wind was favorable for her return to New York. Evidence was given tending to show that the captain knew that it would take at least from twenty-two to twenty-three days to make the voyage across the ocean by sail, and that he was informed by the person in charge of the meat that it could not be preserved for that time. The captain testified that he believed it to be the safe and proper course for him to proceed with the voyage, as he feared the danger of the coast and the probability of a westerly wind. The ship proceeded under sail to Liverpool and arrived there after thirty-six days. Some days after the accident the refrigerator was opened by the captain’s direction, a portion of the meat taken therefrom for the use of the ship and the remainder, which was decayed and spoiled, was thrown overboard.
    In an action by the plaintiffs to recover the damages thereby sustained by them:

      Held, that the jury were properly instructed that if they were satisfied that the captain was negligent, heedless, thoughtless or reckless in endeavoring to continue the voyage in the disabled condition of the steamer, the plaintiffs were entitled to recover; and that a verdict in their favor would not be disturbed.
    That they were entitled to recover for the meat taken for the ship’s use as well as for that thrown overboard.
    The plaintiffs were required to pay the freight before the voyage was commenced.

      Held, that they were entitled to'recover the amount so paid.
    Upon the trial the statement of the plaintiffs’ agent to the master of the vessel concerning the state of the meat, and his inability to preserve it for such a period of time as would necessarily be required to complete the voyage to Liverpool under sail, was received.

      Reid, no error.
    Appeal from a judgment in favor of the plaintiffs, entered upon the 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.

      Ashbél Oreen, for the appellant.

      Ira D. Warren, for the respondents.
   Daniels, J.:

The recovery in this action was for the value of a large quantity of • fresh beef, and also a quantity of mutton, placed upon the defendant’s steamer, the City of Brussels, at ■ the city of New York, on or about the 21st day of April, 1877, to be carried for the plaintiffs and delivered at .the city of Liverpool in England. The steamer.left New York on the 21st day of April, 1877, and on the twenty-third of the same month, when_she had proceeded for the distance of about 490 miles upon her voyage, she broke her propeller shaft, and thereby became disabled from pursuing it by means of her machinery. From that point she proceeded to Liverpool by sail, but before her arrival there the meat, with the exception of 6,153 pounds consumed on board .the steamer, became tainted and spoiled, and on that account it was thrown into the sea. It was objected upon the trial that the plaintiffs could not, under their Qomplaint, recover for the meat which was fed to the passengers and crew of the steamer in addition to the value of that which, on account of its condition, was thrown overboard. But as the complaint contained a full statement of the plaintiffs’ entire cause of action, including all the meat, and issue had been taken upon it by the answer, the court could not properly withdraw any portion of the case from the consideration of the jury. If the two causes of action were improperly united in the complaint, the mode of correcting that was by a demurrer, and as no objection was taken in that form, it was by the express provisions of the Code waived. (Code of Civil Pro., § 488, sub. 7; § 499.) At the time when the trial was brought on it was therefore too late to raise this objection, or to obtain any direction on the part of the court requiring an election by the plaintiffs for which of the demands made they would claim to recover in the ease. (Gillett v. Borden, 6 Lans., 219.) So far as the pleadings were concerned, the whole case was properly before the court to be determined by a trial.

For the beef which was laden on the steamer a bill of lading was taken, but the mutton was omitted from its terms. That omission, however, created no obstacle in the way of the plaintiffs right to recover its value, for it was placed upon the steamer under an agreement made with the agent of the company, by which they were entitled to ship meat in the space assigned to them, and in which they had constructed a refrigerator. By the terms of the contract a certain sum was required to be paid to the defendant as a compensation for each cubical ton of the space assigned to the plaintiffs, and they were at liberty to fill it with such meat as they desired to have transported on hoard of the steamer. This mutton was placed in the refrigerator under the authority of the contract, and as it was put there for the sole and only purpose of being transported upon the steamer to the city of Liverpool for a compensa tion to be for that purpose paid by the plaintiffs, the obligation was imposed upon the defendant safely to carry and deliver it, although that was not specially repeated in the bill of lading itself.

By the terms of the bill of lading, the defendant was exonerated from such loss as might result from the. decay of the property. That was a contingency which was excepted from the risks intended to be taken by the carrier, but in this respect the bill of lading was no broader than the general principles of law applicable to the duties and obligations of carriers properly for hire. (Angelí on Carriers [5th ed.], § 210; Clark v. Barnwell, 12 How. [H. S.], 272; Mynard v. Syracuse, etc., R. R. Co., 71 N. Y., 180, 188.) Substantially the same obligation in this respect was therefore imposed upon the defendant, whether the property was received under the bill of lading, or in compliance with the terms of the agreement originally made between the parties, and under which their business was generally carried on.

But while the defendant was by the terms of the bill of lading, • and the well settled principles of law applicable to the case, relieved from liability for loss occasioned by the decay of the property, that result would not follow when such a condition might be developed by the fault or misconduct of the carrier itself. It was only for •such decay as might result to the meat in its proper or lawful transportation, that the defendant could be relieved, either under the terms of the bill of lading, or the law applicable to the case. It was against the risk of the tendency of the property in and of itself to decay that the carrier was intended to be relieved from responsibility, and whether the voyage was longer or shorter, as long as it was rightly pursued, the loss from that tendency would necessarily fall upon the shipper. But if the property was carelessly, or improperly, subjected to the development of its natural tendency to decay, then the same result would not follow, for the loss in such an event would not be caused by the circumstances intended to be guarded against, either by the bill of lading or the law. Where a carrier negligently or recklessly exposes the property of the shipper to decay, the law will hold him or it accounta ble for the consequences when the same legal result would not follow if such exposure had been avoided. To relieve the carrier from responsibility the tendency of the property in and of itself to decay must be tbe cause of its loss. "When that is not the case, and it appears to have decayed in consequence of the misconduct of the carrier, there a liability will arise because that is in legal contemplation the cause of the loss of the property. (Clark v. Barnwell, supra; Lamb v. Camden, etc., R. R. Co., 40 N. Y., 271; Peck v. Weeks, 34 Conn., 145; Mynard v. Syracuse, etc., R. R. Co., 71 N. Y., 180; King v. Shepherd, 3 Story, 349; Lamb v. Camden, etc., R. R. Co., 46 N. Y., 271.)

The steamer was engaged in carrying freight and passengers for hire by regular trips between the cities of New York and Liverpool, and even though her business was not so general as to render it strictly that of a common carrier, still within the limits to which it extended substantially the same liability was created for the transportation and delivery of the property. The persons engaged in her navigation were surely bound to observe great care and diligence for the safe transportation and final delivery of property laden on board the steamer. ( Wyckoff v. Queens Co. Ferry Co., 52 N. Y., 32, 34; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16; Pope v. Nickerson, 3 id., 465, 473.) Within the limits to which its business extended substantially the same duties were to be performed as those required to be observed by common carriers in the transportation and delivery of property intrusted to their care. And the fact that a particular space was assigned to the plaintiffs for the carriage of their property, and it was accompanied by a person to care for and endeavor to preserve it, in no manner interferes with the application of those principles. (Mallory v. Tioga R. R. Co., 39 Barb., 488; affirmed, 32 How., 616.) Under the circumstances of this case, as they were presented, it was it is true for the plaintiffs to show -that those duties resting upon the carrier had not been performed. But as the case was finally disposed of, it was by no means important that this principle should have been made the subject, either of further special comment or remark than they were, for the inquiry upon which the rights of the parties were to be determined was substantially submitted in that manner to the jury. Whether the loss of this property was caused by the culpable misconduct of the master of the steamer who had charge, of her navigation was a matter to be determined, as all controverted inquiries of a similar nature are, by the jury. (Storer v. Gowen, 18 Me., 174; Witney v. Lee, 8 Metc., 91, 93; Angelí on Carriers [5th ed.], § 184.) This was a controverted fact in the case, and whether the evidence was sufficient to submit it to the decision of the jury is a point now requiring to be considered.

It was, of course, the expectation of the parties that this meat would be carried from New York to Liverpool upon the vessel as a steamer, but the fact that it was not would not be sufficient to render the defendant liable for its loss. For that purpose it was necessary that the proof should establish some culpable misconduct or mismanagement on the part of the master r of the steamer. And the fact that he persisted, after the accident, in prosecuting the voyage by sail, is a circumstance relied upon as exhibiting the existence of such misconduct. To' carry the meat an apartment, called a refrigerator, was constructed by the plaintiffs on board of the steamer, and after it was placed in the refrigerator, it could only be preserved during the voyage by reducing the temperature to such a point as would prevent it from decaying This was done by means of tiers of pipes placed around the sides of the refrigerator box and in its center, through which a solution of salt and water, produced by ice, was driven. To supply this solution a large quantity of ice was taken upon the steamer. The ordinary time consumed by such a vessel, in proceeding from New York to Liverpool, was from ten to eleven days; but for the purpose of insuring the preservation of the meat, the plaintiffs supplied themselves with a quantity of ice sufficient for their use for a period of from fifteen to twenty days. At the time when the accident occurred to the steamer, it was shown by the testimony of the captain that he knew that it would take at least twenty-two or twenty-three days to make the voyage across the ocean by sail. ILe further testified that the agent accompanying the meat informed him that the ice would last twenty-one days, and that he himself knew when the ice was gone the meat must spoil. It was reasonably clear from this evidence, although the captain, in terms, stated that he did not know that the meat would spoil before the voyage would be completed, that such must have been the impression existing in his mind, and he was reasonably bound, therefore, to act in accordance with that understanding. This, too, was the only portion of the cargo liable to be injured by the delay in its transportation, and as that fact was known to the captain, he was bound, to carefully consider it in determining the proper course to be pursued by him. (Tierney v. New York Central, etc., R. Co., 76 N. Y., 305.)

In addition to these circumstances indicating that it was highly probable that the captain knew the plaintiffs’ property would be destroyed if he persisted in prosecuting the voyage, as he did, he was informed by the person in charge of it that it could not be preserved during the time required to navigate the ship for the distance of 2,000 miles to be traversed for the purpose of reaching Liverpool by the use of sails. When the shaft was broken the ship was on the line of outgoing and incoming steamers, and the wind was blowing from an easterly direction, which was favorable for her return to the city of New York. She was at the time distant 200 miles from Halifax, and 385 miles from the city of Boston. In her disabled condition, she also had her useless propeller wheel, twenty-one feet in diameter and weighing about fourteen tons, at her stern to retard her onward progress. Evidence was given by nautical witnesses acquainted with the navigation of this portion of the ocean, who seem to concur in their conviction that the ship could have properly returned to the city of New York, and that good seamanship required that to be done. On the part of the defendant other witnesses were examined, who agreed in their conclusions for reasons assigned by them that the captain was justified in proceeding under sail to the city of Liverpool, and' his own testimony was to the effect that he himself, fearing the danger of the coast and the probability of a westerly wind arising, believed that to be the safe and proper course for him to take. But while his evidence was clear and direct upon this subject, as its force and effect was certainly to some extent impaired by his relation to the loss, and his conduct was drawn in controversy as a controlling feature of the defendant’s liability, the jury were not bound to accept and act. upon his statements. It was, on the contrary, for them to determine whether he was right in this evidence given by him, or whether he had negligently or recklessly proceeded upon the voyage when he might safely have returned again to the city of New York,- and in that manner protected the plaintiffs against the loss of their property. (Elwood v. Western Union Telegraph, Company, 45 N. Y., 549, 553, 554; Roberts v. Gee, 15 Barb., 449.)

After commencing a voyage of this description, it is the duty of the master, under ordinary circumstances, to proceed to the place of destination without delay or deviation from the usual course. But where the vessel or her machinery may be so disabled as to render that an improper thing to do, a deviation for the purpose of obtaining necessary repairs is always allowed to be made. The law upon this subject has been stated to be, that when in consequence of disaster or other exigencies the vessel cannot safely pursue the voyage, the master is not only justified in quitting the course and seeking the most convenient and suitable port for repairs and supplies, but it is his duty to seek such a port. (1 Phillips on Ins. [3d ed.], § 1019.) When a vessel suffers so much of an injury during her voyage that she cannot safely proceed to a port of discharge without repair the master is authorized to seek an intermediate port for that purpose, but as long as she can be expected by an intelligent and faithful master to pursue her voyage in safety, she will be entitled to do so. (Motteux v. Governor and Company of London Assurance, 1 Atkins, 545; Notara v. Henderson, L. R., 7 Q. B., 225, 237; Turner v. Protection Ins. Co., 25 Me., 515.)

In the latter case this right and duty of the master was very fully and carefully considered, and it was there held that the safety of life must first employ the attention of the master. And as this steamer had 180 passengers on board of her at the time, and a crew consisting of another hundred persons, this was an exceedingly important subject for him to consider. After that the duty of preserving the property is to be regarded by the master, and it is for him to consider and determine whether either or both would be needlessly jeopardized by persisting in the prosecution of the voyage. Where the facts are such as to lead the master, as an experienced and intelligent navigator, to conclude that the vessel can safely be continued on her voyage, he will be' protected in taking that course. (Id., 523, 524.)

This was assumed to be the law applicable to this part of the case at the time of the trial, and in that view it was submitted to the determination of the jury. The evidence which had been produced for their consideration rendered this a proper subject for inquiry on their part. Although the master testified that he did consider these circumstances, and after deliberating upon them con-eluded that he could safely prosecute his voyage under sail, the -circumstances in the case were such as very seriously to impair the force of the statements made by him. It was quite probably made to appeal1 that the steamer could have safely returned to the city of New York, and if that course had been taken the plaintiff’s property would not have been destroyed. It was still more probable from the facts within the master’s knowledge that this property could never be delivered at Liverpool if the steamer was to be navigated there under pail. The jury therefore had the right from the facts which were proven to infer that the master knew that such was the result, and with that knowledge pursued his course, understanding that it would be attended with a loss of the plaintiff’s property. It was of no inconsiderable value, being worth the sum of upwards of $25,000, and the obligation consequently resting upon him to secure its preservation, as far as that could properly be done, was one of no insignificant character. In view of the evidence supporting these and the other circumstances directly bearing upon the impropriety of continuing the voyage, and of that tending to show that the steamer could have safely returned to the city of Now York, and that comparatively a short period of time was necessary for that purpose, the question whether the master acted in conformity with the convictions mentioned by him in the course of his testimony, or recklessly disregarded the plaintiff’s interest, or carelessly omitted to consider the circumstances in the case, were matters which it was the sole province of the jury to determine. They had the witnesses before them, and were capable of inferring what was the probable truth of the case. It was submitted to them by the court in a manner by no means unfavorable to the defendant, for they were so restricted by the instructions given to them as to prevent them from returning a verdict in the plaintiffs’ favor unless they were satisfied that the master was negligent, heedless, thoughtless or reckless in endeavoring to continue the voyage in the disabled condition in which the steamer was placed by the breaking of her shaft.. This proposition as well as the duty of the jury to render a verdict in favor of the defendant, if they believe the master acted in what he did under the dictates of his judgment, were repeated in such a manner as apparently to prevent the possibility of misunderstanding on the part of the jury. And after they had been so enjoined upon them no error can be assigned in the case because of the omission of the court still further to impress the observance of the same duty. As the case was made to appear this subject was a mere question of fact. The jury could well determine it either way as they believed ■ the truth to be, and there was no such decided preponderance of evidence against their verdict as would justify the court in setting it aside. If the meat was destroyed, as the jury must have found it to have been, by reason of the circumstance that the master continued the prosecution of his voyage, and in that manner exposed it to a peril which it otherwise would not have encountered, when reasonable care and attention upon his part should have dictated the return of the steamer for the purpose of repairing the injury to her machinery, then the defendant cannot be exonerated from liability for the loss of the property because of its natural or inherent tendency to decay. In that state of the case the cause of the loss as the law contemplates and regards it is the misconduct of the master, and for that the defendant could properly be held to be liable.

Other exceptions were contained in the bill of lading which were relied upon at the trial as sufficient to relieve the defendant from liability for this loss, but the terms in which they have been expressed cannot be so construed as to include what has been found to be the cause which produced the destruction of this property. These exceptions included the risk of the craft or hulk, transhipment, explosion, heat, or fire at sea or on shore, boilers, steam or machinery, or the consequences of damages or injury thereto, howsoever that might be caused; collisions, straining or other perils of the sea, rivers or navigation, whether arising from the negligence, default or error in judgment of the pilot, master, mariners, engineers or other persons in the service of the ship, or for whose acts the shipowner is liable, or otherwise howsoever. It is very clear from the facts appearing upon the trial that the property was neither injured nor destroyed by the breaking of the machinery, which was the only one of these perils encountered, for it ,was precisely in the same condition after that occurrence as it had been before it , took place, and it remained so until the inability arose of further preserving it1 by reason of the fact that the ice which had been taken on board had become exhausted. Neither of these perils in any manner produced injury to any part of the property in controversy, and consequently the defendant cannot be excused under either of such exceptions. At the trial the court held that the defendant was not liable for any error of judgment on the part of the master as to the course which it was best under the circumstances for him to pursue; and in what was said upon this subject as liberal a rule was adopted as either the bill of lading or the law of the case' required to be presented to the jury.

Before the voyage was commenced the plaintiffs wrere required to pay the freight, which the defendant might earn by the transportation and delivery of the property. This amounted to the sum of $3,730.10, and as their property was not transported to, and delivered at Liverpool, they were held to be entitled to recover it back. This instruction has been relied upon as erroneous, but under the authorities it appears to have been properly given to the jury. (Mashiter v. Buller, 1 Camp., 84; Hathaway v. Sun Ins. Co., 8 Bosw., 33; Western Transportation Co. v. Hoyt, 69 N. Y., 230; Phelps v. Williamson, 5 Sandf., 578.)

In the latter case the authorities relied upon by the defendant’s counsel as sustaining a different view of the law were considered by the. court, and distinguished in principle upon the effect and meaning of particular clauses of the contracts then before the courts. As the authorities stand, the exception taken to the ruling made upon this subject is incapable of being sustained.

"While the mutton was not mentioned in the bill of lading, the facts of the case warrant the inference that it was put on board of the ship under the authority of the contract made with the defendant’s agent. It was included in the freight, for that comprehended the space occupied by it, and the defendant became obligated to transport and deliver it, substantially as it was bound by the bill of lading to carry and deliver the beef.

The meat which was taken from the refrigerator when the supply of ice was about to fail, also constituted a proper charge against 'the defendant in the case. That was taken under the authority of the captain and fed to the persons who were required to be supported on board the 'steamer. Both these items were properly included in the verdict, and the exceptions now bringing them up for consideration cannot be maintained.

Objections were taken upon the trial to the evidence given by-the nautical witnesses, who were allowed to state what they deemed to have been proper in the navigation of the ship after the occurrence of the accident. Their evidence was received, and to that the defendant repeatedly excepted. With the exception of a single instance contained in the case, the question by which the answers of these witnesses were elicited, have not been inserted in the case, and in that particular instance the witness did not answer the ques tion which was propounded to him. He was asked what he thought the captain ought to have done, and his answer was “ I think 1 would come back.” No application was made to strike out this answer either as improper or not responsive, and as it was not the information which was sought for by the question, the exception taken affords no support to the present appeal. The other exceptions were in form taken to the questions and answers propounded to and given by the witnesses. But as none of these questions have been inserted in the case it cannot be affirmed that the rulings made upon them were in any respect improper. The case consequently differs from that of Ayres v. Water Commissioners (22 Hun, 297). And that evidence of the nature of that obtained from these witnesses is proper in a case of this description has been settled by authority. (Transportation Line v. Hope, 95 U. S. Sup. Ct., 297; Guiterman v. Liverpool, etc., Co., 83 N. Y., 358, 366.)

And the rule as it has been settled does not seem to have been transgressed by the answers allowed to be taken at the trial. If it was, it was formally so only, and that should have been corrected by a specific objection presenting that view.

What was stated by the plaintiffs’ agent to the master of the vessel concerning the state of the meat, and his inability to preserve it for such a period of time as would necessarily be required to complete the voyage.to Liverpool under sail, was properly received as evidence in the case. For, in this manner, the master was made aware of the existence of circumstances required to be considered by him for the purpose of properly concluding what should be done in the emergency that had arisen. The statements became so far interwoven in what appears to have transpired, as to render them part of the transaction itself, and as such they were proper for the consideration of the jury.

A witness was examined upon the trial who was a passenger upon the steamer and left her when she met the City of Richmond, another steamer employed in the same line. By his testimony it appeared that he returned on board of her to' the city of New York, and again resumed his passage for Liverpool on her departure and arrived there before the City of Brussels, which consumed a period of thirty-six days, after the. accident, in reaching her destination. This evidence was not improper for it had some tendency to show what might have been accomplished if this injured steamer had returned for repairs and again resumed the voyage she was endeavoring to make. It was a circumstance connected with the occurrence, which it was not improper should be allowed to appear in the case.

The points already considered indicate the disposition which should be made of this controversy. Other exceptions, it is true, were taken upon the discussion of the motion made to dismiss the complaint and to direct a verdict for the defendant, and to the charge of the court and the omission to charge certain requests made in behalf of the defendant, but it is not necessary to consider them, for the reason that those already examined control the litigation in such a manner as to require the verdict and the judgment to be sustained. No special attention, therefore, need be given to ihese exceptions which have been generally referred to. The judgment and the order should be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    JOSEPH W. DURYEA, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Action,for wrongfully discha/rging water upon another’s lands — the recovery must be limited to the damages sustained prior to the commencement of the action — When a claim must be presented to the Comptroller, unden■ chapter 379 of 1860, before an action lies against the city— Grant of land under water in New York — what restrictions a/re imposed by the ordinances upon the grantee — he is chargeable with knowledge of the limitations imposed upon the power of the officers.

    In an action brought to recover the damages occasioned by the wrongful acts of one who has discharged water and sewage upon the lands of another, no recovery can be had for damages occasioned by the discharge of the water and sewage upon the land after the commencement of the action.
    Such damages, when occasioned by the wrongful acts of the city of New York, are within the provisions of chapter 379 of 1860, providing that no action can be maintained' against the city until after the lapse of twenty days from the
    ' time the claim has been presented to the comptroller for adjustment; and in an action brought against the city to recover such damages, the recovery must be limited to the damages occasioned at the time of the presentation of the claim to the comptroller.
    An ordinance of the city of New York, approved February 22, 1844, relating to the granting of land under water, provided that no such grant should authorize the grantees to construct bulkheads or piers, or make land in conformity thereto, without permission having been first had and obtained from the common council. By chapter 225 of 1845 this ordinance was sanctioned and continued in force.

      Held, that the passage of the act of 1845 gave to the ordinance the effect of legislative authority.
    That even if this were not so, yet, as the ordinance was passed under the authority conferred by the city charter, it was obligatory upon all subsequent grantees, and those deriving title from them.
    That the ordinance abridged the power of the city officials to convey land under water, and prevented a deed from so operating as to confer a title upon the grantee, which would allow him to fill in the land without the consent of the common council, even though no restrictions were contained therein.
    That the grantee was chargeable with notice of the restriction imposed upon the city officers making the conveyance, and could acquire no greater rights than their authority allowed them to create or convey.
    That when such a grantee had, without first obtaining the consent of the common council, built a bulkhead'and filled in such lands, he could not recover from the city the damages occasioned by its having discharged water and sewage upon the said land, thereby washing it away and injuring the bulkhead.

      Duryea v. The Ma/yor (62 N. Y., 592, and 2 Hun, 293) distinguished.

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed at the circuit.

      Francis I/ynde Stetson, for the appellant.

      A. J. Vanderpoel and F. J. Fithian, for the respondent.
   Daniels, J.:

The recovery was for the damages sustained by the plaintiff by-water and other substances, discharged from the Thirty-fourth street sewer, in the city of New York, washing out earth filling, and a bulk-head placed and constructed by the plaintiff upon land conveyed to him by George F. Taiman, who had previously derived his title under a deed made by the defendant to the Farmers’ Loan and Trust Company. The original deed was dated on the 29th day-of January, 1817, while the conveyance to the plaintiff was made on the 1st day of February, 1866. At the time when the deed was made to the company, the land described in it was situated upon the easterly side of Manhattan island, below high-water mark and under the water of the- East river. And when .the plaintiff acquired his title to the portion of the same premises upon which the injury is alleged to have taken place, that also was still under the water of • the river. Before he derived his title the sewer in question had been constructed and a side-cut extended in a northerly direction from it, terminating at a point near the plaintiff’s southerly line. From that point the water was discharged in such a manner as to send it over the land conveyed to the plaintiff. After he had acquired title-to this land and principally in the years 1867,1868, and the early part of 1869, he procured large quantities of earth to be deposited in the water for the purpose of bringing the land above its surface, and in that manner rendering it useful to himself. For the same purpose he constructed a bulkhead along-the easterly end of the land upon what was known as the commissioners’ bulkhead line, and he also constructed a similar bulkhead upon the northerly side of the property conveyed to him. By the water and other substances discharged from the point where the side-cut of the sewer terminated, and which was from there sent in large quantities over his premises, a part of the filling made by him, as well as the bulkhead on the northerly side of his land, were carried out, and the same became lost to the plaintiff in the action.

The suit was commenced on the 7th day of October, 1869, for the recovery of the damages sustained in that manner. Upon the trial of the action the court was asked to restrict the plaintiff in his recovery to the losses which 'had at that time been sustained by him, or to such a sum as appeared to be sufficient to compensate him for the losses originating in what up to that time had taken place. The court declined to adopt that view and allowed the plaintiff to recover for such losses as had been caused by the discharge of the water from the sewer upon his premises down to the years 1870 and 1871. And to the rulings allowing such a recovery exceptions wei’e taken by-the defendant. From the statement which was made to the jury of the several items of damages claimed by the plaintiff, the fact is also indicated that they must have allowed the plaintiff to recover for losses produced by the discharges made from the sewer and passing over his premises after the time when the action was commenced.

As the discharges flowed from the sewer upon the plaintiff’s property they constituted a nuisance, and for that nuisance a distinct and separate action might have been brought by him for every discharge made by the sewer upon his property. Each discharge was, in and of itself, a substantive cause of loss, and for that reason • constituting a separate right of action. If the cause of the plaintiff’s injury had terminated before the time when the suit was commenced then he might properly have been permitted to recover all the damages occasioned by such cause, for they would be incidental only to the right of action arising out of the wrong itself which had previously been consummated. But inasmuch as the wrong was repeated after the action was commenced, the portion of the damages originating in that wrong formed the subject-matter of a distinct action by themselves and could not properly be allowed to enter into the verdict in this case. As to wrongs of this nature their continuance has been uniformly held to be an additional nuisanee, forming of itself the subject-matter of an action. (Vedder v. Vedder, 1 Denio, 257; Brown v. Cayuga, etc., R. R. Co., 2 Ker., 487, 492; Warner v. Bacon, 8 Gray, 397, 402: Phillips v. Terry, 3 Keyes, 313; Bare v. Hoffman, 79 Penn., 71; Duncan v. Markey, Harper [S. C.], 276.) And for that reason, only such damages could be recovered for the causes alleged in the complaint as the ground of action, as originated solely from that source before the commencement of the action. (Blunt v. McCormick, 3 Denio, 283.) Neither the case of Tilley v. Hudson River Railroad Company (29 N. Y., 252), nor those of Ludlow v. Village of Yonkers (43 Barb., 493) or New York Guaranty, etc., Company v. Flynn (55 N. Y., 653), support any different conclusion. The first was brought for a'loss sustained by the wrongful killing of the plaintiff’s wife; and whatever that loss may have been was wholly attributable to the act forming the exclusive foundation of the action itself. It all originated in that cause. The same observation is equally applicable to the case secondly referred to, for there the damages were produced by the falling of a wall, and whenever they accrued they were traceable solely to that circumstance. And in the last of these cases the interest allowed to be recovered was upon the value of the property of which the plaintiff had been deprived by a wrong wholly perpetrated before the commencement of the action. The same observation may also be made concerning the case of Wilcox v. Plummer (4 Peters, 172), which, in the opinion that was given, was distinguished from a controversy of this nature where the nuisance of to-day is stated to be a substantive cause of action, and not the same as the nuisance of yesterday. It is clear under the force, as well as the language of these authorities, that no recovery should have been permitted in the case, beyond the amount that appeared to be sufficient to indemnify the plaintiff for the loss and injury sustained by him in consequence of the’discharge'from the sewer passing-over his premises before the 7th day of October, 1869.

Even this rule would probably be more liberal to the plaintiff than he had any right to insist upon for the determination of the extent of his loss, for by chapter 379 of the Laws of 1860, no action whatever was allowed to be prosecuted or maintained by him against the defendant until after the lapse of twenty days from the time his claim should be presented to the comptroller of the city for adjustment; and not then, unless it should further appear that upon a second demand in writing being made upon the comptroller, after the expiration of the twenty days, he neglected or refused to make an adjustment or payment of the same. This prohibition was made so broadly as to include .the plaintiff’s. claim, and it was necessary for the purpose of maturing a right of action upon it that the requirements of the statute should appear to have been observed. And to show a compliance with these provisions it was alleged in the complaint that the claims the plaintiff then made were so presented on the 20th day. of August, 1869. The failure of the comptroller to adjust or make payment of the claims when the final demand in writing was made upon him, authorized the plaintiff to prosecute his action for the recovery of such claims, and that was the utmost extent of the right arising out of these circumstances. A claim for subsequently accruing losses, occasioned by the discharges from the sewer being continued after that time, was the subject-matter of other and different causes of actions from those so presented to the comptroller. And under the provisions of this statute they could not form the foundation of a recovery against the city, until they themselves had been so presented, and payment of the amount had been refused. This is the clear and obvious effect of the statute,, and it accordingly entitled the defendant to the instruction that the plaintiff was not entitled to recover damages occurring subsequent to August 20, 1869.

Exceptions wTere also taken to the direction of the court, that the plaintiff was entitled to recover interest upon the losses sustained by him. But under the authority of Parrott v. Knickerbocker, etc., Ice Company (46 N. Y., 361, 369), these exceptions cannot be sustained.

Under the deed which was executed and delivered to the Farmers’ Loan and Trust Company, and through which the plaintiff derived his title, it was held by the Court of Appeals, in Duryea v. Mayor, etc. (62 N. Y., 592), that he had the right to fill in this land, and construct the bulkhead on the northerly side of it, because he had acquired the legal title to the property. And by that ruling the decision in Duryea v. Mayor, etc. (2 Hun, 293), in which a different construction had been given to the terms of the deed, was reversed. If the case were now presented as it was then made to appear, the construction finally given to the deed would authorize a recovery by the plaintiff. But upon the last trial of the action, certain sections of an ordinance enacted by the common council of the city of New York, and approved February 22, 1844, were produced in evidence. And by their terms the case appears to be now distinguisbable in its circumstances from the manner in which it was presented upon these preceding occasions. The deed to the Farmers’ Loan and Trust Company was executed under the authority of this, ordinance, which provided that a grant of land under water, as this was, should only be made after a report by the comptroller and street commissioner to .-the commissioners of the sinking fund, stating the sum of money which should in their judgment be-charged as a consideration for the grant, and only then in case a majority of the commissioners should agree to the terms so reported. It was further provided by this ordinance that no such grant should authorize the grantee to construct bulkheads, or piers, or make land in conformity, thereto without permission so to do was first had and obtained from the common council. By chap. 225, Laws of 1845, this ordinance was sanctioned and continued in force. The language of the act in substance is, that the ordinance in force, and approved by the mayor of said city on the 22d day of February, 1844, and any other ordinance afterwards passed in conformity with the provisions of this act, and relative to the sinking fund mentioned in it, should not be amended without the consent of the legislature first had and obtained. And the said ordinance ” it was further provided should remain in full force, until the whole of the debt, created for the introduction of the Croton water into-the city of New York should be fully redeemed.” (Laws of 1845 225, § 5.) It was not merely so much of this ordinance as directly related to the sinking fund which the legislature provided should not be amended without its consent, but the entire ordinance was made the subject of the act. It was referred to in terms admitting of no other construction. Those terms, “ the ordinance,” and said ordinance,” which by their proper signification were adapted to no-other construction than that they were designed to include the entire ordinance, and the act consequently gave it the effect of legislative authority. But even if this act should be so construed as not to include this section of the ordinance, its effect would still be the same, for it is to be assumed to have been adopted under the authority created by the charter of the city, and that of itself would be sufficient to render it obligatory upon the grantee in the deed, and all others deriving title under it. It operated as a restraint upon the grant itself, for it was declaratory of its effect, and as both the ordinance itself and the act referred to were passed before the execution of the original deed to the Farmers’ Loan and Trust Company, they, so far as they apply, restrain the effect and operation of that conveyance. When it was made and delivered, it must accordingly be held to have been done in subordination to to this existing law relating to the subject-matter of the grant and the conveyance by which the pz’operty was transferred.

This property underlaid a portion of the water of the harbor of the city of New York, and its outer line was extended to a point where the interests and commez’ce of the city were believed to require the construction and maintenance of substantial piers. The work contemplated to be performed and the uses to be made of the land were matters of public intei-est which could be promoted and secured in no other way than by appropriate legislation, and it was to maintain that result that the ordinance mentioned in this act was adopted. Similar legislation of a general character had previously been enacted concerning the conveyance and use of lands lying under the navigable waters of the State. (1 R. S. [2d ed.], 194, 195; amended by chap. 283, Laws 1850.) And it had' been the practice of the legislature, prior to the enactment of this act of 1845, to declare and prescribe the effect to be given to conveyances executed by public officials. In accordance with that policy the effect which deeds should have which might be given for the unappropriated land of the State, or upon sales made for the nonpayment of taxes, or under execution sales, or upon the foreclosure of mortgages, has been prescribed by the laws of the State, and no doubt has ever been entertained concerning the propriety of this legislation. If it can be sustained in one instance, where land is to be conveyed by persons exercising official authority, it can be in the others, for no reason is discovered upon which any practical' distinction can be drawn by which one class of cases may be subjected to while another shall be excluded from the effects of such legislation. In transactions of this nature it has consequently been assumed that deeds executed pursuant to such authority must be so restrained as not to be allowed to transcend its terms. For that reason this ordinance was considered to be effectual in its restraints in the case of the Mayor, etc., v. Hart (16 Hun, 380). It was a judicious exercise of authority for it related to a matter of great public importance; and while it continued in effect, as it certainly appears to have been at the time when the deed to the Farmers’ Loan and Trust Company was executed by the mayor of the city, it deprived him of the power to convey the title relieved of the restraint imposed by the terms of this ordinance. An effort has been made to construe the ordinance in such a manner as to exclude the filling made and the bulkhead erected by the plaintiff, but its terms are too clear to permit that construction. They are to the effect that the grant should not authorize the grantee to make land in conformity thereto without the permission of the common council, and when they are applied to this subject-matter it is quite clear that they were intended to prevent the land conveyed under the preceding authority of the ordinance itself from being filled in at the mere instance of the grantee. What was to be done in that respect was to be the subject of deliberate consideration and direction, so that it might be performed in such a manner as to promote the public interests as well as those of the grantee himself.

The restraint imposed prevented the deed from so operating as to confer a title upon the grantee which would allow him to fill in the land without the consent of the common council. It abridged the power of the city officials to convey the property free from that restriction. They were the agents of the city acting only under defined and limited authority, whose terms they could not exceed; and the party dealing with the mayor and the other officials of the city, was chargeable with knowledge of the terms by which this restriction had been imposed upon them. They were simply the agents of the city, and the party was bound to ascertain what was the extent and limits of their authority; and no greater rights could be acquired by dealing with them than that authority allowed them to create or convey (North River Bank v. Aymar, 3 Hill, 262; Mechanics' Bank v. N. Y. and N. H. R. R. Co., 3 Kernan, 599), where it is in terms held to be a fundamental proposition that a principal is bound only by the authorized acts of his agent. (Id., 632; Farmers', etc., Bank v. Butchers', etc., Bank, 4 id., 623; S. C., 16 N. Y., 125; Exchange Bank v. Monteath, 26 id., 505; President, ete., v. Cornen, 37 id., 320.)

This principle has been in express terms applied to the acts of officers of municipal corporations. They are required to keep within the limits of the authority conferred upon them by law, anci so far as they transcend such limits, their acts are void for want of authority, and parties dealing with them must at their peril acquaint themselves with the extent of the authority proposed to be exercised. (Delafield v. State of Ill., 2 Hill, 160; Hodges v. City of Buffalo, 2 Denio, 110; Dillon on Mun. Corp. [2d ed.], § 381, and cases cited in note, Id., §766; Smith v. City of Buffalo, 1 Sheldon, 193.)

When the filling-forming the subject of the complaint was placed in the water, the act of the plaintiff in putting it there was therefore subject to this prohibition contained in the sinking fund ordinance, and if it was placed there without the consent of the common council, then, as it was held by this court when the same controversy was before it upon the first occasion and substantially by the Court of Appeals, the plaintiff secured no right of recovery against the city because it had been carried out by means of the discharges from the sewer. In that view of the case the filling as well as the northerly bulkhead were placed upon the land in violation of the law, and out of that violation no right of action could properly accrue to the plaintiff.

In 1856 an ordinance was adopted providing for the filling of this and other land situated upon the easterly side of the city. By that ordinance it was proposed to extend the filling much further into the waters of the harbor than the line by which the plaintiff was governed in what he did. But this ordinance required that the filling which it provided for should be completed on or before the 1st day of January, 1860, and up to that time no title to this property had been vested in the plaintiff and no part of this filling had been made. But before that time the legislature deeming the importance of the subject to be such as to require its special attention, intervened and provided for the appointment of a commission, a part of whose duty it was to recommend the establishment of such exterior lines, in different parts of the East river along the water front of the city of New York, beyond which no erection or permanent obstruction of any kind could be permitted to be made. (Chap. 121, Laws 1855, sub. 3, § 1.) ■ And pursuant to the recommendations of this commission, the legislature afterwards prescribed that exterior line in front of this land. (Chap. 763, Laws 1857.) That limit appears to be différent from the one mentioned in the ordinance of 1856, thereby abrogating the provisions made upon the subject by the ordinance. It provided a complete system in and of itself, and necessarily, therefore, superseded the ordinance. (Heckmann v. Pinkney, 81 N. Y., 211, 215, 216.) Thig act prohibited earth, stone or other solid material from being placed in the waters of the port beyond the bulkhead line, or line of solid filling established by its provisions. But it contained nothing prescribing when or under what regulations the filling up to that line should be made, and the consequence of that omission was to leave the preceding ordinance of 1844, sustained as it was by the act of 1845, still in force, and applicable to the property in controversy. Nothing was provided by this legislation, under which the harbor line was established, in any manner inconsistent with this ordinance, and for that reason the latter was neither abrogated nor limited by such legislation.

In July, 1867, written permission was given to the plaintiff by the street 'commissioner to build a bulkhead on the harbor commissioner’s line, foot of Thirty-fifth street, East river, but it was further stated that the same was not to be filled in behind until that was directed by the superintendent of wharves. This permission, however, was not that which the ordinance provided should be obtained before filling should be placed in the water, for it was not given by or under the authority of the common council, which possessed, under the ordinance, exclusive jurisdiction over this subject. And it was held to be ineffectual as authority for the filling of this land when this cause was first before the General Term, and also upon its reconsideration after a second trial of the issues had taken place.

But even if the permission had heen authorized, it was not broad enough to legalize the act of the plaintiff in filling in the land, or constructing the bulkhead, which was carried away by the water, for it simply authorized him in terms to build a bulkhead on the commissioner’s line at the foot of Thirty-fifth street, which clearly did not include either front or the northerly side of the land described in his deed; and in addition to that he was prohibited from filling in behind the bulkhead until he was directed so to do by the commissioner of wharves, and no direction of that kind appears to have ever been given to him.

Certainly the plaintiff at no time received any permission from the common council to make the land which was carried out by the flowage from the sewer. "What he did for that purpose was therefore without authority, and the fact that it was afterwards washed out by the sewer, whose existence had been observed by him before any part of the work had been done, created no right of action in his favor against the defendant. Other points have been presented in the case, but as those already considered are regarded as controlling its disposition, they do not now require attention. As the case has been considered the judgment recovered should be reversed, and a new trial ordered, with costs to abide the event.

Davis,,P. J., concurred; Brady, J., concurred in the result.

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


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    In the Matter of JOSEPH HUSSON an Attorney.

      Attorney — only compelled to pay over, summa/rily, money due to a client, when it was received in Ms professional character.

    One Husson, an attorney, having borrowed money from one of his clients who had applied to him for advice as to investing it, and delivered mortgages to her to secure the repayment thereof, subsequently induced her to surrender and satisfy one of the mortgages to enable him to sell the property covered by it, he stating that he had plenty of other property and could and would replace the mortgage by another Just as good. He having failed to deliver other security as agreed, the client applied for and procured an order requiring him to pay over the amount of the mortgage and the costs and expenses of the application, and providing that in case he failed so to do a warrant to arrest him as for a contempt should issue.

      Held, that Husson did not receive the property in his professional character and that the court erred in making the order.
    Appeal by Joseph Husson from an order requiring him to pay to Catharine M. Raymond, or her attorney, the sum of $3,280, together with $102, referee’s fees, and a counsel fee of $250 for her expenses in the proceeding, and in case of default that a warrant of attachment as for contempt should issue for the arrest of Husson, upon which he should be brought before the court to answer for his neglect or refusal to obey the direction given for the payments of these sums of money.

      Abram Klmg for the appellant Husson.

      Theron G. Strong for the respondent.
   Daniels, J.:

The appellant was engaged in the practice of his profession as an attorney, and was employed by the petitioner to perform services for her in that capacity. She had in her possession the sum of $9,000, which she desired to have invested, and under her authority Husson was consulted by her husband upon the subject of finding an opportunity for such investment. About a week after the consultation took place, Husson suggested to Mr. Raymond that he would like to borrow some money himself, for which he would give bonds and mortgages. This suggestion resulted in an arrangement with Mrs. Raymond, by which Husson was to have the $9,000, and it was delivered to him upon the understanding that proper securities should be executed and delivered for the repayment of the amount. After that time such securities were executed and delivered by him. While they were held for or on behalf of the petitioner, they were at the request of Husson surrendered to him for the purpose of being replaced by other securities of a similar nature. Such securities were also afterwards made and delivered, but by their terms an unathorized extension of time for the payment of the debt was made for the period of about eighteen months. After these securities had been delivered, and while they were held by Mrs. Raymond, the petitioner, Husson applied to her for one of the mortgages, together with a satisfaction of it. This application was made upon the representation that he desired to sell one of the houses and lots, and could not otherwise make a clear title to it, that he had plenty of other property and would replace this mortgage by another just as good. She delivered the mortgage to him with the satisfaction of the same, which was afterwards entered of record. No other security was at any time substituted in place of the surrendered mortgage, and it was because of the neglect or refusal of the attorney to deliver such a security in fulfillment of the terms of his obligation that the fine in question was imposed upon him by the court.

In support of the appeal taken it has been urged that the attorney was not subjected to a summary application of this nature for the redress of the wrong perpetrated by him. Under the evidence which was given his conduct seemed to have been fraudulent in its character, and by means of it he succeeded in depriving the petitioner of a mortgage held by her for the security of the sum of $3,000 besides interest. But the practice of the courts has not extended so far as to justify a proceeding of this nature against an attorney, simply because he has been guilty of fraudulent misconduct in his dealings with other persons. It extends, on the contrary, no further than to restrain and punish the attorney for misconduct in exercising the functions of his office, or when it is connected with some professional employment. "Whenever he may be employed professionally, or moneys, in that capacity, may pass into his possession, and he conducts himself dishonestly or unprofessionally, he may be punished by means of this summary proceeding. And it would very properly be denominated a special proceeding, as that phrase has been made use of in section of the Code of Civil Procedure. But where- he may have engaged in transactions having no relation to the practice of his profession or the exercise of his official functions as an attorney, there his misconduct cannot be redressed by a' proceeding of this nature. In instances of that character he acts simply as an individual and without reference to the fact that he may be a member of the legal profession. Confidence may, it is true, be reposed in him by reason of professional relations existing between himself and the person dealing with him, and in that manner the transactions themselves, forming the subject of complaint, may be induced. But because that may be the case, it does not follow that jurisdiction of this nature can be exercised, over the defaulting party. The rule, on the contrary, is that for wrongs arising out of such transactions, the means of redress are the same as those ordinarily applied in the course of legal proceedings, and they are by actions as distinguished from proceedings of the nature of those taken against the appellant.

The transaction between the parties, as it has been presented, eonsigted simply of a loan of the sum of $9,000 by the applicant to Husson, the repayment of which he secured by bonds and mortgages. After that, the applicant was fraudulently induced by him to surreuder and satisfy one of the mortgages, upon his promise to replace it by another equivalent security. That he failed to do, and by that failure became liable to her for the loss or injury' which she has sustained. It is clear that in all that was done he was acting solely for himself and not as an attorney. It was a transaction throughout with him as an individual having no relation whatever to his professional character, and for that reason his misconduct in it could not be punished by means of a proceeding adapted and maintained solely for the purpose of controlling the conduct of attorneys in their relations with their clients. The rule upon this subject is, that where an attorney is employed in a matter wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute the trust reposed in him, but when the employment is so connected with his professional character as to afford a presumption that it formed the ground of his employment there the court will exercise this jurisdiction over him. Accordingly where he is employed to prepare deeds or conveyances, or to perform any other act belonging or appertaining to the profession of the law, and his obligation to perform it faithfully arises out of the duty imposed upon him in that character, and he receives money or property in that capacity, he may be summarily compelled to observe all the obligations of good faith and fidelity in such dealings, and that practically is the extent of the control which the court can exercise over the conduct of an attorney upon such an application. (Cocks v. Harman, 6 East, 404; Matter of Lowe, 8 id., 237; Matter of Lord, 2 Scott, 131; Anonymous, 19 L. J. [Exch.], 219; Matter of Cutts, 16 Law Times [N. S.], 715 ; Goring v. Bishop, 1 Salk., 87; Matter of Aitkin,, 4 Barn. & Ald., 47; Matter of Cardross, 5 Mess. & W., 545; Matter of Haskin, 18 Hun, 42; Matter of Chittey, 4 Hill, 46, note; Matter of Dakin, Id., 42.) The case of Grant v. Chester (17 How., 260) is not in conflict with the rule which has been stated, for it there appeared that the attorney received the money which he failed to invest, in his professional capacity as such. •

While it is true that Husson did act in othér matters as the attor'ney of the petitioner, it is equally so that this transaction was not of that character. The remedy of. the applicant for the wrong to which she has been subjected was that of an ordinary action and not of a proceeding of this nature. The order consequently must be reversed and the application denied, but without costs to the appellant.

Davis, P. J., and Brady, J., concurred.

Order reversed and application denied, without costs.


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    JOHN B. CORNELL and JOHN M. CORNELL, Appellants, v. ASHBEL H. BARNEY, FREDERICK W. SALEM and Others, Respondents.

      Mechanics’ lien lam — when a lessor is not liable for improvements made by the lessee, as required by the lease— Ohap, 379 of 1875.
    The defendant Barney leased certain land in the city of New York owned by him to one Salem for the term of fifteen years, Salem agreeing to pay the rent, as provided in the lease, and to build or cause to be built a building thereon, to be worth at least $50,000, Barney agreeing to loan and advance to him, to aid him in so doing, the sum of $25,000, upon its appearing that an amount equal to that to be loaned had been expended in the erection of the building. The lease, which was duly recorded, provided for its renewal upon its expiration, and also declared that in case the tenant failed to perform the covenants and agreements thereof, the term should cease and the buildings, fixtures, etc., should revert to and become absolutely the property and estate of Barney.
    This action was brought by the plaintiffs, who had, in pursuance of a contract made with Salem, furnished material and performed labor in erecting the building, to enforce as against Barney a mechanics’ lien, filed under chapter 379 of the Laws of 1875.

      Held, that as the lease was recorded the plaintiffs were chargeable with knowledge of its contents.
    That the debt had not been created at the instance of Barney, or of his agent, nor had he caused the building to be erected or the improvement to be made within the meaning of the act, and that the plaintiff had acquired no lien upon his interest in the land.
    That Salem having failed to comply with the terms of the lease and perform his contract, the building, so far as completed, reverted to Barney, free from liability for the plaintiffs’ claim.

      Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.

      Samuel Skidmore, for the appellants.

      Edward Patterson, for the respondents.
   Daniels, J.:

The action was brought to foreclose a mechanic’s lien. The trial resulted in a dismissal of the plaintiffs’ complaint. Exceptions were taken to the determination of the court upon which that direction was given, but in neither of them was the point in any form raised that the action- should have been maintained, against the defendant Salem, who was the contractor with the plaintiffs and under whose contract they furnished the materials, the value of which they endeavored to recover in this action. The exception was taken genei’ally to the whole of the twelfth conclusion adopted by the court. That included not only the determination, that the defendant Barney, who was the owner of the property, was not liable in the case, but in addition to that also the -direction that the complaint should be dismissed so far as it was against Salem, the contractor, and to succeed upon such an exception the party failing must be able to maintain the proposition that the entire. conclusion made the subject of the exception was erroneous and unfounded. If the direction given was right as to Barney the exception consecpiently must fail. A similar difficulty is encountered in considering the exception taken to the refusal of the court to find the conclusion of fact and determinations of law, presented on behalf of the plaintiffs. No particular proposition was excepted to because of the refusal to adopt the views embodied in these proposed findings, but a general exception was filed to the omission of the court,'m which it was stated that the plaintiffs separately exceptéd to the refusal of the court to find each of the- conclusions presented for its consideration. It has been often held that such an exception is too gpneral to raise any specific point for consideration, unless all the propositions embodied and referred to are discovered to be erroneous. Such cannot be held to be the result of the omission of the court to find upon the points presented for that purpose,' and eonsequently this very general exception can afford no assistance to the plaintiffs in the case. If the court was right in holding that the action could not be maintained against Barney as the ■ owner of the land, then the plaintiffs must fail in their appeal because of the informalities in the exceptions which have been filed in the case. Whether the proceeding can be sustained against Barney is therefore the important point requiring to be considered in the disposition of the appeal.

The ground upon which it was proposed to charge him by the complaint was that there was an amount due to Salem, the contractor, upon the contract made between them for the improvement of the property. But as that did not appear to be the case upon the trial of the action it was proposed to enforce the claim of the plaintiffs against the property upon the ground that Barney, the owner, had himself procured the improvements to be made.

For the purpose of sustaining that point reliance was placed upon the agreement made between Barney as the owner and Salem as the lessee of the property. This agreement was made in June, 1877, and by its terms Barney leased the property to Salem for the term of fifteen years from the first day of the following month of J anuary at the yearly rent of $4,100, payable in quarterly payments. A further agreement was contained in the lease by which Salem, the tenant, agreed that he would build or cause to be built on the land a good and substantial building to be used as a brewery and to cost and be fully worth the sum of $50,000, and that the same shotfld be finished by the 1st day of January, 1878. For the purpose of aiding and assisting the tenant in the erection of the building Barney agreed to loan and advance to him during the progress of the work the sum of $25,000 upon its being made to appear that an equal amount, to that to be at the time loaned, had been paid and expended by the tenant in the erection of the building. To secure this loan, which was to be made from time to time as the work progressed, a mortgage was finally to be given upon the interest of the tenant in the building. In case the tenant, within the time provided for, caused the building to be erected, then Barney covenanted to renew the lease at the expiration of the fifteen years for a succeeding term of like duration; and other renewals of a similar character were provided for by the terms of the agreement. It was then declared that in case the tenant should fail or neglect to perform the covenants and agreements to which he had been previously subjected, or any or either of them, then and in that case the term of the tenant in the premises should cease and determine and the buildings, fixtures, etc., should -revert to and become absolutely the property and estate of Barney. It appeared in the case that Salem, the tenant, failed to perform that part of the agreement which provided for the erection of the building, and the consequence was that by the express terms of the lease his interest in the land as well as in the building reverted to and became again the property and estate of the landlord.

Barney in no manner contracted either directly or indirectly with the plaintiffs for the materials furnished by them. That was, on the contrary, done by an agreement executed by the tenant under seal to the plaintiffs, and under that agreement the material supplied by them, the value of which they claim to recover in this action, were all delivered. It has been insisted, however, that as Salem, the tenant, had become obligated to Barney, the owner, to erect and build, or cause to be erected and built, this building upon the demised premises, that the owner had subjected his property to a legal liability for the payment of the debt that might be incurred under the provisions of the statute relating to transactions of this character. These provisions are contained in chapter 379 of the Laws of 1875, and they subject the owner to a liability of this nature, where the materials may be furnished at his instance, or at the instance of his agent. (Laws 1875, p. 436, § 1.) "What the legislature intended by the use of these terms is further indicated by the third section of the act, in which it is declared that the land upon which the building may be constructed shall be- subject- to the liens provided for, where it belongs to the person who caused the building to be erected. And these are the only provisions which it appears to be essential to consider for the purpose of disposing of this controverted point in the case.

Under them, to render the property of the owner subject to a lien for the debt, it must be created at his instance or at the instance of his agent, or by causing the building to be erected or the improvement to be made. In this respect the language of the act does not very materially differ from that employed in the one which it superseded. For by that act the property of the owner became subject to such debts as were made for its improvement, when they were contracted by or in accordance with the directions of the owner or his agents. (Laws 1863, chap. 500, § 1.) And under that act a contract made between the owner and the tenant, containing provisions similar to those included in the agreement made between these parties, was held not to be sufficient to charge the property of the owner with the payment of debts, contracted by the tenant in making the improvements provided for in the lease. (Knapp v. Brown, 45 N. Y., 207; Muldoon v. Pitt, 54 N. Y., 269.) While the phraseology of this act has not been literally followed in the enactment of the law of 1875, terms, of substantially the same import have been made use of upon this subject. For in judgment of law, and as a matter of construction, the debt could not be contracted at the instance of the owner or his agent without some actual interposition or direction given by one or the other upon that subject.. The terms used substantially contemplate the order, direction or request of the owner of the property. Some voluntary act. must be performed by himself or his agent, resulting in the delivery of the materials or the contracting of the debt, before the latter can properly be held to have been created at his instance. He must cause the work to be done or the materials to be supplied, and in this case that cannot, in any form, be properly said to hav§ been done, for nothing transpired upon this snbject between himself and the plaintiffs. They were induced to furnish the materials solely and wholly on what transpired between themselves and Salem, the tenant. It was he who applied for them, and the contract under which they were delivered was entered into with him and with no other person. And when that was done the. plaintiffs were chargeable with notice of all the terms contained in the lease, for it had been recorded before that time.

It was at the instance of Salem, therefore, that the materials were delivered, and he was the person who, in the terms of the law, caused them to be delivered. Hnder the agreement which was made with him, and inserted in the lease, it 'washe and he alone who was to erect or cause the building to be erected. The owner of the property assumed no obligation whatever for that purpose; all that he did was to agree to loan the tenant a certain sum of money to be used by him in defraying the expenses of putting up the building. But neither that circumstance nor the obligation imposed upon the tenant to erect or cause the building to be erected was sufficient to render the owner’s property liable for the payment of this debt; for neither of these circumstances; nor both taken together, either caused the materials to be delivered, or established the fact that they had been procured at the instance of the owner or of his agent. For that reason tlie case was not brought within the terms required by the act of 1875, to be complied with before the property of the owner could.be rendered liable for the cost of the materials used in making an improvement upon it of the nature of that agreed to be made by the. tenant. The case in this respect differed materially from that of Otis v. Dodd (24 Hun, 538), which was decided upon the effect of chapter 489 of the Laws of 1873, rendering the land liable for the cost of the labor and materials performed and used in its improvement when that shall be done with the consent of the owner; and from Burkitt v. Harper (79 N. Y., 273), where the land was rendered liable when its owner permitted it to be built upon, or any building upon it to be repaired, altered or improved. "Why this diversity should exist in the statutes of the State concerning transactions of this nature it is not easy to perceive. By chapter 478 of the Laws of 1862, the land of the owner is subjected to liability for debts contracted in making improvements upon it when that shall be permitted by him. But this act includes only the counties of Kings and Queens, And by the act of 1873, as it has been amended by chapter 233 of the Laws of 1875, in all other portions of the State, except New York, Onondaga and Rensselaer and the city of Buffalo, a like liability has been provided when the improvement may be made with the consent of the owner of the property ; while in the county of New York to create such a liability it must be caused by the owner, or the debt be created at his instance or that of his agent. There is a plain repugnance in the terms employed in the enactment of these statutes, which should not be expected to be found in laws relating to the same subject-matter, but nevertheless it has been created and it is not in the power of courts of justice to remove it. The act applicable to the city and county of New York is much more restricted in this respect than either of the •others which have been mentioned, and it is as so restricted that the courts' are required to carry it into effect. Under the restrictions the plaintiffs’ debt was not a charge upon the property of Barney who owned the land, for it was not created at his instance or that ■of his agent, neither was the improvement caused to be made by him; that was the voluntary enterprise of the tenant himself; it was he who was to cause it to be accomplished as a consideration for the leasing of the land to him, and the agreement made by its owner to loan him the money mentioned in the lease. This view was •elaborated and considered in Burbridge v. Marcy (54 How., 446), and the same conclusion was adopted as the only one deemed to be consistent with the language made use of in the statute. And upon the authorithy of that case Holley v. Van Bolsen (55 How., 333), was afterwards decided. The subject was neither directly nor indirectly considered in the case of Heckmann v. Pinkney (81 N. Y., 211), and the decision then made consequently in no manner indicates what may be a proper disposition to be made of the present controversy. The case of Moore v. Jackson (49 Cal., 109), has been relied upon as sustaining the proposition that Salem was the agent of Barney in contracting this debt. He surely did not profess to act in that capacityfor the contract was made with him alone and on his own account, and as the principal in the transaction, and this case justifies no other construction of what-appears to have been done by him, for it was decided under the provisions of a statute rendering the owner of the land liable, who knowing of the improvement being made upon it, failed to post a written notice upon the premises or the improvement itself within three days after he acquired such knowledge, declaring that he would not be responsible for the expenses .of the improvement. The owner in this case failed to observe this requirement, and he was held-liable because of that failure, and for the additional reason that it was understood that the vendee when he took it intended to improve the property. Under the terms of the statute relating to this transaction and the decisions of the courts construing them, and preceding similar provisions, there seems to be no sound reason upon which the property of Barney can be held liable for the payment of the plaintiffs’ debt.

By the agreement which was made, whatever the tenant did towards the erection of the building, reverted with the land to Barney, as its owner, as a consequence of the tenant’s failure to observe and perform the terms of the stipulations made with him. The same disability which prevents the plaintiffs from enforcing their debt against the land itself is also equally as operative in the way of exonerating so much of the building from it as was placed by the tenant upon the property. For that likewise reverted to and vested in Barney, and as the lease was recorded before their contract was entered into, they made it subject to that contingency.

During the progress of the trial the plaintiffs offered to prove that Salem, the tenant, had done an amount of work in the construction of the building which was more than double in value the sum which Barney had advanced towards its payment. But as the tenant had failed to perform the terms of his agreement, and in consequence of that his term in the land had reverted to and become again the property of Barney, together with so much of the work as had been done upon it, the plaintiffs’ case would not have been advanced by the allowance of this proof. For that reason the exception taken to its exclusion is not capable of being, sustained. Other exceptions were taken in the case, but as those which have already been considered necessarily require it to be determined against the plaintiffs they do not' demand any special examination for the purpose of disposing of it. As the case has now been presented the appeal cannot be sustained and the judgment should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


author: Davis, P. J.;

text:
    JAMES McGINNESS, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      •Common council of New York — has no power under the cha/rtm' to settle and compromise claims against the city.

    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the' court.
    The complaint alleges that the plaintiff was the owner of a horse, cart and harness, which were lost solely through the negligence of the defendants; that the common council of the city acted in reference to the loss, and passed a resolution directing that he be paid the sum of $350; that shortly thereafter he called upon the comptroller in relation to the subject, who declined to settle, adjust or pay the same; that he again presented his claim to that officer, but that it was never paid. The resolution referred to in the complaint authorized and directed the comptroller to draw his warrant in favor of the plaintiff for the sum named, to reimburse him for the loss of a horse, cart and harness from the pier at the foot of Fifty-third street, East river, caused by a defective string piece, said amount to be charged to the appropriation for “ city contingencies,” or any other appropriate account. The plaintiff demurred to the defense interposed by the defendant, which, alleged exhaustion of the moneys appropriated for “ city contingencies,” as not stating facts sufficient to constitute a defense to this action.
    Justice Lawrence, after hearing argument upon the demurrer, rendered .judgment for the plaintiff, with costs. In his opinion he announced as a rule of law, the liability of the defendants for any loss or damage which the plaintiff sustained by reason of the defective construction of the pier, or its dangerous condition, and declared that he knew of no law which prohibited the city from compromising such a case and thereby avoiding litigation. He further said that the law imposed the liability upon the defendants, and that "the plaintiff’s right of action was complete when the accident occurred, and further, that if the defendants became convinced that they could not successfully resist a suit at his hands, and therefore determined to compromise the claim, then he could not in justice lose his right of action against them by their failure to make an appropriation. No appeal was taken from the judgment thus rendered.
    Upon the trial the plaintiff’s counsel offered in evidence the resolution of the common council, which was objected to upon the ground that that body had no power to pass it, and that it was incompetent evidence until the plaintiff first proved that there was money to the credit of the appropriation, to be disposed of when the resolution was passed. Plaintiff then rested.
    The defendants’ counsel then put in evidence the summons and complaint to fix the date of the commencement of the suit in April, 1876. It was then admitted that demand for payment was made upon the comptroller by the plaintiff on the 1st of March, 1875. The defendant’s counsel thereupon moved to dismiss the complaint upon the following grounds:
    ' First. That the cause of action presented by the plaintiff is founded upon the loss of a horse, wagon and harness, alleged to have occurred in 1869, more than six years prior to the commencement of the action, and that, therefore, the action is barred by the statute of limitations.

      Second. That the resolution, as the proof in the case stands, is insufficient to give the plaintiff any right to recover, because the common council have no power to direct a payment from the city treasury, except from existing appropriations, and that to give validity to the resolution directing the comptroller to disburse money from a specific fund proof is necessary that there was money to the credit of the appropriation when the resolution was passed.

      Third. That the common council had no power’by resolution to bar the city from the defense of the statute of limitations.

      Fourth., That the common council had no power to enter into a • settlement and adjustment of this claim, and to agree to pay $350 for this alleged loss, for the reason that by the charter of the city in force in December, 1871, the power to settle and adjust all claims against the city is given to the finance department, and to that department only.
    The court at General Term said: “ The demurrer had only disposed of so much of the answer as was demurred to, and the case stood for trial upon the complaint and the general denial.
    “ The plaintiff on the trial produced the resolution of the common council and substantially rested his case upon that. The motion to dismiss clearly raised the question, amongst others, whether that proof was sufficient to maintain the action. I am clearly of opinion that it was not. The power to settle and adjust claims and demands against the city is not vested in the common council. It will be a sorry day for the city when that is done.
    “ As á co-ordinate branch of the city government the powers and duties of the common council are clearly defined and expressed in the charter. The council derives its power from the charter, as do all the other departments of the city government. It is not given to them by their own resolution to adjust and settle disputed claims against the city, nor to determine what claims shall or shall not be paid, nor what amount shall be paid on claims which the department of finance rejects. In this case it is alleged that the plaintiff’s claim had twice been presented for payment to the comptroller and twice refused or rejected. The law recognizes but one mode of establishing the claim after such rejection, and that clearly is not by resorting to the common council and obtaining the passage of an arbitrary resolution ordering the comptroller to pay and charge any designated fund.

      “ To tolerate such a course would lead to monstrous abuses against which the people of the city would have no protection. ‘ Ne sutor ultra crepidam ’ is the rule applicable to every branch of the government created by the act of incorporation, and a rigid enforcement of it alone affords anything like safety for the public. My Brother Beady fails to find any express authority for the course taken in this case by the common council or any precedent for it. This alone establishes the lack of power, for that body would not be likely to have hesitated at any period in the past to have freely used a. power which, if it existed, would effectually put the whole city treasury into its hands.
    The plaintiff may have a good cause of action; if so he must, prove it in the ordinary mode and not by an arbitrary and unauthorized act of the common council. The motion to dismiss his complaint should have been granted, and the exception to the denial is well taken.
    “ The judgment should be reversed and a new trial ordered, with costs to abide1 the event.”

      jK Henry Lacornbe, for the appellant. ■ ■

      Elliot Sandford, for the respondent.
   Opinions by

Davis, P. J.;

Daniels, J., concurring; Brady, J., dissenting.

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


author: Daniels, J.;

text:
    MARY P. SELCHOW, Appellant, v. JASPER STYMUS, Respondent.
    fSvidence— the rule that a stranger to a written agreement may show by patrol that it does not express the 'true contract, does not apply when he claims through one of the parties to it, e. g., it does not apply to a mortgagee seeking to hold a subsequent grantee liable, on the ground that he assumed the payment of the mortgage by the terms of his deed. ' ■

    Appeal from a judgment in favor of the defendant, entered upon ’ an order dismissing the complaint made at the circuit.
    The plaintiff held a mortgage to secure the sum of $850 executed by Delos B. Smith. The premises were subject to a preceding mortgage given by the same party to secure the payment of $6,500. 'Smith conveyed the premises to Griffith, who by the terms of his deed was made to assume the payment of both these mortgages. Griffith afterwards entered into an agreement to convey the same property to the defendant; and he did so convey it subject to the amount unpaid on the preceding mortgage of $6,500, which by the terms of the deed the defendant was made to assume. But no such obligation was imposed upon him for the payment of the plaintiff’s mortgage. To maintain the action, however, it was proposed to be shown that the defendant had agreed to assume and pay her mortgage, either at the time when the formal contract for the sale of the property was made with him, or afterwards when a further statement was signed to the effect that the property was taken subject to the second mortgage of $850.
    The court at General Term said: “ From the testimony of the witnesses, by which this additional agreement was expected to be established, it appears to have been made, if it was made at all, before the formal agreement for the conveyance of the property was made. For that reason the evidence which was offered to prove the fact that the defendant had assumed the payment of the plaintiff’s mortgage was rejected by the court, and the ruling which was made for that purpose is relied upon as erroneous because the plaintiff was not herself a party to the written agreement. In support of this position the authorities are relied upon which establish the principle that a stranger to a written instrument may, when his rights and interests require that to be done, prove by oral evidence the agreement to have been otherwise than as it may have been stated in the writing. (1 Greenl. [7th ed.], § 279; McMaster v. Insurance Co., etc., 55 N. Y., 223, 234; Brown v. Thwrber, 77 id., 613.) But this principle can afford the plaintiff no possible assistance, for in the claim made by her she is obliged to derive it through Griffith, who made the written contract with the defendant, and consequently she stands in privity with him. This principle does not permit a party sustaining such a relation to another to prove the agreement to have been different from the statement made of it in the writing executed and accepted by him. (Eaton v. Alger, 2 Keyes, 41, 45 ; Coleman v. First Nat. Bank, 53 N. Y., 388 ; McMaster v. Insurance Co., supra, 234.)
    “By'the agreement which Griffith entered into with the defendant for the sale of the property, the title was to be taken subject bnly to the first mortgage existing upon the land. It was in express terms agreed that it was to be taken subject only to the mortgage mentioned, in the instrument, and otherwise it was to be free from any and all liens and incumbrances. The proof which was offered to support the plaintiff’s case was in direct conflict with these stipulations, and as she claimed nothing beyond the rights she might be entitled to derive under the agreement as it was in fact made with Griffith, she could not prove that these stipulations did not truly express the agreement he intended to enter into. Its terms were conclusive upon Griffith, and as she stood in privity with him, they were equally so as to herself ”
    Thornton, Earl c& Kiedl, for the appellant.

      John A. Husted, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Bkady, J., concurred.

Judgment affirmed.


text:
    DAVID UNTERMEYER, Respondent, v. LEOPOLD HUTTER and MORITZ HUTTER, Appellants.

      Arrest — a debtor removing and concealing goods, after making a general assignment, is subject to arrest in an action by Ms creditor— Code of Civil Procedure, sec. 550, sub. 2.
    Appeal from an order of the Special Term denying a motion to vacate an order of arrest upon the papers upon which it was granted.
    ■ The court at General Term said: “ The order of arrest in this case was granted under subdivision 2 of section 550 of the Code of Civil Procedure, on the ground that the defendants have, since the making of the contract, or in contemplation of making the same, removed or disposed of their property with intent to defraud their creditors. The fraud charged in this case is in substance that the defendants on the 4th of October, 1879, made a general assignment of their property for the benefit of creditors to one Hirsch, and delivered to the assignee certain property which they alleged to be all that covered by the assignment, but in fact took away from their store and concealed a* larger amount in value of goods, property and money, which they did not deliver to their assignee, but fraudulently concealed from him and their creditors.
    “ It is insisted that the defendants could not be arrested for such a fraud, because whether mentioned in the schedule or delivered to the assignee or not, the title of the property so concealed passed to him, and he alone could maintain an action for it. It may be true that an action to recover the possession of, or for the conversion of the property, could only be brought by the assignee. JBut it does not follow that the transaction of carrying away and concealing the property, before or at the time of making the assignment, with intent to conceal and keep it from the assignee, and also from the creditors, is not a fraud for which an order of arrest could be granted. The transaction is very clearly a fraud upon the creditors of the defendants, and as by their silence upon this motion, they concede the allegations upon which the order was granted, to; be true, there is no difficulty in holding that as one of the consequences of such a fraud, they subject themselves to arrest. The creditor does not bring an action to recover the property or its value, but to recover an indebtedness owing to him by the defendants, and which they have prevented his realizing, perhaps, by the fraudulent concealment of the property which should have been delivered to the assignee. We think the objection made is untenable.”

      A. SteoJcler, for the appellants.

      A. Blwmenstiel, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daníels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, and motion to dismiss appeal denied, without costs.