author: Sedgwick, Ch. J.

text:
    Philip Ebling et al., Resp’ts, v. Joseph Husson, App’lt.

      (New York Superior Court,

      Filed, May 2, 1887.)

    1. Conversion—What constitutes.
    The evidence being such that the jury might legitimately infer that this defendant, after ejecting the plaintiff from leased premises for the nonpayment of rent, held under his control furniture of the premises belonging to the plaintiff, and refused to yield possession upon a demand made to that effect. Held, that these facts were sufficient to support an action by the plaintiff for a conversion of the goods.
    2. Landlord and tenant—Lien of landlord on goods of tenant for NON-PAYMENT OF RENT—WAS AN ACCESSORY OF RIGHT OF DISTRESS—AND DOES NOT NOW EXIST.

      Held, that the lien which at common law the landlord had upon the goods of the tenant for the non-payment of rent was accessory to the right of distress, and that the right of distress having been abolished by statute the lien no longer exists.
    3. Conversion—Partial refusal to deliver possession of goods wrongfully DETAINED.

      Held, that if it were the fact that the refusal to deliver possession of the chattels on the part of the defendant extended merely to part of the goods, yet at the best the defendant could only resist a recovery for such part as the plaintiff might'have taken.
    Appeal by defendant from judgment entered on verdict of jury, and from order denying motion for new trial, made upon the minutes.

      Dennis McMahon, for app’lt; S. Sutton, for resp’t.
   Sedgwick, Ch. J.

The action was for damages for conversion of personal property. The jury found for plaintiffs.

The chattels in question had formed the furniture and fixtures of a beer and billiard-room, leased by the defendant to a tenant or tenants, who owned the furniture and fixtures. The defendant, before the alleged conversion, dispossessed by summary proceedings for non-payment'of rent, the tenant in possession. It is claimed for the defendant on this appeal, that upon the tenant being dispossessed, the defendant placed new tenants in possession of the room, merely leaving the chattels in it, and not taking or assuming any control over them, or custody of them.

The further claim is that while the new tenants were in possession of the chattels, the demand was made upon the defendant, and that it was no evidence of conversion by him, for him not to deliver, as he then had no control over the chattels, and could not have, as he had no right to enter, the premises of his tenant. Peck v. Knox, 1 Sev., 314, is cited.

There was no incontrovertible evidence to support these propositions. The defendant as a witness, denied that a demand had been made as plaintiff’s witnesses had testified it had been made on April 30th. The new tenant testified in substance as the jury might properly find, that he had refused from the first to take custody of the chattels. The officer executing the warrant in the dispossessory proceedings testified that the new tenant refused to take the property. The defendant claimed very soon after the ejection that he had a hen upon the property and himself caused it to be stored for whom it might concern. Under all the testimony the jury might properly find that on April 30th, the defendant had control of the property and might have delivered it to plaintiff.

If the plaintiffs had title or right to possession, the facts that have been noticed, would show a conversion by defendant on April 30th. The defendants counsel supposes that a subsequent transaction between the parties would show that the refusal of April 30th was not then absolute or assumed by plaintiffs to be so. That transaction was that, at request of defendant, the plaintiffs sent their carts to take away the property. The defendant claims that the plaintiffs might then have obtained possession of the property. The plaintiffs, however, testify that the defendant would only allow the plaintiffs to take part of the property and that they refused to take any part if they were not allowed to take all.

If this were the fact, at the best for defendant, he could only resist a recovery for such part or its value, as the plaintiff might have taken. It would be no reason for dismissing the complaint, but for a proper instruction to the jury as to the damages. The court was not asked to give such instruction but was allowed, without objection, to place the case upon the alleged demand and refusal of the 30th of April.

It is argued, however, that the plaintiffs did not show title to the goods or a right to their possession. They claimed the title as mortgagees, making a demand in accordance with the terms of the mortgage. The only objection to the plaintiffs’ title, that is made by the defendant, is that the mortgage was never filed. The counsel for the appellant admits that the defendant was a general creditor without judgment and that if he had only the rights of such a creditor he could not make the objection. He maintains the right to assail the mortgage on the ground that he had upon the property the lien of a landlord for non-payment of rent at common law. Süch a lien was accessory to the right of distress, which has been abolished by statute, and there is no longer such a lien.

If there were, it has, been waived by not keeping the goods and proceeding to apply them to the rent due, but storing them for whom it may concern.

There is a further claim that the landlord had the right to keep the goods until the appointment of an administrator, the mortgagor having died, so as to give the administrator an opportunity to attack the mortgage under the statute as fraudulent. I do not see any ground for this claim.

The judge’s ruling that the whole of defendant’s affidavit could not be read by him, but only so much as was connected with or in explanation of what plaintiff’s counsel had read, was correct.

Judgment and order appealed from affirmed, with costs.

Freedman and O’G-orman, JJ., concur.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    John F. Riday, Resp’t, v. The Oil, Paint and Drug Publishing Co., App’lt.

      (New York Superior Court,

      Filed May 2, 1887.)

    1. Contract—Work, labor and services—Compensation for—Quantum meruit—Rate of compensation—How fixed.
    This action is brought to recover for work, labor and services performed at the defendant’s request. The relations between the plaintiff and defendant originated under a contract made, by which this plaintiff was to devote his exclusive attention to a then existing publication of the defendant, and to such others as they might issue. By the terms of the agreement he was to receive a stated rate of compensation for new advertising secured by him, and to be paid at a lesser rate upon renewals of old advertising. Subsequently the relations of the parties created by the contract were terminated. Held, that the plaintiff’s action was properly brought upon a quantum, meruit, notwithstanding the special agreements by which the rate of his reward was fixed.
    S. Same—Rate of compensation—New advertising—What is.

      Held, that on advertising procured by the plaintiff for the term of “ one year and thereafter until forbid,” and for “one year and thereafter until ordered to be stopped,” he was entitled for the entire time to the rate of compensation allowed for new advertising, and that these contracts were wrongly treated as renewals after the period of one year had elapsed.

      3. Same—What improperly considered as a renewal oe contract.
    A contract having been made for advertising presumptively for the term of one year, before that time had passed the plaintiff secured the extension of the time during which it should continue. Held, that this second contract was improperly treated as a renewal of the original; that the latter must be considered as having terminated by mutual consent, and that on the succeeding contract the plaintiff was entitled to the rates allowed for new advertising.
    4. Same—Contract originated by another—Extension oe—-Rate oe COMPENSATION.

      Held, that on contracts which he had not originally made, but which he had increased, the plaintiff was entitled to compensation on the increase only, but at the rate allowed for new advertising.
    Appeal by defendant from judgment entered upon the report of a referee.

      Joseph A. Welch, forapp’lt; William Bracken, for resp’t.
   Per Curiam

It is not necessary to say in this case more than that the conclusions of law of the referee, followed the findings of fact, that he made, and that the testimony shows no error in those findings.

Judgment affirmed, with costs.

. The following is the opinion of the referee:

Hamilton Shell (referee).—The plaintiff brings this action to recover for work, labor, and services. He alleges that these services were rendered between April 1, 1883, and May 15, 1884, in procuring advertisements and renewals thereof, for the defendant, and at the defendant’s “special instance and request.” He demands judgment for $6,471.83, with interest.

The defendant denies the complaint and alleges payment. It sets up a special contract made with the plaintiff on November 8, 1883, by which the plaintiff was to do certain things for which he was to receive certain commissions, and alleges that such contract was violated by the plaintiff, whereby “ the defendant was deprived of the benefit which it would have derived from the plaintiff’s services, so that said services became and were of little or no value, and the defendant has paid the plaintiff more than the said services were worth. ”

To this the plaintiff replies that such a contract was indeed made, and that he fully performed it upon his part from the day of its date until January 15, 1884, and was then ready and willing to continue its performance, but that on that day defendant refused to further abide by and perform it upon his part, whereby, as he alleges, “ the said contract was rescinded and became extinct.”

The first question to be determined is, by whom was the contract broken ?

In January, 1882, an agreement was made between the plaintiff and Mr. Wm. O. Allison, which provided that “ for three years thereafter the plaintiff should devote his attention exclusively to the Oil, Paint and Drug Reporter,” and other publications issued by said Allison, and should receive specified commissions upon the new advertising which he might secure, and upon all renewals of advertising originally secured by him. In the following year the defendant, the Oil, Paint and Drug Publishing Company, was organized. Mr. Allison became its president. It assumed Allison’s contract with the plaintiff of January, 1882, and about November, 1883, entered into a new contract with him, which was to take effect November 8, 1883, and to continue in force until December 31, 1885. The plaintiff agreed as before, “to devote his time exclusively to the Oil, Paint and Drug Reporter,” and such other publications as th'e said company might issue. Upon new advertising secured by him he was to receive a commission of thirty per cent, upon all renewals of old advertising, a commission of twenty per cent, and upon all new subscriptions a commission of fifty per cent. It was provided that the publication of an advertisement by the company should constitute its acceptance of the plaintiff’s contract therefor. It was further provided that the plaintiff’s commissions should be paid to him “ wholly or in part as the contracts against which they accrue are paid to the said company.” The final clause of the agreement was as follows : “ This agreement is to replace from this date, any ana all agreements of similar nature now existing between said Riday and W. O. Allison, and between said Riday and the Weekly Drug News Association.”

On January 15, 1884, the president and treasurer of the defendant addressed to the plaintiff a brief but pungent letter in the following terms:

“ Dear Sir:—It having become evident to us that you have committed flagrant breaches of confidence and of contract as regards this company, we give you notice hereby that until you are prepared to execute satisfactory papers, which will give us sufficient damages in case of the slightest further breach of contract or act of treachery on your part, we shall decline to treat with you or to pay you any further money. We shall moreover regard your failure to promptly offer us the required guarranty as sufficient cause for proceeding against you on account of your past acts.

Yours, etc.”

The plaintiff’s answer was addressed to the “ Oil, Paint and Drug Publishing Co.” It did not deny that the things charged against him had “ become evident" to Allison and Root. It said: “Such threats I am not in the habit of receiving; I have done my work well * * * I desire an amicable settlement, and that pleasant relations may exist. * * * As you say you are through with my services, I wish a settlement, and expect on account to-day a check for $100. * * *

Yours truly,

RIDAY.

To which Allison and Root replied- “ Yours of to-day does not advance matters at all. You have simply to decide promptly whether you will definitely and positively give up all talk or action with outside parties, and give us satisfactory guarantees to that effect or not. No talk or writing on any other basis will be considered “ till that point is settled.”

Here the correspondence ended. Mr. Root, the defendant’s treasurer, requested the plaintiff to vacate the office occupied by him, and remove his desk, which the plaintiff did.

It is argued by the learned counsel for the defendant that the letter of January 15 did not constitute a dismissal of the plaintiff. Technically this may be true. It did not say in terms that he was discharged, or that his services were no longer wanted. It gave him the option to remain provided he would furnish the defendant with satisfactory security that he would thenceforward deal honestly and perform the agreement upon his part. It distinctly notified him that unless he did so the defendant would break off all relations with him, and withhold all moneys it then owed him, or that might become due to him thereafter. It was a plain avowal that the defendant would not further abide by the agreement of November 8 unless the plaintiff would submit to an onerous condition which that agreement did not provide for. The defendant’s position was that it had the right to terminate the agreement by a dismissal of the plaintiff because the plaintiff had been guilty of gross “breaches of confidence and of contract,” and that it had the right also to dictate the terms upon which it would overlook or condone the plaintiff’s misbehavior. It is necessary, therefore, to examine the evidence in order to determine whether or not the accusations made against the plaintiff were founded in facts.

Mr. Allison and Mr. Root have testified to an interview had by them with Riday on the 16th of January, the day following the writing of their first letter. Riday does not deny the conversation wliich they relate as having occurred on that occasion, but says that he has no recollection of it. Mr. Allison charged Riday with having solicited subscriptions for another paper, or, as Mr. Root states it, with having been in negotiation with outside parties to start a paper in opposition to that published by the defendant, and with having solicited subscriptions to that object This charge Riday strenuously denied. Allison then accused him of falsehood, and claimed that he spoke from information received from parties whom Riday-had solicited, to which the latter responded: “ Mr. Borne (Allison’s alleged informant) tells yon everything.” Allison asked: Why did you deny it? and Riday said that he denied it because he was not soliciting four dollar subscriptions; or, according to Mr. Root, “he (Riday) sought to justify his statement that he had not solicited subscriptions by saying that he was not soliciting any annual subscriptions for the delivery of the paper.” It is insisted that this testimony shows an admission by the plaintiff that he had been engaged in attempts to found a rival paper in violation of his agreement to devote his time exclusively to the publications of the defendant.

This is not so plain to me, as it seems to be to the defendant’s counsel. Certainly there is no express admission,no admission in terms. It is matter of inference. There is not entire harmony between the testimony of Mr. Allison and that of Mr. Root, and I find nothing in the conversation, as related by either witness, which amounts to a retraction of the denial with which, according to both of them, the plaintiff met the charge, whatever it was, when it was made by Mr„ Allison. When a party is accused of a breach of contract, the fact of his guilt should not be rested upon a doubtful inference, when positive evidence is attainable. The parties with whom it was said Riday had negotiated were known to Mr. Allison. They were not produced as witnesses for the defendant. It is not suggested that they were remote or inaccessible, nor is any other reason assigned for their non-production. I may add that the defendant was distinctly advised that Riday denied that he was endeavoring, prior to January fifteenth, to start an opposition paper, for his deposition had been taken before trial, and he had then, on his cross-examination made the denial in plain terms.

It is further insisted that Riday left the defendant’s employment, not because he was dismissed, but voluntarily, and in pursuance of a previously formed intention. Three witnesses, Lockwood, Bell and Peters, testified that he informed them that he was going to leave, and Lockwocd says: “He stated to me that he was going to leave them, and would have some printing for me to-do, but he did not want me to say anything about it at the time.” Afterwards, and about the month of April, Riday took to Lockwood a circular in manuscript which he (Lockwood), printed at Riday’s request. In this circular, Riday announced “to the trade,” that in January he was “ induced by fail-promises to sever (his) connection with the Oil, Paint and Drug Reporter to take charge of what (he) believed would be an independent journal.” Giving to this testimony all the force and weight that can reasonably be claimed for it, it shows only, that on January fifteenth, when the defendant’s first letter was written, Riday was contemplating a severence of his relations with the defendant and a connection with an opposition paper. I find no evidence that he had done any act towards carrying such an intention into effect. Offers had been made to him in behalf of the Independent Record. They were pending and unaccepted, when the defendant’s demand for security as a condition of its further recognition of the agreement of November eighth, was made. It is impossible to say, that if that demand had not been made Riday would have accepted those offers and left the defendant’s service. He had said to outside parties that he "was going to leave, but he had given no notice of that sort to the defendant; he had made no new engagement, his day impenitence had not passed, and there is no proof or no suggestion that he was not, down to the day of the demand for security faithfully engaged in soliciting advertisements for the defendant. It seems to me too clear to admit of serious denial that the defendant’s letter of the fifteenth of January, absolved him from all further obligations and duty under his agreement. When one party to a contract refuses to perform it, he is not at liberty to assert in his defense that the. other party had arranged or was intending to do the same thing, and would have done it, if he had not been anticipated. In view of the facts disclosed by the evidence and above referred to, I give no importance to the plaintiff’s statement in his circular of April ninth, that in January, he had been induced by fair promises, to sever his connection with the OH, Paint and Drug Reporter. The reason for that statement and its explanation are .apparent.

In further answer to the defendant’s contention that the plaintiff’s leaving was voluntary and in violation of his agreement, the plaintiff asserts that that agreement was without mutuality, and that therefore he was at liberty to withdraw from it at his pleasure, and also that his right to commissions earned would not be affected by a willful abandonment by him of his employment, which would only render- him liable to a claim for damages. Both of the»e propositions seem to be well founded, but the conclusion expressed above renders a discussion of quite unnecessary.

The remaining questions relates to the amount of damages to which the plaintiff is entitled. His action is properly brought upon quantum meruit, notwithstanding the special agreements by which the rate of his reward was fixed. Farron v. Sherwood, 17 N. Y., 227; Fells v. Vestvali, 2 Keyes, 152; Higgins v. Newton, etc., Railroad Company, 66 N. Y., 604.

He claims commissions upon three classes of contracts.

First. Those procured by him for Mr. Allison under the agreement of January 24,1882, the publication of which was assumed and continued by the defendant from and after April 1, 1883.

Second. Those procured by him for the defendant under the verbal agreement between April 1, 1883, and the 8th day of the following November.

Third. Those procured by him for the defendant .under the written agreement of November 8th.

As to the first class, the facts briefly stated are, that about April 1, 1883, the publication of the Oil, Paint and Drug Reporter, was transferred by Allison to the defendant, who assumed Allison’s agreement with the plaintiff and continued the publication of unexpired advertisements which, prior to that time, the plaintiff had secured and which Allison had accepted, and all moneys paid by advertisers for such continued publications after April 1st, were paid to the defendant. It is plain enough that the plaintiff rendered no services to the defendant in soliciting and securing these advertisements, and that they were not secured to him at the defendant’s instance or request. If the complaint is literally or strictly construed they do not come within the cause of action which it contains. But no such objection was taken on the trial. On the contrary, both parties have disputed over, and submitted to my judgment the general question of defendant's indebtedness to the plaintiff for commissions, whether upon contracts secured for Allison and assumed by the defendant, or upon contracts secured directly for the defendant after April 1st. The account kept by the defendant with the plaintiff covered all these contracts; the payments made by it were on account of commissions due Riday without discrimination; these payments have been proved by the defendant, and many of them preceded the receipt of any moneys by the defendant upon contracts of later-date than April 1st; statements of account were rendered by the defendant setting forth in detail the several Allison contracts which were continued and performed by the defendant, and the amounts of money received by the defendant therefor; these statements have been the subject of inquiry and explanation by both parties upon the trial, and the two questions contested .have been whether Riday violated his agreement, and, if not, what sum is due to him from the defendant for all commissions accruing- to him on all payments made to the defendant for advertisements published by it since it succeeded to the Oil, Paint and Drug Reporter, in April, 1883.

Many of the contracts in question are known as “if” contracts, that is, they direct the publication of the advertisements to which they relate, for a specific term, and until forbidden or discontinued by the advertisers. For examples: the contract of Ruischman Brothers is “ for one year and thereafter until forbid;” that of the Memphis Oil Company is “ for one year and thereafter until ordered to be stopped.” It seems to have been the defendant’s practice to treat advertisements published under such contracts as “new” advertisements for the “ one year ” and thereafter as “ renewals. ”

The commissions payable on renewals were materially less than those payable on new advertisements. The plaintiff contends that upon such a contract he is entitled to the higher rate of commissions for the entire term for which the advertisement is published. I think he is right. A renewal of an existing contract involves a new agreement between the contracting parties. If the contract is for an indefinite period, with a reserved option to either party to terminate it at his pleasure, it subsists until that option has been exercised. The contract with Clark & Warren was for five years; that with the Pennsylvania Oil Company was for five years, and ’till forbid; yet the defendant treats these as contracts for new advertising for only a single year. It seems to me that no proposition can be plainer than this upon an “if ” contract. Riday is entitled to full commissions so long as the advertisment is published under it. I improperly allowed the plaintiff to answer the question put to him by his own counsel: “For what period were you entitled to commissions, as commissions, upon new business on a ’till forbid contract ? ” To offset that, I improperly allowed Allison to answer a like question. So far as their answers may be claimed to put a construction upon these contracts, I exclude them from consideration in the decision of this case. Allison testifies that the custom of the trade is to consider “if” contracts as ‘ ‘ renewal ” business after the expiration of the first year. But a custom cannot be invoked to modify or vary the terms of a written contract. Wheeler v. Newbould, 16 N. Y., 392; Markham v. Jaudon, 41 id., 235; Lawrence v. Gallagher, 10 J. & S., 321.

Another question is, as to commissions payable upon contracts, of which that of Wm. Taylor & Sons (new) is an example. Riday’s agreement with Allison went into effect on the 24th day of January, 1882. He secured a contract for advertising from Taylor & Sons amounting to $100. Afterwards, and about July 1, 1882, this contract was increased through Riday to $400. The defendant treats this as a renewal of the original contract and a new contract for the increase only. This, it seems to me, is a mistake. There is no proof of the time for which the original contract was to run. Presumptively it was for a year at the least. If so, the new contract was made before the original had expired, and the latter must be deemed to have been terminated by mutual agreement. It is undisputed, that all the advertising done by the defendant for Taylor & Sons, subsequently to July 5, 1882, was done under the $400 contract, and as the whole of that was secured by Riday, his claim for full commissions should be allowed.

Another class of contracts is represented by that of Charles Moser & Co. The original contract was not secured by Riday, but he increased it, and the defendant allows him full commissions upon the amount of increase, but none upon the original amount. This is correct. • Plaintiff’s agreement with Allison did not provide for the payment of commissions except upon “ new advertising” secured by plaintiff, and upon “renewals of advertising originally secured by him.” I do not think that these contracts can fairly be considered as contracts for new advertising, except to the extent that they were increased by Riday.

The plaintiff is entitled to judgment for $2,318.98, besides interest.


author: O’Gorman.

text:
    Louis H. Allen et al., v. Augustus Baus & Co.

      (New York Superior Court, General, Term,

      Filed May 2, 1887.)

    1. Evidence—Laws of, will not be relaxed according to contract EXCEPT IN CERTAIN CASES.
    The plaintiffs entered into a contract vrith the defendants to procure for them contracts with publishers for the publication of their business card) In each instance the contract was to be made between the publishers and the plaintiffs in a specified form, and to be assigned to the defendants by endorsement on the contract. A rate of compensation was agreed upon for the services in procuring such contracts. It was further provided that if requested by the defendants within a specified time, a member of the plaintiff’s firm should furnish them with an affidavit stating his belief that the contract was in all respects genuine, that in case the demand was not made in that time the affidavit should be deemed waived, and in cither event any such publisher’s contract should be accepted as prima facie evidence that it was in all respects genuine. On the trial of an action brought by these plaintiffs to recover for services alleged to have been performed according to the contract, papers were by the plaintiffs’ counsel offered in evidence which he claimed to be contracts made with publishers for advertising in pursuance of the contract of employment made by the defendants. Held, that the laws of evidence should not be superseded or relaxed by contract except where the contract is positive and free from ambiguity and not against public policy.

      2. Same—Contbacts—Admissibility of—Pboof of execution.

      Held, that it was essential that the papers should be proved or admitted to he publishers’ contracts in order that they might be prima facie evidence of their genuineness between the parties, and that without due proof according to law of their execution by publishers they could not be admitted in evidence.
    Motion on the part of the plaintiffs, for a new trial, on exceptions ordered to be heard in the first instance at general term.

      Arthur O. Palmer, for plff’s; Daniel C. Briggs, for def’ts.
   O’Gorman.

The plaintiffs are partners doing business as advertising agents in the city of New York. The defendants are a corporation engaged in the manufacture of pianos in that city.

In November, 1885, the plaintiffs entered into a contract in writing with the defendants to procure for defendants contracts with publishers of weekly newspapers in the United States, not to exceed in number one thousand, for the publication in their newspapers of copies of defendants business card for a period of six months.

For procuring these contracts plaintiffs were to receive, in each instance, five dollars from the defendants.

In each instance the contract was to be made between the publishers and the plaintiffs, in a specified form, agreed on between plaintiffs and defendants, and in each instance, that contract was to be assigned to defendants by the plaintiffs by endorsement on the contract.

The contract between the plaintiffs and defendants also provided that, if requested by “ Baus & Go.,” the defendants, a member of the firm of “Allen Bros.,” shall furnish the assignee (the defendants) with an affidavit, stating that he verily believes said contract to be in all respects genuine, but if such request be not made within ten days after delivery of any such contract, the affidavit shall be held to be waived, and any such publisher’s contract shall in either event be accepted as prima facie evidence that it is, in all respects, genuine.

_ The plaintiffs did procure certain contracts with publishers and delivered them duly assigned to the defendants, and were paid for the same at the rate provided for in the contract.

Subsequently, however, in May, 1886, plaintiffs tendered to the defendants papers purporting to be 420 of such contracts, duly assigned to them, with copies of newspapers-containing defendants’ advertisements, but the defendants refused to accept said papers or any of them. No request was made by defendants for any affidavit of a member of plaintiffs’ firm.

The plaintiffs have brought this action against the defendants for this alleged breach of contract.

At the trial, the plaintiffs’ counsel offered, as evidence, 420 papers which he claimed to be 420 contracts with publishers, and 420 newspapers said to contain the advertisements of defendants’ business, as called for by the contracts.

Objection was made by defendants’ counsel to the admission of these papers in evidence, without the usual proof of the due execution thereof as required by law.

The objection was sustained and exception taken on behalf of the plaintiffs.

The learned trial judge held that the contracts should be proved to be publisher’s contracts.

The question to be considered on this appeal is, whether, by the special terms of the agreement between plaintiffs and defendants in this case that “any such publishers’ contract shall be accepted as prima facie evidence that it is in all respects genuine,” the law and rules of evidence are in this case to be superseded by a rule made by the parties and specially applicable to this case.

Before deciding that question in the affirmative, the court should be well satisfied that such was the actual intention of the parties, as ascertained by a careful and strict construction of the language and purpose of the contract itself.

The result of the interpretation of the contract would be that on presentation to the defendants of each paper purporting to be a publishers’ contract with the affidavit of one of the plaintiffs’ firm (if requested) that he verily believed the contract to be in all respects genuine, the defendants would be bound to accept the contract as prima facie genuine and pay plaintiffs for each contract five dollars.

The defendants would also be bound, as provided in the contract between them and the plaintiffs, to provide each publisher with a piano of defendants’ make, of which the regular price was $900 cash, for $250 cash. If that, however, were the actual agreement, the defendant was, of course, bound by it.

The question here is what are the proper construction and interpretation of these words in the contract:

“Any such publishers contract shall be accepted as prima facie evidence that it is, in all respects, genuine.”

The first essential quality of the paper presented was clearly that it should be a publishers’ contract, and, unless that fact were admitted or proved, the paper was not admissible as prima facie evidence of anything, even as between the parties, and it could not be admitted as evidence at a trial, in a court of law, without due proof, according to law, that it had been duly executed by a publisher.

The learned trial judge so held, and Ms ruling was right.

The law of evidence in courts of justice are rigid, and their wisdom and efficacy have been tested and proved by long use. To allow them to be superseded or relaxed to meet a special case would be to unsettle established rules; and, therefore, the courts will not permit it to be done by contract, except where" the contract is positive and free from ambiguity and not against public policy.

In the case at bar, however, the proper construction of the contract renders all such antagonism unnecessary.

The contract does not provide that any paper presented to defendant by plaintiffs shall be of itself prima facie evidence that it is genuine, but only such paper as shall be a publishers’ contract; and that fact should have been proved in the case at bar, as is required in every other case where a paper purporting to be a contract is put in evidence.

Plaintiff’s exceptions should be overruled, and judgment absolute ordered for defendants, dismissing plaintiff’s complaint with costs.

The appeal from the order, dismissing the complaint and directing plaintiff’s exceptions to be heard in the first instance at the general term, should be dismissed as wholly unauthorized.

Freedman, J., concurs.


author: O’Gorman, J. The

text:
    Charles Mayer et al., App’lts, v. Philip Heidelbach et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

      1. Bills and notes—Negotiable paper—When transferred “for VALUE.”
    To constitute the transferee of a negotiable instrument, a purchaser “for value,” so as to protect him against defenses available against his transferer, he must pay something in money or property, some subsisting debt must be satisfied or suspended, or new responsibility incurred. The mere transfer of the paper as collateral security for an antecedent debt or liability does not per se place the transferee on the superior footing of a holder for value.

      2. Same—When payment by check is “for value.”
    The plaintiffs having money deposited with a certain private banking firm drew a check (for a lesser amount) on said firm in favor of said bankers to pay for certain notes of exchange issued by defendants, which the said bankers then sold and delivered to the plaintiffs. The said bankers failed the same day, not having paid defendants for the said notes of exchange. Held, that the plaintiffs were bona fide purchasers for value, and took the notes of exchange freed from all equities existing between the defendants and said bankers.
    Appeal from a judgment entered on findings of a judge of this court, a trial by jury being waived by consent.

      J. C. Foley, for app’lts; Stern & Thompson, for resp’ts.
   O’Gorman, J. The

only questions to be now considered, are questions of law.

The material facts as found, are as follows :

The plaintiffs were, in June, 1884, wholesale merchants, carrying on business in Indianapolis, under the firm name-of “Charles Mayer & Co.” They required, in their business, the frequent use of foreign exchange.

They had their bank account and- kept a large deposit with a private bank in Indianapolis, called “Harrison’s-Bank,” of which bank the firm of A. & J. C. S. Harrison were-proprietors.

The defendants were bankers and dealers in foreign exchange in New York city, under the firm name of “ Heidelbach, Ichelheimer & Co.”

The plaintiffs had, for many years, been in the habit of procuring foreign exchange from the “Harrisons,” and of paying them for the drafts, when received by them, by drawing checks for the price of the draft on Harrisons Bank against their (plaintiffs) deposit in that bank.

The Harrisons had been for many years dealing with the-defendants for the purchase of such foreign exchange as-was required by the plaintiffs, and of paying the defendants for their drafts on Europe when received by them (theHarrisons) at Indianapolis, by remitting, immediately and. by next mail, their check on a bank in New York city in favor of defendants for the price of the drafts.

In June, 1884, the plaintiffs applied to the Harrisons for drafts on Berlin, payable to the order of Charles Mayer & Co., sending them a memorandum of what they required.

The Harrisons thereupon wrote to defendants, enclosing plaintiffs memorandum with a request in this, their usual form, “ás per enclosed memorandum, send to us your sight draft on Berlin to the order of Charles Mayer & Co., of R. M., $-, with statement of cost, and we will remit as usual, etc.”

The defendants sent to Harrisons the draft on Berlin, as-required by plaintiffs, and on delivery of them to plaintiffs-in Indianapolis, the plaintiffs immediately paid the Harrisons for the drafts, by drawing a check for the amount, according to their custom, on the Harrisons bank in favor of Harrisons against their deposit there, which was then ample in amount to meet the check.

The Harrisons did not pay the defendants according to their custom, by remitting to them by return of mail, a check on a New York city bank for the amount of the drafts sold them, but immediately after the delivery of the drafts to the plaintiffs and the payment for the same by them toHarrisons, the Harrisons bank stopped payment and has. been, and is now, insolvent.

The drafts were presented to the drawee in Berlin for payment, and payment was refused, and the plaintiffs bring this action against the defendants to recover the amounts of the drafts and ten per cent in lieu of interest and other expenses pursuant to statute.

On payment by the plaintiffs to the Harrisons for these drafts" by check on the Harrisons Bank, that bank, as was the custom, charged the check against the deposit account of the plaintiff’s, and the check was entered in the plaintiff’s bank book, and the check itself was afterwards returned to the plaintiff with the bank’s cancelling mark upon it.

The plaintiffs had no knowledge of the nature and condition of the dealings between Harrisons and defendants as to the purchase of these drafts.

On these facts the questions now arise.

First. Did the Harrisons acquire a good title to the drafts as against the defendants as vendors?

Second. If they did not acquire such title, did the plaintiffs become purchasers of the drafts from Harrisons for a valuable consideration so as to defeat any equitable claim in favor of defendants?

The learned trial judge held in favor of the defendants on both questions.

As to the first question there can be little doubt, but that the ruling of the learned trial judge was right.

The invariable custom of dealing between Harrisons and the defendants, was that they should pay defendants for the drafts by return of mail.

The drafts in question were sold expressly in accordance with that custom.

No credit was extended. The sale was made on expectation of immediate payment. The defendants had still a lien on their drafts and the right to rescind the sale, and their right to follow and reclaim the drafts upon the insolvency of the Harrisons, was an equitable and legal right. Muller v. Pondir, 55 N. Y., 325, 337.

On the second question the trial judge found also against the plaintiffs, and it is strenously contended, on behalf of the plaintiffs, that the ruling on that point was incorrect.

The relations between the plaintiffs and Harrisons’ bank, as to the plaintiffs deposit, were those of debtor and creditor.

The bank owed the whole amount of the deposit to the plaintiffs, and it was payable to their order in cash on demand.

The result of their drawing their check on Harrisons’ bank, in favor of Harrisons for the price of the draft, was to cancel their claim against the bank to that extent and reduce the amount of their deposit. The claim of Harrisons against the plaintiffs, for the price of the. drafts, was also satisfied, and was thus, as it seems to me, equivalent to actual and bona fide payment in cash for the drafts.

Under the English authorities such a transaction would have given to the plaintiffs all the rights of a purchaser for a valuable consideration. Daniel on Negotiable Instruments, §§ 827, 828 et seq.

The rule laid down in the leading cases in New York is that to constitute the transferee of a negotiable instrument a purchaser “for value,” so as to protect him against defenses available against his transferer, he must pay something in money or property, some subsisting debt must be satisfied or suspended or new responsibility incurred; and that the mere transfer of the paper as collateral security for an antecedent debt or liability does not, per se, place the transferee on the superior footing of a holder for value. Daniel on Negotiable Instruments, "where various leading New York decisions are collected, § 831, 0.

The question was further examined in Phœnix, etc., Co. v. Church, 81 N. Y., 221.

The court there, after an exhaustive review of the authorities in this state, thus expressed its opinion : “In view of this long line of authorities, it must be regarded as the settled doctrine in this state that the surrender by a creditor of the past due notes of a debtor, upon receiving from him in good faith, before maturity, the note of a third person, in place of the note surrendered, constitutes the creditor a holder for value of the note thus taken, and protects him against the defenses and equities of the antecedent parties, and that it is immaterial whether the note surrendered was given to the creditor for goods sold or money loaned, or under circumstances which would leave the original debt represented by the note in existence enforceable against the debtor, or whether by surrendering the note the creditor parted with his entire right of action.”

In the case at bar, the act of giving plaintiffs’ checks on Harrisons Bank in favor of Harrisons, satisfied and can-celled plaintiffs’ claim against the bank for money due the plaintiffs by the bank to the amount covered by the checks; and by that act also the drafts then sold and delivered by Harrisons to the plaintiffs were paid for, and this result was not conditional but absolute.

That on the refusal of the drawee of the drafts to pay them, an action might accrue to plaintiffs against Harrisons to recover the money paid them by the plaintiffs on the purchase of drafts which turned out worthless, does not alter the rights of plaintiffs against the defendants.

In the extract from the opinion of the court given above, this contingency seems to have been considered and dismissed as unimportant. See, also, Pratt v. Coman, 37 N. Y., 442.

There can be no question as to the bonafides of the plaintiffs in the case at bar or of the intention of them and Harrisons that full title in the drafts should be conveyed to the plaintiffs in consideration of the payments made them in the usual way, that is, by checks against their deposit in the Harrisons’ bank.

That was the method of payment invariably adopted by them.

_ It was not a nominal payment only, but actual, sufficient, final and conclusive; and Harrisons’ bank have now in their hands the money of plaintiffs which the checks represented.

Before receipt of these checks, they owed that money to the plaintiffs. On delivery to plaintiffs of the drafts, that money ceased to be due by them to the plaintiffs, but became the money of the Harrisons by means of the plaintiffs’ check given to the Harrisons.

The antecedent debt of the bank to plaintiffs was so far absolutely satisfied, and that constitutes a valuable consideration. Rome Bank v. Krug, 102 N. Y., 331.

This is a case where one of two innocent parties must0 suffer.

Both acted in equal good faith.

The plaintiffs acquired the actual possession of the drafts by the act of the defendants.

The plaintiffs paid for the drafts to the person who had the apparent ownership of the drafts and apparently full title to transfer them.

The transfer by him to them, was, as such transfers had always been made. The plaintiffs payments for the drafts to their transferer was exactly as such payments had invariably been made theretofore.

In my opinion, the plaintiffs claim is superior to that of defendants, and the legal title to the drafts was vested in them free from any equities in the defendants.

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

Sedgwick, Oh. J., and Freedman, J., concur.


author: O’GORMAN, J.

text:
    William P. Abendroth, App’lt, v. Manhattan R. R. Co. and New York Elevated R. R. Co., Resp’ts.

      (New York Superior Court, General Term,

      Filed, May 2, 1887.)

    1. Property—What constitutes—Due process op law—Elevated RAILROAD.
    The engines used hy the defendants on their elevated railroad, which run through the street in front of plaintiff’s property, emitted smoke, gas steam and cinders, which at times entered the plaintiff’s premises through the doors and windows, causing the rental value of said premises to be seriously diminished. In an action to restrain defendants: Held, that a person’s right to enjoy property free from smoke, gas, steam, cinders, etc., is property, and when he is deprived of that right without due process of law, it is an unlawful taking of his private property without compensation and without due process of law.

      2. Same—Power of legislature to authorize a nuisance.
    That even if the legislature had authorized the defendants to do the very acts complained of, such authorization would be unconstitutional and void.
    3. Same—Injunction—When granted.
    That the difficulty in ascertaining the damages that plaintiff is sustaining by reason of the smoke, etc., is a reason why an injunction should be granted.
    4. Same—Must be so used as not to injure another.
    Treating the relations between plaintiff and defendants as such only as ordinarily exist between owners or occupiers of premises adjoining one another in a city, each would have the right to use his own premises for his private advantage in all ways not of themselves unlawful, subject, how ever, to the duty of not inflicting thereby any substantial injury to the other. If either did inflict injury on the other, the fact that the necessities of his business required such in jury to be inflicted, or that he exercised due care to prevent this mischief, would not be an excuse.
    5. Taxes and assessments—Difference between.
    Assessments imposed on real property in the city of New York for local improvements of streets, are special contributions paid by an abutting owner in addition to and exclusive of the general tax which he pays as one of the general public.
    6. Same—For • improvement of street by abutting owner—Implied CONTRACT THAT HIS RIGHT SHALL BE SECURED.
    When an abutting owner pays under compulsion of law a sum specially awarded as his individual contribution to the well being and improved utility of the street to the public and himself as abutting owner, a contract must be implied that he shall be secure in his right to use and enjoy the street with all the improvements and advantages, to the creation of which he has especially contributed.
    Appeal from judgment dismissing the complaint on the merits, with costs.

      E. B. Cowles, for app’lt; Davies, Cole & Bapallo, for • resp’t.
   O’GORMAN, J.

The plaintiff being owner in fee of premises abutting on Pearl street in the city of New York, and claiming to be the owner also of an easement in that street, brought this action for the purpose of obtaining an injunction against the obstructing and incumbering of that street in front of his premises by the defendants, by their maintaining their elevated railroad there, and that they be compelled to remove the same, and also that he should have judgment for the damage sustained by him.

The case was tried by a judge without a jury, and he dismissed the complaint on the ground that the title to the soil of the street in fee simple absolute, was vested in the mayor, aldermen and commonalty of the city of New York; and that plaintiff had no easement or private property whatever in the street against the taking of which he was entitled to protection under the constitution of this state.

The finding of the trial judge as to the title of the city of New York, to absolute ownership of the highway or street was supported by competent and sufficient evidence, the only condition attached to that ownership being derived by implication from the provision in the second section of the Dongan Charter of 1686, that the street should be for the public use and service of the mayor, aldermen and commonalty of the city of New York and travelers there.

By that provision, however, no private easement or property right attached to any lot abutting on the street, nor was any property right in the street constituting private property vested in any individual owner of such lot. It . created a trust in favor of the public at large, but not of any particular individual, whether abutting owner or not.

The trial judge also found that the defendants had not taken any steps to condemn or acquire any property of the plaintiff; that the railroad structure seriously impaired the plaintiff’s light; that the engines emitted smoke, gas, steam, cinders, etc., which at times entered the plaintiff’s premises through the doors and windows, and caused him injury; that his property had been permanently damaged and its value seriously lessened thereby; that defendants elevated railroad was a lawful structure and the operation of it, as it was operated by defendants, a lawful use of the structure; that defendants trains caused some noise, but that they were furnished with the best practicable appliances known for the prevention of the noise, and also with the best prac- ■ ticable appliances to arrest sparks and cinders,

Accepting for the present the conclusion arrived at by the trial judge that the plaintiff had no private easement or property rights in the street, as to which conclusion more will be said hereafter; the question is still open for discussion whether, on the authority of, or as a legitimate sequel to, the recent decision of the court of appeals in Cogswell v. N. Y., N. H. and H. R. R. Co. (103, N. Y., 10; 3 N. Y. State Rep., 56), and Lahr v. Met. El. Ry. Co. (Court of Appeals, February, 1887 [4 N. Y. State Rep., 34]), the plaintiff in the case at bar is not entitled to relief on the ground that the acts of the defendants complained of, were not necessary incidents of the lawful use of the' railroad, and also on the ground that, even if they had been such necessary incidents, they were still, as far as they impaired the plaintiff’s beneficial use of his premises and diminished their rental value, either trespassers or a private nuisance, for which he had a valid claim to recover damages for a taking of plaintiff’s private property without compensation and without due process of law, which is prohibited by the constitution of this state.

Granting then that the defendants structure, having been erected in accordance with law, is not of itself a nuisance either public or private, (Uline v. N. Y. C. and H. R. R. Co. 101 Y. Y., 107); and also that the operation of their road was a lawful one; granting also that they had used the best known means in order to prevent the dissemination of the noxious vapors, etc., which entered the plaintiff’s house and seriously diminished its value, yet these means and appliances were inadequate and inefficient to prevent the mischief, and the impairment of plaintiff’s beneficial use of his house and of its rental value has occurred and continues.

The trial judge has not found that the creation and existence of these noxious vapers, etc., by defendants, are necessary incidents to the lawful use of defendant’s railroad.

Excluding then the idea of the possession by the plaintiff of any easement in the street, and treating the relations between him and defendants as such only as ordinarily exist between owners or occupiers of premises adjoining one another in a city, the rights and duties of each as to the other would be these:

Each would have the right to use his own premises for his own private advantage in all ways not of themselves, unlawful, subject, however, to the duty of not inflicting thereby any substantial injury to the other.

If either did inflict injury on the other the fact that the necessities of his business required such injury to be inflicted, or that he exercised due care to prevent this mischief, would not be an excuse. McKeon v. See, 51 N. Y., 304, Cogswell v. R. R., supra.

The discussion of principles of law in the latter case is especially instructive and important.

The facts were these:

The defendant railroad having a legal right to operate and run its cars into the city of Yew York, acquired a lot of land adjoining the premises of the plaintiff, and on this lot they erected an engine house, in the use of which they flooded the plaintiff’s premises with noxious gases to the great injury thereof and the pecuniary loss to plaintiff.

The defendants contended that the use of this engine house, and the emission of these noxious vapors therefrom were necessary incidents to the use of their railroad, and were damnum absque injuria.

The court below there held that the injury to plaintiff’s premises was not a taking of his property within the constitution, and affirmed a judgment in favor of the defendant. Cogswell v. R. R., 48 supra, 31.

The court of appeals reversed that judgment and placed its decision on the ground that the legislature had not authorized the wrong of which the plaintiff complained, and it was unnecessary to determine whether the legislature could have authorized it consistently with the principles of the constitution for the security of private rights without providing for compensation. Cogswell v. R. R., supra, 16.

In that case as in the case now at bar, there was no question of any infringement on any easement in the plaintiff, but only of the injury inflicted on him by noxious vapors emanating from the engine house next to the plaintiff’s house, and the court of appeals held that the engine house, as used by defendants, was a nuisance for which, as between individuals, an action would lie for damages, and for which a court of equity would afford a remedy by injunction. Cogswell v. R. R., supra, 15.

As to the argument urged in the ■ Cogswell Case that the statutory authority to run railroad cars to the city of ¡New York, justified also the acquisition and use of the engine house in ¡New York which would otherwise have given a right of action to the court of appeals, says:

“But the statutory sanction, which will justify an injury to private property, must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. This is but. an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be presumed, from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining their consent. This construction of statutory powers applies with peculiar force to grants of corporate powers to the detriment of private corporations, which are set up as a justification of corporate acts to the detriment of private property.”

Applying this clear and emphatic expression of the opinion of the court in the Cogswell Case to the case at bar, it seems impossible for the defendants to justify the infliction by them of the injury complained of by the plaintiff on the ground that it was the necessary incident to the use of their lawful railroad.

It cannot be held that the legislature contemplated the doing of the very act which occasioned the injury to the plaintiff, or even entertained or assented to the probabilty that the defendants’ cars, in their passage on the defendants’ railroad, would emit smoke, gas, noxious vapors, at all, or to such an extent as to render the houses abutting on the street practically uninhabitable.

But even if it could be, with good reason, held that this emission of noxious vapor was a necessary incident to the use of the defendants’ road, and that the legislature so intended, the question would still remain whether the . legislature had the right to sanction a nuisance so detrimental to plaintiff’s private property as to constitute a taking thereof without compensation.

The opinion of the court of appeals in the Cogswell Case, on that subject, is again important.

After stating that they placed their judgment on the ground that the legislature had not authorized the wrong to plaintiff, they proceed:

“It is, therefore, unnecessary to determine whether the legislature could have authorized it consistently with the principles of the constitution for the security of private rights without provision for compensation.”

If it were necessary for the decision of the case at bar, I should have no hesitation in holding that the legislature had no right to authorize or sanction any serious injury to the private property of a citizen so far destroying or impairing its beneficial use by him as to constitute a taking thereof, unless such taking were accomplished under due process of law and provision be made that he be duly compensated therefor.

But another subject still remains to be considered. The learned trial judge found that during the plaintiff’s occupation of his premises he had paid assessments as well as taxes.

It may be presumed that it was meant thereby that he paid assessments imposed on his premises, referred to in his case, for improvements, repairs,* etc., to Pearl street in front of these premises, otherwise the finding would have been irrelevant.

Assessments imposed on real property in the city of New York for local improvements of streets are special contributions paid by an abutting owner in addition to, and exclusive of, the general tax which he pays as one of the general public.

The distinction between these two imposts is clear and well defined. Hassan v. City of Rochester, 67 N. Y., 533-534.

The assessment is not to be regarded as a burden, but as a compensation paid by the owner of a lot for the enhanced value derived by him from the local improvement. But in making that payment he has the right to expect that his right to use and enjoy the improvement that he thus pays for shall be preserved to him without impairment, and this right is private property which cannot be taken from him without compensation.

This appears to me to be the natural consequence of the Story Case, and of the more recent case of Lahr v. The Met. El. Ry. Co (January, 1887, 4 N. Y. State Rep., 340).

In the Story Case it was held that the title in an abutting owner to an easement in a public street in front of his premises, depending on a deed from the city of New York, containing covenants protecting the street from any use •other than that of a public street, was good title and vested in him a private property which could not be taken without compensation. -

In the Lahr Case the court of appeals held “that there was no legal difference between the title acquired under these circumstances and that acquired through a series of mesne conveyances from an original owner whose property had been taken in proceedings instituted by the municipality under the act of 1813, which provided that lands thus acquired should be kept open forever as public streets in the city of New York are, or of right, ought to be ” * * * and for the reason especially that he had been a party to the proceedings under which the land had been appropriated for a public use and was liable to be assessed for its benefit, and therefore entitled to enjoy them. Lahr v. Met. El. Ry. Co., supra, 344.

It seems a natural and proper step in advance, and a logical consequence of the principle sustained by these authorities, to hold that when an abutting owner pays under compulsion of law a sum specially awarded as his individual contribution to the well being and improved utility of the street to the public, and to himself as abutting owner, a contract must be implied that he shall be secure in his right to use and enjoy the street with all the improvements and advantages to the creation of which he has specially contributed.

For these reasons, it is my opinion that the judgment appealed from in this case should be reversed.

Trxjax, J.—The judgment in this case must be reversed irrespective of the question which seems to have solely influenced the learned judge before whom the case was tried.

It is immaterial for the purposes of this case, whether the plaintiff has or has not any interest in the fee of Pearl street in front of and adjacent to his premises or any easement in the street and for the following reasons:

The judge before whom the case was tried found in his twelfth, thirteenth and fourteenth findings of facts that the engines used by the defendant emit smoke, gas, steam and cinders, which at times have entered and do enter the plaintiff’s premises through his doors and windows and cause him injury.

That by reason of the facts aforesaid the rental value of the plaintiff’s premises has been seriously diminished, and the plaintiff’s property has been and is permanently damaged and its value lessened.

Having found these fact the trial judge should have found in favor of the plaintiff instead of for the defendant.

Even if we should concede that the defendants own a fee in the street and they so use that fee that their use of it permanently damages the plaintiff’s property and lessens its value, then the plaintiff has a cause of action for such damages against the defendants and he is entitled to an injunction restraining the commission of the acts which damage him.

The constitution of this state provides that property shall not be' taken for public use without compensation, and that no one shall be deprived of his life, liberty, or property without due process of law.

It is to be noticed that a distinction is made between taking property for public use, and depriving one of his property without due process of law.

What is a deprivation of property without due process of law was determined by the court of appeals in the case of Wynehamer v. The People (13 N. Y., 378), where it was held that the provisions of the act to prevent intemperance, (Laws of 1855, page 340) substantially destroyed the property in intoxicating liquors owned and possessed by persons within the state when the act took effect, and for that reason the act violated the provisions of the state constitution above referred to.

It is to be noticed that in this case the actual possession of the property was not taken from the owner, and yet a law which simply decreased the money value of the property by rendering it difficult for the owner to dispose of it, was held to be a violation of the constitution.

This case was cited by the court of appeals with approval in the case of Bertholf v. O'Reilly (74 N. Y., 509).

In this last case it was said that the provisions in the act then under consideration were held to deprive persons owning intoxicating liquors at the time of its passage, of their property, although their title was not affected by the act, or the property itself its material substance, taken or destroyed.

A like question was before the court of errors and appeals in New Jersey, The Pennsylvania R. R. Co. v. Angel, reported in the 6th Eastern Reporter, 353. It is to be noticed that there” is no provision in the constitution of New Jersey that no one shall be deprived of property without due process of law.

In that case it was held that the plaintiff, by using for the purpose of a terminal yard a portion of a street over which it has only a right of way, became responsible for any nuisance, public or private, thereby created, and an act of the legislature cannot confer upon individuals or private corporations acting primarily for their own profit, although for public benefit as well, any right to deprive persons of the ordinary enjoyment of their property, except upon condition that just compensation be first made to the owners.

This case first came before Vice-Chancellor Bird, who held, as it was held in the case now before us, that the smoke, dirt, cinders, noises and smells worked inconvenience, discomfort, hurt and damage to the complainants, and that the value of their property was therefore greatly depreciated.

The court of errors held that “whether you flood the farmers’ fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smell so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bonds of his private dominion.”

This is a taking of his property in a constitutional sense.

This decision is in harmony with the decision of the court of appeals in this state in Cogswell v. The New York, New Haven and Hartford R. R. Co. (103 N. Y., 10; 3 N. Y. State Rep., 56).

In the Cogswell Case, which, in this respect, is unlike the Story Case, no easement of light, air and access was taken, but the defendant was held liable for the damages that it had done to the plaintiff by the emission of smoke, cinders, ashes and dust upon the property of the plaintiff, on the ground that by; these acts of the defendant plaintiff’s property was subjected to a burden in the nature of a servitude in favor of the defendant which seriously impaired the value and enjoyment of the property.

And the court of appeals, in the case of Lahr v. The Metropolitan Elevated Railway Co. (4 N. Y. State Rep., 340), held that the Cogswell Case is a conclusive authority upon the question as to what constitutes a taking of property within the meaning of the constitution, and of the liability of the perpetrator of such injuries for the damages occasioned by a corruption of the air through the dissemination therein of noxious and unwholesome elements, such as gas, smoke, dust, cinders, ashes, etc., to the detriment of the property of adjoining owners.

One’s right to enjoy property free from smoke, gas, steam, cinders, etc., is property, and when he is deprived of that right without due process of law he is deprived of his property without due process of law. The word “ abridge ” is one of the synonyms of deprive. See Webster and Worcester.

The defendants contend that the legislature has authorized them to do the very thing that it is now doing; but such an intent of the legislature cannot be inferred from the character of incorporation either by express provision or fair construction. Even if the legislature had authorized the defendants to do the very acts complained of, such authorization would be unconstitutional and void because the legislature cannot deprive one of his property without due process of law. And it was held in the ‘ ‘ Wynehamer ” case that the words “ due process of law ” in the constitution did not mean an act of the legislature, but that it meant law in its regular course of administration through courts of justice. See 2d Kent’s Com., 13; Campbell v. Evans, 45 N. Y., 358; In the Matter of Townsend, 39 id., 171; People v. Draper, 15 id., 563.

This court held in McIIeon v. See (4 Robertson, 449), “that the lawful character of the results of an occupation, trade or mechanical art, or the care with which it is carried on, will not prevent a right of action by those whose enjoyment of life and property is disturbed by the mode or means of conducting such occupation, trade or mechanical art. The right of jarring a neighbor’s house by the motion of a steam engine upon one’s own premises cannot depend at all upon the utility and lawfulness of the purpose for which such motion is employed or of its final results. The immediate injury before such results are obtained wrought upon another’s property or enjoyment of life, makes such employment unlawful; and a nuisance may consist in the application of steam as a motive power to an engine already upon the defendant’s own premises, and in using the same, thereby producing a vibration and shaking of the plaintiff’s buildings and injury thereto, causing an offensive noise, interfering with the quiet use of such buildings, alarming the tenants and diminishing the rents.”

This case was affirmed on appeal. See 51 N. Y., 300.

It may be that we cannot determine what portion of the total diminution of the value of plaintiff’s property is caused by the smoke, or what portion is caused by the steam, or the noise, or the ashes, or the dust, or what portion is caused by the structure itself and by the loss of light, air and access; but this difficulty does not prevent the plaintiff from having the protection of an injunction to restrain the defendants from injuring him by emitting smoke, ashes, dust and noxious gases upon his property, or rather it is a reason why an injunction should be granted because of the difficulty in ascertaining the damages that he is sustaining.

The judge before whom the case was tried also found that the plaintiff has paid assessments as well as taxes to the city upon his said premises.

We are unable to say to what assessments, or to assessments for what purposes, the trial court referred in this finding. If they were assessments for street purposes, then within the decision of the court of appeals in the Story case, in the Lahr case, and in Washington,. etc., v. Prospect Park, etc., (4 Abb. N. C., 16), and of this court in St. John v. The Mayor, etc., (3 Bosw., 483), the plaintiff would have an easement of light, air and access of the street. If he has such an easement, then within the decisions in those cases, this easement has been taken from him without due process.of law and without compensation.

In this connection we may remark that the records of the department of taxes in the city show that plaintiff’s grantor did pay in 1862, an assessment for paving Pearl street from Pulton to Beekman street.

We are also of the opinion that the acts of the legislature under which the defendant operates its road, and especially chapter 606 of the Laws of 1875, commonly known as “The Rapid Transit Act,” require that the defendant shall compensate a person whose land is subjected to the use that the findings in this case show that the plaintiff’s land was subjected to.

It is provided in section 17, chapter 606 of the Laws of 1875, “ that the defendant shall have the right to acquire and hold such real estate or interest therein as may be necessary to enable it to construct, maintain, and operate its railway.”

This act contemplates the contingency of the defendant’s needing less than a fee in the land for the purpose of maintaining and operating its road, and that it should pay for any interest in the land less than the fee that it acquired.

The right to use another’s land as a place on which to throw dust and ashes is an easement, and an easement is an interest in the land. Arnold v. Hudson R. R. Co., 55 n. Y., 661.

The defendant claims to have the right to throw dust and ashes upon the plaintiff’s premises without compensation, and therefore, it claims and has taken an easement or interest in the land. This easement it has not yet acquired by contract with the plaintiff or in the method pointed out in the act above referred to. It has no right to this easement without compensatiñg the plaintiff therefor.

The judgment appealed from is reversed and a new trial is ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J.—I concur with both judges delivering opinions that the property of plaintiff was taken without compensation. _


author: O’Gorman, J.

text:
    Frederick Siebel, Resp’t, v. Henry Cohen, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, ¿887.)

    1. Real property—Contract for the sale of, by dimensions stated IS NOT SATISFIED BY OFFER OF DEED OF LAND OF LESS DIMENSIONS.
    A contract for the sale of land in the city of New York described the land as of certain dimensions. Held, that the party agreeing to purchase was not bound to accept a deed conveying a plot of less dimensions than those set forth in the agreements.
    3. Same—Deposit made of part of the purchase money may be RECOVERED.

      Held, that a deposit of part of the purchase-money and money expended in searching the title to the land, might be recovered.
    Appeal from a judgment in favor of the plaintiff for $242.50, entered .on a verdict by direction of the court.

      O. Meyer, for pl’ff and resp’t; E. 3. Arnold, for def’t and app’lt.
   O’Gorman, J.

The action was brought by plaintiff to recover damages sufficient to include $125, the deposit paid by him on the execution by defendant of a written contract to sell to the plaintiff the lot known as forty-four Monroe street in the city of New York, “said lot being‘ twenty-four feet and eight and one-half inches in front and rear by ninety-seven feet and six inches in depth on both sides,” and to give a warranty deed, with full covenants, for conveying the lot.

The premises were in fact only twenty-four feet and three inches in width instead of twenty four feet and eight ■and a half inches, as called for in the agreement, and plaintiff refused to accept from defendant a deed describing the lot as containing -a smaller space than that stated in the agreement.

Plaintiff expended also $100 for examination of title.

The defendant answered, setting up a counter-claim for $1,225.75 damages, alleged to have been incurred by him by reason of plaintiff’s refusal to accept the deed tendered to him and pay the balance of purchase money.

The defendant’s contention cannot prevail.

The plaintiff was clearly entitled to a conveyance, sufficient to vest in him the title to all—not merely a portion— of the lot as described in the contract of sale, and to compel him to pay the whole purchase money for a lot smaller than that described in that contract would be manifestly unjust.

The cases cited on behalf of the defense do not seem to me to be in point or controlling.

In the purchase of a city lot, the quantity of space can seldom be accurately described by visible metes and bounds, as may be done in the case of the purchase of a tract of farm land.

The usual and only accurate and reliable mode of measurement of a city lot is by feet and inches, and this measurement is the proper description, and that by which the parties to the contract must have intended to be bound, for the difference of a few inches more or less in the lines within which a city lot is bounded might cause a difference in pecuniary value exceeding that of acres of farm land.

The direction of the learned trial judge and the verdict rendered thereon were right.

The judgment must be affirmed, with costs.

Sedgwick, Oh. J., concurs.


author: Freedman, J.

text:
    Martin Simons, App’lt, v. Henry C. Seward, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Landlord and tenant—No implied warranty that premises demised ARE IN SAFE CONDITION OR THAT THEY WILL NOT BECOME UNSAFE.
    There is no implied warranty or obligation on the part of a landlord that the premises demised are in a safe condition for any apparently intended use or that they will not become unsafe.
    3. Same—Landlord’s liability to repair arises wholly from covenant.
    The obligation of a landlord to repair or rebuild premises demised,' rests solely on expressed covenant or undertaking; without a covenant to that effect he is neither himself bound to repair nor to pay for repairs made by the tenant.
    Appeal from judgment dismissing a complaint.

      Townsend, Dyett & Enistein, for app’lt; A. P. & W. Man, for res’pt.
   Freedman, J.

The complaint, as amended at the trial, showed the existence of the relation of landlord and tenant between the parties. The defendant, as the landlord of the plaintiff, was sought to be held liable in damages sustained by the plaintiff in consequence of the bursting of a water pipe. The bursting of the pipe was charged to have been the result of defendant’s neglect to keep the plumbing in repair. The complaint as amended was dismissed on the ground that it failed to set forth facts to constitute a cause of action.

There is no implied warranty or obligation on the part of the landlord that the demised premises are in a safe condition for any apparently intended use, or that they will not become unsafe. Jaffe v. Harteau, 56 N. Y., 398; Kabus v. Frost, 50 N. Y. Supr. Ct. Rep., 72.

The obligation of a landlord in any case to repair or rebuild demised premises, rests solely on expressed covenant or undertaking. Without an express covenant to that effect by the landlord, he is neither bound to repair the demised premises himself nor to pay for repairs made by the tenant. Witty v. Matthews, 52 N. Y., 512.

It is claimed, however, that a different rule applies to the case at bar because the plaintiff occupied only the lower part of the building, viz.: The store floor, cellar and sub-cellar.

There is, it is true, a line of cases in which a liability was imposed upon the landlord, but they are cases which involved in some form or other a negligent use by the landlord of the parts of the premises retained by him or the-commission by him of some affirmative negligent act which was the direct cause of the injury.

Thus, in Stapenhorst v. The American Manufacturing Company (36 N. Y. Supr. Ct. Rep., 392), the defendant so negligently carried on its business in the upper parts of the building as to allow oil and particles of iron to leak through its premises into plaintiff’s mustard mills below.

In Worthington v. Parker (11 Daly, 545), the defendant,, having undertaken, during the term of the lease, to change-the place of the pipes which conducted the water from the roof of the building and to provide and put up new pipes for that purpose, did it so negligently as to cause damage.

These cases dp not help the plaintiff. Nor can he derive any support from the case of The Westside Savings Bank v. Newton (8 Daly, 332), upon which he so much relies. In that case the defendant was sued as a surety upon a lease. The tenant occupied the upper, and the landlord the lower part of the premises which were supplied with croton water.. The lease expressly provided that the tenant should not be held liable for any repairs except as therein provided, and no provision was made calling upon him to keep the water pipes in repair. In consequence of the occurrence of a leak in the said pipes and the tenant’s refusal to repair, the landlord cut off the entire supply of croton water, and the tenant vacated the premises. Upon these facts it was held that the use of the croton water amounted to an easement which constituted part of the demised premises; that having deprived the tenant of the use of the water, it was not. just that the tenant of the surety should pay rent beyond the time that the tenant actually occupied the premises, and it was in this connection that it was said, that under the circumstances of the case, it was the duty of the landlord to keep the water pipes in repair. This meant, if he wanted the aid of the' court in the collection of the rent. It was a case altogether different from one in which the tenant invokes the aid of the court to recover damages.

The claim that where a tenant occupies only part of a building, and another part not occupied by him which serves as a protection to his premises, gets out of repair, there is an implied covenant that such protection shall continue and that in such case the landlord is bound to repair, has been expressly overruled by the court of appeals in Doupe v. Genin (45 N. Y., 119). In that case the roof and the upper story had been partially destroyed by fire and yet it was held that the tenant could not maintain an action for damages against the landlord for injuries sustained in consequence of the landlord’s failure to repair, or the unnecessary length of time consumed in making the repairs; first, because in the absence of a covenant to repair, the landlord was not bound to repair at all, and secondly, because the maxim “ sic utere tuo,” etc., applies only to acts done on landlord’s premises, or to his negligence in the process of making the repairs, or to any use made by the landlord of his own part of the premises, or to injury caused by any structure in that part of the premises. This decision has never been taken back or modified, and it constitutes the law of the state of New York at the present time.

If all the facts fully appeared, I believe that Eagle v. Swayze (2 Daly, 140) and Bold v. O’Brien (17 Weekly Dig., 466) could be‘ readily distinguished. But in that event Doupe v. Genin must control, so far as it can be applied.

In Vann v. Rouse (94 N. Y., 401) no question was raised upon the pleadings, and no objection was made upon the trial as to the liability of the landlord for damages caused by defective water pipes upon the parts of the premises under his control after notice and neglect to repair.

The reason for the stringency of the rule is that every contract of hiring is presumed to have been made upon the premises and after inspection by the tenant, and that whatever right the tenants omit to secure for himself is his own fault. As to matters not readily ascertainable by inspection, he should protect himself by an express covenant. The only warranty which is implied against the landlord is one for quiet enjoyment, and this means only that the tenant shall not be evicted by a paramount title.

If the landlord, in the absence of a covenant, is ever liable because he leased unsafe premises, it is because he knew them to be unsafe for the use for which they were let, or was guilty of a fraud. Jaffe v. Harteau, 56 N. Y., 398; Edwards v. N. Y. and Harlem R. R. Co., 98 id., 245.

The law being as stated, the plaintiff’s complaint was properly dismissed. The plaintiff at the trial obtained leave to amend, and did amend, his complaint. The presumption is that he then made as favorable a showing as he could. But the amended complaint still failed to show facts upon which the defendant’s liability could be based. A mere alleged neglect to repair, in the absence of facts which showed a duty to repair, did not constitute a cause of action, and a bare allegation “that it was the duty of the landlord to maintain the water pipes and plumbing in good order” was but the statement of a conclusion of law without any fact to substantiate it. The complaint as amended did not even show whether the bursting of the pipe occurred on or outside of the premises occupied by the plaintiff. For all that appeared, the occurrence might have taken place on the premises occupied by the plaintiff and in consequence of an improper use made by the plaintiff. Nor was there any allegation that the plaintiff had hired the premises occupied by him for a particular purpose, and that the defendant when he leased them to the plaintiff knew they were unsafe for the use for which he let the plaintiff have them, or was guilty of any fraud.

The judgment should be affirmed, with costs.

O’Gorman, J., concurs.


author: Sedgwick, J.

text:
    John Brady, App’lt, v. The Mayor, etc., of New York, Resp’t. Bernard Brady, App’lt, v. The Same, Resp’t.

      (New York Superior Court, General Term,

      Filed May 18,1887.)

    1. New York (city of)—Contract—Order setting aside judgment and ALLOWING DEFENDANT TO ANSWER—CONSTRUCTION OF.
    By the terms of the contract the contractor was entitled to demand from the city a certain percentage of the contract value of work that should he certified by the city surveyor to have been done from time to time. An action was brought by the contractor for such percentage under a certificate so made. The answer admitted that the work had been done as averred in the complaint, but averred the existence of certain facts upon which it claimed that the plaintiff was not the lowest bidder for the work, and that the contract was fraudulent and void. Upon trial the plaintiff had a verdict and entered judgment thereon. This was upon motion vacated, and leave given to the defendant to serve an answer proposed, thereby excluding the portions setting up the defense of fraud either actual or constructive in the making or inception of the contract. Beld,_ that this exception included a defense in the proposed answer that the plaintiff had not been the lowest bidder for the work.
    3. Same—Defenses excluded by.

      Held, that it was the intention of the order not to allow any defense to be set up anew which had been tried in the action with knowledge of the relevant facts.
    3. Contract—Prima facie evidence of performance under.

      Held, that the certificate of the city surveyor was under the contract prima facie proof that the work had been done as therein stated.
    4. New trial—What grounds insufficient.
    The affidavits on a motion for a new trial being accepted as disclosing preparation for a fraudulent classification of work done under the contract: Held, that as it did not appear that the city surveyor was deceived by it and misled in making his certificate, a new trial should not be granted.
    Appeals by plaintiffs from orders granting motions for new trials.

      L. Laflin Kellogg, for appl’ts; Boscoe Conhling and Arthur H. Masten, for resp’ts.
   Sedgwick, J.

These two actions involve the rights of the parties under one contract, made by the plaintiff in the first action and the mayor, etc., of New York.

The contract was for regulating and grading Ninety-fifth street, from Tenth avenue to Riverside Drive. It provided for the excavation of rock at one-quarter of a cent for each yard, and of earth at eight dollars for each yard.

By the contract, the contractor was entitled to demand from the city seventy per cent of t the contract value of work that should be certified by the city surveyor to have been done from time to time. The first action was brought by the contractor for this seventy per cent, under a certificate made by the city surveyor on March 12, 1884. The original answer admitted that the work had been done, as averred in the complaint, but it averred the existence of certain facts, upon which it claimed that the plaintiff was not the lowest bidder for the work, and also that the contract was fraudulent and void. The issue was brought to trial. The plaintiff had a verdict for the amount claimed by him, and judgment was entered in February, 1885.

In September, 1886, the motion below was made. It resulted in an order that the judgment be vacated, with leave to the defendant to serve the answer proposed by the motion, “except that it shall not contain those portions thereof, setting up the defense of fraud, either actual or constructive in the making or inception of the contract sued on.” This exception undoubtedly includes the defense in the proposed answer of the plaintiff not having been the lowest bidder. It was the intention of the order not to allow any defense to be set up anew which had been tried in the action with knowledge of the relevant facts. The new defense allowed is contained in the following averments : “The defendants admit that a certain certificate was made and signed by the city surveyor employed in the work, which purported to state the respective quantities of earth and rock excavated by the plaintiff, but they allege, upon information and belief, that the quantities therein stated were false and inaccurate by reason of the fact that the plaintiff had performed the work of excavation in an improper and fraudulent manner in violation of the provisions of the contract, whereby materials that should have been classified and measured as rock, were, in fact, classified and measured as earth, to the pecuniary advantage of the plaintiff.”

The defendants claim that under this proposed defense “the issue is, whether or not there have been removed, in accordance with the terms of the contract, the relative quantities of earth and rock set forth in the surveyor’s certificate in question in the action.”

It is further claimed for the defendants that the affidavits show that since the trial testimony has been discovered which sustains the defense.

Leaving aside questions as to laches and as to the proposed answer as a pleading, the test most favorable to the defendants would be to ascertain if the affidavits set out facts which, if testified to by credible witnesses, would uphold a verdict against the plaintiff, rendered on the ground that these facts showed that the number of yards of rock and of earth actually excavated were, in the case of rock, greater, and, in the case of earth, less, than those stated by the certificate.

The affidavits have been examined with particularity. After giving to the affidavits for defendants all the weight that can in reason be claimed for them, my judgment is that they do not show what quantities, respectively of earth and of rock had been excavated before the certificate of the surveyor was made. The certificate was, under the contract, prima facie proof, that the plaintiff had excavated, as the certificate declared. The affidavits do not falsify the certificate. It, therefore, does not appear that a new trial would have a result different from the result of the trial had.

Under ordinary circumstances it would be proper to sustain the correctness of this result by making a resume of the affidavits. This is not done now for the reason that the claim for final payments is to be tried.. It is right to each side that the new trial should not be embarrassed by the declarations of this court as to testimony in its present sitting, which should have, perhaps, another construction, due to the absence of some fact that now appears, or to the presence of some fact that is not shown now.

It may be granted that the affidavits disclose some preparation for a fraudulent classification. The result of this preparation does not now appear. It does not appear that the city surveyor was deceived by it, and did not make' a correct certificate in spite of it.

In my opinion a new trial should not be granted for the purpose of experiment or excepting upon a case which justifies a conclusion, that, when presented upon a new trial, another result will be produced unless countervailing facts shall appear.

The order in the first case should be reversed, with ten dollars costs. Tne merits of the second case áre the same as of the first, and in it there should be a reversal of the order, with ten dollars costs.

Truax and Dugro, JJ., concur.