author: Smith, P. J".:

text:
    AMANDA A. HAYNES and MARY A. HAYNES, Respondents, v. THE BUFFALO, NEW YORK AND PHILADELPHIA RAILROAD COMPANY, Appellant.

      Covenants in a deed — must be enforced by the owner of the legal title — meaning of “ proprietors” in the statute relating to fcvrm crossings — when a plaintiff should not be compelled, to elect as to which of two counts he relies upon.

    In 1871 one Oline conveyed to the defendant, a railroad company, a strip of land running through a farm owned by him, by a deed containing a covenant on the part of the defendant to erect and maintain “ a good and sufficient pass over said strip of land between stations 3875 and 3885, for the use of ” the grantor. Oline subsequently sold the remainder of the farm to persons, under whom the plaintiffs entered into possession under a contract of sale providing for the payment of a specified price, in yearly installments, and the delivery of a deed on full payment. It did not appear that the plaintiffs had either received a deed or paid the full amount of the purchase-money.
    ■ In this action brought to compel the defendant to construct a proper farm crossing, the complaint contained two counts, one based upon the covenant contained in the deed and one upon the statute giving the proprietors of lands through which a railroad runs the right to have suitable farm crossings constructed by the road.

      Held, that the court properly refused to compel the plaintiffs to elect upon which count they would rely, as the two counts were not inconsistent and each stated a separate ground for the relief demanded.
    That the action could not be maintained upon either count for the reason that the owners of the legal title to the land, who were directly interested in the subject matter of the action, were not made parties.
    That, assuming that the covenant ran with the land, it was not available to the plaintiffs as they had only an equitable title to the land.
    That the term “proprietors,” as used in the statutes requiring the railroad to construct crossings, included the owners of the fee as well as the plaintiffs. That the owners of the legal title should be made parties plaintiff, or defendant, or the cause of the omission to so bring them in be stated in the complaint.
    Appeal from a judgment in favor the plaintiffs, entered on a decision of the court at the Cattaraugus Special Term.

      Charles. 8. Cary, for the appellant.

      Alfred Spring, for the respondents.
   Smith, P. J".:

The purpose of this action is to compel the defendant to construct a suitable farm crossing on the farm occupied by the plaintiffs, which is crossed by the defendant’s railroad.

In April, 1871, Frederick Cline was the owner of a farm of about 400 acres of land, situate in the town of Ischua, Cattaraugus county.

In that month Cline conveyed a strip of land, part of said farm, about a half a mile long and from eighty to two hundred and twenty-five feet wide, to the defendant corporation, which has since occupied the same in operating its railroad. In said deed the defendant covenanted and agreed “to erect and maintain a good and sufficient pass, over said strip of land, between stations 2875 and 2885, for the use of ” the grantor. Cline subsequently conveyed the remainder of said farm to certain parties, through whom the plaintiffs are entitled to, and have, the possession thereof by virtue of a contract of sale which provides for the payment by the plaintiffs of $7,000 purchase-money, in yearly installments • of $425, and that on full payment thereof a deed shall be executed to the plaintiffs. The contract also provides that the vendees are to have immediate possession of the premises. It does not appear that the plaintiffs have received a deed or that they have paid the purchase-price in full.

The complaint contains two counts; one based upon the covenant in the deed, and the other upon the statute giving to the proprietors of lands through which a railroad passes the right to have suitable farm crossings constructed by the railroad company. The learned counsel for the defendant contends that the trial court erred in denying defendant's motion to compel the plaintiffs to elect on which count they would rely. We think there was no error in the ruling ; the two counts were not inconsistent with each other, as each stated a séparate ground for the relief demanded in the complaint, both of which may have existed at the same time. -

But we are of the opinion that there is a difficulty in the way ef the plaintiff’s recovering under either count, for the reason that the owners of the legal title are directly interested in the subject-matter of the action, and ought to be made parties, before the relief asked for is granted, either under the covenant or the statute. Assuming that the covenant is one running with the land, as it probably is, it is noc available to the plaintiffs since they have not the legal title. (See 1 Smith’s Lead. Cases, notes to Spencer’s case [Am. ed.], 140, 175 ; Tabor v. Robinson, 36 Barb., 483; Hart v. Britton, 17 Weekly Dig., 552.) It is true the trial judge found as a fact that the plaintiffs are the absolute owners of said farm, but the finding was excepted to, and if by it is meant anything more than that the plaintiffs are the equitable owners of the farm under the terms of the contract mentioned, there is no evidence to support it. Even as equitable owners their title is not absolute, they not having paid in full, and they being subject to the contingency of a forfeiture of all right in case of their failure to pay the remainder. Should the equities of the plaintiffs be forfeited and cut off, the owners of the fee would have the right to enforce the covenant and would not be bound by a judgment in an action to which they were not parties, fixing the place and manner of constructing the crossing.

As to the remedy under the statute, it • seems to us that in the circumstances of this case the owners of the fee as well as their vendees in the contract, are included in the term “proprietors,”' used in the statute. In any view of the case, we think the presence of the owners in fee is necessary to a proper determination of the matters in controversy, and if they will not join as plaintiffs, they should be brought in as defendants, or if any fact renders it impossible to bring them in, the fact should be set out in the complaint.

Judgment reversed and new trial ordered, costs to abide event, with leave to plaintiffs to apply at Special Term for leave to bring in other parties as above indicated.

Barker and Bradley, JJ., concurred.

Judgment reversed and new trial ordered, costs of this appeal to abide the event.


source: Caselaw Access Project

author: Smith, P. J. :

license: Public Domain

text:
    CHARLES N. ROSS, Respondent v. THE BOARD OF SUPERVISORS OF THE COUNTY OF CAYUGA, Appellant.

      Action to recover a tax UlegaUy collected by a county — when it may be recovered with out first vacating the assessment — what evidence is sufficient to show a receipt of the money by the county — a claim to recover a tax illegally collected need not be first presented for audit.

    In each year from 1875 to and including 1879, the board of supervisors of the county of Cayuga included in the taxes imposed upon the taxable property of the city and town of Auburn, in that county, the whole amount of the fees and charges audited'and allowed by the said board of supervisors to the sheriff for receiving, keeping and boarding prisoners committed to jail by the Courts of Special Sessions and police justices in the said city, while the statute required that the said amounts should be assessed upon the taxable property of the county as a county charge. This action was brought by the plaintiff to recover the illegal amounts so added to the taxes imposed upon the property of the plaintiff’s assignor^, and by them paid to the city treasurer and tax receiver, by whom they were paid to the sheriff upon checks drawn by the supervisors of Auburn.

      Held, that as the board of supervisors had no statutory authority to impose these taxes upon the city their action was wholly without jurisdiction, and that the plaintiff could maintain this action to recover the amounts so paid without first procuring the assessment to be vacated in proceedings instituted directly for that purpose.

      Newman v. Supervisors of Livingston County (45 if. Y., 676) followed.
    That the case fell within the rule laid down by the Court of Appeals that where there is any essential defect in an assessment which does not require to establish it, proof outside of the proceedings themselves, it is a patent defect which will rob the assessment of all force even when questioned collaterally.

      Horn v. Town of New Lots (83 N. Y., 105).
    That evidence, showing that the money obtained from the plaintiffs assignors was received by the city treasurer of Auburn, and was by him paid over directly to the sheriff in payment of his fees due to him from the county on the order of the defendant, sufficiently established the receipt of the money by the county to entitle the plaintiff to maintain this action.
    That as the plaintiffs claim was founded upon the illegal and wrongful action of the board of supervisors, it was not necessary for him to present it to that board for audit before bringing this action.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of this case upon a trial by the court at the Cayuga Circuit without a jury.

      Howlcmcl & Wheeler, for the appellant.

      John _Z>. Teller, for the respondent.
   Smith, P. J. :

This is an action to recover moneys claimed ■ to have been unlawfully collected from plaintiff’s assignors by way of taxes, and had and received by the county of Cayuga, to the use of plaintiff’s assignors. It appears from the facts found by the trial judge, not excepted to, that in the years 1875, 1876, 1877, 1878 and 1879, the board of supervisors of the said county, in estimating and setting down in the assessment-rolls for said years, respectively, the sums to be paid as taxes upon the valuation of real estate and personal property of the taxpayers of the city and town of Auburn, in said county, included in said taxes the whole amounts of the bills audited and allowed by said board of supervisors to the sheriff of the county of Cayuga in each of said years, for board and key fees, viz.: For receiving, keeping and boarding prisoners convicted before, and committed to the common jail of the county of Cayuga by, the Courts of Special Sessions in and for the city of Auburn, and by the Police Justices’ Courts of said city of Auburn, having the powers and performing the duties of a Court of Special Sessions in and for the city of Auburn, and by the police justices and officers performing the duties of justices of tbe peace in said city, such convictions being for misdemeanors. It further appeared that by reason of such action of the board of supervisors in assessing the taxes to provide for the payment of such sheriff’s fees upon the city and town of Auburn instead of upon the county at large, the plaintiff’s assignors, residents of Auburn, were assessed and compelled to pay a larger amount of taxes than they otherwise would have been, and the amount claimed herein is made up of the items of such excess in their taxes for each of said years, with interest. The said taxes for sheriff’s fees were all collected by the city treasurer and tax receiver of the city of Auburn, and by him paid over to the respective sheriffs upon the checks of the supervisors of Auburn, drawn by the supervisors upon the treasurer to the order of the sheriff.

The board of supervisors in assessing the said tax against the town instead of against the county, claimed to act under the provisions of section 26 of chapter 180 of Laws of 1845, as amended by chapter 455 of Laws of 1847, which is as follows: “All fees and accounts of magistrates and other officers for criminal proceedings including cases of vagrancy, shall be paid by the several towns or cities wherein the offense shall have been committed, and all accounts rendered for such proceedings shall state where such offense was committed, and the boax-d of supervisors shall assess such fees and accounts upon the several towns or cities designated by such accounts; but when any person shall be bound over to the Oyer and Terminer or Court of Sessions, or committed to jail to-await a trial in either of said courts, the costs of the proceedings had before the single magistrate shall be chargeable upon the towns or cities as aforesaid, and the costs of the proceedings had after the person shall have been so bound over or committed shall be chargeable to the county; but nothing herein contained shall apply to cases of felonies, nor where the proceedings or trial for the offense shall be had before any Court of Oyer and Terminer or Court of Sessions of the county, and the fines imposed and collected in any such cases shall be credited to said towns or cities respectively.”

It is admitted that the taxes in question here were erroneously and illegally assessed upon the town instead of the county, the point having been expressly passed upon, and the section of the statute above quoted having been construed by the court of last resort in the case of The People ex rel. Van Tassel v. Boara of Supervisors of Columbia County, in the year 1876 (67 N. Y. 330). That was a proceeding by mandamus on the relation of a sheriff to compel the board of supervisors to provide for the payment by the county of his fees for receiving, boarding and discharging prisoners in cases of misdemeanors and of violations of city ordinances, and the Court of Appeals decided that such fees were a county and not a town charge, and must be paid by the county.

It is claimed, however, by the defendant’s counsel that the illegality of the tax in question cannot be shown or taken advantage of by the plaintiff in the present action, for the reason that the assessment laid therefor cannot be attacked or questioned in this collateral proceeding, and that the plaintiff and all others are bound and concluded by it, and money paid under it cannot be recovered, until the assessment shall have been vacated in a proceeding instituted directly for that purpose. In support of this position, our attention has been called to the following cases: Peyser v. The Mayor (70 N. Y., 497); Matter of Lima (77 id., 170); Buffalo and State Line Railroad Company v. Supervisors (48 id., 93); Wilkes v. The Mayor (79 id., 621); Bank of the Commonwealth v. The Mayor (43 id., 184); Swift v. City of Poughkeepsie (37 id., 511); Sherman v. Trustee of Clifton Springs (27 Hun, 390). While these cases maintain the general doctrine contended for, and place an assessment regular in form upon the same footing as a judgment, in that it cannot be attacked collaterally, it will be observed that in each instance the assessment so held to be conclusive was levied by a body or official having competent jurisdiction to levy the same; and we apprehend that there is no decision holding an assessment even prima facie conclusive for any purpose unless jurisdiction is unquestioned or shown. This requirement is in the line of the analogy between tax assessments and judgments, jurisdiction in the court being a prerequisite to render a judgment of any force whenever invoked for any purpose, and being always open to inquiry.

This point was directly passed upon in the case of Newman v. Supervisors of Livingston County (45 N. Y., 676). That was an action similar in form to the case in hand, and was brought to recover the amount of a “ returned tax,” alleged to have been illegaily assessed upon and paid by tbe plaintiff. In that case the board of supervisors had added to plaintiff’s regular tax for the current year the amount of the tax for the preceeding year, assessed against the then occupant of the land subsequently occupied by the plaintiff, and returned as uncollected for want of goods and chattels, instead of proceeding to collect such unpaid tax as a tax upon “non-resident land,” the former occupant having removed from the county. The Court of Appeals held that the action was maintainable, although the assessment had never been directly attached or vacated, and, referring to certain of the cases relied upon by the defendant herein mentioned above say, “ these cases are noticed because they are commonly relied upon to sustain the proposition that no action will lie to recover a tax illegally assessed. * * * If it must be conceded that there is no direct authority in this State for holding that an action, as for money had and received to the use of the plaintiffs, will lie against a county, where money has been collected for an illegal tax, and paid into its treasury, and used by it for county purposes, the imposition of the tax not having been set aside, it must also be conceded that there is no direct authority to the reverse of that. * * * The money ex aequo eb bono belonged to the plaintiff, and in. such case, whether it is withheld by a natural or artificial person, an action will lie to recover it, where such person is capable of suing and being sued. It is not necessary to assert that an action of tort will lie against a county for the redress of the injury. But an action for the money had and received will lie against the person or body corporate having received and without right withholding money, whether it was or was not obtained by wrongful means. It may be said that the power conferred upon the supervisors of the town of Lima, to determine what land should go upon the assessment-roll as liable to a charge for taxes of the year before, returned unpaid, being judicial (though that the power given was judicial in its nature is not admitted), and he having acted judicially, no action will lie to recover the money enforced from the plaintiff under his determination, until that determination is properly reversed. But that principle applies only to a judicial determination, which is based upon jurisdiction, and is erroneous or irregular. "Where there is no jurisdiction the act is void, and the judgment or determination is a nullity. It stands in the way of no action or proceedings. Money got by it is money got by a wrong, and it cannot be set up to justify or protect the getting. And that it is void and a nullity for want of jurisdiction may appear in a collateral action to recover back what has been seized by it. * * * I conclude that this action, being for money had and received, will lie against the county.”

We are of the opinion that the above principle, upon which the court of last resort proceeded in the Newman case, applies to the case now under consideration. The only authority to levy the tax in question, claimed by defendants, is under the section of the act of 1845, above set forth; but that section, as construed by the C»urt of Appeals in Van Tassel v. Supervisors (supra) gave no such authority, and it follows that the board of supervisors had no jurisdiction over the assessment or levy of such a tax upon the towns in their county. Such jurisdiction could only be conferred by the legislature, and no statute conferring it can be shown. The date of the adjudication upon the statute in question by the court of last resort is immaterial, as it merely declares what was the force and effect of the statute from the beginning, and what every man was bound to know and act upon.

Again, the conclusiveness of an assessment when collaterally attacked, has been further limited by the Court of Appeals to cases of assessments where the invalidity is, so to speak, latent, and does not appear upon the proof that must be made to sustain proceedings under them.” (Horn v. Town of New Lots, 83 N. Y., 104, 105.) This ruling was in a case brought to recover money paid under an illegal assessment for a public improvement, but we do not understand that there is any distinction between an ordinary tax assessment and an assessment for a public improvement in respect to the point now under consideration. The act under which the assessment in the above case was laid had been theretofore declared unconstitutional and void by the Court of Appeals in Stuart v. Palmer (74 N. Y., 183), but the assessment had never been vacated. The circumstances of the case were therefore similar to those of the case in hand, so far as the present question is concerned. The Court of Appeals would thus seem to lay down the rule that any essential defect in an assessment which does not require proof outside of the proceedings themselves is not a latent defect but patent, and will rob the assessment of all force even when questioned collaterally, and that a material defect in the act upon which the assessment and the proceedings to enforce it are based, and which must necessarily be invoked to sustain such proceedings when questioned, is a patent and not a latent invalidity. Tinder that rule the lack of jurisdiction in the present case is patent.

The defendant’s counsel further insists that the evidence shows that the money in suit never came into the county treasury or into the possession of the defendant, and that therefore an action for money had and received does not lie against the county. The evidence does show that the money obtained from the plaimtiff’s assignors was received by the city treasurer of Auburn and by him paid over directly to the sheriff in payment of his fees due him from the county, on the order of the defendants. We are of the opinion that this use of the money for the county^ benefit, in payment of its creditor by its direction given through its board of supervisors, was such an exercise of control over the money as amounted in effect to possession, and was sufficient to support this action.

The defendant also contends that plaintiff should not be permitted to recover in this action for the reason that the same was prematurely brought, it being insisted that the claim in suit was not properly presented or submitted to the board of supervisors before commencement of suit. It has been held, however, that demands against a county to recover taxes illegally assessed are not such claims as are required by law to be so presented. As was said by the court in Newman v. Supervisors of Livingston County (supra), “ the money which the plaintiff seeks to recover came into the treasury of the defendant by a wrongful act. It was the wrongful act of officers acting for the defendant, for it was the act of the board of supervisors, which is the board by which the county acts, and the county is chargeable also with knowledge of it. For property obtained by a wrongful act, wrongful to the knowledge of the party, no demand need be made before bringing action. * * * The claim of the plaintiff is not an account chargeable to the county, and although it is not necessary to assert that the board of supervisors has not power to examine, allow and settle it, it is not such an one as must be presented to the board for audit, and a proceeding taken to enforce it in case of refusal other than an action.”

It follows from these views that the judgment appealed from should be affirmed.

Barker and Bradley, JJ., concurred.

Judgment affirmed.


author: Smith, P. J.:

text:
    ABRAM S. MANN, as Trustee of EMILY YALE, Respondent, v. J. EARL HULBERT, Appellant, Impleaded with Others.

      Agreement of a husband to support a wife living apa/rt from, him — when not void m against ptiblie policy — when mutual, the husband cannot revoke it without the consent of the wife.

    In October, 1872, a husband, and wife, who had before that time separated and were then living apart, came to an agreement to live apart for the rest of their lives, the husband agreeing to provide for the support of the wife during her life, and she agreeing to release her dower in his lands and secure and indem.' nify him against any charge or debts for her support further or different than as then agreed upon. A written agreement was then entered into between the husband and wife, and a trustee, embodying this agreement and a mortgage was given by the husband upon lands belonging to him to the trustee as collateral security for the performance of the agreement. At the same time the wife joined in a deed conveying the lands of the husband, subject to the said mortgage, to a trustee, who was to hold the same in trust to convey as the husband might direct. The lands were subsequently conveyed to the husband subject to the said mortgage.
    The parties lived apart until after the death of the husband. There being a failure to make provision for the wife prior to his death, the trustee, who had made advances to her, brought this action to enforce the mortgage.

      Held, that the agreement, in so far as the provision sought to be enforced in this action was concerned, was not void as against public policy but was valid and enforceable.
    That the fact that the husband had prior to his death proposed to his wife that she should return to and live with and be supported by him, and that she had refused to accept this offer, did not revoke the agreement or prevent the trustee from enforcing it.
    Appeal from a judgment of foreclosure, entered upon tbe report of a referee.

      W. A. Sutherland, for the appellant.

      8. D. Bentley, for the respondent.
   Smith, P. J.:

This is an action to foreclose a mortgage ot real estate, executed as collaterial security for the performance of an agreement by a husband to provide for the support of his wife after voluntary separation.

The facts of the case, as stated by the referee and disclosed by the ■evidence, are as follows: On the 15th of July, 1872, after having been married for more than fifteen years and having, during that time, lived together as husband and wife, Justus Tale and Emily Yale separated, and after having lived apart for about two months and a-half, in the first days of October of that year, came to an agreement between themselves to live apart during the remainder of their lives, and that the said Justus should provide for the support of the said Emily and should secure her in such support during her lifetime, .and that the said Emily should release her dower in the lands of which the said Justus was seized and should secure and indemnify him against any charge for her support further or differently than as then agreed, and to save him harmless from any debts of her contracting on his account. In pursuance of this agreement, the said •Justus and Emily Yale, together with the plaintiff, Abram S. Mann, and others, executed the writing embodying the said agreement set out in the complaint, and as collaterial security for the faithful performance of the conditions thereof by the said Justus Yale, he, at the same time, executed and delivered to the said Mann, as trustee for said Emily Yale, the mortgage in suit. At the same time, or immediately thereafter, the said Justus Yale made executed and delivered to one Thomas B. Yale, a quit-claim deed of the lands described in the mortgage, in which deed the •said Emily Yale joined, thereby releasing her inchoate right of dower in the lands. This deed contained the following provision: ” All the premises above referred to, however, are subject to a mortgage bearing even date herewith, executed by the said Justus Yale to Abram S. Mann, trustee, and nothing herein contained shall impair or affect the security by the said mortgage created.” At the same time, by a declaration of trust executed by said Thomas B. Yale to said Justus Yale, bearing tbe same date as the mortgage, after reciting-the conveyance to him of the lands mentioned in the deed, said Thomas B. Yale declared and agreed that he held and would hold said lands in trust for said Justus Yale, and would, on request, deed and convey the same to such person or persons as the said Justus should elect or direct. Said agreement, mortgage, deed and declaration of trust all bear date July 15, 1872, although they were, in fact, executed as late as, and after, October first of that year.

Afterwards, and on or about December 5, 1878, said Thomas B. Yale and said Justus Yale executed and delivered to the defendant,. J. Earl Hulbert, a deed of the lands mentioned in said mortgage,, which deed contained the following: “ The said premises above-mentioned and referred to are conveyed subject to two mortgages,, one executed by said Justus Yale to Solomon Yeomans, dated April 1, 1848, upon which there remains unpaid the principal sum of $2,000, and one executed by the said Justus Yale to Abram S. Mann, as trustee, dated July 15, 1872, to secure the payment of an annuity as therein stated.” All the foregoing instruments were duly acknowledged and recorded.

Subsequently to their separation in July, 1872, said Justus and Emily Yale at no time lived together or cohabited as husband and wife, although it appeared that in December, 1878, said JustusYale proposed and offered to his wife that she should return to, and live with and be supported by him, at his house, which offer was refused by her. The husband, Justus Yale, paid all the installments provided for the support of the wife in said agreement and mortgage, up to and including the one payable on October 15,. 1878, but nothing has been since paid thereon. Since that time the-said trustee, plaintiff herein, has advanced some money for the support of said Emily Yale. Justus Yale, the husband, died in-December, 1882, and before this suit was brought; the wife, Emily Yale, is still living. On these facts the referee found for the plaintiff that there was due him as trustee, under the mortgage in suit,, the installments accrued subsequent to October 15, 1878, with interest on each, and that provision should also be made from the mortgaged premises, for payments to accrue so long as said Emily Yale should live. From the judgment of foreclosure and sale entered accordingly, the defendant now appeals.

It is insisted on behalf of the appellant that the agreement for separation was ineffectual to deprive either of the parties thereto of their common-law rights and obligations as husband and wife respectively; that it could be abrogated by either at will; that it was abrogated by the husband by his offer to the wife to return to his house and be supported by him there; that such an agreement will not be enforced by the courts, and that the mortgage in suit, given as security for its performance, must fall with it.' In support of these propositions, our attention is called to certain English cases in which the ecclesiastical courts of that country refused to ratify or admit the binding effect of agreements for separation between husband and wife to the extent of depriving the husband of his marital rights. (Mortimer v. Mortimer, 2 Hag. Consist. R., 310; Westmeath, v. Westmeath, 2 Hag. Ec. R. (ed. of 1830), supp. 1, etc.; Smith v. Smith, Id., supp. p. 44 (note); Sullivan v. Sullivan, 2 Addam’s Ec. R., 299 [314]; Warrender v. Warrender, 2 Clark & F., 488.) "We do not understand, however, that this point is presented by the case in hand, which is simply to enforce an agreement by the husband to a trustee for the payment of a certain sum annually towards the support of his wife while living apart from him and made subsequent to their separation, and based upon the good consideration of the release of the wife’s dower rights and of the husband’s common law liability for her maintenance. Such a case is very different from those above referred to, which were between the husband and wife directly for the restitution of marital rights, and in none of which does it appear that any property lights had been permanently affected. This distinction is admitted in the case of Warrender v. Warrender (supra), where Lord Brougham said that an agreement for separation was of no legal force “ save and except one only, the obligation contracted by the husband with trustees to pay certain sums to the wife, the cestm que trust.” However this may be, we consider it well settled in this State that covenants of a husband to support his wife separate and apart from him, when made to her trustee, the separation having, as in this case, already taken place, will be enforced by the courts; and that, whatever may be said or thought of the agreement to live separate and apart as a question of public policy, the covenant of the husband to pay a stipulated sum for the support of the wife, and the promise of her trustee to indemnify the husband from liability for her debts are not illegal or contrary to public policy. It is this covenant, simply, on the part of the husband, which is sought to be enforced •in the present suit. (Calkins v. Long, 22 Barb., 97; Dupre v. Rein, 7 Abb. N. C., 256; Carson v. Murray, 3 Paige, 486; Allen v. Affleck, 64 How. Pr., 380.)

Furthermore, the agreement in question was for a permanent separation, as is apparent from its terms, and could not be terminated by the action of the husband alone in proposing to his wife to return to his house and in offering to maintain her there. (Calkins v. Long, supra.) The agreement was a mutual and not a unilateral one, and the wife had perfect right to abide by its terms and to refuse to return to her husband (Allen v. Affleck, supra; Wallace v. Bassett, 41 Barb., 92); and the wife having parted with her dower right by joining in the deed made by her husband to Thomas B. Tale, thé husband would have been estopped from seeking to abrogate the agreement after that act by the wife to her injury and to his advantage, and after it had, by the conveyance to the defendant become impossible to restore the parties to their former position. It does not appeal’ that the husband at any time offered or attempted to do this, or offered to make up to his wife that with which she had parted under the agreement for separation, or that he even, offered to reimburse the trustee for payments made by him for the wife on the husband’s default. Nor does it appear that the abrogation of the agreement for separation now insisted upon by the present defendant, was ever sought to be enforced by the husband in his lifetime, or that the husband ever took any steps to have the mortgage in suit satisfied or canceled of record. On the contrary, the mortgage and accompanying instruments were permitted to remain in full force and undisturbed during his lifetime, and have not, for aught that appears, been attacked by his representatives or privies since his death; andas by its terms, the agreement provides for payment of the annuity for the use of the wife “ during each year of her natural life ” and “ in each and every year so long as she shall live,” liability to pay the same did not cease with the husband’s death, and the land mortgaged remained as security for its payment until the lien should be terminated by the only limitation contemplated by the agreement, namely, the death of the wife. The agreement was practically observed by both parties by their remaining separate and apart, which fact renders the decision in the case of Zimmer v. Settle (Gen. Term, Third Dept., May, 1884, not reported), which turned upon the reconciliation of the parties and the return of the wife to the husband’s house, inapplicable to the-case in hand.

The defendant challenges, as unsupported by evidence, the finding of fact that a part of the contract of separation was that said Emily should release her dower in the lands of which said Justue was seized.” "We think, however, that this conclusion is properly deduced from the contemporaneous acts of the parties, the deed by which the wife released her dower in her husband’s real estate having been executed by her simultaneously with said agreement and the mortgage in suit, and all of said instruments being parts of one and the same transaction.

As, in our opinion, the considerations above discussed are sufficient to entitle the plaintiff to the relief sought and to support the judgment rendered, it is unnecessary to pass upon the additional argument advanced by respondent that the appellant is estopped from questioning the validity of the mortgage in suit by reason of the fact that his deed is, by its terms, subject thereto.

It follows from the views above expressed, which cover all the points raised by the appellant which we consider material, that the judgment appealed from should be affirmed, with costs of this-appeal against the defendant Hulbert personally.

BaeKbr and Bradley, JJ., concurred.

Judgment affirmed, with costs to be paid by the appellant.


text:
    CARLTON J. SMITH, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — when a person injured, while riding in a wagon driven by another, is chwrgeable with the latter’s negligence.

    This action was brought to recover damages for injuries sustained by the plaintiff, who was riding in a buggy driven and owned by one Johnson, while attempting to cross the tracks of the defendant. The evidence tended to show that the plaintiff was at the time of the accident going on business of his own and had requested Johnson to take him in the buggy; that both of them had been drinking and were somewhat under the influence of liquor, and that Johnson approached the crossing negligently, driving rapidly, and in disregard of signals given by an employee of the defendant.
    The court charged that Johnson’s negligence would not prevent the plaintiff from recovering unless Johnson was so intoxicated and reckless, apparent to Smith, as to make it dangerous and indiscreet to ride with him. In answer to a request to charge that it was for the jury to say whether it was not negligence for the plaintiff to allow Johnson to drive so rapidly upon the crossing without remonstrance, the court charged that if at any time while the plaintiff was riding with Johnson the latter was driving toward the crossing with such speed that it was apparently dangerous and careless, and it occurred to the plaintiff's mind that it was so and he assented to it, then he was a party to it.

      Held, that the court erred in making the plaintiff’s negligence depend upon the question whether it was apparent to him, or whether it occurred to his mind, that Johnson was driving in a heedless and reckless manner, and also upon tho fact whether he assented to it.
    Appeal from a judgment in favor of tbe plaintiff, entered on a verdict rendered at the Erie Circuit, and from an order denying a motion for new trial made on a case.

      George G. Grerne and Mr. Gluek, for the appellant.

      Frank Brundige and Mr. lewis, for the respondent.
   Smith, P. J.:

The action is brought to recover damages on account of injuries sustained by the plaintiff, alleged to have been caused through the negligence of the defendant, at a highway crossing at Wende station, in the county of Erie.

The plaintiff and one Marshall were riding with a Mr. Johnson, in a buggy drawn by a single borse, owned and driven by Johnson. These persons, together with a Mr. Bush, had been together at the plaintiff’s tavern at Millgrove, Erie county, for some time on the 20th of July, 1878, and about four o’clock in the afternoon of that day they started to go to Alden. Bush went a little ahead alone in his buggy, and there is evidence in the case tending to show that the two horses were driven at considerable speed, and that all the parties had been drinking at the plaintiff’s tavern before they started, and were somewhat under the influence of liquor. The highway along which they traveled crossed the defendant’s road about a mile south of Millgrove. There was also evidence tending to show that as the men approached the railroad tracks they did not slacken their pace, and that an employe of the railroad company, who saw them approaching, stood in the highway at the crossing and waved his hands and hallooed, to indicate to them that there was danger in attempting to cross the track. As they were approaching the track a train of forty-eight cars was also approaching the crossing from the east, at a rate of speed of fifteen or sixteen miles an hour. There was also evidence tending .to show that a person standing on the ground 200 feet north of the crossing, in the highway, and'looking towai'd the east, could see a train ninety rods away. The evidence was conflicting as to whether the whistle was sounded or the bell rung, as required by statute, by the approaching train. It appeared by the evidence that Bush, who was about two rods in advance, crossed the track in time to escape the train, and that the other parties in the following wagon were struck by the engine, and the plaintiff then received the injuries of which he complains. There was evidence tending to show that, assuming that the employe of the company was signaling, as the testimony tended to show, the persons in the two buggies either failed to see him or disregarded his signals. The plaintiff testified that he was going to Alden on his own business and that he proposed to Johnson, who had a good horse and covered buggy, to take him over there. There was no other testimony as to the relation existing between Smith and J ohnson, the owner of the conveyance.

The learned judge charged the jury, that if the defendant was negligent and the plaintiff was free from negligence, he might recover, although Johnson was guilty of negligence, which contributed to the injury, “unless the jury should find as a fact, that Johnson himself was in such a state of intoxication and so heedless and reckless, and apparent to Smith, that it was dangerous and indiscreet to take a seat and ride with him.” The defendant excepted to that instruction.

Defendant’s counsel requested the court to charge that it was for the jury to determine whether it was not negligence for Smith to allow Johnson to drive so rapidly upon the crossing without remonstrance. In reply to that request, the court charged that if at any time while Smith was riding with Johnson, and Johnson was driving toward the crossing with such speed that it was apparently dangerous and careless, and it occurred to Smith’s mind that it was so, and he assented to it, then he is a party to it. The defendant’s counsel excepted to the refusal of the court to charge as requested, and to the charge as made.

It seems to us that the portions excepted to were erroneous in making the question, whether Smith was negligent in not remonstrating with Johnson, depend upon the fact that it was apparent to Smith or occurred to his mind that J ohnson was driving in a heedless and careless manner; and also, upon the fact whether he assented to it. We conceive that if Johnson’s manner of driving was so heedless and careless, as that Smith, in the exercise of ordinary care, would have perceived it, and he failed to do so, and to remonstrate. with Johnson he was chargeable with contributory negligence.

The respondent’s counsel contends that there was no evidence that Johnson was the agent or servant of Smith or in any manner under his control, or subject to his order, or identified with him in business or purpose, and he cites, among other cases, Robinson v. New York Central and Hudson Riverr Railroad Company (66 N. Y., 11) and Dyer v. Erie Railway Company (71 N. Y., 228.) Those cases are distinguishable from the one before us. In the first, the plaintiff had accepted an invitation to take a ride with a person every way competent and fit to manage a horse. In the second ease, the plaintiff traveled in a vehicle over which he had no control, voluntarily and gratuitously, at the invitation of the owner and driver, who was competent to control and manage the team, and was traveling entirely on business of his own. In this case, the owner of tbe horse and vehicle was conveying the plaintiff at the request and solicitation of the latter, upon the latter’s own business, and there was evidence tending to show that at the time, the owner and driver was, to the knowledge of the'plaintiff, not in a fit condition to control his horse at so dangerous a place as the railroad crossing in question, and that he managed his horse in a careless and reckless manner. Notwithstanding the owner was not the agent of the plaintiff or employed by him for hire, yet he was acting at the plaintiff’s solicitation and in furtherance of the plaintiff’s business. In view of the circumstances, we think it was the duty of the plaintiff, in the exercise of proper care, to have remonstrated with him and to have used all proper effort and influence on his part, to effect a safe crossing of the defendant’s track. In the case of Robinson (supra), Chief Justice Chuboh, delivering the opinion of the court, remarked: “ It is not claimed but that Conlon (the driver) was an able-bodied, competent person to manage the establishment, nor that he was intoxicated, or in any way unfit to have charge of it.” From this it is to be implied that, in the view of the court, if the circumstances in this case respecting the competency and condition of the driver had existed in that, the court might have held the negligence of the driver imputable to the plaintiff.

We do not see that the question we have discussed was adverted to in the opinion of the judge who denied the motion for a new trial at the Special Term.

For these reasons we think the judgment and order appealed from should be reversed, and a new trial granted, costs to abide event.

Haight and Bbadlev, JJ., concurred; Babkee, J., not sitting.

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


text:
    PETER K. SHEPHERD, Appellant, v. THE McCALMONT OIL COMPANY and Others, Respondents.

      lácense to bore for ml — when it does not gvoe a title to the oil under the land, — what is essential to a title in petroleum oil — when an owner in possession of land need not formally re-enter to enfoi’ce a forfeiture of a license — when a conveyance of the lemd is sufficient evidence of his intention to enforce it.

    January 25, 1865, one Newton, who then owned a tract of land, and one West-brook made a written agreement, which was sealed, acknowledged and recorded, by which Newton granted and conveyed to Westbrook, his heirs, executors, administrators and assigns the exclusive right of entering in or upon any part of the said lands, and the right of erecting buildings, structures,engines and fixtures upon the same, and the right of way to and from the same for the purpose of searching for minerals, and to mine, bore or excavate for carbon or rock, or petroleum oil, or any other valuable volatile or mineral substance, and to gather and preserve the same, but not to have possession of the land for any other purpose, Newton to have the right to freely use and employ all land not actually necessary for mining purposes. Westbrook agreed to ♦ deliver to the party of the first part one-tenth of all oil or other valuable volatile or mineral substance pumped and gathered by them on the premises; to commence boring or excavating for oil or other valuable substances within one year, or as early as practicable thereafter as he might deem expedient, or forfeit all rights under and by virtue of the agreement.
    The plaintiff herein, who had succeeded to the rights of Westbrook, claimed that this agreement was in effect a deed of all the oil underlying the lands mentioned; that the oil was a corporeal hereditament, the title in fee to which passed to Westbrook, and that no forfeiture thereof could be worked by the act of the grantor, or by abandonment or non-user on the part of the grantee.

      Held, that the instrument amounted only to a license to Westbrook and his assignees to enter upon the land for the purposes of oil operations, and to obtain the oil as taken therefrom by their operations and during their occupancy.

      It seems, that there cannot be any property in rock or mineral oil, nor can the title thereto be divested or acquired, until it has been taken from the earth, (Per Smith, P. J.)
    It appeared in this case that Newton and his grantees had continued in the undisturbed possession of the premises, and that neither Westbrook nor his assignees had entered upon the premises, or exercised, or attempted to exercise, any of the rights secured to them by the agreement, except in 1881 to bring and put upon the premises a load of lumber which was removed therefrom by the defendant.

      Held, that it was not necessary for Newton or his grantees to re-enter or give any notice of an intention to enforce the forfeiture occasioned hy the neglect of the lessees to commence operations within the time limited. *

      Allegany Oil Company v. Bradford, Oil Company (86 N. Y., 688; affirming S. C.,. 21 Hun, 26), followed.
    That the execution hy Newton, after the expiration of the time limited, of a warranty deed conveying the lands to a stranger free from all reservations and containing no reference to the agreement, was a sufficient declaration of his. intention to enforce the forfeiture, if any overt act or notice was required.
    Appeal from a judgment in favor of the defendants, entered on the decision of the court at Special Term.

      D. H. Bolles, for the appellant.

      C. 8. Cary, for the respondents.
   Smith, P. J.:

This is an action brought to obtain a construction of an instrument conveying the right to enter upon land and bore for oil thereon; to establish the rights of the plaintiff in and under such instrument, and to forever restrain and preclude the defendants from operating on the said land or using the same for oil purposes. or preventing the plaintiff from using the same for such purposes.

On the 25th of January, 1865, one Hollis P. Newton, being then the owner in fee of a tract of land in Allegany county, as party of the first part, and one George W. Westbrook, as party of the second part, made and entered into a contract, sealed, acknowledged and recorded, in which the said party of the first part, for and in consideration of the covenants and agreements thereinafter contained on the part of the said party of the second part, and of one dollar in hand paid to the said party of the first part, granted and conveyed to the said party of the second part, his heirs, executors,, administrators and assigns, the exclusive right of entering in and. upon any part of said lands, and the right of erecting buildings, structures, engines and fixtures upon the same, and the right of way to and from the same for the purpose of searching for minerals; and to mine, bore or excavate for carbon, or rock, or petroleum oil, or any other valuable volatile or mineral substance, and to gather and preserve the same, and to carry on such mining, boring and excavating to any extent which he might deem advisable (but not to hold possession of any part of said land for any other purpose-whatever). The said instrument further provided that “in consideration of the above agreement from the party of the first part, the party of the second part agrees to render and deliver to the party of the first part the one-tenth part of all the oil or other valuable volatile or mineral substance pumped and gathered by them on said premises, in its crude state, to be delivered at the wells. The party of the second part further agrees to commence boring or excavating for oil or other valuable substances, within one year or as early as practicable thereafter as they may deem expedient, or forfeit all rights under and by virtue of this agreement. The said party of the first part, is to freely use and employ the said premises for the purpose of tillage, except that part which shall be actually necessary for said mining purposes and business aforesaid.” On 16th September, 1865, said Westbrook duly assigned the said contract to the plaintiff herein. On 27th February, 1867, said Newton, by warranty deed, conveyed the said land mentioned in said contract to Milton Reed and John 0. Reed. Said deed contained no reservation of or reference to said contract or to any rights of said Westbrook or the plaintiff, his assignee, thereunder, but was an absolute conveyance of the fee of the whole of said premises. On 11th June, 1881, said Reed conveyed the said premises to one Miner and others, and on 18th October, 1881, said Miner and others contracted to convey the same to the corporation defendant herein, which thereupon entered upon the land and has since been and now is in possession thereof. Neither said Westbrook nor the plaintiff herein ever entered upon the said premises or took any steps to exercise the rights secured by said contract or made any claim of right thereunder until after said conveyance from Reed to Miner, and in September, 1881, when plaintiff caused a load of lumber to be drawn on the ground about the time the defendant took possession. The defendant removed the lumber from the land and commenced to develop the property. This suit was commenced December 1, 1881, and was the first and only act on the part of the plaintiff or his assignor, Westbrook, except as aforesaid, indicating that he or they made any claim to the possession of said premises or that he or they intended ever to exercise the rights mentioned in said Newton contract. Said Newton, the original owner of the land, and his Said grantees and the persons claiming uuder and through him, including the defendant, remained in the actual and continual possession and occupancy oi the said premises, at all times subsequent to the date of said contract from Newton to Westbrook. Upon these facts- the court below found for the defendant, dismissing the complaint on the merits; and this appeal is from tñe judgment entered accordingly.

It is contended on behalf of the appellant that the contract in question is, in effect, a deed of all the oil underlying the land mentioned ; that the oil is a corporeal hereditament, and that the title thereto in fee passed to bim; that, therefore, no forfeiture can be worked by the act of the grantor or by abandonment or non-user on the part of the grantee; that plaintiff's estate under the instrument, his title to the oil and his right to mine for and appropriate it, can only be divested under some provision of the instrument itself; and that the forfeiture clause, under which operations were to be commenced within one year or as soon thereafter as practicable,” is a condition subsequent and could still be performed by Westbrook or his assignees, and that there had been no breach of the condition.

We are of the opinion, however, that the instrument in question amounts only to a license to Westbrook and his assignees to enter upon the land for the purposes of oil operations and to obtain the oil as taken therefrom by their operations and during their occupancy. We do not understand that there can be any property in rock or mineral oil, or that title thereto can be divested or acquired until it has been taken from the earth. (Funk v. Haldeman, 53 Penn. St., 229; Dark et al. v. Johnston et al., 55 id., 164.)

The remainder of the plaintiff’s argument in regard to the rights created by the instrument in suit, rests upon his unfounded premise that that instrument is a grant of the oil underlying the land as an-independent corporeal hereditament. This, as well as his contention in reference to the construction of the forfeiture clause, is answered by the opinion of Mr. Justice Haight, delivered at Special Term, in which we concur. The decision referred to in that opinion, to the effect that the owner of the fee being in possession is not required to enter upon himself in order to work a forfeiture of the rights of the grantee under such an instrument as that under consideration, is found in the case of Allegany Oil Company v. Bradford Oil Company (21 Hun, 26; affirmed, 86 N. Y., 638). The same case is authority for the position that the execution of tbe deed by Newton to Need was a sufficient declaration of bis intention to enforce the forfeiture, if any overt act or notice was required.

We think the judgment should be affirmed, with costs.

BaeKbb and Beadley, JJ., concurred..

Judgment affirmed, with costs.


author: Haight, J.:

text:
    JAMES C. AUSTIN, Respondent, v. HENRY K. STEVENS, Appellant.

      Lease — agreement foi' extension— eonstruetion of it.

    April 34, 1880, tie parties to this action signed a written instrument, by which the plaintiff leased to tie defendant certain premises “for tie term of one year from May 1, 1880, witi tie privilege of a further term of one, two and three years, at tie yearly rent of two iundred dollars.” Tie defendant occupied tie premises four years. Just before tie end of tie fourti year tie plaintiff notified iim tiat if ie desired to occupy tie premises for any longer term ie must pay $500 a year. Tie defendant remained in possession after May 1, 1884, and iaving refused to pay tie additional rent tiis action waa brougit.to recover it.

      Held, tiat tie plaintiff was entitled to recover it.
    Tiat under tie lease tie defendant was entitled to but one extension, which might be of one, two or three years, as ie might elect.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury directed by the Erie County Court.

      Cooh da Fitzgerald, for the respondent.

      Joseph P. Carr, for the appellant.
   Haight, J.:

The action was brought in the County Court to recover rent alleged to be due and owing from the defendant to the plaintiff under a parol lease. The defendant claimed to be holding under a written lease. The only question in the case is, whether or not the written lease had terminated. The lease is as follows:

“This indenture, made this 24th day of April, 1880, between James C. Austin, of the city of Buffalo, of the first part, and Henry K. Stevens, of the same place, of the second part, witnesseth: That the said party of the first part does hereby lease, demise and let to the said party of the second part, the cellar and first floor of the premises known as 41 Main street, in the city of Buffalo and State of New Vork, for the term of one year from May the 1st, 1880, with the privilege of a further term of one, two and three years, at the yearly rent of $200; said rent to be paid in quarterly payments, and the said party of the second part hereby agrees to pay the rent as above stated and to deliver up the pi’emises at the end of the term in as good condition as they now are or may be put in by the party of the first part, ordinary wear and tear, fire and unavoidable casualties excepted.

“JAMES 0. AUSTIN.

“Witness: HENRY K. STEVENS.

“ Acota AustiN.”

The defendant entered into possession of the premises under this lease and occupied the same for the period of four years. Just prior to the end of the fourth year the plaintiff called upon him and told him that if he desired to occupy the premises for any longer term that he should charge him $.500 a year rent. The defendant did continue to occupy the premises from and after the 1st day of May, 1884, and when the first quarter’s rent became due he tendered the sum of fifty dollars and no more. This was refused by the plaintiff, and this action was subsequently brought to recover $125, the amount then due if the annual rent was $500.

Parol evidence is only proper to show the meaning of the parties when the language of the instrument is ambiguous or used in such sense as to be susceptible of different meanings. It does not appear to us that the language of this lease is so ambiguous as to require explanation. We think, therefore, that it should properly be construed by the court without the aid of parol evidence. The language is, “for the term of one year from May the 1st, 1880, with the privilege of a further term of one, two and three years.” It will be observed that the privilege is “ of a further term,” not terms, and that such further term may be one, two or three years, either, at the election of the defendant. It is true that the word “ and ” is used between the “two” and “three” years, from which it is argued that the defendant was entitled to three different terms, amounting to six years in all. This construction does not appear to ns to betbe fair or logical reading of the lease. We are consequently of the opinion that it was properly construed by the court below, and that there was no question necessary to be submitted to the jury. The judgment should be affirmed.

Smith, P. J., Barker and Bradley, JJ., concurred.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DAVID DOWNEY v. C. ALLENTON DAINS, Town Clerk, etc., and JACOB VAN DEVENTER, Commissioner of Highways, etc.

      Certiorari — a return thereto is to he confined to matters specified in the writ — to what extent the papers used on the motion for a writ may he considered at the hearing —- alteration of highway — IRS., chap. 16, tit. 1. art. 4, as amended hy chap. 696 of 1881 — qualifications of town clerk and jurors —power of hoard of supervisors to-reduce the width of highways under chapter 483 of 1875.
    An officer to whom a writ of certiorari has been issued is only required to make-a return as to the matters specified in the writ.
    The hearing must be upon the writ and the return; the papers upon which the writ was granted can he considered only in determining the question as to the jurisdiction of the court to issue it, and possibly as establishing, as facts, such matters as were embraced in the writ and omitted from the return.
    The fact that the town clerk is a brother of one of the signers of a petition for the laying out of a highway does not disqualify him from drawing the names-of the jurors who are to certify to the necessity of the change, as required by article 4, title 1, chapter 16 of part 1 of the Devised Statutes, as amended hy chapter 696 of 1881.
    The validity of the proceedings is not affected by the fact that some of the jurors, whose names were so drawn by the clerk, and who served upon the jury, had signed the petition for the laying out of the road.
    It is not necessary to the exercise of the power “to authorize the laying out of highways of a less width than is now required, and of reducing the width of highways now in existence,” conferred upon boards of supervisors by chapter 483 of 1875, that any petition therefor should be presented to the board, or that any notice should be given of the proposed action of the board to parties interested therein.
    ReturN to a writ of certiorari, issued to review the proceedings of the town clerk and commissioner of highways of the town of Torrey, in the county of Yates, in laying out a highway.

      M. A. Iea/ry, for tbe relator.

      Hewson & JSandolpk, for tbe respondents.
   Haight, J.:

The return to tbe writ of certiorari shows that some time prior to tbe instituting of tbe proceedings sought to be reviewed, a petition was presented to the commissioner of highways, having upon it the names of sixty-six individuals, residents of the town, asking the commissioner of highways to lay out a road through the lands of the relator Bichard Lazalere, "William J. Smith, Charles M. Speelman, Edward Mynderse, D. "W. and 0. A. Dains, to the highway known as the Edward W. Deans road. Thereafter, and on or about the 14th day of October, 1884, there was served upon the commissioner of highways, a written application for the laying out of a highway in the town running through the lands of the relator Bichard Lazalere, Charles M. Speelman, C. A. and D. "W. Dains. The petition was signed by Daniel W. Dains. TJpon this petition proceedings were instituted under the statute for the purpose of ■determining 'whether or not such highway should be laid out. The notices required by the statute were served and posted, and on the ■day appointed a jury was drawn by C. Allenton Dains, the town clerk. The jurors so drawn were summoned to appear at a time and place specified to certify as to the necessity of the highway applied for. Eleven of the jurors so summoned appeared, and after being sworn, examined the route of the proposed road, heard the parties interested, and thereafter made their certificate to the effect that it was neces.sary and proper that the highway petitioned for should be laid out.

It further appears from the return that thereafter Jacob Yan Deventer, the commissioner of highways, made an examination and ■caused a survey of the route of such proposed highway; that in the judgment of the commissioner, it would be to the advantage of the persons interested and to the general public that the proposed route •should be slightly varied and straightened, and in doing so it would be necessary to take a strip of land about sixteen feet in width, along the west line of lands of William J. Smith and wife, and Edward Mynderse; that he thereupon gave notice to the relator, William J. :Smith and wife and Edward Mynderg, that on the 13th day of December, 1884, at ten o’clock a. m., at the town hall in the town of Torrey, be would consider tbe application for tbe laying out of tbe highway, and would bear all reasons for and against tbe same and determine tbe matter; that all of tbe parties through whose land the-proposed road would run bad consented in writing to tbe laying out of the same except tbe relator William J. Smith and wife and Edward Mynderse; that Edward Mynderse was a non-resident of tbe county, andbis lands were occupied by William J. Smith; that tbe commissioner attended at tbe time and place mentioned in tbe notice, and after bearing tbe parties interested made an order in which be determined and certified that a public highway shall and tbe same is hereby laid out pursuant to said application, whereof a survey has been made and is as follows [then follows tbe description of tbe highway in metes- and bounds]: tbe same to be two rods in width.” It further appears from tbe return that before making tbe order for tbe laying out of tbe highway tbe board of supervisors of tbe county passed a resolution authorizing him to lay out such road two rods wide.

It is contended in tbe first place that tbe town clerk was a party in interest; that be was a brother of tbe petitioner, and was not a proper person to draw tbe jury. The affidavit of tbe relator, upon which tbe certiorari was issued, states that O. Allenton Dains, the-town clerk who drew tbe jury, was a brother of Daniel W. Dains,. tbe petitioner, and upon information and belief that C. Allenton. Dains, together with petitioner Daniel W. Dains, were tbe joint owners of real estate for tbe benefit of which tbe road was laid out. The certiorari, however, does not require tbe town clerk to certify and return as to whether or not be was tbe brother of Daniel W. Dains, or tbe joint owner of any of tbe lands benefited by tbe laying out of tbe highway, and the return is silent upon those questions. The town clerk was only called upon to make return as to the matters specified in tbe writ. His return is conclusive as totbe facts and cannot be contradicted. It must be taken as conclusive and acted upon as true. If tbe return is false tbe relator’s remedy is by action. (Haines v. The Judges of Westchester, 20 Wend., 625; "Wood on Mandamus and Certiorari, 202.) If tbe return is defective tbe court may direct a further return. (Code, § 2135.)

Tbe bearing on tbe return must be upon tbe writ, tbe return and the papers upon which tbe writ was granted. Tbe papers, bow-ever, upon which the writ was granted cannot be considered for the purpose of impeaching or contradicting the return. They can only be considered in determining the question as to the jurisdiction of the court to issue the writ, and possibly as establishing as facts such matters as were embraced in the writ and omitted from the return. (People ex rel. McCarthy v. French, 25 Hun, 111.) We are, consequently, of the opinion that if the relator had desired to raise a question in reference to the competency of the town clerk to draw the jury, the respondent should have been asked to certify and return as to whether or not he was a brother of the petitioner, .and owned lands which would be benefited by the laying out of the road, and failing in this, the question is not before us for consideration. If, however, it should be conceded that .he was interested and related as claimed, we should still be of the opinion that he would not be disqualified under the statute. Prior to the amendment of 1881 (chap. 696) there was no provision for the drawing of jurors to certify as to the necessity of laying out of a highway, but every person who applied for the laying out of a highway could cause notices in writing to be posted up in the town six days before the time specified for the meeting ■ of the freeholders. On the day specified, if twelve freeholders of the town, not interested m the lands through which the road was to be laid, or of next of kin to the owner, appeared, they were sworn by a justice of the peace and entered upon the determination -of the necessity of the road. It was the usual practice for the person desiring the road to be laid out to invite such freeholders .as he saw fit to attend at the time and place designated in the notice. Hnder the amendment of 1881 the statute was changed, .and it was made the duty of the town clerk, upon a day specified in a notice served upon him and the parties interested, a justice of the peace and commissioner of highways, in their presence to draw .a jury from the box containing the names of all the persons then residents of the town whose names are on the lists filed in the town ■clerk’s office of those selected and returned as trial jurors, after taking out of the box those interested in the lands through which the road is to pass or to be located, and of those of kin to the ■owners thereof. No provision is made for the drawing of the jury ■by any other person or officer. Tf the town clerk should be disqualified, then the road could not be laid out, because no legal jury could be drawn. The town clerk is given no judgment or discretion in the matter. ' All of his acts are ministerial. The drawing from the box is public, and we consequently fail to see how the relator could have been prejudiced, or any reason why the town clerk should be disqualified. (Foot v. Stiles, 57 N. Y., 399; In Matter of David R. Ryers, 72 id., 1.)

Again, it is contended that some of the jurors drawn from the box were the same individuals that had signed the petition delivered to the commissioner of highways asking that a road be laid out; that objection was duly made to their serving, etc. The petition, as we have seen, was presented before the institution of these proceedings. It does not appear whether the names of the jurors found upon this petition were their genuine signatures. The writ did not call upon the highway commissioner to make return upon this point. The return is silent upon the question, an£ we are inclined to the opinion that this question is not properly raised for our consideration. But if we concede it to be properly before us, they are the jurors provided for by the statute. They are not disqualified under the statute. There is no provision by which any other jurors could be drawn or summoned to serve. There is no provision for any challenge, or officer designated to sustain or overrule a challenge. We are consequently of the opinion that the proceedings are regular iu this regard.

It is claimed that William J. Smith and wife and Edward Mynderse had no notice served upon them that the road would be laid out through their lands. The petition presented to the highway commissioner, upon which these proceedings were instituted, ■did not propose to lay out any highway through their lands, consequently they were not persons entitled to notice under the statute. After the jury had certified and determined the necessity of the highway the commissioner saw fit to slightly change its route, straightening it, and in so doing took sixteen feet of the lands of these individuals. Before doing so, however, notice was given to them of a time and place in which they would be given a hearing. Such hearing was had, and neither Smith and wife nor Edward AEynderse are here comp1aining of the order made.

Again, it is contended that the board of supervisors of the county had no power to authorize the laying out of a highway of two rods in width, unless it was upon petition and notice to the parties interested. The Revised Statutes provided that no highway should be-laid out less than three rods in width. By chapter 482 of the laws of 1875, power of local legislation was conferred upon the board of supervisors of the several counties in this State, to make and administer within their respective counties, laws and regulatious upon various subjects in the act mentioned, among which was the power “ to authorize the laying out of highways of a less width than is now required by law, and of reducing the width of highways now in existence.” The board of supervisors is a legislative body. This act confers upon it, the power of local legislation upon this subject. No provision is made for any notice, or for any order to show cause or for any hearing by interested parties. The board is not made a court. It has not power to determine whether or not the road shall be laid out. All that it can do is to authorize or permit it to be laid out of that width. After this authority is given, the proceedings-authorized by the statute to determine the necessity for it must be instituted, in which the interested parties are given an opportunity to be heard. Phillips v. Schumacher (10 Hun, 405) is not in conflict with our views upon this question. On the contrary, it sustains them. That clause in the opinion to which the counsel refers, we do not think was intended to express a contrary doctrine. "We are, consequently, of the opinion that the proceedings are regular, and that they should be affirmed, and that the respondent should recover fifty dollars costs and their disbursements to be taxed.

Smith, P. J., Barker and Bradley, JJ., concurred.

Proceedings affirmed, with fifty dollars costs and disbursements to-the defendant.


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    TIMOTHY MURPHY, Respondent, v. THE CITY OF BUFFALO, Appellant.

      Claim, against the city of Buffalo — when a presentation of it to the clerk of the common council thereof is treated as a presentation of it to that body — 1870, chap. 519, tit. 3, sec. 7.
    The presentation of a claim against the city of Buffalo to the clerk of the common council thereof, is a presentation of the claim to the common council within the meaning of section 7 of title 3 of the charter of the city, which provides that no action or proceeding to recover or enforce a claim against the city shall he brought until the expiration of forty days after the claim “ shall have been presented to the common council for audit.”
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury rendered at tbe Erie Circuit, and from an order of tbe Erie Special Term denying a motion for a new trial made on a case and exceptions.

      Sermcm Hewrvig, for tbe appellant.

      Frank F. Sickles, for tbe respondent.
   Haight, J.:

Tbis action was brought to recover for personal injuries claimed to bave been received by tbe plaintiff by reason of a defective sidewalk in tbe city of Buffalo. Tbe claim for damages by reason of sucb injury was made out and delivered to tbe city clerk on tbe 23d day of November, 1888. Thereafter, and on December 17, 1883, as appears from tbe minutes of the common council as kept by the clerk, tbe claim of Timothy Murphy for injuries received was referred to tbe committee on claims.

Tbis action was commenced on January 8, 1884. More t.ba.n forty days bad elapsed after tbe claim was delivered to tbe clerk before tbe action was commenced, but there bad not been forty days intervening after tbe claim was referred by tbe common council to tbe committee on claims.

The only question presented by tbis appeal is whether or not tbe delivery of tbe claim to tbe clerk was a presentment of tbe claim to tbe common council for audit within tbe provision of tbe charter. (1870, chap. 519.) Title 3, section 7 of tbe charter, provides that it (the common council meaning) shall audit all claims against the city, but no unliquidated claim shall be received for audit unless made out in detail, * •* * no action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council for audit in the manner and form aforesaid.” Section 48 of title 2 provides that “ the city clerk shall be the clerk of the city, of the common council and of the board of health. He shall, under the direction of the common council, make up a journal of its proceedings.” The common council is composed of the aider-men of the several wards of the city. They act together as a corporate body, and a majority are required in order to form a quorum. No individual alderman constitutes the council; laymen, except by the courtesy of the council, have not the privilege of the floor. So that, if the charier is to be construed literally, the claim would have to be presented to at least a majority of the aldermen in council assembled. This we do not understand to be the purpose or intent of the charter. The clerk keeps the minutes of the proceedings and has the custody of the papers belonging to the council. He is an officer of the council, chosen by itself for that purpose, and it apppears to us is a proper person to receive and take charge of the claims presented for audit.

The judgment and order should be affirmed.

Smith, P. J., Baekbe and JBeadley, JJ., concurred.

Judgment and order affirmed.


author: BaeKEE, J.:

text:
    MARGARET A. GREEN, Administratrix, etc., of W. SHELDON GREEN, Deceased, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.

      Common council of Binghamton — power of, to regulate the speed of engines and cars within the city limits — 1867, chap. 291, tit. 4, sea. 4.
    The charter oí the city of Binghamton empowered the common council thereof “to regulate and control the running of engines and cars through the city and the rate of speed of the same. ” Pursuant to this authority the common council passed an ordinance providing that “ no railroad company or corporation, whose track passes through or within the limits of the city, shall run any locomotive, engine or engines, or any car or cars, or any train of cars, or permit the same to he run hy their agent or agents, or hy any person or persons in their employ, while passing through said city at a greater rate of speed than at and after the rate of ten miles per hour, under the penalty of twenty-five dollars for each offense.”

      Held, that the ordinance was not intended to apply to engines used hy the companies in moving cars and making up trains at places within their own yards, and in and about their own stations, which were not within the limits of any public street or thoroughfare.

      It seems, that the common council might, under the power conferred upon it by the charter, regulate the speed of engines and cars at all places within the city limits, even in places outside of the limits of public streets. (Per Barker, J.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom the action was tried. '

      E. F. Babooek, for the appellant.

      George T. Spencer, for the respondent.
   BaeKEE, J.:

The deceased was run over and killed by an engine owned and used by the appellant in its business within the corporate limits of the city of Binghamton. The line of the appellant’s road was between the cities of Albany and Binghamton. At the latter place it made connections with the New York, Lake Erie and Western Railroad Company, and there existed between the companies an arrangement by which passengers and freight were transferred from one to the other and loaded and unloaded. Cars were also transferred to and run upon the tracks of each company. The transfer of the passenger traffic, and cars connected therewith, took place on the tracks of the Erie Company, in the yard in front of its passenger depot. By an agreement, the terms of which are not revealed by the case, the appellant had the right and privilege of using for the passage of its trains, locomotives and cars, the tracks of the Erie Company, necessary to be used in the interchange in the business before mentioned. The deceased, at th.e time he was killed, was in the employ of the Erie Company as the conductor of a freight train which at that time was on one of the tracks near by the place of injury. . To the north of this track there were two other tracks and parallel thereto. The middle one of these tracks was the one used by the appellant in delivering to and receiving from the Erie Company passenger cars. On the north track there was standing an engine and tender belonging to the Erie Company. The deceased was in charge of a freight train which came upon the depot grounds, and the same came to a stand, and he left the same and went into an office in the depot building to receive further orders. After receiving orders and being ready to move his train to the wrest, through the yard in which the exchange of cars took place, he passed from the depot building over the tracks upon which his train stood, and the track used by the appellant, to the engine standing on the north track and stepped upon the steps of the engine and remained there for a few moments, then he stepped down for the purpose of passing to his own train, and as he passed over the track used by the appellant, he was struck by au engine backing down towards the east and was run over. The space between the two tracks was about six feet. To the east of the passenger depot and the place of collision is a public street, crossed by all the tracks mentioned, and the place of collision is about 100 •feet west of the west line of such street. There were other tracks, used by the Erie road, on the ground mentioned, but it is unneces sary to locate them in this- connection.

As the deceased was the servant of the Erie Railroad Company,, engaged in the management of a train passing through the yard where the collision took place, it is claimed by the respondent that be was, when injured, in the line of his duty and in a place where be had a right to be, as a servant of that company, and was not an intruder on the rights and privileges enjoyed by the defendant in running its engines and cars on the track designated. This position the respondent must be able to maintain, otherwise she should have been nonsuited. If the deceased was a trespasser upon the track on which the appellant had the right to run its cars then it owed him no duty, except that which every person owes to others, not to do them any intentional wrong or injury. In disposing of the case as now presented, we may assume that the deceased was rightfully upon the track which he was crossing when injured, and as to him the appellant was required to run its engines and ears with due care and caution so as not to do him an injury.

One of the negligent acts imputed to the appellant was the running of the engine at a dangerous rate of speed in view of the place and character of the business there transacted, and the respondent contended on the trial that it was one of the proximate causes which occasioned the death of the deceased. The evidence tended to prove that the rate of speed was from ten to fifteen miles an hour at the time of the collision. On the trial the respondent contended that this rate of speed was in violation of an ordinance of the city of Binghamton, and being so, was some evidence as bearing on the question of the defendant’s negligei.ee. By its charter the common council of the city of Binghamton was given the power to regulate and control the running of engines and cars through the city and the rate of speed of the same.” (Laws of 1867, chap. 291, tit. 4, § 4.) Acting upon this authorization the common council passed an ordinance as follows: No railway company or corporation whose track passes through or within the limits of the city shall run any locomotive, engine or engines, or any ear or cars, or any train of cars, or permit the same to be run by their agent or agents, or by any person or persons in their employ, while passing through said city, at a greater rate of speed than at and after the rate of ten miles per hour, under the penalty of twenty-five dollars for each offense,” which the plaintiff introduced in evidence. The jury were instructed that by force of this ordinance the defendant wais prohibited from running its train faster than ten miles an hour; that the existence of the ordinance and the violation of the same by the appellant was not of itself negligence on the part of the persons operating the locomotive. It (the ordinance) was a circumstance for the jury to take into account in determining whether or not the locomotive was at that particular time operated at an unsafe rate, of speed. To the reception of the ordinance in evidence and to that portion of the charge mentioned the appellant, in due time, took separate exceptions.

The appellant insists that, by the terms of the charter, the power conferred on the common council to regulate the speed of engines and cars within the city limits is limited to the regulation of their speed as they run along or across public streets and has no application to the regulation of the speed of engines and cars operated in places outside of the same. The correct interpretation to be given to this provision of the charter presents an interesting question, and one which to my mind is not free from doubt. It has not been the policy of this State, by general statutory enactments, to regulate the speed of railroad engines and cars in passing over streets and highways, or while running in other places. All railroads are required to run their engines and cars at all times and in all places with due care and caution, which rule of action is regulated by the principles of the common law. But in many instances the legislature has conferred upon municipal corporations the power to regulate the. running of cars at street crossings and in other places within their territorial limits. That the legislature possesses the power to confer this authority on municipalities cannot be doubted, and ordinances which are passed in pursuance off such authorization have the force of laws passed by the legislature. (Dillon on Corporations, § 245.)

The case of Buffalo and Niagara Falls Railroad Company v. City of Buffalo (5 Hill, 209) aids in giving construction to the provisions of the charter under consideration. There, by the terms of the charter, the common council of the city of Buffalo was given power to regulate, within the bounds of said city, the grade of railroads and the running of railroad cars.” It was held that under this authority the common council could prohibit the use of steam for the running of cars within the city limits. In my judgment the charter now under consideration confers on the city of Binghamton the right to regulate the speed of engines and cars at places within the city limits outside of the public streets. The language of the statute is so broad and general that its meaning and purpose cannot by any fair rule of construction be limited as applying only to street crossings. In large cities where the line of the railroad passes through the populous part of the same, although the tracks are laid on premises, and within inclosures, of which the railroad company is the exclusive owner, the public may be greatly annoyed and disturbed by the noise produced in running it at a high rate of speed.

We now come to the question whether the ordinance passed by the common council was in force and applicable to the speed of the engine in question, at the time and in the. place where it was being used, when the deceased was injured. The language used in the by-laws plainly indicates that the common council intended to give the same a limited application in the regulation of the speed of engines and cars, and not to extend its operation to places where railroad companies are moving cars and engines in their own yards, and in and about their station grounds for the purpose of making up trains, and not actually passing through the city. If the deceased had been killed by an engine owned and operated by the Erie railroad running on this track, and und er exactly the same circumstances, could the respondent have urged that the ordinance was in force at that place and under such circumstances!? I think not. The appellant had the same privileges in running its engines and cars over this track as to the rate of speed as the Erie road possessed. At least it is not disclosed by the case that any restrictions were put upon the appellant by that company, as to the mode and manner in which it should use its tracks. The ordinance is in terms limited in its application, to engines and cars while passing through said city.” The public was not admitted to that portion of the grounds where the injury occurred. The right of persons to pass over the several tracks on these grounds was limited to those in the employ of the respective companies engaged in operating the engines and cars. The engine which struck Green had fully completed its trip and run through the part of the city limits traversed by the appellant’s main tracK, and the engineer in charge had delivered to the Erie Railroad Company all the cars intended to be transferred to it from the train which had just arrived. At the time of the accident, the engine was being removed from the yards in front of the depot buildings to the round-house situated on the appellant’s grounds.

The ordinance imposes a penalty of twenty-five dollars, for every violation of its provisions. Suppose that one of the engines of the Erie Company, within the yard where this accident happened, should be moved at a greater rate of speed than ten miles an hour, could the city of Binghamton maintain an action and recover the penalty as for a violation of the ordinance ? I am of the opinion that it could not, for the reason that it was not intended by the common council that the ordinance should apply to and control the rate of speed in such places. It would be most unreasonable to give the ordinance such interpretation.

As we have reached the conclusion that a new trial should be granted, for the error in instructing the jury as stated, it is unnecessary to consider whether the respondent gave proper and sufficient proof of the passage of the ordinance by the common council, as on another trial that question may not be presented. The appellant also strenuously argued that upon the whole case the plaintiff should have been nonsuited, for the reason that the deceased was guilty of negligence, which contributed to the injury. We have concluded not to pass upon that question in disposing of the case as now presented, as there must be a new trial for the error already indicated.

Smith, P. J., concurred; Bradley, J., not sitting.

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