author: Macomber, J.: Daniels, J.: Davis, P. J.:

text:
    THE MANHATTAN RAILWAY COMPANY, Respondent, v. THE NEW YORK ELEVATED RAILWAY COMPANY and THE METROPOLITAN ELEVATED RAILWAY COMPANY and Others, Appellants.

      Action to restrain the bringing of numerous and vexatious suits against the plaintiff— when it cannot be maintained.

    Prior to July, 1881, the plaintiff, the Manhattan Railway Company, and the defendants, the New York Elevated Railway Company and the Metropolitan Elevated Railway Company, had heen operating their several lines under an agreement entered into on May 20, 1879, which had heen authorized and afterwards ratified by the stockholders of the Metropolitan Company. The plaintiff by this agreement guaranteed the payment of ten per cent annual dividends upon the stock of the latter companies, the substance of the guaranty being printed on its stock certificates. In July, 1881, two receivers of the property of the plaintiff were appointed in an actisn brought against it by the attorney-general. In October, 1881, the directors of the three companies entered into a new agreement, modifying the former one so as to reduce the dividends from ten to six per cent, providing that no new dividends should be paid on the stock of the Metropolitan Company until six per cent annual dividends and all deficiencies occurring 'in any previous years had been paid to the New York Elevated Railway Company, and releasing the plaintiff from the payment of $325,000 due to the Metropolitan Company for back dividends under the former agreement, while the back dividends due to the New York Elevated Company were paid to it. This agreement was made without the consent of. the stockholders of the Metropolitan Company. Subsequently upon the petition of the three companies the property of the plaintiff was restored to it. Thereafter an agreement was made by the directors of the three companies by which the stockholders of the two defendant companies were allowed to exchange their stock for that of the plaintiff, the stock issued to the New York Elevated Railway Company to have a preference over that issued to the Metropolitan, and both to have a preference over the plaintiff’s own stock until six per cent had been paid upon the preferred stock.
    A majority of the stockholders of the Metropolitan Company disapproved of these agreements, and some of them claiming to act for the best interests of the whole brought actions to have these agreements set aside on the ground that they were made with the intent to defraud them, it being alleged that the board of directors acted in the interests of and in collusion with the two other companies in making them. A new board of directors having been elected by the stockholders of the Metropolitan Company a similar action was instituted by it.
    The plaintiff brought this action to restrain the beginning of further litigation by the dissatisfied stockholders, and to compel them to submit all their griev. anees for adjudication in this suit, on the ground that the injury to the plaintiff would otherwise be irreparable.

      Held, that the court below erred in granting a temporary injunction restraining the bringing of such actions and restraining the Metropolitan Company from issuing certificates of stock having the aforesaid guaranty printed thereon.
    Appeals, first, from an order of the Special Term of the 20th day of June, 1882, continuing an injunction order of December 9,1881, which restrained Jacob Berry and all other individual defendants, and all other stockholders of the Metropolitan Elevated Railway Company, from bringing any actions against the plaintiff on account of the agreement of October 22, 1881, and which also, restrained the individual defendants from bringing like actions against the defendant, The Metropolitan Elevated Railway Company, and,

      Second. From an order of the Special Term of the 14th day of December, 1882, continuing an injunction granted on the 6th day of November, 1882, restraining the Metropolitan Elevated Railway Company from issuing any certificates of stock, having thereon a memorandum similar to those usually placed in its certificates issued previous to the agreements of October 22, 1881, or anything to the effect that the plaintiff had agreed to pay to the Metropolitan Elevated Railway Company an amount equal to ten per cent per annum on the capital stock, of the latter'company.

      S. P. Nash, for individual defendants and appellants.

      Barlow <£ Olney, for the defendant and appellant, The Metropolitan Elevated Railway Company, and for individual defendants and appellants.

      David Dudley Field, for the plaintiff and respondent.
   Macomber, J.:

The general question is whether there exists any good reason for the court to restrain the individual defendants and the Metropolitan Elevated Railway Company from challenging, through such judicial proceedings as they may adopt, the validity of the agreement of October 22, 1881.

Dp to July, 1881, the plaintiff and the two defendant corporations had been operating the several lines of the elevated railways under an agreement entered into by them May 20, 1879, which had been authorized and afterwards ratified by the stockholders of the Metropolitan Elevated Railway Company; and the several companies during that time seem to have been at peace. By the terms of the contract as well as by the lease- from the Metropolitan Company of its railways to the plaintiff, the plaintiff, among other covenants, guaranteed to the Metropolitan Company an annual dividend of ten per cent on the capital stock of the latter to the amount of $6,500,000 free of all taxes, the substance of which guai'anty was to be printed or engraved upon the stock certificates of the Metropolitan Company. On the 14th day of July, 1881, in an action brought by the attorney-general in the name of The People against The Manhattan Railway Company, all the property of that company was by order of court put into the hands of two joint receivers, and that company itself was by the same order restrained from exercising its functions or operating under its franchises.

The directors of the three corporations, without the consent at least of the stockholders of the Metropolitan: Company, subsequently-made the agreement of October 22, 1881, by which the old agreement was modified by reducing the dividends to six per cent per annum, and by which the Metropolitan Company was subordinated to the New York Company and was to receive no dividends until the latter had received its six per cent in full for every year, the deficiency of one year to be made up the next year if necessary, and whereby the plaintiff was released from $325,000 of back dividends due the Metropolitan Company, but such back dividends were paid to the New York Company.

The three corporations then petitioned the court to restore to the plaintiff its property, which was accordingly done. On the 14th of November, 1881, a further agreement was made by the three companies, acting only through their boards of directors, so far as is disclosed by the proofs, whereby the stockholders of the two defendant companies were allowed to exchange their stock for an equal amount of the stock of the plaintiff, the stock for the New York Company to be the first preferred stock, and the holders thereof to be paid six per cent per annum, if so much was earned, the stock to be issued to the stockholders of the Metropolitan Company to be called second Dreferred stock and should be subordinated to the claim of the first preferred stock, but (if the earnings proved sufficient) to draw six per .cent dividends. The old stock of the Manhattan Company, amounting to $13,000,000, was denominated common stock and was not to draw dividends until after the six per cent per annum had been paid to the New York and to the Metropolitan holders of the new stock of the Manhattan Company.

On the 17th of November, 1881, in the case of The People v. The Manhattan Company, the court at Special Term pronounced what is termed a judgment, by which by way of recital it approved of the agreements of October twenty-second and November fourteenth as a just settlement of the controversies between the companies, and then declared and adjudged that the agreement between the three companies, made on the 22d day of October, 1881, required no ratification thereof by the stockholders of either of said corporations to cause them to become valid obligations between the corporations, “ and the same are hereby confirmed and established as a final settlement and conclusion of all questions in this action.”

The majority of the stockholders of the Metropolitan Company do not appear to approve of the means used, or the result itself, by wdiieh the contract of May 20, 1879, has been abrogated without their consent. And some of them, apparently acting for the best interests of the whole, have brought three actions in this and another court, the object of which is to protect their pecuniary rights against what they claim to be the devices of the boards of directors to defraud them.

The plaintiff, well content to maintain the status quo, under allegations showing the pendency of such suits and that other like actions are threatened, brings this action, which is termed a bill of peace, to restrain the beginning of further litigation by the dissatisfied stockholders and to compel them to submit all their grievances for adjudication in this suit, because otherwise the injury to the plaintiff would be irreparable. The control, howrever, of the Metropolitan Company having in the meantime passed into the hands of directors in sympathy with its stockholders who object to being bound by the agreement of October 22, 1881, a supplemental bill was filed upon which the subjacent injunction mentioned in clause second of the preliminary statement of this opinion was issued.

All allegations in the complaint and accompanying affidavits relating to the bringing of a multiplicity of actions by the stockholders of the Metropolitan Company are denied by the defendants, who aver that it has not been and is not their intention to institute any more actions than are necessary to a complete adjudication of the rights of such stockholders under vested contracts.

If the rights of the defendants have been invaded in the manner alleged by them the offense of the plaintiff is not merely the ordinary breach of a contract for which an action at law would afford an adequate remedy, but it is a wrong by which through the aid of a board of directors of the defendant corporations, which, as is claimed, was more watchful of the interests of the plaintiff than of its own stockholders, a large portion of the stockholders have been defrauded. The gravamen of the defendants’ grievance is that by a tort they have been deprived of the benefits of a fair and valuable contract. Probably if the injunction were vacated the Metropolitan Company could by an action at law against the plaintiff upon its original guaranty test the validity of the subsequent agreements if they were set up as a defense to the action. But the real issue in such an action would be the alleged fraud or the power of the boards of directors to contract, for it is clear, under the proofs now before the court, that the Manhattan Company could not shield itself behind the seal of the Metropolitan Company affixed to the agreements, for the reason that it must be charged with knowledge that the subsequent agreements not having the consent of the stockholders were ultra vires and voidable.

But even if it were otherwise there would be open to the Metropolitan Company a remedy on the equity side of the court to set aside these agreements upon the same grounds; and in such an action, under the changed relations wrought in the directorship of the company since this action was brought, a complete adjudication could be had, not only of the legal rights of the Metropolitan Company but as an incident thereto of the right also of its several stockholders. Hence it appears, inasmuch as the individual stockholders of th'e Metropolitan Company acting with ordinary intelligence would not seek to bring an action for each of themselves separately (which could not be maintained unless the corporation could not or would not bring it), that the plaintiff’s fear of a multiplicity of actions is without just or reasonable cause. When this action was begun, however, as the affidavits show, the direction of the Metropolitan Company was in the hands of the persons representing the plaintiff, and therefore it could not reasonably be expected that it would assert, .as against the interests of the plaintiff, its own clear rights and those of its stockholders. That condition of things was brought about by the managers of the plaintiff. The Metropolitan Company being thus ham-strung and unable as a corporation to advance, it was natural and permissible for its stockholders, either as a body or separately, to take action in its and their own behalf. So the state of affairs by which many actions could be directed against the plaintiff was brought about by the acts of the plaintiff’s own managers, if the proofs before us are correct, and that the plaintiff should be permitted to complain of it and make it the groundwork of a bill of peace, takes the case outside the gravity with which equity principles are wont to be discussed.

Aside, therefore, from the denials which the defendants make to the charge of threatening a multiplicity of action (and such denials are taken as true), it appears to the court that the plaintiff is not in a position to invoke the aid of equity to stay such litigation.

The adjudications are uniform, that the power of the court to restrain parties who are aggrieved from instituting them actions ought not to be exercised except in extreme and clear cases. (Erie Railroad Co. v. Ramsey, 45 N. Y., 653.)

None of the cases cited by the learned judge in his opinion pronounced at the Special Term, and which are mainly relied on by the respondents, are so comprehensive as to cover the facts of this case as disclosed by the affidavits. In the case of the New York and New Haven Railroad Company v. Schuyler (17 N. Y., 592) a considerable number of suits had been already brought and many others were impending. It was a case of the confusion of genuine and spurious certificates of stock made by an unfaithful agent of the railroad company. But the company had not adopted any of such fraudulent acts, and merely brought all the holders, upwards of 300 in number, into court to ascertain whose shares were genuine. In the Third Avenue Railroad Company v. The Mayor, etc. (54 N. Y., 159), seventy-seven actions were pending between the same parties and the order of the court was to effect a result, which in this court would have been accomplished by a cohsolidation of the actions, and one of them was permitted to be tried while the trial of the others was in the meantime restrained. The other citations not bearing so nearly upon the question do not require special comment. For authorities bearing generally upon the question in support of this decision, see Wallack v. The Society, etc. (67 N. Y., 23, 28); Wolfe v. Burke (56 id., 115); Town of Venice v. Woodruff (62 id., 471); The People v. Canal Board (55 id., 390).

The learned counsel for the plaintiff makes a special claim to the interposition and protection of the court, because, as he says, the plaintiff is under the various agreements not only lessee, but agent, trustee and quasi partner, and he points to article thirteen of the lease whereby the Metropolitan Company made the Manhattan Company “ its agent and attorney to do in its name any and all things necessary to be done for the complete execution of this instrument.” This relationship of the parties, taken in connection with the proofs that at the time of making the October agreement the boards of directors of all the companies were controlled by the plaintiff or its managers, may be deemed in its broadest sense to be true. "What then is the outcome of it? It is this-: Yhe plaintiff, occupying a fiduciary relation to the defendants under the contract and lease of May 20,1819, entered into another two years and a-lialf afterwards without the consent of the real persons in interest by which the terms of the original agreement to which they had given their consent were impaired to their detriment and to the advantage' of the plaintiff. This may, indeed, be reason for invoking another well recognized, equity principle in favor of the defendants, which pronounces such dealing with the property rights of the cestui que trust to be against public policy. In the case of the Aberdeen Railway Company v. Blakie & Brothers (2 Eq., 1281), which was an action for a specific performance of a contract to purchase of the plaintiffs iron chairs at an agreed price, it appeared that one of the plaintiffs was a manager of the defendant but had taken no active part in effecting the bargain. The house of lords reversing the decision below held unanimously that the contract could not be enforced in equity because against public policy, for the reason that it was the duty of the plaintiff, as a manager of the defendant corporation, to buy at the cheapest rate, while it was for his interest as seller to obtain the greatest price for his chairs.

In Thomas v. The Brownsville, etc., Railway Company (2 Fed. Rep., 877) it was held that a contract between a railroad and a construction company.is voidable where any of the directors of the railroad are members of the construction company.

In Farley v. St. Paul, Minneapolis and Manitoba Railroad Company (14 Fed. Rep., 114) it was held that a party whose official duties to the beneficiary were both advisory and fiduciary could not be permitted to ask a court of equity to assist him in compelling confederates to share with him profits acquired through his own concealments and deceits in the betrayal of his trust.

In Flanagan v. Great Western Railway Company (L. R., 7 Eq., 116) the defendant, a railway company, owned a refreshment room at a station. The plaintiff, a director of the company, contracted for a lease of the refreshment room for the benefit of a firm of which he was a member. It was held not enforcible because the plaintiff’s duties as a director to lease it for the highest possible rent, etc., necessarily .clashed with his interests as lessee to get the property for a small rent and at as good terms for himself as possible. (See, also, Blake v. Buffalo Creek R. R. Co., 56 N. Y., 485; Bliss v. Matteson, 45 id., 22.)

This action, it is true, is not for a specific performance of the modified agreement. Rut the preliminary injunctions, so far as they are based upon the alleged validity of that agreement, do not present a case differing in principle from the cases cited.

It is also sought to uphold these injunctions,'4because this court, in the mandamus proceedings instituted by Noah Content, by affirming the order denying the writ passed upon and upheld the validity of the agreement of October, 1881. The history of that case is set forth in the defendants’ affidavits, and needs no comment. The belief of the court, induced by the representation of counsel on both sides, that all the parties to that proceeding were desirous only of expediting the case, so as to obtain a speedy decision of the Court of Appeals therein, seems to have been unfounded. That decision cannot be regarded as any obstacle to our conclusion in this case, because the order made in the mandamus proceedings was correct in any view which might have been taken of the case, for the reason that Mr. Content, had certainly mistaken his remedy* and the decision could have properly been put on that ground alone.

It is hardly necessary to say that this opinion is not intended to go further than is required to decide the appeals, namely, to show that there exists no legal reason why the plaintiff should longer hold the injunction, or why the defendants should longer be deprived of such suits as may be required to redress their grievances.

The orders appealed from should be reversed, with costs.

Daniels, J.:

I concur in the result, the controversy being one that does not justify an injunction of the nature of that which has been issued.

Davis, P. J.:

I concur on the ground that upon the facts appearing by all the papers the granting of the injunction was an improvident exercise of the power of the court, or, in other words, that the case presented is not one in which equity should interfere by bill quia timet.

Orders reversed, with costs.


source: Caselaw Access Project

author: Brady, J.;

license: Public Domain

text:
    JENNIE HINDLEY, Appellant, v. JOHN H. HINDLEY and Others, Respondents.

      Dower — right of the widow to elect whether she will accept a provision made for her in her husband's will oix claim, her dower — her election is not binding unless made with full knowledge of the nature and extent of the estate.

    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was brought for the admeasurement of the plaintiff’s ■dower and to set aside a paper purporting to be an election by her to accept a provision made for her in the will of her deceased husband in lieu thereof.
    After reviewing the evidence at some length the court at General Term said: “ In other words it must be held from the evidence that the paper if executed by the plaintiff, even with knowledge of its purport, was executed without full knowledge on her part of the •extent, nature and value of the estate and of her' legal rights in reference to such estate, and it is equally clear that under such circumstances the right of dower being one favored by the law a court of equity, in case injustice was apparently done by the expression of an election, would relieve the widow from its consequences. (Lasher v. Lasher, 13 Barb., 109; Wintour v. Clifton, 21 Beav., 447; Worthington v. Wigington, 20 id., 67; Morgan v. Edwards, 13 Price, 782; Dillon v. Pcorker, 1 Swanst, 359; Pusey v. Desbou■vrie, 3 P. Wms., 315; Huston v. Cone, 24 Ohio, 11; Wells v. Robinson, 13 Cal., 133; Story Eq. Jur. [vol. 2], 1097;. Larrdbee v. Van Alstyne, 1 Johns., 308.)
    “As said by Thompson, J., in Lcorrabee v. Van Alstyne (supra): i It is a rule of chancery to give the widow election to accept of the testamentary provision or to refuse it and betake herself to her ■dower at law; and even to allow her this election after acceptance and enjoyment for a considerable time of the testamentary provision, if it appears that she acted without full knowledge and understanding of her true situation and rights and of the consequences of her acceptance.’ In which Chief Justice Kent concurred. And in Scribner on Dower (vol. 2, p. 484) it is said: ‘ It is well established, however, that no acts will be binding on the widow unless done under a full knowledge of all the circumstance's and of her rights and with the intention of electing.’
    “ But whatever doubt may exist as to the due execution of the paper there seems to be none that the plaintiff was not fully aware of the extent and nature of her dower right at the time she executed it. In this view it is wholly immaterial whether she expressed herself satisfied with thé provisions of the will or not, and about which some testimony was given during the progress of the trial. Even if she were satisfied with the provisions of the will she was not bound by the statement to that effect, in the absence of full knowledge of the nature and extent.of the estate, and she had the right to assert her claim within a reasonable time, even after the partial acceptance of the provision made in lieu of dower. A widow does not forfeit her right to dower in the real estate of her deceased husband without evidence of a deliberate intention soto do expressed in some reliable form and with full knowledge of the nature and extent of the estate, and consequently of her right in it. (Cases, suyra.'f’

      G. Elliott Mi/nor, for the appellant.

      Town&endl dk Mahar, for the respondent John H. Hindley.

      William F. Riley, for J. C. Sanders, guardian.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred.

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


author: Per Curiam.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CONSTANTINE FABER, Appellant.

      Bigamy — a second ma/i'riage, by one against whom a decree for divorce on the ground of adultery has been granted, does not constitute the offense of bigamy.

    Appeal from a judgment of The Court of General Sessions for the city and county of New York, convicting the defendant of the crime of bigamy.
    The appellant was indicted for and tried and convicted of the crime of bigamy, and sentenced to the State prison for the term of fiVe years. It was shown upon the trial that the defendant on the 21st of February, 1878, was married to one Helen Asheh Bra-den. Afterwards, and on the 12th of September 1881, in an action in the Supreme Court of this State, wherein the wife of the appellant was plaintiff and the appellant defendant, a judgment dissolving the marriage on the ground of adultery committed by the defendant was recovered and entered. Afterward and on the 16th of April, 1882, the appellant was-married to one Mary West.
    The facts upon the trial were undisputed. The court held as matter of law that the appellant by his second marriage was guilty of the crime of bigamy.
    The-court at General Term said: “ This exact question was presented to this court in The People v. Hovey (5 Barb., 117), and it was there held that after the dissolution of a marriage for adultery, the marriage contract was at an end and the relation of husband and wife no longer existed between the parties, and that it is not bigamy for the guilty party to marry again, but that the second marriage being prohibited by section 47 of the act concerning divorce (2 R. S. [2d ed.], 80), it is punishable as a misdemeanor under the forty-fifth section of title 6 of the Revised Statutes relating to misdemeanors. (2 R. S. [2d ed.], 582.)

      “ The views of the court in that case are well sustained by the able opinion of Selden, J., and it has not been reversed in any subsequent case. In our opinion the case is a correct exposition of the law.”
    .The judgment must be reversed, and a new trial granted.

      William F. Kintzing and George L. Simonson-, for the appellant.

      John MoKeon, for the respondent.
   Opinion

Per Curiam.

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

Judgment reversed, and a new trial granted.


text:
    William S. Livingston, Jr., and another, Executors, etc., Respondents, v. The Society for the Relief of the Destitute, Blind, etc., and others, Appellants.

   — Order modified as directed in opinion, and affirmed as modified, without costs. Opinion by Daniels, J.


text:
    In the Matter of Robert Chapman and others.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of William A. Righter. In the Matter of Caroline C. Bishop.
   — Orders affirmed, with ten dollars costs and disbursements.


text:
    Max Heurtematte v. Francis Yarris.
   — Motion for reargument denied.


text:
    Robert T. Smith and another v. John B. Davis and another.
   Order reversed, with ten dollars costs and disbursements, and motion to vacate granted, without costs. Opinion by Daniels, J.


text:
    Stephen Tunstall, Respondent, v. Walter W. Winton, Appellant.

   — Order affirmed, with ten dollars costs and disbursements,' for the reason assigned by Lawrence, J.


text:
    Katherine Harft, Respondent, v. Charles Harft, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Amity Insurance Company, Respondent, v. The Pennsylvania Railroad Company, Appellant. Star Fire Insurance Company, Respondent, v. The Same. Lamar Insurance Company, Respondent, v. The Same. Tradesmen’s Fire Insurance Company, Respondent, v. The Same. New York Produce Exchange Insurance Company, Respondent, v. The Same. Edward Merritt, Respondent, v. The Same.
   — Orders affirmed, with ten dollars costs and disbursements, in one case.


text:
    Etta Armstrong, Respondent, v. William A. Cummings and others, Appellants.

   — Order modified by directing the residue of the motion costs to be set off, the scandalous matter in the affidavit to be stricken out, and denying costs of motion below, and as modified affirmed, without costs to either party. Opinion by Daniels, J.


text:
    The Emigrant Industrial Savings Bank, Plaintiff, v. Catharine Roche and others, Defendants.—Thomas Kenneally, Claimant, Appellant.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Davis,' P. J.


text:
    The Mayor, Etc., of New York, Appellant, v. Ira Davenport, Respondent, Impleaded, etc.

   — Judgment affirmed. Opinion Per Curiam.


text:
    Walter P. Tillman, Plaintiff, v. Ellen Augusta Davis and others, Defendants.

   — Judgment affirmed, with costs, on opinion of Yan V orst, J.


text:
    Walter E. Lawton, Appellant, v. The New York Extracting and Fertilizer Manufacturing Company, Respondent.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Ella L. Winton, Respondent, v. Walter W. Winton, Appellant.
   Order modified by reducing alimony to twelve dollars per week, and as so modified affirmed, without costs.


text:
    George J. Peet and another, Executors, etc., Respondents, v. Albert L. Mowry and Charles B. Peet, Appellants.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J. *


text:
    Joseph Naylor, Respondent, v. Antonio Rasines, Appellant, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Richard L. Campbell and another, Respondents, v. William C. Clarke, Appellant.

   — Order reversed and motion granted, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Jonas G. Goldsmith, Respondent, v. The United States Heveenoid Company, Appellant.

   — -Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    In the Matter of Christopher Prince.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Samuel H. Hurd, as Receiver, etc., Respondent, v. The Farmers’ Loan and Trust Company, Appellant.

   — Order affirmed, without costs. Opinion by Daniels, J.


text:
    Christian T. Christensen, Plaintiff, v. Paul W. Spofford, Defendant.

   — Order affirmed, without costs. Opinions by Daniels and Macomber, JJ.


text:
    Robert C. Lowry, Respondent, v. James Gault, Defendant, Impleaded, etc.

   — Judgment and order affirmed, with costs. Opinion by Davis, P. J.


text:
    In the Matter of the Trustees of the Leake and Watts Orphan Home, etc.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Jeremiah Cannon, Respondent, v. The Northwestern Mutual Life Insurance Company, Appellant.

   — Order reversed, with ten dollars costs and.disbursements; order entered striking out ninety-eight dollars and twenty cents sheriff’s fees, for poundage on attachment, from the bill of costs.


text:
    J. B. Crowell and others, Appellants, v. James M. Nichols and another, Respondents.

   — Order reversed, with ten dollars costs and disbursements. Opinion by Davis, P. J.


text:
    William Hamilton, Appellant, v. Rudolph W. Schack and others, Respondents.

   — Order reversed, with ten dollars costs and disbursements, and injunction reinstated and continued. Opinion Per Curiam..


text:
    In the Matter of the Accounting of Samuel A. Lewis, as Collector of Estate of Julia M. Stanton, Deceased.

   — Order affirmed, with ten dollars costs and disbursements. Opinion Per Curia/m.


text:
    John B. Cornell and others, Appellants, v. John Roach and others, Respondents.

   — Judgment affirmed, with costs, on the opinion of Yan Yorst, J., in the court below.


text:
    The People of the State of New York ex rel. Gustave Angerstein and others, Appellants, v. Bernard Kenney and others, Respondents.

   — Judgment affirmed, with costs.


text:
    John F. Gray, Respondent, v. Ann Livermore, Appellant, Impleaded, etc.

   — Judgment affirmed, with costs. Opinion Per Curiam.


text:
    Gustave Lauter, Respondent, v. Joseph L. Berg and others, Appellants.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    The New York and Western Union Telegraph Company, Respondent, v. Hugh J. Jewett, Appellant.

   — Order affirmed, with costs. Opinion Per Curiam.


text:
    Catherine Browne, Appellant, v. Julia A. Murdock, Respondent.

   — Judgment modified as directed in opinion, and affirmed as modified, without costs. Opinion by Brady, J.


text:
    Henry Danenbaum and another, Respondents, v. Lehman H. Mandelbaum, Appellant.

   — Order- reversed, without costs, unless the plaintiffs shall, within ten days, file undertaking as directed by opinion, in which case order affirmed, without costs. Opinion by Davis, P. J.


text:
    David G. Yuengling, Jr., Respondent, v. William Hone anothers, Appellants.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    The National Shoe and Leather Bank of the City of New York, Appellant, v. John Van Glahn, as Receiver, etc., Respondent.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Peter Bowe, Respondent, v. Robert C. Brown and others, Appellants.

   — Order reversed and motion to open default granted upon the payment' of ten dollars costs, and ten dollars costs of. appeal to abide event. Opinion by Brady, J.


text:
    John H. Bonn, Plaintiff, v. Ernest Steiger, Defendant.

   — Motion granted.


text:
    Stevens Voisin, Appellant, v. The Providence, Washington Insurance Company, Respondent.

   — Order modified as directed in opinion, and affirmed as modified, without costs. Opinion Per Cv/riam.


text:
    Phœbe Fellows, Appellant, v. Richard C. Fellows, Respondent.
   Order affirmed, without costs. Opinion by Brady, J.


text:
    Eugenia Roche, Respondent, v. James M. Marvin and another, Trustees, etc., Appellants.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    James Devlin v. John Shannon.
   — Motion denied. Mem. by Daniels, J.


text:
    Charles Stanford v. Williston B. Lockwood.
   —Motion denied. Mem. by Brady, J.


text:
    Peter Macarthur, Jr., Respondent, v. Perry Loucks, Appellant.
   Order affirmed, with ten dollars costs to abide event. Opinion by Macomber, J.


text:
    James M. Gano, Executor, etc., v. Jane W. McCunn and others. Elizabeth Patterson v. Thomas McCunn and others.
   Order of October, 1877, affirmed, with ten. dollars costs and disbursements, and order of August, 1882, modified as directed, and affirmed as modified, without costs. Opinion by Macomber, J.


text:
    Sigmund Rosenbaum, as Receiver, etc., Appellant, v. The Fire Insurance Association (Limited) of England, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.


text:
    Samuel Phillips v. William Mackella.
   — Motion denied. (See opinion.)


text:
    In the Matter of the New York Elevated Railway Company.
   Order appointing commissioners granted.


text:
    In the Matter of the Central Tunnel Railway Company.
   Order appointing commissioners granted.


author: Barrett, J.: Davis, P. J.:

text:
    In the Matter of ERASTUS H. MUNSON.

      Taking of land for public purposes — value of the land — at what date the value is to be determined — right of the State to discontinue the proceedings — act authorizing the payment of losses occasioned to the properly ownors by reason of the exercise of such right by the State — upon what principle such losses arre to be ascertained — closing of streets —1871, chap. 628 —1877, chap. 444.
    By chapter 628 of 1871 the legislature ^authorized the laying out of a public square or place in the upper part of the city of New York for use as a military parade ground. Proceedings were instituted under this act to acquire title to the land described therein, which were continued until 1877, when they were discontinued, the legislature having in that year repealed the act of 1871, by chapter 444 of 1877. While the proceedings were pending the property owners had vainly sought to compel a completion of the improvement. The act of 1877 provided for the appointment of commissioners to estimate and determine the “loss and damages, legal or equitable, if any,” sustained by the owners of any real estate situated within the boundaries of the plot of land laid out for a military parade ground, “ arising from or by reason of the laying out of said parade ground as aforesaid, or the proceedings theretofore taken pursuant to tlie said act, or by reason of the repeal of said act.” Upon the confirmation of the report of the commissioners the amount awarded thereby was to-.be and become a debt against the city of New York. The act provided that “ nothing herein contained shall be construed to legalize, confirm or recognize as valid or equitable any claim or claims hereinbefore mentioned; but the legality or equity of any and all such claims shall be determined by said commissioners and by the court upon the hearing of their report.”
    Upon an appeal from an order confirming the report made by the commissioners:

      Held, that under the act the commissioners were not limited in awarding the' damages to such as were recoverable in an action at law, but were free to compensate those who had really suffered loss by what had been done under legislative authority, and to award such compensation upon fair and just principles.
    That it was the duty of the court in reviewing the action of the commissioners to consid'er the legality or equity of each claim, and decide as to the propriety of allowing or rejecting it generally.
    That any error in matter of principle committed by the commissioners in estimating the amount of the damages should also be reviewed and corrected by the court, but that, with that exception, their decision as to the amount of damages to be allowed in any particular case, made upon conflicting proofs, was final.
    The act of 1871 directed that maps showing the location and extent of the public square or place, streets and avenues authorized by it, should be made, certified and filed as therein provided, and that “ from and after the time of filing of said maps the said public square or place, and the streets and avenues so laid out, if any, bounding the same, shall become and be one of the public squares or places and public streets and avenues in said city.” The maps required by the act were made and filed on April 5, 1873.

      Held, that under the act the amount which the owners of the property to be taken would have been entitled to receive had the proceeding been carried to completion would have been the value of the property at the time of the filing of the map, and not its value at the time of the making of the award.
    That although theoretically the owners of the property had the right at any time prior to the making of the award to convey the absolute fee, subject to the proceedings for its condemnation, yet practically they could convey only a chose in action, that is, their right toethe award, which could be neither increased or diminished.
    That it was the duty of the commissioners to allow to the property owners as damages the difference between the market value of the property at the time the maps were filed and its market value at the time the act authorizing the improvement to be made was repealed.
    That as it appeared that the market value of the property at the time of the filing of the map in April, 1873, was largely made up of an appreciation caused by the selection of the ground as a site for the parade ground in the previous October, this appreciation should be deducted from the market value of the land at the time of the filing of the map.
    That no allowance should be made for the taxes paid by the owners from 1873 to 1877.
    That nominal damages only should be allowed, unless actual injuries were affirmatively shown, and that nothing should be allowed beyond the actual losses, shown to have been sustained otherwise than by the rise and fall of the general market for real estate. (Per Davis, P. J.)
    The act of 1871, provided that “ all streets or avenues now laid out within the limits of the said public square or place so laid out shall from thenceforth become abandoned and closed.” Within the plot of ground designated upon the map filed in 1873 were certain streets and avenues, none of which had been actually opened. Some of these had been regularly laid out by the city authorities. In other cases the preliminary steps had been taken, but the final maps had not been filed. In others the streets had been dedicated to the use of the adjoining lot owners and the public by the owners of the fee.

      Held, that as the streets which had been duly laid out were closed by the act of 1871, and not reopened by its repeal in 1877, the owners of lands fronting upon them were entitled to some measure of compensation therefor.

      It seems, however, that they were only entitled to nominal damages.
    That for the closing of the streets which had not been completely laid out no damages should be allowed.
    That the streets which were dedicated by the owners of the fee were not closed by the filing of the map, as they could not be closed until the legal title thereto had been duly acquired and compensation made therefor to the owner.
    That the owners of lots fronting thereon had, therefore, no right to recover any damages for what had been done in regard to such streets.
    Appeal from an order made at Special Term confirming tbe report of Hon. William H. Wickham and Messrs. William C. Traphagen and Bernard Smyth, commissioners appointed to estimate and determine the damages sustained by certain property owners, by reason of proceedings to lay out a military parade ground under the act specified in the title.
    The act authorizing the laying out of the parade ground, chapter 628 of 1871, provided, among other things, that certain maps should be made, certified and filed as therein directed, and that “ from and after the time of filing of said maps the said public square or place, and the streets and avenues so laid out, if any, bounding the same, shall become and be one of the public squares or places and public streets and avenues in said city. * * * All streets or avenues now laid out within the limits of the said public square or place so laid out shall from thenceforth become abandoned and closed.”
    The act repealing this act, chapter 444 of 1877, provided, among other things, that the court should, upon notice to the corporation counsel “ and all persons claiming to be entitled, as the owners of any real estate situated within such boundaries, to any compensation for loss or damage arising from, or by reason of, the laying out of said parade ground as aforesaid, or the proceedings heretofore taken pursuant to the said act, or by reason of the repeal of said act,” appoint commissioners “to estimate and determine such loss and damage, legal or equitable, if any.” The amount stated in their report, when confirmed, was made a debt against the city of New York. The act further provided that “nothing herein'contained shall be construed to legalize, confirm or recognize as valid or equitable any claim or claims hereinbefore mentioned; but the legality or equity of any and all such claims shall be determined by said commissioners and by the court upon the hearing of their report.”

      Theodore W. Dwight, Lockwood & Crosby, Gratz Nathan, John C. Shaw, Whitehead <& Lloyt, Morrison c& Sigerson, for the appellants.

      William C. Whitney, corporation counsel, and Arthur Berry, for the respondents.
   Barrett, J.:

In 1871 the legislature authorized the laying out of a public square or place in the upper part of the city for use as a military parade ground. (Laws 1871, chap. 628.) Under this authority the proper officers located the contemplated improvement upon the low ground north of Fort George, and in due time the maps required by law were filed in the departments of parks and public works. The laying out was thus completed on the 5th day of April, 1873. Proceedings were subsequently taken to acquire title to the land. These proceedings underwent various vicissitudes, not now necessary to detail, until the month of June, 1877, when the legislature having repealed the entire act of 1871, they were finally discontinued. Provision was made in this latter act for a commission to appraise and estimate the loss or damage sustained by the owners of any real estate situated within the map boundaries, by reason of the laying out of the parade ground, or the proceedings taken under the act of 1871, or by reason of the repeal of that act. This commission was appointed, and after taking a large amount of testimony and hearing the parties in interest, it reported against the property owners, holding* in substance that they had suffered no loss or damage by what had transpired.

This report was sent back to the commissioners by Mr. Justice Brady with instructions to allow the claimants the amount of the taxes paid by them, or for which they were liable, during the period between tbe completion of the laying out (by the filing of the map on the 5th of April, 1873) and the repeal (on June 15, 1877) of the act of 1871. The commissioners obeyed these instructions and again reported. This report also was sent back by Mr. Justice Daniels, with instructions to include in the tax remission not only the land within the limits of the parade ground proper, but also that in the surrounding streets and avenues. This was done and the report was then confirmed. From such confirmation the property owners — dissatisfied with the mere tax remission and claiming more substantial relief — appeal.

The first questions to be examined are the duties under the act, of (1) the commission, and (2) the court in review of the commission.

First as to the commission.

This involves a general consideration of the subject. It is not denied that but for the act of 1877 the claimants would be remediless. Under the decisions in this State, individual rights have been subordinated to the public convenience. In England, personal rights have been more jealously guarded by the courts. There the public authorities are not permitted to play fast and loose with property owners. They cannot, at their pleasure, discontinue proceedings for the condemnation of lands which have gone so far as to bind the owners, but may be required by mandamus to complete them. (King v. Commissioners, 4 B. & Ad., 335; King v. Hungerford Market Co., Id., 327.)

That this is the natural justice of the thing was recognized In the Matter of the Commissioners of Washington Park (56 N. Y., 148). “ There is a strong equity in the claim made by the appellants,” says Bapallo, J., “ that the election to take their property when once exercised in such manner as to bind the owners, should be equally binding upon those who are empowered and elect to take it; and that the owners should not be exposed to repeated applications for this purpose, which might result, not only in keeping them in perpetual suspense as to their ownership, but might enable the other party to abuse the power intrusted to it by repeatedly making and withdrawing applications until it should obtain an appraisal satisfactory to itself, and thus deprive the owners of that just compensation for their property which is guaranteed to them by the Constitution of the State.”

The second section of the act of 1877 was undoubtedly intended ás a measure of relief to the property owners. For upwards of four years they had been practically kept in suspense as to their ownership.” Proceedings to acquire title had been instituted and then discontinued, recommenced and then dismissed, again set in motion and then left in abeyance, until the repeal of the act of 1871 and the final discontinuance. They had sought in vain to compel the completion of the improvement, the courts holding that the department had power to discontinue the proceedings at any time before the confirmation of the assessment. (Matter of Military Parade Ground, 60 N. Y., 319.) Under such circumstances, the legislative sense of justice was naturally aroused. The delays, the uncertainties, the seeming caprices to which these property owners had been thus subjected, naturally pleaded with the legislature for something like the normal measure of justice which would have been awarded in England as, of course, without special act of parliament.

It is clear that the intention was to take this particular and somewhat extraordinary case out of the ordinary rule in this State, which, notwithstanding the strong equity ” to which Rapallo, J., referred, leaves the property owner without power to compel the authorities either to proceed, take and pay for his property, or, upon discontinuance, to compensate him for the practical impounding of his rights. If this was not intended, the act was delusive and meaningless. The legislature knew the state of our law. It was aware that the property owners had no general redress. The machinery of a commission was surely not provided merely that the commissioners might tell 'the property owners what they already knew, namely, that their claims were without legal foundation. No, the spirit of the act is broad and remedial. While the legislature itself carefully avoided legalizing or even recognizing as equitable any claim provable under the act, it yet authorized the legality or equity “ of any and all such claims to be determined by the commissioners and by the court upon the hearing of their report.” It thus left both commissioners and court free to do equity and justice in the premises, to compensate those who had really suffered loss by what had transpired imder legislative authority, and to award such compensation upon fair and just principles.

This then was the duty of the commissioners. What is the duty of the court ? Upon this head we are hardly inclined to agree with either side. We neither deem it to be our duty under the act to review each award upon the facts, nor do we feel bound by the negative finding which has been submitted by the commissioners.

The court should consider the legality or equity of each claim, and review the ruling of the commissioners thereon. We refer to the inherent character of the claim — to its allowance or rejection generally. As to the quantum, of damages, it is the commissioners, not the court, who are to “appraise, estimate and determine.” Their judgment, upon conflicting proofs, is of course final. But. the court will review and correct them even in this regard where they err in matter of principle. It is for the court to settle the true rule which should guide in • estimating the damages, and for the commissioners to apply such rule fairly and justly to the facts developed before them. Did the commissioners then err in matter of principle?

It will be observed that in rejecting as they have all the claims which were presented, they have planted themselves not upon conflicting evidence as to depreciation, but upon certain guiding principles, which disposed of the claims adversely, independent of such evidence. The correctness of these principles is therefore before us for review. We find a full statement of them in the report of the commissioners, and we cannot do better than to quote this statement here in extenso. It is as follows:

“ The main proof made by the claimants was for the purpose of showing the great depreciation in this property, between the time when the map was filed in April, 1873, and the date of the repeal of the act, June, 1877, the theory of the claimants being that the filing of the map which indicated that the property would be taken by the public, tied up the property so that they were unable to sell it, and that but for the map they might have realized upon the property at the high prices which ruled in 1873.
“ The corporation counsel has shown, by the decision of the Court of Appeals (60 N. Y., 320), that the filing of the map did not affect the title of the property. It was still in the owner, with full power of alienating as before. He could sell, transfer or mortgage, after the map was filed, just as before.
“ But the claimants say that, though they had the legal power, the filing of the map damaged the property so in. the market that they were unable to sell; they say in substance, but for the filing of the map, we might have sold out at the high prices of 1873, and therefore the city should make it up to us.
“We are agreed in the view that we are not at liberty to award damages under this statute upon any surmise of our own as to what these persons might have done with their property, unless we find, as matter of fact, that they would have done something which they were prevented from doing by the filing of the map.
“ It is not enough, in our opinion, for us to see that these property owners might have sold, and would have sold if they had been wise and had foreseen the decline in prices which was impending; but we must find, in order to justify us in awarding damages, that they would have sold-in fact if they had not been prevented' by the filing of the map.
“ There must be the relation of cause and effect between the act complained of and the damage claimed to result' from it, in order to justify our finding damages against the city.
“We think there is no proof laid before us of any case of prevention ; no property owner there has stated before us the facts necessary to justify such a finding by us.
“We cannot assume without proof that the failure to sell by these property owners was due to this rather than some other cause, if they were holding the property as an investment.
“ If they expected higher prices in the immediate future; if they believed that the taking of this eighty acres out of the market and establishing there, a parade ground was of itselt likely to increase the value of the property in the market, which increased valuation the city would have to pay when it finally took the property; if they deemed the city likely to be a liberal purchaser, and that they were likely to realize more from the city than from a sale in the market.
“ Either one of these things may have influenced them not to desire to sell, and we are agreed in the opinion that we have got to say that a man would have sold but for this act complained of, in order to justify us in finding that it was this act which prevented the sale.”

We are unable to concur in this reasoning. If correct, it completely neutralizes the act. It substantially asks the claimants to prove the impossible. It is based upon an inaccurate idea of the relation of the- award to the time when the city finally took the property.” It overlooks the true position of the owner. It ignores the practical though not theoretical suspension of the right of alienation, and', upon the theory of the proceedings going through, it fails to consider the legal fixity of value (pending the suspension) which resulted from the filing of the map.

Let us look for a moment at the real status of a property owner pending these proceedings.

Upon the filing of the map, on the 5th day of April, 1873, the laying out of the parade ground, under the act of 1871, was completed.

From and after that date the land embraced within the map boundaries became and was (subject, of course, to the acquisition of the title to the property under the exercise of the right of eminent domain) “ one of the public squares or places ” of the city. There was nothing to justify even a doubt of the i-ipening of the proceedings into full fruition. What then was there to convey ? In theory of law, the absolute fee subject to legal condemnation. But practically a chose in action — the contemplated award.

This was substantially all that the property owner had to offer to the public. Let us suppose that the owner had attempted to do what the commissioners have thrown out his claim for not doing. If he were an honest man, acting in good faith, what must he have said to a person proposing to purchase: “ I have here a lot of which it is true I can give you the fee, but I cannot give you all which that usually implies. ■ If the city completes the proceedings which have been commenced by the filing of the maps, the lot will be condemned and you will have to be contented with a money award. Until that is determined you will not be in a position to improve the lot, because the city will not be bound to allow you for any such improvements made after the filing of the map. If perchance the proceedings shall ultimately be discontinued and the land released from the effect of the filing of the map, you will then be free to improve the lot or sell it at a price which will have no relation to a fixed award.”

Thus the practical limitations upon the free disposition of the property consisted of the enforced suspension of improvements, and the uncertainty as to whether the city would ultimately take; in effect whether the vendee would secure a fixed award or, at some future and indefinite time, free land. With such a state of things the evidence could not fail to show as it did, that the property was unmarketable and unsalable. It would have been insensate as well as futile for the owners to have gone about hawking such uncer • tainties. * And their right to compensation under the act of 1877, cannot be made to depend upon the chance' of their having discovered some business oddity willing to deal in specialties or peculiarities.

We have said that the commissioners failed to consider the legal fixity of value which resulted from the filing of 'the map. And this we conceive to be a very important consideration. For the commissioners speak, as we have seen, of a possible speculation in the awards.

If, however, the owners did not hold and, indeed, could not'have held their property because of any such consideration, if in fact they were necessarily compelled to hold, because in truth they had practically nothing to sell save an award which could neither be increased nor diminished by time; surely that is the end of the reasoning based upon the possible expectation (by the owners) of higher prices in the immediate future. It also closes the discussion as to the necessity of proof that, as matter of fact, the owners would have sold, if they had not been prevented by the filing of the map.

We have carefully considered this question, and, in our judgment, it was the value of the property at the time of the filing of the map, which would have governed in the making of the award.

The taking of the city under the right of eminent domain clearly related back to the laying out of the improvement. In fact, as we have already seen, the act provided that “ from and after the time of filing of said maps, the said public place or square and the streets and avenues so laid out, if any, bounding the same, shall become and be one of the public squares or places, and public streets and avenues of said city. (Laws 1871, chap. 628, § 2.) It is true that property owners were not absolutely divested of the fee until the confirmation of the assessments, under proceedings to acquire title. But the real taking was none the less upon the filing of the map. The hand of the law was then placed upon the property.

From that moment it was impounded for the public use. The owner might of course use the property until formally divested of his title, but he could make no improvements for which compensation would be afforded, and even his use would be hampered by the uncertainty as to the moment of actual dispossession. The only reason why the title did not at once vest in the city was, because of the delay in making just -compensation necessitated by the forms of law.

If the property owner is to suffer from depreciation, pending the proceedings to settle his compensation, so must the city from appreciation. And with what show of justice could the property owner claim the increased value caused, perhaps, by the very improvements for which the property was taken? (See Giesy v. C. W. and Z. R. R. Co., 4 Ohio State, 308, 322.)

The authorities too support this principle. Those in this State which are cited by the learned corporation counsel are not' in point. We refer to the following: Matter of Albany Street (11 Wend., 153); Wyman v. The Mayor (Id., 486); Matter of Furman Street (17 id., 649); Matter of William and Anthony Streets (19 id., 678); Matter of John and Cherry Streets (Id., 659). In none of these did the question arise with respeot to a special improvement in- the immediate present, and there is nothing in even the isolated and incidental remarks which have been quoted in the brief, to support the proposition that “just compensation” in a case like this (had the proceedings gone through) would have been “ the market value of the land at the time the commissioners of estimate and assessment made their report.”

A mere outline of future improvements of ‘ a general character, having reference to the growth and ultimate needs of a great city, whatever form it may take, stands upon an entirely different footing.

Take, for instance, the case of Bloomingdale square, referred to In the Matter of Widening Wall Street (17 Barb., 639). It was there contended that the owners of the square were only to have the value of the lands (with interest), “as of the year 1807 when the act for laying out the city was passed, or as of the year 1811 at the latest, when the map laying out theplcm of the oii/y was filed! But the court very properly held (upwards of forty years having elapsed from the filing of the map) that the owner was to have the enhanced value which his property had derived from the permanent plan and settlement of the cityThe same rule would naturally apply to the opening of streets and avenues from time to time (under a general system) as the development and progress of the city require. There, neither the system nor the procedure for laying out ” under it has any direct or immediate bearing upon the property formally condemned.

It is only when proceedings to open streets or avenues, and to acquire title thereto are actually begun that any perceptible influence upon values is apparent. Up to that moment the question of appreciation or depreciation is’ in the domain of natural conditions. But these considerations do not apply to a special improvement justified (in the legislative wisdom) by present needs, and calling for speedy development. But while no case in this State directly in point has been cited, the authorities in other States seem to be clear and explicit in favor of the doctrine that the market value at the time of the location of the improvement should govern. (Whitman v. Boston and Maine R. R. Co., 7 Allen, 326; Edmands v. City of Boston, 108 Mass., 535; Hampden Paint and Chemical Co. v. Springfield, Athol and N. R. R. Co., 124 id., 119; Old Colony R. R. Co. v. Miller, 125 id., 3; Lafayette R. R. Co. v. Murdock, 68 Ind., 137; Bangor and P. R. R. Co. v. McComb, 60 Me., 290; Delaware, L. and W.Co. v. Bunson, 61 Penn. St., 309; Parks v. City of Boston, 15 Pick., 198; Dickenson v. Fitchburg, 13 Gray, 546.) It is true that some of these cases were against private or but quasi public corporations. Others, however, were against municipal or strictly public bodies. But the same governing principle was laid down in the one class as in the other. •

The filing of the location,” said the court in Hampden Paint and Chemical Company v. Springfield, Athol and Northampton Railroad Company, “ constitutes the taking.” So in Whitma/n, v. Boston and Maine Railroad Company, the court observed: “ In estimating the damages sustained by the petitioners the jury were-properly advised to consider the value of the land and of the easement connected with it at the date of the location by the respondents of their road over it.”

In Old Colony Railroad Company v. Miller the rule was reiterated, damages are assessable as of the time of the location.” The same rule was laid down in the Indiana case, namely, “ that the damages, if any, should relate to the time of the filing of the act of appropriation.”

In Edmonds v. The City of Boston the court upheld the ruling of the court below that in the apportionment of the damages, as between the owner and his lessee, the latter should be allowed the market value of his lease at the time of the passing of the order to take the land, deducting the market value of the occupation which he actually enjoyed until the land was entered on.” And in Parks v. The City of Boston, Chief Justice Shaw said: This proceeding (for acquiring the title) “ is not, strictly speaking, an action for damages, but rather a valuation or appraisement of an incumbrance created on the plaintiff’s estate for the use of the public. It is the purchase of a public easement, the consideration of which is settled by such appraisement only because the parties are unable to agree upon it. The true rule would be, as in the case of other purchases, that the price is due and ought to be paid at the moment that the purchase is made when credit is not specially agreed- on. And if a ‘piepoudre ’ court could be called on the instant and on the spot the true rule of justice for the public would be to pay the compensation with one hand while they apply the ax with the other; and this rule is departed from only because some time is necessary, by the forms of law, to conduct the inquiry.”

The time of the location also governs in assessing the benefit conferred by the improvement upon adjoining land. (See Meacham v. Fitchburg R. R. Co., 4 Cush., 291, 299.)

It being quite clear then that the award would necessarily have been predicated of the market value of .the condemned property at the time of the location — that is, of the filing of the map — there was no basis for speculation. Compensation was not dependent upon subsequent fluctuation.

The city’s obligation and the owner’s rights were in principle fixed and settled. Practically the owner had nothing to transfer save, as was said in Spears v. The Mayor (87 N. Y., 359), the “ right to compensation ” which was “ a mere chose in action ” a right to the market value of his land on the 5th day of April, 1873, neither more nor less. And his transferee would have been entitled to precisely the same compensation, neither more nor less. There was nothing then to speculate about, unless it were the bare possibility of the entire abandoment of the improvement, and the ultimate freedom of the land from the condemnation proceedings. This was something winch neither the owners nor the public had any reason to contemplate, and it would hjave been the height of absurdity to have offered such a possibility for sale in the real estate market. We are therefore of opinion that the commissioners erred in the principle upon which they rejected these claims, and that it is our duty to send the report back, with instructions as to the principle which should govern in their reconsideration.

What then is the true principle upon which compensation should now be made under this act of 1877 %

On the the 5th day of April, 1873, these claimants owned certain property of a certain market value. From that day down to the 15th of June, 1877, it remained on their hands unmarketable and unsalable. In theory they could convey the fee; in practice they could not. In theory they could use the land; in practice they could not. For, as was said by Willes, J., in Morgan v. Metropolitan Railroad Company (L. R., 3 C. P., 558), “ they cannot use it because they are expecting the company (here the city) to take it.” Or, as Byles, J., observed in Fotherby v. Metropolitan Railroad Company, (L. R., 2 C. P., 188): “The owner caunot tell * * * in what way to use his land; whether to treat it as his own or to leave it for the company (here the city) to take possession of.” In neither theory nor practice could they improve their property. Upon the 5th of April, 1873, the city took the land. It was then impounded and substantially sequestrated to the public use. It then became and was, in the language of the statute, a public place. It was so taken and it became such public place with the city’s implied agreement (upon its proceeding to complete the improvement) to pay the owner the fair market value of the property upon the day it was so taken and became such public place. F^om that moment' until the final discontinuance, the owner was powerless to extricate himself from the position in which the law had placed him. He was bound hand and foot, was compelled to witness the depreciation of his property without a struggle, and was forced to rely upon the hope of a fair and just award, even that being involved in the uncertainty of a possible discontinuance without redress. Now, if this law of 1877 means anything, it means that the city shall pay for this depreciation. Clearly such depreciation is the loss and damage which the owners have sustained. The city practically took their property away from them when it had one market value. It returned it to them when it had another and lower market value. Under an act which left it to the commissioners and the court to do “ equity ” in the matter, the difference is the fair and just measure of compensation.

"We do not pretend to support this conclusion by reference to precedents. For the case is sui generis and naturally no authority can be found which is precisely in point. We have resorted to the general analogies of the law; not to any special analogies derivable from particular classes of actions. Any attempt to work out a precise rule from the governing principle as to the damages in any special form of action, would be unprofitable and futile. The case is exceptional and must be exceptionally treated.

But we are not unmindful of the fact that the market value of this property, upon the 5th of April, 1873, was largely made up of the appreciation caused by the selection of the ground in the previous October. Upon this head the commissioners report as follows:

The proof shows that between October, 1872, when this selec. tion was made of this ground, and the map of it reported to the park department, and April, 1873, when the map was filed, finally establishing its location, the- property both in and around the parade ground made a rapid rise in the market, ranging in individual cases, from fifty to one hundred and fifty per cent of increase.
“ Now, as the claimants appeal to natural justice, they must accept it in all its ramifications. It is natural justice to allow the real loss which the claimants have sustained by reason of all that has transpired. But to arrive at this, the improvement and all that sprang from it, whether by way of appreciation or depreciation, must be entirely eliminated. It will not do, while allowing the depreciation, to ignore the appreciation which resulted from the improvement. For the purpose of estimating the true damage, the appreciation caused, by the proposed improvement should be deducted from the market value of the land at the date of the filing of the map.
“All over that represented the improvement and the depreciation' on that' should not be considered. The legislature never meant to compensate these claimants for the depreciation upon the inflation caused by the improvement itself. To illustrate. A. owns a lot in this locality in October, 1872. Its market value is then $500. Upon the selection of this site for a parade ground, there is a “rapid rise” until in April, 1873, the lot is worth $1,000. Upon the final discontinuance of the proceedings in June, 1877, the lot is worth $250. The “ equity ” or “natural justice” of the case wouM be an allowance not of $750, but of $250. There may be instances of intermediate purchases upon the rising market, where the rule would not fully apply, but we are not informed in that regard, and the details of the application of our general views to special cases may well be left to the good judgment of the commissioners. We ought to add, that from any compensation hereafter made under the principles now enunciated, the sums already allowed upon the tax remission must be deducted. The claimants cannot have both the true measure of depreciation, and also freedom from taxation. The latter was granted only because it was supposed that the former could not be.

We now come to the other branch of the case, namely, the claims of damages by reason of the closing of certain streets within the parade ground. These may be divided into three classes :

(1.) Tenth avenue.

(2.) Other streets claimed to have been laid out by the department of public parks.

(3.) Streets dedicated by the Dyckman estate.

The claim as to all these classes is that the streets laid out or dedicated were permanently closed by the filing of the map under the act of 1871, and that the land upon the abandonment of the proceedings did not revert to the owners, as land intersected by streets, but as mere farm land. For this damages were also claimed. It is conceded that none of these streets were actually opened. It is admitted that Tenth avenue was duly laid out, and that it at least was permanently closed by the filing of the parade ground map. It would seem, therefore, that the owners of land upon Tenth avenue were entitled to some measure of compensation. It would naturally be slight, however, and we do not mean to intimate that an award of even nominal damages upon that account would have been disapproved.

As to the other streets said to have been laid out by the department of parks, we entirely agree with the finding of the commissioners that such streets were never legally laid out or established. They were partially surveyed, and a preliminary or sketch map was made and adopted by the commissioners. But this was wholly insufficient to constitute a legal laying out under chapter 565 of the Laws of 1865. The fair construction of this act requires the certifying and filing of three proper maps or surveys showing the width, location, course, winding and grades of such streets, accompanied with such field notes and explanatory remarks as the nature of the subject may require. These maps are required by the second section of this act to be duly acknowledged before a person authorized by law to take acknowledgments of deeds and conveyances. They are then to be filed, “ one in the office of the secretary of State to remain of record, one in the office of the register of the city and county of New York, and one in the office of the Central Park commissioners.” These maps were never certified, acknowledged or filed. Such certifying and filing are the acts which constitute the “ laying out.” All preceding acts simply evince cm vntention to lay out, which may be changed at any time prior to the act of filing.

As to the streets which were dedicated, we are of opinion that they were not closed by the filing of the parade ground map. The construction given by the Court of Appeals to the act of 1871, with regard to the parade ground proper, is equally applicable to these streets. (60 N. Y., 323.) Miller, J., there said, speaking of the language which we have' already quoted (namely, that upon the filing of the maps, the said public square or place shall become and be one of the public squares or places, etc.), that it did not mean that this was to be done without regard to the usual forms of law prescribed for establishing a public park.” And again he said: “ The exercise of the right of eminent domain is not authorized under the constitution (art. 1, § 7) without compensation to the owner; and it cannot, I think, be contended, legitimately, because the legislature has provided for establishing a public park, that this has been done without complying with certain provisions of law which have never been carried into effect.”

The language of the act with reference to the streets is as follows:

All streets and avenues now laid out within the limits of the said public square or place, so laid out, shall from thenceforth become abandoned and closed.” Quite similar it will be perceived, to the language with regard to the effect of the filing of the map of the parade ground proper, and evidently used as incidental to the main purpose. It is, we think, entirely clear that there was no intention to close these streets until title had been duly acquired, and compensation awarded for the land.

We need not consider the precise relations of the original dedicator to his vendees, nor the question as to who was entitled to compensation.

It is sufficient for our present purposes that the fee of these streets not being in the city, they could only be closed and appropriated as a part of the parade ground, under the exercise of the right of eminent domain. And this is undoubtedly what the legislature intended, especially as the closing of the streets was but an incident in the general appropriation of the land for the purposes of the parade ground. In our judgment, therefore, the owners of lots facing upon these streets have no just cause of complaint in this regard. The streets were never legally closed or appropriated to the public use, and upon the repeal of the act of 1871, the owners found themselves in the same position with regard to these streets as they were in before its passage.

We concur in the conclusions arrived at by the commissioners upon all these questions respecting the closing of streets (except as to Tenth avenue), and are satisfied that no claim for damages upon that head has been made out.

We also think that the ruling of the court below upon the subject of costs was correct. The amount awarded to the commissioners for their very onerous labors was only reasonable. Their duties were responsible and difficult. We know how laborious has been the task of reviewing their proceedings, and we can easily see how much greater must have been their labors as a quasi tribunal of first instance. The amount allowed by the act of 1877 for the costs and expenses of the proceedings having been exhausted, we apprehend that further legislative provision will have to be made before these commissioners can be expected to recommence them labors.

That, however, has nothing to do with our present conclusion upon this head, which is that the order as to the costs should be affirmed. The order confirming the commissioners’ report must however, be reversed and the report sent back to the commissioners, with instructions to take such further proofs as may be offered by either side, and to estimate and determine the damages, if any, sustained by the claimants upon the principles stated in this opinion.

Davis, P. J.:

In concurring in the conclusions reached by my brother Barrett, I desire to say that I do not understand his views as going any farther than to show that at most mere nominal damages can be allowed when actual injuries are not affirmatively shown, or, in other words, that speculative damages are not allowable, and nothing beyond actual losses shown to have been sustained otherwise than by the rise and fall of the general market for real estate. As to Tenth avenue, claims nothing beyond nominal damages can be asserted for the abandonment of the proceedings and of the highway.

The discretion of the commissioners should be most carefully exercised, otherwise great damage to the city may be done by awarding damages when none have been in fact sustained, and especially “ farm lands ” should not be subdivided into lots ’ for the purpose of sustaining exaggerated claims, nor any other mode tolerated of making the property appear otherwise than what it was, and would doubtless have remained if the project of a parade ground ” had not been contemplated.

The door into the public treasury opened by the repealing act is one which by erroneous construction may let in such a horde of fraudulent claims that I feel justified in adding these suggestions .to the extremely able opinion of my brother Barrett.

Present — Davis, P. J., and Barrett, J.

Order reversed; order to be settled by Barrett, J.


author: Davis, P. J.:

text:
    MARGARET BUDD, Appellant, v. STEPHEN A. WALKER, as Executor, etc., of HOLBERT SMALES, Deceased, Respondent.

      Statute of limitations — what statements do not amount to a plea of the statute of. limitations — Code of Gwil Procedure, sec. 413.
    This action was brought to recover a sum of money intrusted by the plaintiff to the defendant’s testator January 22, 1859. The defendant set up in his answer as one of his defenses to the action “ that the claims of the plaintiff mentioned in said complaint, if not wholly fictitious, are stale and outlawed demands and have been wholly abandoned and lost by the laches of the plaintiff in not insisting upon the same during the lifetime of the testator, with whom the plaintiff was in daily intercourse, and the defendant claims the benefit of all statutes or rules of law or equity which may be invoked for the purpose of resisting the same, and which the evidence presented upon the trial may show to be applicable.”

      Held, that this was not a plea of the statute of limitations, and that the objection that the plaintiff’s demand was barred by that statute could not he raised upon the trial.
    Appeal from a judgment in favor of tbe defendant, entered on tbe report of a referee.

      Luther R. Marsh, for tbe appellant.

      O. W. Vm Stych, for tbe respondent.
   Davis, P. J.:

Tbe first cause of action set forth in tbe complaint alleges that “on or about January 22, in tbe year 1859, said plaintiff intrusted to said testator tbe sum of nine hundred and fifty-three dollars and seventy-two cents, which sum tbe said testator shortly thereafter informed said plaintiff be bad invested for her at seven per cent per annum.”

To establish this cause of action tbe plaintiff proved and put in evidence an instrument in tbe following words and figures:

“New York, January 22, 1859.
“Dear Mrs. Van Kleeok — I have this day received from Mrs. Meinell on your account six hundred and fifty-three dollars and seventy-two cents ($653.72), which together with the three hundred dollars ($300) yon deposited in my hands about the' first September last are now drawing interest at the rate of seven per cent. If I can find an opportunity of purchasing a mortgage such as I mentioned to you, whereby I can without risk secure a greater profit, I shall do so unless you wish to make any other use of the money.' Should you desire to use it please let me know.
“H. SMALES.”

In respect to this cause of action the referee has found against the plaintiff, solely on the ground that it was barred by the statute of limitations. It was insisted on the part of the plaintiff that the statute of limitations had not been pleaded as a defense. The referee overruled this objection and held that the statute was sufficiently pleaded. The third answer of the defendant is as follows:

Third. Defendant further says, on information and belief, that the claims of the plaintiff mentioned in said- complaint, if not wholly fictitious, are stale and outlawed demands and have been wholly abandoned and lost by the laches of the plaintiff in not insisting upon the same during the lifetime of the testator, with whom the plaintiff was in daily intercourse, and the defendant claims the benefit of all statutes or rules of law or equity which may be invoked for the purpose of resisting the same, and which the evidence presented upon the trial- may show to be applicable.

Whatever this nondescript answer may be we are of opinion that it is not a plea of the statute of limitations. Section 413 of the Code declares that the objection that the action was not commenced within the time limited can be taken only by answer. This means that it must be distinctly, alleged by specific answer that the cause of action did not accrue within the period within-which by previous sections of the Code it must be brought. The form of pleading the statute of limitations has long been well settled. In Fisher v. Pond (1 Hill, 672), which was an action on the case against the sheriff for not returning a fi. fa., the defendant pleaded that he was not guilty within three years next before the commencement of the suit.”

A motion was made to strike out this answer as false. The court, Bronson, J., in commenting on the plea, said: “ The plea may be bad because it says not guilty within three years instead of alleging that the action did not accrue within that time,” citing 2 Revised Statutes, 296, and Dyster v. Battye (3 Barn. & Ald., 448), but held that the question was not before the court as neither a demurrer nor a motion to strike out the plea as frivolous was made. Afterwards in the same case, in 2 Hill, 338, the plaintiff having demurred specially to the plea for not following the statute in its terms, the court held that upon the authority of Dyster v. Battye (supra), “and the reason of the thing,” the plea was bad and sustained the demurrer. In Dyster v. Battye, in speaking of a similar plea, Abbott, C. J., said: If its import be really the same as an allegation that the cause of action did not accrue within six years, there can be no reason assigned for a departure from the usual forms. And if its import is different, then it is not a plea warranted by the statute, and, certainly, is not a good plea at the common law.”

In Bell v. Yates (33 Barb., 627) the answer was that the cause of action did not accrue at any time within six years next before the commencement of this action, and the court held this to be the proper form of pleading the statute of limitations under the Code. Such a plea is concise and plain, and presents the issue of fact which the law requires, to wit, whether the action was commenced within six years after it accrued. There seems to be no excuse for tolerating any material departure from that form. In this case the answer is that the claims of the plaintiff, “ if not wholly fictitious, are stale and outlawed demands and have been wholly abandoned and lost by the laches of the plaintiff in not insisting upon the same during the lifetime of the' testator, with whom the plaintiff was in daily intercourse.” The substance of this answer is the laches of the plaintiff in not insisting upon her claims during the lifetime of the testator, and the object appears to be to assert such laches as an evidence that they are wholly fictitious. The answer looks more like an attempt to avoid the odium of setting up the statute of limitations instead of one to assert it as a defense.

The question whether it does assert that defense all turns upon the force of the word outlawed, for if the sentence be read without that word, probably no one would assert that it could be construed to be a plea of the statute of limitations. But the fact that a demand is outlawed is no defense without a plea' of the statute of limitations, for no matter how plainly it may appear upon the face of the instrument that more than six or more than any number of years has elapsed since the demand fell due,- yet the omission of the plea of the statute of limitations prevents that fact from operating as a defense. To hold this answer to be such a plea is equivalent to holding that it is a sufficient answer under the statute to assert that the cause of action alleged in the complaint is stale and outlawed, which certainly would not be a good answer because it would not indicate, according to the requirements of the Code, that the defendant intended to rely upon the force of the statute of limitations.

Nor do we think that the conclusion of the answer should operate to make that part already considered a plea of the statute of limitations. It is in these words: And the defendant claims the benefit of all statutes, or rules of law or equity which may be invoked for the purpose of resisting the same, and which the evidence produced on the trial may show to be applicable.” The only merit of this part of the answer consists in its novelty. It surely cannot operate to entitle the defendant to the benefit of any statute which the law requires to be specially pleaded. The statute of limitations is of that character (Code O. P., § 413), and a general claim of the benefit of all statutes or rules of, law or equity which may be invoked for the purpose of resisting a claim, is no compliance with the requirements of the section referred to. Indeed this whole sentence is nothing more than a declaration of intention to take advantage of whatever may turn up on the trial.

In respect of the other cause of action set forth in the complaint, there was, in the correspondence of the testator, considerable evidence tending to establish the allegation that the parties did enter into an arrangement for carrying on a household at their joint expense; and if the learned referee had found that such an arrangement existed, it would not have been difficult to uphold the finding. It being purely a question of fact, however, his construction of the correspondence and other evidence bearing upon that issue is one with which we are not inclined to interfere, because, upon the question already considered there must be a new trial. At all events, as the evidence stood when the case was submitted, the plaintiff had shown a just claim against the testator for his board for a number of years, and such was the opinion of the learned referee, as shown by the concluding remarks of his opinion.

He says: “ The most that can be inferred is that the testator was a highly favored boarder, and under an implied obligation to pay whatever the services rendered to him were worth. No such cause of action is set forth in the complaint, or attempted to be maintained upon the trial.”

The parties will, of course, before a new trial be had, be at liberty to make such applications as they shall be respectively advised in respect to the amendment of the pleadings. With leave of the court, the answer can be amended so as to properly set up the statute of limitations as a defense, and the complaint may also, in like manner, be amended so as to assert a claim for the board and services rendered to the testator by the plaintiff, and with such amendments the equitable claims and legal defenses will be bettei presented upon a new trial.

The judgment must be reversed and a new trial granted with costs to abide the event.

Daniels, <J., concurred.

Present — Davis, P. J., Daniels and Macomber, JJ.

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