text:
    William F. Gill, Resp’t, v. Aetna Live-stock Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Pleadings—Complaint—Insurance.
    The complaint on an insurance policy is defective, where it fails to allege-a default in payment by defendant of any sum due thereon.
    2. Same-Amendment.
    An amendment of the complaint will, not be allowed on appeal, where plaintifl’s attention was called to the defect on the trial.
    3. Same—Admission in answer.
    A defect in the complaint in failing to allege facts sufficient to constitute a cause of action, is not cured by an admission in the answer, which does not cover all the facts necessary to be established by the plaintiff to create-a liability or prove a breach by the defendant.
    Appeal from a judgment in favor of plaintiff, rendered by the-court, without a jury.

      Cameron & McArthur, for app’lt; Charles R. Patterson, for resp’t.
   Mayham, P. J.

The complaint in this case does not state a. cause of action. The insurance policy was a contract on which an action could only be maintained after a breach. Proof of all the facts alleged in the complaint, undisputed by other evidence, would not entitle the plaintiff to recover, and this seems to be conceded by the plaintiff. There was no allegation that there was-an y default in the payment by the defendant, or that any sum was due on the contract. Krower v. Reynolds, 99 N. Y. 245-249 ; Keteltas v. Myers, 19 N. Y. 231-233 ; Tooker v. Arnoux, 76 N.Y. 397. These and other authorities which might be cited show that the settled rules of pleading require, in actions on contract, that the complaint must allege a breach to authorize a"recovery; and a complaint not containing such an allegation may, under § 499 of the Code of Civil Procedure, be attacked at the trial for such defect. That objection was made by the defendant on the trial of this action, and was overruled. That ruling, we think, was erroneous.

But it is insisted that the defect could have been cured by amendment at the trial, and that it may now be amended on this appeal under § 723 of the Code of Civil Procedure. That section provides for the amendment on appeal in furtherance of justice, and on such terms as may be just, and it also provides for disregarding the defect which does not affect a substantial right; but I do not think that this case is one in which we should exercise the power conferred by that section of amending on this appeal, or disregarding the defect. The attention of the plaintiff was sharply called to the defect in the complaint on the trial, and he did not then call upon the court to exercise its power of granting an amendment of the complaint, but rather invoked and obtained a determination of the trial court on the question of the sufficiency of the complaint. "The defendant had a right, therefore, to rely at its own risk upon the objection and exception ; and it would"not be in furtherance of justice on this appeal to relieve the plaintiff by amendment, and thus throw the burden and expense of the litigation on the defendant, when, if we are correct in holding this complaint insufficient, he was right, and the plaintiff wrong, before the trial court. Nor do I think the defect was cured by the answer. The case is different from Cohu v. Husson, 113 N. Y. 662 ; 23 St. Rep. 504, relied upon by the plaintiff. In that case the note, upon its face, showed that it was past due, from which fact the law would imply a liability; and its execution having been admitted, and no allegation of payment being alleged, the existence of an outstanding unpaid demand arose from those facts, which became payable at the time of the maturity of the note. It is true that the answer in this case admits the death of the horse; but, under the conditions of the policy asset out in the complaint, that alone does not necessarily create a liability. Other conditions to create a liability of the defendant are contained in the policy which are not admitted, and which would require proof before it could be claimed that nonpayment constituted a breach by the defendant of the terms of the contract. The admission, therefore, in the answer, does not cover all the facts necessary to be established by the plaintiff to create a liability or prove a breach by the defendant. We think, also, that there were other material allegations of the complaint which were controverted by- the answer, upon which the plaintiff was required to introduce proof as the answer took issue upon them, and that it was error for the learned trial judge to find in favor of the plaintiff upon the complaint alone, unsupported by proof upon these controverted questions.

Judgment must be reversed, and a new trial granted; costs to abide the event.

All concur. _


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Mary M. Perkins, as Administatrix, etc., Resp’t, v. Henry W. Slocum, Individually and as Receiver, etc., App’lt.

      (Supreme Court, General Term, Third Department

      Filed December 4, 1894.)

    Pleadings —Misjoinder.
    Causes of action against a person individually and as receiver, for the , conversion of goods which came into his possession as receiver, cannot be joined in the same complaint.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      Hale & Bulkeley (Alpheus T. Bulkeley, of counsel), for app’lt; Edgar T. Brackett, for resp’t.
   Mayham, P. J.

The complaint, in the first count, charges the defendant, personally, with a wrongful conversion of certain personal property belonging to the plaintiff, and to the immediate possession of which she is entitled. The second count charges that the defendant as receiver appointed by the court in an action in the supreme court, in substance, took possession of the same property described in the first count in such complaint, and, after demand by plaintiff of him, wrongfully refused to deliver them to the plaintiff, but, as such receiver, converted them to his own use; and the plaintiff, by leave of the court, brings this action against him as receiver, as well as individually. To this complaint the defendant demurs on the ground of an improper joinder of two causes of action, and that several causes of action have been improperly united,—one against Henry W. Slocum individually, and one against him as the receiver of the. personal property of the Waverly Hotel. The demurrer was overruled by the trial court, and an interlocutory judgment entered against the defendant, from which the defendant appeals to this court.

The only question on this appeal is whether the plaintiff, by her complaint, has improperly united two inconsistent causes of action. Subdivision 7 of section 488 of the Code of Civil Procedure specifies as a ground of demurrer “ that causes of action have been improperly united." Prior to the enactment of section 1815 of the Code of Civil Procedure, an action could not be maintained against an executor or administrator as an individual and in his representative capacity, Clark v. Coles, 50 How. Pr. 178, and a complaint charging him in such double capacity was held bad on demurrer. By that section, "actions, under certain conditions, can be maintained against such individual, charging him in a double capacity. But it is only by the authority of that section that he may be sued in the same action as an individual and in his representative capacity. In a complaint like the one in case at bar, a judgment against defendant would furnish no guide in determining whether the defendant was personally liable, or liable as receiver; and yet in one case he would be personally charged as a wrongdoer, while in the other he would seem to be only liable as a trustee acting under the order of the court. But, whether that be so or not, it appears well settled by authority that the causes of action in this case are improperly joined. In Wiles v. Suydam, 64 N. Y. 177, it was held that a complaint setting forth facts sufficient, and seeking to charge the defendant, as a stockholder of a manufacturing corporation organized under general laws (chapter 40, 1848), with a debt of the corporation, because of a failure to make and record a certificate required by section 10 of that act, and als alleging the requisite facts, and seeking to charge him as trustee with the debt because of failure to file an annual report under section 12 of the same act, constitutes two separate and distinct causes of action, and cannot be united in the same complaint, and the court of appeals sustained a demurrer for that reason. And it seems that a demurrer is proper, irrespective of whether the causes of action are separately stated, or cómmingléd. Harris v. Eldridge, 5 Abb. N. C. 278. It is true that section 484 of the Code of Civil Procedure allows two or more causes of action tobe united in the same complaint, when they arise out of the same transaction; but it must appear that they all belong to one of the subdivisions of that section, and that they are consistent with each other. As we have seen, the causes of action, in this case, are not consistent with each other, as they would require different forms of judgment, and different forms of final process for their enforcement. Clark v. Coles, 50 How. Pr. 178; Landau v. Levy, 1 Abb. Pr. 376. The interlocutory judgment should be reversed, and judgment for the defendant ordered on demurrer, with leave to the plaintiff to amend on payment of the costs of this appeal.

All concur.


text:
    In the Matter of an Application to Revoke Probate of the Will of William V. Clark, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)
    1. Appeal—Conflictinu evidence.
    The decision of the surrogate, on conflicting evidence, will not be disturbed on appeal.
    2. Witness—§ 829 of Code.
    A beneficiary under the will, who has no interest in favor of, or adverse to, either party in controversy, is not disqualified from giving testimony against the executor under the provisions of § 829 of the Code.
    Appeal from so much of the decree as revokes probate of the codicil.

      Foley & Wing, for app’lts; J. S. EAmoreaux, for resp’ts.
   Mayham, P. J.

The testator made his original will, bearing date September 22, 1885, in and by which he bequeathed to his wife $2,000, one-third of all his household furniture absolutely, and the use of the farm on which he lived, together with the use of the team, tools, stock, and implements, and such gfain as might be on hand at his death, during her natural life, in lieu of her right of dower, and of all other legitimate claims she may have against his estate, real or personal; and, after his death, the remainder of his farm to his grandson William C. Grenell in fee. By the third item he gave and bequeathed $500 to Mary Jane Hayner. By the fourth item he bequeathed to Mary A. Grenell, wife of Isaac K. Grenell, $300. By the fifth item he gave to Mary A. Glenn, widow of Allen S. Glenn, $1,000. By the sixth item he gave to his grandson William C. Grenell his gold watch. By the seventh item he gave to Eliza Grenell and William C. Grenell and Rosella Grenell, children of Isaac Grenell, and grandchildren of testator, $5,000 each. By the eighth clause he bequeathed to his four grandchildren all the personal property bequeathed to his widow remaining at her death. By the ninth clause he gave to his fourth grandchildren, share and share alike, all the rest, residue, and remainder of his estate. By a codicil to his will, dated the 26th day of April, 1888, the testator revoked legacy numbered 3, to Mary Jane Hayner, and legacy numbered 4, to Mary A. Grenell, and directed that the sums therein bequeathed pass, under the residuary clause of his will, to the persons therein entitled to such residue. On the 17th of December, 1889, the testator made another codicil to his will, and by the first clause thereof revoked the fifth clause of his will entirely, and also revoked the provisions made for Mary A. Glenn in the eighth and ninth clauses of his will. In the second clause of such codicil he bequeathed to the five children of Mary A. Glenn, who were his great-grandchildren, each the sum of $200. By the third clause of this codicil the testator bequeathed the share given to Mary A. Glenn in the eighth and ninth clauses of his will to his grandchildren Eliza Grenell, William 0. Grenell, and Rosella Grenell, to be divided equally between them. On the 21st of October, 1892, the will and codicils of the testator were duly proved and admitted to probate by the surrogate of Saratoga county, and Isaac K. Grenell, the executor named therein, duly qualified as such. On the 28th of November, 1892, Scott B. Glenn, a great-grandson of the testator, presented his petition to the surrogate of Saratoga county praying for the revocation of such probate and letters testamentary, stating various grounds for the relief sought. On the heai’ing a large amount of evidence was taken before the surrogate, and from such evidence the surrogate found and directed that at the time of the execution of the will and each of the codicils thereto the testator was of sound and disposing mind, and in all respects competent to make and execute the same; and that the will dated September 22, 1885, and the codicil dated April 26, 1888, were in all respects executed and published by the testator in conformity to law, and entitled to be admitted to probate, as and for the last will and codicil of the deceased. The surrogate refused to find that the instrument purporting to be a codicil to the will dated December 17, 1889, is genuine and valid, and was executed and published by the testator in conformity with the statute, and accordingly decreed that the will dated September 22, 1885, and the codicil dated April 26, 1888, were valid, and confirmed the probate as to them, and that as to the codicil dated December 17, 1889, the probate thereof was revoked.

The main contention of this appeal is as to that part of the -decree revoking the probate of the second codicil. By the provisions of that codicil the whole tenure of the will and first codicil were materially changed, and the bulk of the estate transferred from one branch of testator’s family to another. The testator's entire estate was about $45,000. By the first will and codicil the Grenell branch of testator’s family would receive about $28,500 of the estate, and the Glenn branch about $14,500. By the last codicil the Glenn branch of testator’s family was to receive $1,000, and the Grenell branch received $43,000. Some attempt was made by the petitioner to show that the codicil was in part the result of undue influence of Isaac K. Grenell, who is the- father of the Grenell beneficiaries, and executor named in the will, who, as the proof showed, had occupied a confidential relation with the testator. But the learned surrogate held that the codicil was not the result of undue influence, and as he saw the witnesses who testified in this proceeding, and there was no direct proof of undue influence, we must regard his determination as the settlement of a disputed question of fact which we should not disturb on appeal. But the learned surrogate held and decided that statutory formalities required for the due execution of a will were not complied with in the execution of this codicil, and that the due execution of this codicil was not, therefore, proved. One of the witnesses called upon that branch of the case proved the full compliance with the requirements of the statute, and swore that he declared the alleged codicil to be a codicil. The other heard no such declaration. But it is urged on the part of the executor that, as the will and codicil were attached together, the declaration by the testator to the witnesses that they had signed it before showed that the testator regarded their subscription to the document as equivalent to a declaration that the paper was a part of the will, and their signatures in his presence, and in the presence of each other, as a substantial compliance with the statutory requirements. But the testimony of the subscribing witnesses as to what did occur is positively contradicted by two other witnesses, who claim to have been present at the time of alleged execution of this instrument. That testimony raises a disputed question of fact which it was the duty of the surrogate to decide, and, under the circumstances of this case, we cannot disturb his finding on that disputed question. But it is insisted by the executor that the surrogate erred in receiving the testimony of Mrs. Mary J. Clark, widow of testator, and that she being a beneficiary under the will of her husband, was, therefore, disqualified from giving testimony as to this codicil, under the provisions of § 829 of the Code of Civil Procedure. But it will be seen that this witness had no interest in favor of or adverse to either party in controversy under this codicil. It neither added to nor diminished her rights or interest in the estate of the testator. She was not, therefore, a party interested in the event, or a person from, through, or under whom such persons or interested party derives his title.or interest. Her rights and interests in her husband’s estate remained unchanged after as well as before the making of this codicil," and her testimony does not, therefore, come under the condemnation of that section. On the whole case, I see no error in the determination of the learned surrogate,, and his decree' must be affirmed, 'with costs.

" All concur.


text:
    Frederick F. Proctor, Resp’t, v. Henry P. Soulier, App’lt.

      CSupreme Court,. General' Term,,!Mrd Department,

      Filed December 4, 1894.)

    1. Motions and orders—Order to show cause.
    An .order, to show cause) cannot be sustained, unless it complies with: rule 37'of the'general rules of practice.
    8. Injunctions— Notice.
    An order granting an injunction cannot be sustained on the ground of' discretionary power of the court, where the judge, at special term, has not, in accordance with the prescribed rules of law and practice, acquired jurisdiction of the'parties and subject-matter.
    Appeal from an order appointing a receiver of partnership property,. and restraining defendant from interfering therewith during the. pendency of the action.
    John. A. Delehanty, for app’lt; Dittenhoefer, Gerber & James (Simon Rosendale and Albert Hessberg, of counsel), for resp’t.
   Mayham, P. J.

Various preliminary objections of a somewhat, serious "character were raised by the defendant at the return of the order to show cause, which are pressed here as grounds for a.reversal of the order granting the temporary injunction and-oppointmerit of a receiver in this case, and which seem worthy of consideration.

The first objection was based upon the ground that the papers on‘which the order was granted did not conform to the require-.me’nts of rule 37 of the general rules of practice of this court, .made under the provisions of § 780 of the Code of Civil Procedure. That section provides that notice of motion, and papers-upon which.it is to be made, must be served at least eight days ■before the time of hearing, when special provision is not made by law or by the general rules of practice for a shorter time, or the court or judge, upon affidavit showing that a shorter- time is necessary, makes an order to show cause; and rule 37 provides that an order to show cause shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, and the party shall in his-affidavit state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next trial term or circuit when the action is triable. The order to show cause in this action was dated on the 18th day of May, 1894, and by its terms was required to be served on the 19th day of the same month, and was returnable on the 23d thereof, with leave to the plaintiff to serve other affidavits within two days before the hearing. Ho special reason is stated in the affidavits why a shorter time than eight days was required for the hearing of the motion, nor was the condition of the action, or the next term or circuit at which it could be heard, stated in the affidavits on which that order was granted, as required by rule 37. The order to-show cause takes the place of a notice of motion, and, as it would seem from the section of the Code and rule above referred to, the former cannot be substituted for the latter, except in the manner particularly pointed out and authorized therein. This objection was specifically taken by the defendant on the return of the order to show cause, and was overruled before the defendant interposed his defense upon the merits. We can hardly hold that this objection is too technical to be regarded on this appeal. It may have involved a substantial right of the defendant by affording him inadequate time and opportunity to prepare to meet the somewhat, voluminous affidavits used by the plaintiff on this motion. At all events, the defendant had a right, on this summary application for an injunction and receiver, to insist upon a substantial compliance with the Code and rules, and, if denied that right, to ask this court to enforce its rules.

It was also objected by the defendant, on the hearing of this motion, that the temporary injunction was defective in not briefly stating the ground upon which it was granted, as required by rule 13 of the general rules of practice of this court. It is true that the order to show cause is not appealed "from, but it constitutes the only authority for the motion on which the order appealed from was granted, as recited in the order appealed from, and constitutes the jurisdictional basis upon which the order appealed from was granted; and, as the objection to its validity was raised on this motion, I think it must be held as directly affecting this order, as, without the order to show cause, there would be no notice of motion on which this order could have been made. It is insisted that the granting of the order for an injunction rests in the sound discretion of the special term, and should not be interfered with on appeal. But it is only when the judge at special term has, in accordance with the prescribed rules of law and practice, acquired jurisdiction of the parties and subject-matter, that we can exercise such discretion. The object of rules of court and statutory methods of practice is to prevent parties from surprise, and preserve method and order in the administration of justice, and parties and attorneys have a right to expect the courts; will administer the law in accordance with the rules which they have promulgated for their guidance. On failure on the .part of the courts to observe them, the rules become little less than a delusion and a snare, by which the public may be misled, to their injury.

For these reasons, we think the order appealed from was erronous, and should be reversed.

Order reversed, with ten dollars costs and printing disbursements.

All concur.


author: Mayham, P. J. Putnam, J.

text:
    Martha L. Sanford et al., App’lts, v. Amelia B. Goodell et al., Resp’ts.

      {Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

      1. Wills—Suspension op alienation.
    A devise to three persons and to the survivor or survivors of them, so long as they or either of them shall live, with remainder over to another party, unlawfully suspends the power of alienation.
    2. Same—Severing void prom valid portions.
    When the testator has in his will made independent devises or bequests, in no way connected with, or dependent upon, the void or ineffectual provisions, the court will not declare such independent provisions void.
    Appeal from a judgment dismissing the complaint.

      Charles A. Kellogg, for app’lts; George B. Stacy, guardian ad litem ; Charles O. Tappan, for resp’ts.
   Mayham, P. J.

Joel Goodell died testate, leaving, him surviving, Martha L. Sanford and Amelia B. Eliza M., and Mary E. Goodell, being all of his children and next of kin. In and by the first clause of his will he devised 80£ acres of land to his daughter Martha L. Sanford “ for and during the term of her natural life, and at her death to be the property of her heirs, who would take the same by the statute of descent.” By _ the second clause of his will he devised:

“ All the rest, residue, and remainder of my real estate which I may own at the time of my death, excepting the starch-factory lot (should I die seised of the same), I give, devise, and bequeath unto my daughters, Amelia B., Eliza M., and Mary E. Goodell, to have and enjoy the same as long as they, or the survivor or .survivors of them, shall live, and at the decease of the said Amelia B., Eliza M., and Mary E. the balance of such real estate not above devised or excepted shall be the property of Earnest Dan-forth, now making his home with C. A. Sanford; but, in case of-his death prior to the decease of all the three persons, daughters, mentioned in this provision, then the survivor or survivors of them shall have full title to such real estate.”

By the third clause in his will the testator directed the payment of his debts and funeral expenses out of his personal estate, and bequeathed the surplus of the same, if any, to Earnest Danforth, and his three daughters, Amelia B., Eliza M., and Mary E. Goddell, or to the survivors of them at the time of his death. By the fourth clause he empowered his executors to sell all of his real estate except the 80|- acres devised to the plaintiff, the home farm, and 50 acres pasture lot. By the fifth clause he nominated and appointed executors of his will. The will was duly admitted to probate by the proper surrogate, and the case shows that the personal estate of the testator was sufficient to pay his debts and funeral expenses. After testator’s death' this plaintiff gave birth do a son, C. Ralph Sanford, who was made defendant, and for whom a guardian ad litem was duly appointed, and appeared in the action.

The action is prosecuted on the theory that the land devised under the provisions of the second subdivision of the will of the testator did not pass to the devisees therein named, and that that clause or provision of the will was and is void, on the ground that it suspended alienation for a period of more than two lives in being. The relief asked is that the second clause in the will be adjudged void, and that, as to the real estate of the testator covered by the provisions of that clause, the testator died intestate, and that the same be partitioned in this action between the plaintiff and her three sisters named as defendants herein. If the question of the validity of the second clause of this will is properly before this court for adjudication in this action, which we shall discuss later, we see little difficulty in disposing of that question— First, because the parties to this controversy substantially agree upon that question ; and, secondly, because the question is one of easy solution, under the well-settled law of this state. By 3 Rev. St. (Birdseye Ed.) p. 2527, § 82, it is "enacted as follows:

“ The absolute power of alienation, shall not be suspended by any limitation, or condition except in the single case mentioned in the next section.”

The next section prohibits the suspension of alienation beyond the period of two lives in being. Under that section it has uniformly been held that if the condition or limitation is such that it may by any possibility limit the power of alienation, or suspend it for a period of more than two lives in being at the time of the creation of the estate the grant of the estate sought to be limited is wholly inoperative and void. Such is the doctrine of an unbroken series of scores of decisions in this state from Coster v. Lorillard, 14 Wend. 265, to Lee v. Tower, 124 N. Y. 370; 36 St. Rep. 344, and this doctrine is held by the learned justice who tried this case. The second subdivision of this will, devising the home farm and pasture lot, clearly comes within the condemnation of this rule. The devise of the use of the land was to testator’s three daughters for their lives, then in being, and to the survivor of them, and after their death in fee to Earnest Danforth, in case he survived them, but, in case of his death before the last survivor of the three daughters, then in fee to such last survivor. A more clear and palpable violation of the law in restraint of alienation could not well be devised. It is clear that, as this second clause in the testator’s will was void, the testator died intestate as to the property attempted to be devised under and by virtue of that clause. And it is contended by the respondents that, as that clause related to the largest part of the testator’s real estate, it so far affected the whole scheme of the will as to render it void, and that the testator therefore died intestate as to his whole estate; and the trial court so holds. If this contention is sound, then the entire real estate of which the testator died seised descended at once to his four daughters, and the 80^ acres devised to the plaintiff for life, as well as the homestead farm and 50 acres of pasture land, would be the subject of partition, and by rule 65 of the general rules of practice in this court, as the plaintiff failed to embrace in this action all of the lands held by the parties in common, the complaint was properly dismissed. But, before that conclusion can be reached, it must be determined that the illegal suspension in the second clause of the will vitiated the whole will, and that the testator died intestate as to the whole of his estate. The rule upon that subject seems to be that when, by declaring one provision of a will void, the whole scheme of a testator in his will is broken up, so that no part of the same can be carried out without a clear violation of the scheme and intention of the testator, the whole will is tainted and vitiated. McSorley v. Wilson, 4 Sandf. Ch. 515 ; Coster v. Lorillard, 14 Wend. 266; Hawley v. James, 16 Wend. 61; Van Beuren v. Dash, 30 N. Y. 426; Harris v. Clark, 7 N. Y. 242. But the converse of that proposition seems equally true: That when the testator has in his will made independent devises or bequests, in no way connected with or dependent upon the void or ineffectual provisions, the court will not declare such independent provision void ; the policy of the courts being to uphold, and not defeat, testamentary disposition of property, if it can be done without violating settled principles of law.

In Oxley v. Lane, 35 N. Y. 349, the court say : “ It is a well-settled rule of construction that if effect cannot, consistently with rules of law, be given to the entire will, or an entire provision of a will, any part of it may be sustained which is in conformity to-the rules of law, and which can be separated from the residue without doing violence to the testator’s general intent,”—citing, in support of that doctrine, Kane v. Gott, 21 Wend. 644; Parks v. Parks, 9 Paige, 107-117; De Kay v. Irving, 5 Denio, 646; Lang v. Ropke, 5 Sandf. 363-371; Williams v. Williams, 8 N. Y. 535-539; Savage v. Burnham, 17 N. Y. 561-572.

These authorities seem to carry out the doctrine there enunciated.

In Kennedy v. Hoy, 105 N. Y. 137; 6 St. Rep. 787, it was determined that some of the trusts created by the will of Ella Nora Hoy were void, and it was urged that such void trusts vitiated all the trusts created by the will. Earl, J., in writing the opinion of the court, uses this language: “ This is a separate trust, created by a separate paragraph in the will, is complete in itself, and is not connected with the trusts to take effect after his death, and can be permitted to stand alone.”

The learned judge, after referring to a class of trusts created in a will which are so connected as to be dependent upon each other; that one cannot be defeated without so breaking up the entire testamentary scheme of the testator as to vitiate the whole will,— proceeds: “ But where several trusts are created, and they are independent of each other,—each trust complete in itself,—and the legal can be separated from the illegal, and upheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand, and thus the intention of the testator be effectuated, so far as the law will permit.”

In Van Schuyver v. Mulford, 59 N. Y. 426, the testator, by an independent devise, gave to his -wife the use of his estate for her life, and charged the corpus of the estate with the payment of any deficiency of the income for her support. In a separate devise he gave the remainder of the income of his estate to his two daughters for their lives, and the remainder in fee to the issue of his daughters. In that case the court held the clause of the will for the benefit of the wife valid, and set aside the devise to the daughters, as void for illegal suspension of alienation.”

Applying the principles settled in the cases to which we have referred to the case at bar, it would seem to follow that the first and third clauses of this will can be upheld, while the second •clause is void and inoperative. The first clause devises the use of the 80^- acres to the plaintiff for life, and the remainder to her heirs. That remainder vested in her child at its birth, and from that time became a vested remainder in fee in C. Ralph Sanford.

Thus, under the operation of this will, the property devised to the plaintiff was carved out of the bulk of the estate, leaving the balance of the testator’s estate in no way affected by it The property embraced in or affected by the second clause of the will was in no way affected by the disposition of that embraced in the first; If the second clause had been valid, it could have been carried into effect without regard to the provisions of the first. The same may be said of the third clause of the will, which was an independent provision, giving the remainder of testator’s personal property, after the payment of debts and funeral expenses, to his three unmarried daughters. Within the authorities, can these independent provisions of this will be stricken down, and the beneficiaries under them deprived of the property conferred upon them, because the second provision of the will fails, and turns into an estate in' fee in these defendants three-fourths of the real estate in which, under t he will, they were only tenants for life ? Such a construction would nullify four independent paragraphs, each dealing with independent subjects, in no way directly connected with the second paragraph, which is illegal, because of the illegality of that paragraph. It is quite apparent from this will that the testator, instead of attempting to make an equal division of his property, sought to dispose of it in items. Ho argument can, therefore, be drawn from any supposed inequality resulting from the failure of the second paragraph in this will. The right of the plaintiff to a life estate in the 80£ acres, with remainder over to her children, was fixed by an independent provision of the will. The rights of the defendants were also fixed by the will to the surplus of the personal estate. As to the home farm and 50 acres pasture lot, the testator died intestate, and, so far as its legal effect goes, the same as if the testator had omitted it from his will. As we have said, it is the duty of the court to uphold so much of the will as is legal. Henderson v. Henderson, 113 N. Y. 1-15; 21 St. Rep. 800. If we had reached a conclusion that the whole will was void by reason of the invalidity of the second clause, so that the 80-J- acres had fallen into the bulk of the real estate, to have descended to the heirs at law of the testator, then we should agree with the trial judge that this action was not properly brought, as in that event it would not partition all the real estate of the parties owned in common. As no objection was made by the defendant under the pleadings on the ground of a misjoinder of causes of action, we see no objection to trying the action in the form in which the plaintiff has seen fit to bring and prosecute the same. We think the trial court erred in dismissing the complaint. The judgment must be reversed, and a new trial ordered, costs to abide the event.

Herrick, J., dissents.

Putnam, J.

(concurring).—Assuming that the second clause of the will of Joel Goodell, deceased, was void, as suspending the absolute power of alienation for over two lives in being, as both the plaintiff and defendant claim, I concur in the result reached in. the foregoing opinion.


text:
    Josephine Van Olinda, Resp’t, v. Mary B. Hall, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Bill of particulars—Affidavit.
    A bill of particulars will not be granted on the affidavit of the attorney.
    2. Same—When not granted.
    Nor will it be ordered as to facts within the knowledge of the applicant.
    3. Same.
    It is never granted for the purpose of requiring the plaintiff to disclose the evidence, on which he will rely in the prosecution of his action.
    4. Same—Discretion. v
    The granting or refusing_ of an order to furnish a bill of particulars rests in the sound judicial discretion of the court.
    Appeal from an order, denying a motion for a bill of particulars of plaintiff’s claim.

      Will W. Smith, for app’lt; George A. Swart (L. Varney, of counsel), for resp’t.
   Mayham, P. J.

The complaint alleges, in substance, that the defendant, on or about the 15th day of December, 1893, and on divers other days and times up to the commencement of this suit, wrongfully intending to injure the .plaintiff, and deprive her of the support of her husband, enticed him away from the residence of the plaintiff to that of the defendant, and divers other places, and there has ever since boarded, maintained, harbored, and kept her husband against her will, and that during that time, by wiles, arts, and evil endearments bestowed upon him by the defendant, has alienated his affection from the plaintiff, and caused him to abandon her, and cease to recognize her as his wife, or to live and cohabit with her as such, and claims damages. The answer denies any knowledge or information sufficient to form a belief of the plaintiff’s marriage with her alleged husband as set out in the first count of the complaint; and, secondly, denies each and every other allegation of the complaint. The defendant moved for a bill of particulars of the plaintiff’s claim in the action showing;

First At what particular time or times, place or places, and by what means, the plaintiff expects or intends to prove this defendant enticed plaintiff’s husband away from plaintiff. Second. At what time or times, place or places, and by what wiles, arts, and endearments bestowed upon plaintiff’s husband the plaintiff expects or intends to prove this defendant poisoned said husband’s mind against plaintiff, and induced him to remain away from plaintiff. Third. What acts, words, or means plaintiff expects or intends to-prove were used by this defendant to induce plaintiff’s husband to leave plaintiff, or remain away from her, or poison his mind against plaintiff, or alienate his affections from plaintiff; or for such further order.or relief as the court may grant in the premises, and costs of this motion. In support of this demand the defendant produced the affidavits of the defendant and her attorney to the effect that the complaint was not sufficiently specific to enable the defendant to prepare to defend the action. The plaintiff, by her, affidavit, in answer to the defendant’s motion, avers that she has no personal knowledge of the facts alleged in the complaint of the wiles and artifices used by the defendant to alienate her husband’s affection, and charges that all the facts therein alleged are within the personal knowledge of the defendant, and repeats her allegations on information and belief that her husband has stayed with the defendant at Saratoga and other places as alleged in the complaint. On these facts the special term denied the defendant’s motion, the judge writing no opinion, and the ground of his decision not being stated in the order. The affidavit of the attorney for the defendant in support of this motion is of little or no effect, as it seems to be well settled upon authority that such a motion cannot be granted upon the affidavit of the attorney. Dueber Watch Case Manuf’g Co. v. Keystone Watch Case Co., 50 St. Rep. 417; Gridley v. Gridley, 7 Civ. Proc. R. 215; Hoeninghaus v. Chaleyer, 22 St. Rep. 528. So that the case stands upon the affidavits of the plaintiff and defendant. Upon the facts therein stated we see no reason for reversing the order of the special term. The defendant in her affidavit on this motion, does not deny the charges in the complaint and affidavit of the plaintiff that she harbored, kept, and maintained the plaintiff’s husband at her house, which failure raises an inference that facts alleged are within her own knowledge. Fink v. Jetter, 38 Hun, 163;. Young v. De Mott, 1 Barb. 30; Hawes v. Foote, 9 Misc. Rep. 203; 59 St. Rep. 837 ; Constable v. Hardenbergh, 59 St. Rep. 318. The defendant having served her answer in this case, taking issue on the general allegations of the complaint, a bill of particulars in an action of this character would be only an order requiring the plaintiff to disclose the evidence on which she will rely in the prosecution of her action. A bill of particulars, under § 537 of the Code of Civil Procedure, is never granted for such a purpose. Hazard v. Birdsall, 40 St. Rep. 707 ; Bennett v. Wardell, 43 Hun, 452 ; 6 St. Rep. 767; Roberts v. Cullen, 40 St. Rep. 672. The granting or withholding of an order to furnish a bill of particulars rests in the sound judicial discretion of the court in which the application is made (Smith v. Johnston, 22 St. Rep. 593); and while the general term may, in a proper case, review the exercise of that •discretion, and reverse the order, yet the facts of this case do not justify such inference.

Order affirmed, with $10 costs and printing disbursements.

All concur.


author: Per Curiam.

text:
    Ann E. Crumbie, Resp’t, v. Manhattan Railway Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Reverence—To take testimony.
    A reference to take testimony to be used on the trial of an equity case, cannot be granted.

      2. Same—Waiver.
    The party does not waive the statutory requisites by an appearence before the referee upon the taking of the testimony.
    Appeal from a judgment in favor of plaintiff.

      A. O. Townsend, for app’lt; H. G. Atwater, for resp’t.
   Per Curiam.

It now seems to be well settled that the court should not make such an order of reference as was made in this •case. Upon the trial the defendants had the right to take the objection that the evidence sought to be introduced had not been taken according to law. Suppose a party participates in a de bene esse examination, unless the evidence is certified to the court according to law such evidence cannot be used upon a trial. The party does not waive these statutory requisites by appearance upon the taking of the testimony. So, in the case at bar, when it was sought to read upon the trial the evidence which had been taken in a manner not provided by law, the appellant had a right to object to its introduction, and the overruling of such objection was error.

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


author: Van Brunt, P. J.

text:
    Max Hartman et al., Resp’ts, v. Manhattan Railway Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Jury—Waiver.
    Where, in an action against an elevated railway company for an injunction and damages, the record contains no demand upon the defendant for a jury trial, the right to such trial was waived, even though the defendant was entitled to the same.
    Appeal from a judgment in favor of plaintiffs.

      R. L. Maynard, for app’lt; C. L. Pashley, for resp’ts.
   Van Brunt, P. J.

This action was commenced in October, 1890, by one Isaac Hartman, to procure an injunction against the further maintenance and operation of the elevated road in front of the premises No. 340 Bowery, of which he was the owner, and to recover damages, for the trespasses already committed by such maintenance and operation. Isaac Hartman died intestate on the 28th of March, 1891, and thereafter the action was reviewed in the names of his administrators and the heirs at law, who are the present plaintiffs. On the 24th of June, 1891, the heirs at law conveyed the premises to one Merendante, and in January, 1892, Merendante also commenced an action for damages. The recovery-in this action was allowed for the damages sustained by the operation of the elevated railroad from a date six years prior to the commencement of this action down to June 24, 1891,—the date of the conveyance of the premises by the heirs of said Isaac Hartman to said Mercadante.

Upon this appeal, it is urged that the court erred in refusing to dismiss the complaint as to the equitable cause of action, and in refusing to direct that the issue as to past damages be sent to the circuit for trial by a jury. Without discussing the question as to the right of the defendant to a trial by jury upon the subject of past damages, the right to recover for damages having been lost by conveyance of the premises, it is sufficient to say that no such question is raised by the record. We fail to find any demand for a jury trial. At the opening of the case the defendant’s counsel moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. This was á motion to dismiss generally. The counsel for the defendant then moved to compel the plaintiff to elect as to whether he would proceed with the trial of the action on the theory that the defendant’s acts were in the nature of a continuing trespass, or whether they were acts in the nature of a continuing nuisance. Such a •demand of election, unaccompanied by a demand for a trial by jury, is of no avail. It was within the jurisdiction of the court, where no rights of the defendant were infringed, either to grant the motion for election or not; and unless the defendant was entitled to and demanded a jury trial, no rights were infringed by the denial of the motion to elect. Ho such demand accompanied the motion for an election. The defendant’s counsel then moved to compel the plaintiff to elect-as to whether he would proceed with the trial of this action upon the theory that he owned the fee in the street in front of the premises in suit, or whether he had only an easement therein. These motions having been denied, the trial proceeded, and our attention has not been called to, and we have been unable to find, any place where a demand for a jury trial was made in respect to past damages, prior to the trial of the issues upon that point. When the plaintiff rested, the defendant again moved to dismiss the complaint, upon the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action. Then the record says: “ Counsel for the defendant renewed the motion to send this case to the circuit, on the ground that it appears that the plaintiff has not the title to the property.” But no such motion had been previously made, so far as we have been able to find, and even at this time no demand for a jury trial was made. It is clear, therefore, that the record contains no demand the of the defendant for a jury trial, even if it was entitled to the same. Under these circumstances, it seems by subdivision 4 of § 1009 of the Code of Civil Procedure the right to a jury trial was waived.

It follows that the judgment appealed from must be affirmed, with costs.

All concur.


text:
    The People ex rel. Forest Commission, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 4, 1894.)

    Certiorari—Forest commission.
    The forest commission cannot maintain certiorari in its own name for the cancellation of a tax sale.
    Certiorari to review the action of the comptroller in cancelling a tax sale.

      William P. Cantwell, for relator; Weed, Smith & Conway (T. F. Conway, of counsel), for the People.
   Mayham, P. J.

The relator sued out a writ of certiorari to review the action of Edward Wemple, as comptroller, in canceling the tax sale of the S. E. J of township 24, Great Lot, one Macomb’s purchase, being a part of the town of Harrietstown, in the county of Franldin. The relator, by this certiorari, seeks to set aside the cancellation of the tax sale by the comptroller, on the ground, among other things, that that officer had no power, under the statute, to act upon the application of Turner, the alleged owner of the land, as he was not a purchaser at the tax sale, and that none but a purchaser can legally apply to the comptrolíer¿or such cancellation. The defendant objects to any proceeding on the part of the relator on this writ, on the ground that, the relator, the forest commission, has no interest in this controversy, and that it cannot therefore invoke the aid of a writ of certiorari to review the action of the comptroller in making the order of cancellation. If this contention of the defendant be correct, then the relator has no standing in court, and is not in a position in this proceeding to challenge the correctness of the act of the comptroller in making this cancellation, and it will not be necessary in that case to examine the questions sought to be raised by the relator under this writ.

Section 2127 of the Code of Civil Procedure specifies the parties on whose application the writ of certiorari may be granted as follows: “An application for the writ must be made by or in behalf of a person aggrieved by the determination to be reviewed." Was the forest commission, as such, aggrieved by the determination of the comptroller in the cancellation of this tax sale ? That? body was in no sense the owner of the land in question, its control and authority over the same being only that of an administrative officer of the state, charged with certain specified statutory duties in respect to state lands, known as the “Forest Preserve," and, as to such forest preserve, authorized by § section 11 of chapter 283 of Laws of 1885 to bring in the name of the state, or on behalf the people of the state, any action to prevent injury to the forest preserve, or trespass thereon, to recover damages for such injury or trespass, and to recover lands belonging to such forest preserve, but occupied or held by persons not entitled thereto. This section also authorizes the forest commission, with the consent of the attorney-general and comptroller, to employ counsel in the prosecution of the actions therein authorized, but provides that such prosecution shall be under the direction and in the name of the attorney-general, and, if no such attorney or counsel is employed, the attorney-general shall prosecute such actions. Ho other special authority to prosecute seems to be conferred by statute on the forest commission by chapter 283 of the Laws of 1885. By § 102 of chapter 332 of the Laws of 1893 the powers and duties of the forest commission were more particularly defined and prescribed, and the powers therein expressly conferred may be exercised by them. Ho express power is conferred by that section, or any other section of that chapter, on the relators, to prosecute an action or special proceeding in its name of office. The most that can be claimed under the provisions of that chapter is that it confers upon the forest commission certain police powers for the government and management of the forest preserve. Section 112 of that chapter substantially re-enacts the powers of the forest commission conferred by chapter 283 of the Laws of 1885 to prosecute in the name of the people for trespass committed on the forest preserve, and with the consent of the attorney general, to employ attorneys to conduct such prosecution ; but no authority is conferred by that section to prosecute any action in its own name.

The forest commission, not being a corporation, individual or body politic, but simply an administrative office created by statute, with all its powers derived from and defined by statute, having no express authority to sue or be sued in its own name, is not authorized to sue out and prosecute this writ in its official name as relator. It is quite apparent that as the forest commission is not a corporation, and is not authorized to sue or be sued, an action could not be maintained against it in its official name. People ex rel. Second Ave. R. R. Co. v. Board of Park Com’rs, 97 N. Y. 37. In this case the court says: “ The board is a mere department of the city government. It is not a corporation, and there is no statute authorizing actions to be brought against it by its official name. We see no answer to this objection.”

It is true that in that case the proceedings was against the board of commissioners. But the objection that it can prosecute without authority would rest upon the same ground of want of ability as that it cannot be prosecuted without authority. In either case the administrative body would have no standing in court, for want of express authority to sue or be sued. If we are right in this conclusion, it follows that the relator cannot in these proceedings review the action of the comptroller in canceling the tax sale, and that the writ of certiorari must be quashed. We are not therefore called upon to consider the many important questions raised by tHe relator as to the power or authority of the comptroller tó cancel the tax sales. We think it cannot be maintained in this case that the relator has brought.itself within the provisions of § 2127 of the Code of Civil Procedure, which allows only the persons aggrieved by the determination sought to be reviewed to apply for and prosecute the writ of certiorari.

The writ of certiorari must be quashed, with $50 costs and disbursements to the defendant.

All concur.


text:
    The People ex rel. Forest Commission, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Certiorari to review the action of the comptroller in canceling tax sale.

      William P. Cantwell, for relator; Weed, Smith & Conway, for the People.
   Mayham, P. J.

The determination of the motion to quash the writ of certiorari, in a case parties, having resulted in favor of the motion to quash (64 St. Rep. 98), it follows that the writ in this case should be quashed.

Writ of certiorari quashed, with $50 cost and disbursements, in favor of the defendant.

All concur.


text:
    Richard Bishop, as Administrator, etc., App’lt and Resp’t, v. Helen E. Hendrick, Resp’t and App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Damages—Counsel fees.
    Counsel fees cannot be recovered as damages in action to recover personal property.
    2. Conversion—what constitutes.
    Mere assertion of a claim to property, without possession or control, is not a conversion.
    Appeal from an order and judgment, confirming in part the report of the referee appointed to assess plaintiff’s damages, and refusing to confirm in part such report.

      John C. Keeler, for pl’ff; Louis Hasbrouck (D. G. Griffin, of counsel), for def’t.
   Mayham, P. J.

March, 1885, Clara B. Hopkins died, being at the time of her death a resident of St. Lawrence county. Shortly thereafter, Louis A. Scott, her nephew, presented to the surrogate of that county for probate a paper purporting to be her last will and testament. The probate was contested, and on the 12th of April, 1886, the surrogate decided that the alleged will was not valid, and refused to admit it to probate. From that decree an appeal was taken to the general term, where the surrogate’s decree was affirmed (43 Hun, 637, mem.), and the same was also affirmed on appeal to the court of appeals. After the will was refused probate, letters of administration were issued to this plaintiff, who qualified, and entered upon the discharge of his duties as such administrator. After the appointment of the plaintiff as administrator, he commenced an action in the supreme court against the defendant to recover the personal property of the decedent, which was in possession of the defendant, which she claimed to own under and in pursuance of an executed gift, which she claimed was made by the deceased shortly before the alleged execution of the will which had been adjudged invalid. The action was tried before a referee, who reported in favor of the plaintiff, upon whose report a judgment was entered against the defendant for the delivery of the property to the plaintiff, and restraining the defendant from any further interference with or disposition of the same,- except to turn it over to the plaintiff, and also that the plaintiff recover a money judgment for the damage sustained by the plaintiff for the withholding the possession- of the property, to be ascertained by a reference on an accounting by the defendant, and that ■ the plaintiff recover judgment for costs in the action. This judgment was appealed to the general term and court of appeals, in both of which courts it was affirmed.

The plaintiff demanded of the defendant the money and property adjudged in this action to belong to him as administrator, which demand the defendant refused to comply with; and for such refusal the plaintiff instituted a proceeding against the defendant for contempt, on which proceeding the defendant was adjudged guilty of a contempt of court,- and an order was made that an attachment issue against her to bring her into court for punishment for such contempt; but, before such attachment was served, the defendant left the state, and passed out of the jurisdiction of the court issuing the same. Some of the property belonging to the estate of Clara B. Hopkins, deceased, was in the possession of Louis A., and was claimed both by the plaintiff, as administrator, and the defendant, as donee of the deceased. In an interpleader brought by Scott against the plaintiff and defendant, it was by a judgment of the supreme court, entered on the 2d day of May, 1893, adjudged to belong to the administrator as such. There was also money belonging to the estate in the Bank of Grouverneur, which was claimed in like manner by the plaintiff and defendant, for which the bank prosecuted an action of interpleader against the plaintiff and defendant, in which action it was adjudged that the same belonged to the plaintiff, and for which the plaintiff recovered judgment against the defendant for damages and costs, the judgment for which was entered in the supreme court on the 2d day of May, 1893. The case shows that the recovery and taxable costs in these interpleader actions were paid over to the plaintiff. The balance of 'the estate of the deceased still remained in the possession of the defendant, or the executor of Phelps, the surety on the defendant’s bond on appeal; and, the ' defendant having left the state, the plaintiff brought an action in equity to reach the estate in the hands of Phelps’ administrators, making the defendant a defendant therein, on whom a substituted service was made. Pending that action and a motion for the appointment of a receiver, the executors of Phelps consented to surrender to the plaintiff the securities held by him and the defendant in this action, and the equity action seems to have been abandoned, on an order therein being entered on stipulation : (1) That the injunction be continued, with leave to either party to move to vacate it upon fulfilling the conditions of the order. (2) That the application for a receiver be postponed, with liberty to renew in case the conditions of this order are not complied with. (3) That the defendant Miller and his coexecutors deliver to John Keeler, attorney for the plaintiff, the tin box of securities delivered to him and received from Mrs. Hendrick by him. (4) That Joseph Mc-Haughton, Esq., of Ogdensburg, be appointed in proper proceedings, under the judgment of Richard Bishop, administrator, against Helen E. Hendrick, to take the accounting provided for by that judgment. (5) Upon such reference, either party, after 30 days, may notice the hearing before the referee, and such hearing shall proceed with reasonable diligence. (6) The delivery of the tin box of securities is a condition precedent to the reference taking effect. Pursuant to such order of reference, the referee, after taking the testimony offered by the respective parties on the 17th day of January, 1894, made and filed his report, stating in detail the various items found by him belonging to the estate of Clara B. Hopkins at the time of her death, and its reception by this defendant, Helen E. Hendrick, and the disposition of the same by her, and also the sum which she should pay as damages on account of the use and disposition thereof as directed by judgment referred to in the order of reference. The referee recited in his report the various actions and proceedings between the plaintiff as administrator and the defendant Helen E. Hendrick, in relation to the personal property of the deceased, and somewhat in detail the services rendered by several attorneys employed by the plaintiff in the prosecution of the various actions and proceedings between the parties to that action in reference to the property of the deceased, and summarized and reported the damages as follows:

“I find that the defendant should pay to the plaintiff, for damage's on account of her use and disposition of the personal property of Clara B. Hopkins which came to her possession as aforesaid, the following sums : The value of said schedule property, $1,658.45; interest since March 26, 1884, to this date, $776.13. The principal of said Hurd note, $100 ; interest from March 26, 1884, to date of this report, $58.82. The principal of said Godard notes, $200; interest from January 27, 1885, to date of this report, on $300, $161.50: interest from January 20, 1885, on $200, to date of this report, $107.90. The sums adjudged in said interpleader action (Scott, plaintiff), as follows: To Scott, plaintiff, $197.75 ; to Bishop, defendant, $109.30; the sum paid to John McCartin, and interest from date of this report, $148.62. The sums adjudged in said interpleader action (Bank of Gouverneur, plaintiff), as follows: To Bishop, defendant, as damages, $212.28 ; to Bishop, defendant, for costs and disbursements, $104.-47; interest ($316.75) from the 1st day of June, 1893, to date of this report, $11.96. Services and disbursements of attorney Joseph George in said action, $311; services of John C. Keeler, as counsel, $50, and interest from the date hereof. The value of the services of Leslie W. Russell as counsel in this action, $11,-250 ; disbursements made by him, and interest from date hereof, $14. The value of the services of John C. Keller, as attorney for the plaintiff, besides taxable costs as follows : Hp to the entry of judgment on the report of the referee, A X. Parker, $500 ; for entry of such judgment to the time of perfecting the order of the court of appeals, $700; for the perfecting of said order, to the time of the order of reference for this accounting, $250 ; in preparing for this accounting, and conducting the same to August 24, 1893, $350. The disbursements made by John C. Keller as aforesaid, $196.16, with interest from the date hereof. The value of the services of Lawrence Russell, as aforesaid, $133; disbursements made by and interest from date hereof, $46.64. The value of the services of Joseph George as attorney as aforesaid, and his disbursements in this action, $219.10, with interest from date hereof. The value of the services of P. M. McMonagle, stenographer, as aforesaid, $12, with interest from this date hereof. The amount of disbursements made by Paul B. Clark, with interest from this date hereof, $217.36.

“January 17th, 1894. J. W. McNaughton, Referee.

“Fees $228.”

The plaintiff excepted as follows to the referee’s refusal to find as requested by plaintiff’s attorney:

“ Take notice that the plaintiff hereby excepts to the omission of the referee, McNaughton, to find and report that plaintiff recover of defendant interest on the items of money collected on Texas notes, and remaining in the Black River Bank of Lowville, during the pendency of the interpleader action instituted against defendant and plaintiff by Scott, to wit: On $1,255.64, from May 29, 1889, to January 17, 1894; on $445, from June 28, 1889, to January 17, 1894; on $1344.08, from August 5,1890, to January 17, 1894; on $964.27, from November 8, 1890, to January 17, 1894; on $1,340.60, from August 11, 1891, to January 17, 1894; and on $199, from July 19, 1892, to January 17, 1894. Also to the omission of said referee to find and report that plaintiff recover $5,095.78 on account of moneys received by Scott for sale of Texas lands, and interest thereon from March 26, 1894, to January 17, 1894. Also to the omission to find the sum of $96 for services of Joseph George, rendered upon said trial before said referee, and report that plaintiff recover such sum. Also to the omission of said referee to find and report in favor of plaintiff a recovery of $350, for services of said Keeler from August 4,1894, and $25 for disbursements. Also to the omission to report that plaintiff recover the referee's fees, $228, and stenographer’s fees, $193.63. Also the disbursements of plaintiff for expert testimony of witnesses Safford, Gilmore, and Lawrence, and disbursements.”

The defendant excepts to the finding of the referee, as follows:

“ Take notice that the defendant, Helen E. Hendrick, hereby excepts to so much of the report of the referee herein, Joseph McNaughton, Esq., dated January 17, 1894, and with a copy of which the defendant’s attorney has been duly served the 8th day of February, 1894, as is embraced in the following reference to-said report, to wit: 11 find that the defendant should pay to the-plaintiff for damages on account of the use and disposition of the personal property of Clara B. Hopkins, which came to her possession as aforesaid, the following sums : * * * (1) The sums-adjudged in said interpleader action (Scott, plaintiff), as follows: To Scott, plaintiff, $197.75; to Bishop, defendant, $109.30 ; the-sum paid to John McCartin, and interest from the date of this report, $148.62. (2) The sums adjudged in said interpleader action (Bank of Gouverneur, plaintiff), as follows: To Bishop, defendant, as damages, $212.28 ; to Bishop, defendant, for costs and disbursements, $104.47; interest ($316.75) from the 1st day of June, 1893, to date of this report, $11.96. (3) To services and disbursements of attorney Joseph George in said action, $311; services of John C. Keeler, as counsel, and interest from the date hereof, $50. (4) The value of the services of Leslie W. Russell, as counsel in this action, $1,250 ; disbursements by him-, and interest from the-date hereof, $14. (5) The value of the services of John C. Keeler, as attorney for the plaintiff, besides taxable costs as follows: Up to the entry of judgment on the report of the referee, A. X. Parker, $500; from entry of such judgment to the time of perfecting the order of the court of appeals, $700; for the perfécting of said order to the time of the order of reference for this accounting, $250; in preparing for this accounting, and in conducting the-same to August 24, 1893, $350. (6) The disbursements made by John 0. Keeler, as aforesaid, with interest from the date hereof, $196.16. (7) The value of the services of Lawrence Russell, as. aforesaid, $133; disbursements made by him, and interest from the date hereof, $46.64. (8) The value of the services of Joseph. George, as attorney as aforesaid, and his disbursements in this action, with interest from the date hereof, $219.10. (9) The value-of the services of P. R. McMonagle, with interest from the date-hereof, $12. (10) The amount of disbursements made as aforesaid by Paul B. Clark, with interest from the date hereof, $217.36.”

On the report of the referee, and the exceptions of the respective parties taken thereto, and the affidavits and claims referred to in-the notice of motion, the plaintiff moved at special term, on the following notice, for confirmation of the report, and for judgment:

“Take notice that upon the annexed affidavit of John 0. Keeler, sworn to February 5, 1894, the affidavit of Paul B. Clark, sworn to January 31, 1894, the plaintiff’s exception to the report-of Joseph McNaughton, referee, the report of said referee, dated January 17, 1894, copies of which are herewith served upon you, and upon the evidence taken by and before said referee, on the hearing had before him as referee, and upon the order of reference to said referee, and upon all the papers and proceedings had on such reference and in this action, by and before said referee, the plaintiff will move this court, at a special term thereof, to be held at the courthouse in Schenectady, N. Y., on the 27th day of February, 1894, at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order confirming said referee’s report as to the items of damages therein found, and for an order allowing to plaintiff interest on the various sums of money collected on said Texas notes, and deposited in the Black River Bank at Lowville, as said exceptions stated ; also allowing to said plaintiff the sum of $96 for services and disbursements of Joseph George, as in such exceptions stated ; for the allowance to said plaintiff of the sum of $375, for further services and disbursements of John 0. Keeler on said reference, in addition to the items reported by said referee ; also for allowance of $228 for the fees of said referee upon such reference, and the sum of $193.68, for stenographer’s fees, and $130 92 for witnesses’ fees, on such reference; also that the evidence of Louis A. Scott be stricken out of the evidence taken before said referee, according to the motion made by plaintiff at the hearing, before said referee, November 8, 1893, at Ogdensburg; and that there be allowed to plaintiff the sum of $5,095.78, and interest thereon from March 26, 1885, on said sum, on account of moneys collected by said Scott, on account of lands in Texas sold pursuant to the contract (Exhibit 6), in evidence as such, on said reference, dated November 30, 1881, executed by said deceased and Louis A. & Warren L. Scott; and that a judgment awarding in favor of plaintiff, and against said defendant, the before-mentioned sums, together with the items reported by said referee, and interest thereon from January 17, 1894, be entered in this action at the foot of the judgment entered herein, March 21, 1891, as the damages which defendant should pay to plaintiff on account of"the reception, use, and disposition of the personal estate of deceased by plaintiff; and that plaintiff have such other and further relief in the premises as shall be just.”

On the hearing of such motion the special term made the following order:

“ It having been referred to J. McNaughton, Esq., as referee herein, to take the accounting of the defendant, Hendrick, as to the personalty of the plaintiff’s intestate, Clara B. Hopkins, and to estimate and report the damages sustained by the plaintiff herein, and the referee having made his report, dated the 17th day of January, 1894, and the plaintiff and defendant having several duly-filed exceptions thereto, and said matter coming on to be heard at this above-entitled term : Now, upon the report of said referee, the exceptions filed thereto, the affidavit of John C. Keeler, verified February 1, 1894, the affidavit of P. B. Clark, verified January 31, 1894, with schedule annexed, and upon the pleadings and judgment herein, and the testimony taken before said referee, and after hearing Mr. Keeler for the plaintiff and Mr. Griffin for the defendant, and it being conceded that the plaintiff may recover the stenographer’s and referee’s feess herein, it is ordered that the first, second and third exceptions of the defendant to the said report be, and the same are hereby, overruled, and not allowed, being the exceptions to so much of said report as awards. the several sums as adjudicated by the interpleader actions and the services and disbursements o£ Joseph George in said action, .and to counsel therein; that the fourth, fifth, sixth, seventh, and eighth exceptions of the defendant to said report, being -to such portions as allow counsel fees.and disbursements in this action, other than such as are taxable herein to the plaintiS herein, be, .and the same are hereby, sustained, as well as the tenth exception for the disbursements of Paul B. Clark. And it is further ordered that the first exception of the plaintiff herein, being to so much of said report as refuses to allow interest upon the sums paid into the bank, and before they were paid to the plaintiff under the inter-pleader judgment, be, and the said exception is, allowed and sustained, as well as the exception of the plaintiff to the recovery •of the referee’s and stenographer’s fees herein. And it is ordered that the said report be, and the same is, modified in accordance with this order, and, as so modified hereby, confirmed with $10 ■costs. The fourth, fifth, sixth, seventh, and eighth exceptions of the defendant, being such as and all said exceptions that relate to the allowance of counsel fees and disbursements in this action as are not taxable, are disallowed, upon the sole ground that the court has not power to award or allow counsel fees and disbursements in this action, except such as are properly taxable under the statute ; and judgment is directed accordingly, in favor of the plaintiff, with costs to be taxed, together with an extra allowance •of 5 per cent, upon the amount recovered.
“Enter in St. L. _ M. L. S.”

_ From this order, and judgment entered thereon, both parties appeal, and each asks to modify or reverse the same so far as they ¡sustain that part of the report of the referee as to which they respectively excepted.

The first and principal ground of appeal urged by the counsel for the plaintiff appellant is that the learned judge at special term sustained the exception of the defendant to that part of the referee’s report which allows the plaintiff to recover as damages counsel and attorney’s fees for services of eminent counsel engaged on behalf of the plaintiff in the prosecution of the various matters of •controversy betw.een the plaintiff and defendant, Helen E. Hendrick, relating to the personal estate of the deceased, over and ■above the taxable costs and disbursements in such actions and proceedings, and excluded such claims from the plaintiff’s recovery in the action. The reference in this proceeding on an accounting by the defendant was' in pursuance of a provision in the judgment in favor of plaintiff, against the defendant, in this action; which provided that the plaintiff might apply to the court for a reference to compel an accounting. The order of reference directed the referee “ to take an account of said personal property, and its reception by the defendant, and what she did with it; also the sum she shall pay as damages on account of her use and disposition thereof.’’ It is insisted that this order conferred no power on the referee to take into account any other damages than such as would be allowed against a person for an ordinary conversion of personal property. It is quite apparent that the defendant, in. seeking to retain this property, the title to which has been adjudged in the plaintiff as administrator, has subjected him, or the estate which he represents, to a large amount of trouble and expense ; but the law provides indemnity in the way of posts to be taxed in an action, and, in a proper case, to an additional allowance, to be recovered by the successful party in a regular proceeding in the action; and under the order of reference to which we have referred, and under which the referee acted in this case, any damage which, within the ordinary and well-settled rules of damages, the plaintiff suffered by reason of the conversion of any of this property, and which, in an action of trover or replevin, might be recovered, was legally allowable under this order in this action. But I know of no rule of law that would exclude extra counsel fee for legal services, beyond taxable costs, and extra allowance given by the Code, in an action of this character.

The learned counsel for this plaintiff refers to a class of decisions from which he claims that the expenses and counsel fees rejected by the judge at special term may be properly allowed, within the principles of the decisions to which he refers. But a careful examination of such decisions discloses that none of them were upon cases like the present. In Rose v. Post, 56 N. Y. 603, the question arose in assessing damages on a bond given on the granting of a preliminary injunction. The same is true of Edwards v. Bodine, 11 Page, 226; also, Troxell v. Haynes, 16 Abb. Pr. (N. S.) 3. In Corcoran v. Judson, 24 N. Y. 106, the action was upon an injunction bond, and was to indemnify the plaintiff for the expense and damage to which he might be subjected by the proposed contestation. The reference was to determine the extent of the defendant’s liability under that bond. In Northrup v. Garrett, 17 Hun, 497, the action was on a bond given on the issuing of an attachment; and the bond was given under the .statute to indemnify the party to whom it was given, to pay all damages and costs which he may sustain by reason of the issuing of such attachment. In Boyer v. Marshall, 5 St. Rep. 431, the action was upon an injunction bond. In all these cases, and cases of a kindred character, the damages were awarded upon the express agreement and undertaking on the part of the defendant to pay the same, and both parties acted under, and had a right to rely upon, the performance of that agreement by the obligors.

In the case at bar, while it is quite apparent that the conduct of the defendant tended greatly to enhance the expense of the plaintiff, there was no undertaking or agreement on the part of the defendant to indemnify the plaintiff, further than the plaintiff may ordinarily be indemnified in the successful prosecution of an action, or a series of actions, by the costs and allowances awarded to a successful party in the usual method of practice in actions. The action was an ordinary action to compel this defendant, wrongfully in possession of property belonging to an estate, to deliver the possession of the same to the administrator, and account for and pay over the value of such as had been lost to the estate. The defenses interposed were such as the defendant might legally interpose, subject to the peril of being beaten on the trial, with costs. She did not, by making these defenses, and by resisting, although wrongfully, the efforts of the plaintiff to get possession of this property, subject herself to the liability of paying the plaintiff all the expenses he saw fit to incur. The principle contended for by. the defendant in this case is, we think, well settled by authority.

In Mattlage v. New York Elevated Railroad Co., 44 St. Rep. 289, which was an action for damages brought by an adjoining property owner, the jury, among other things, allowed the plaintiff $459 for legal expenses. The general term of the Hew York common pleas say: “ We know of no rule of law by which a party can recover from his opponent the counsel fees paid, on the argument of an appeal by way of damages, over and above those allowed as costs, except by virtue of an express contract, as when a bond or undertaking has been given on procuring an injunction, attachment, etc. In any other case, if the party chooses to pay more than the amount allowed by law as costs, he must do so at his own expense.”

In Commerce Exchange National Bank v. Blye, 123 N. Y. 132; 33 St. Rep. 75, the court of-appeals held that an action was not maintainable to recover damages for depreciation in the value of property taken in replevin between the entry of judgment and the determination on appeal, and Judge Finch says:

“If that be so, perils would surround appeals, and a prolific source of new actions would come into existence.”

In Bay v. Woodworth, 13 How. 363, which was an action for wrongfully pulling down a dam, the court said:

“It is-true that damages assessed by way of, example may thus indirectly compensate the plaintiff for money expended in counsel fees, but the amount of these fees cannot be taken as the measure of punishment, or a necessary element in its infliction ” Lincoln v. Saratoga & S. R. R. Co., 23 Wend. 425; Hicks v. Foster, 13 Barb. 663.

We are, therefore, of the opinion that the trial judge was right in sustaining the defendant’s objections and exceptions to the report of the referee in the particulars discussed, and that the court was right in sustaining the report of the referee in omitting to find and report that the plaintiff recover $5,096 on account of moneys received by Scott for sale of Texas lands, and interest from the time of the receipt of the same to the time of the hearing before the referee, or the expense and charges of plaintiff’s counsel, except as the same were allowed to the interpleader action at the trial thereof. This money, or the notes representing the same, never came into the defendant’s possession, and the mere claiming of them was not a conversion. The same may be said of the money of intestate in the bank, as to which an inter-pleader action was prosecuted. The money never having been reduced to possession by her, her mere claim of ownership did not'constitute á conversion.

In Connah v. Hale, 23 Wend. 466, it was held that any exercise or claim of dominion over goods by words, if the speaker' have the "goods in his power, is a tortious taking, but it also holds-that a mere claim without authority or dominion is not a conversion.

In Andrews v. Shattuck, 32 Barb. 396, it was held that:

“ If, at the time the demand was made, the goods are in the actual possession of another, and the person from whom the demand is made has not, and never had, any control over them, the fact that he claims the goods, and declares that they are his property, will not amount to a conversion.”
The same was held in Gillet v. Roberts, 57 N. Y. 32, and Earl, J., says, in that case, that “no cases have gone so far as to hold that mere words, under such circumstances, could constitute a conversion.”

If, therefore, it were proper to allow as damage any expense incurred in an action against a defendant for a conversion (which we hold it is not), still, as there was no conversion, no such damages could, in any event, be allowed in these interpleader actions against the defendant for the property sought to be recovered, the title to which was in dispute, and the order as to that branch of the plaintiff’s appeal should be affirmed.

Nor do I see how the defendant can be charged with counsel fee and expense of the plaintiff on account of the interpleader action of the Bank of Gouverneur, if we are right in our conclusion that such fee charges are not proper damages, or in the conclusion that this money was not converted by the defendant; and as the exception by the defendant to that part of the referee’s report -was overruled by the trial judge, and the claim allowed, the -order as to that should be reversed.

It was also error in the trial court to charge the defendant with interest on the money in the bank, the title to which was determined by the interpleader action, as the same, as we have seen, was never in the possession or under the control of the defendant. The decree entered upon the report of Parker, referee, in this action, is, as it would seem, .the final judgment in this action, and the proceedings since the entry of that decree are only in aid of that decree, and are therefore in the nature of motions, for which full costs of an action cannot be interposed. The proceeding from which this appeal was taken was a motion, and it was error, we think, to allow more than ten dollars as cost of that motion. Let the order in this case, so far as the appeal of the plaintiff is concerned, be affirmed. Let the order from which the defendant appeals be modified by striking out the allowance of $361, for attorney’s fees and expenses of Joseph George and John 0. Keeler ; also, by striking out that part of the same allowing interest against the defendant on the funds recovered by the plaintiff in the inter-pleader action; also, by striking out that part of the order allowing the plaintiff costs on this motion, and substituting in the place thereof ten dollars cost of the motion.

As so modified, let the order be affirmed, without costs of this appeal to either party as against the other.

All concur.


text:
    Charles M. O’Neil, Resp’t, v. Jane Hester, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Appeal—Discretion.
    An order granting or refusing an application to amend will not be reversed on appeal, unless the appellate court can see that there has been an. abuse of such discretion.
    2. Pleading—Amendment.
    Leave to amend may be denied on the ground of loches in making the application.
    Appeal from an order denying a motion for leave to amend her answer so as to set up what defendant claims to be a bar to-the action, and compel plaintiff to reply thereto.

      A. T. Clearwater, for app’lt; Brinnier & Newcomb (John E. Van Etten, of counsel), for resp’t.
   Mayham, P. J.

The complaint in substance alleges that Mary Y. O’Neil, at the time of the commencement of this action, was, and for more than twenty years had been, his wife, with whom he lived happily; and that during the years 1887, 1888, and 1889, while he was living with his wife, the defendant, who was his wife’s mother, intending to injure plaintiff, and deprive him of the comfort, society, and aid of his wife, wrongfully induced her to refuse to live and cohabit with the plaintiff, and to insist upon the plaintiff leaving his house, and, by her threats of disinheriting her daughter, induced and caused a separation between the plaintiff and his wife, and induced plaintiff’s wife to refuse to live and cohabit with him, and claimed damage in the sum of $30,000. The original answer, in substance denied the allegations of the complaint ; alleged that the refusal of plaintiff’s wife to live with him was her own voluntary act, and was not caused or procured by the defendant; alleged want of support by -the plaintiff for his wife, and unkind and improper treatment of her by the plaintiff. The action was once tried, and the trial resulted in a disagreement of the jury. On the case being moved for a second trial, the defendant’s attorney obtained from the judge holding the circuit an order to show cause, returnable in term, why the defendant’s answer should not be amended by incorporating therein an allegation that the plaintiff and his wife, by an instrument in writing, and under seal, dated the 27th day of September, 1889, made a voluntary agreement of separation ; and that, ever since that time, they had, pursuant to that agreement, lived separate and apart; and that the plaintiff had thereby voluntarily relinquished the comfort, society, and assistance of his wife. On the return of that order, and on hearing of that motion, the trial judge denied the same, with costs, but without prejudice to the renewal of the same by the defendant. On the 29th day of June, 1894 the defendant renewed the motion to amend her answer on notice, and all the proceedings in the action, and upon the affidavit of the defendant’s attorney, setting forth, among other things, as a reason for the renewal of the motion, the decision in a recent case, promulgated since the decision of the former motion; that such voluntary contract of separation constituted a complete bar to the action of the plaintiff. The special term again denied his motion, and from the order denying the same the defendant appeals. ■

Without stepping to inquire whether, as an original proposition, we would have granted the motion to amend, we think that there are two valid reasons why we must affirm this order.

1. The order was, we think, purely in the discretion of the judge at special term; and, unless the court can see that there was an abuse of the discretion, an order granting or refusing an application to amend will not be reversed on appeal. Sayre v. Frazer, 47 Barb. 26; Dennis v. Snell, 54 Barb. 411; Rosenwald v. Hammerstein, 12 Daly, 377. There is no pretense in this motion that the existence of the contract proposed to be set up was not known at the time of the service of the original answer, which was served several years before this motion -to amend;, and, while newly-discovered facts may sometimes justify the amendment of a pleading, it is doubted whether the promulgation of a decision, settling a question of law hitherto unsettled, furnished any sufficient reason for the allowance of an amendment of a pleading to meet such new conditions.

2. The delay of the defendant in making the motion to amend might, in the discretion of the judge hearing the motion, furnish a sufficient reason, in the exercise of his discretion, for the denial of this motion. Even if it be held that newly promulgated law may furnish a reason for the allowance of an amendment, the motion should be promptly made The case to which the defendant refers in the moving affidavit was affirmed in January, 1893, Bucket v. Suss, 50 St. Rep. 941; and the notice of this motion bears date June 14, 1894, a period during which fifteen regular special terms had been held in this district, at Albany, and four times that number of special terms at chambers, in the third judicial district, at which this motion might have been heard.

Under such circumstances, we cannot hold that the learned judge at special term abused his discretion in denying this motion. Order affirmed, with $10 costs and disbursements.

Putnam, J.

Concurring in the views expreásed in the foregoing opinion, I also think that the order appealed from should be affirmed, because an amendment of the original answer of defendant was not called for. Under that answer, the agreement of September 27, 1889, can be properly read in evidence by defendant, and will answer any claim of damage for acts of defendant subsequent to its execution. The learned counsel for the appellant, I think, is mistaken in the assumption that if the agreement in question was set out in the amended answer, and admitted in the reply, another trial before a jury would be obviated. The agreement in question does not release damages already accrued to plaintiff at the time of its date. The alleged wrongful acts of defendant for which the action was brought accrued in 1887, 1888, and 1889. In the affidavit of plaintiff, read by defendant as part of his moving papers, he said that the cause of action accrued during three or four years, completed two years prior thereto. Hence, as the agreement does not attempt to release past damages, if it was set out in the answer and admitted in the reply, the case would go to a jury, although on trial, the judge might hold that no damages could be recovered for acts of defendant subsequent to the execuof the instrument. Under the present answer, the agreement can be introduced in evidence with the same effect by the defendant. The plaintiff cannot recover for acts of the defendant after the date of the agreement, and the defendant will be entitled to an instruction by the court to the jury to that effect. Hence the rights of defendant are as well preserved under the present pleadings as they would be under the proposed amended answer. - Herrick, J., not acting.


author: Bischoff, J.

text:
    Warren S. Sillcocks, Pl’ff, v. Manhattan Railway Company et al., Def’ts.

      (New York Common Pleas, Equity Term,

      Filed November 1894.)

    Damages—Elevated Railway.
    Where the construction and operation of an elevated railway has increased the value of an abutter’s premises, he cannot recover against the company for injuries thereto.
    Action for an injunction and damages.

      L. C. Dessar (Joseph B. Reilly, of counsel), for pl’ff; Davies & Rapallo (Julien T. Davies and E. C. James, of counsel), for def’ts.
   Bischoff, J.

The premises in suit are known as “Nos. 160 and 162 Park Row” (formerly Chatham street), in the city of New York, of which the plaintiff has been the owner since 1878. Since 1879 the defendants’ elevated railway has been maintained and operated in the street in front of the premises, and this action was brought to enjoin such maintenance and operation in the future, as well as to recover damages for the past loss of rental value caused by the said railway. After careful scrutiny and consideration of the evidence adduced, I am unable to conclude that the presence of the railway has visited the plaintiff’s premises with substantial injury to either their fee or rental value. Within the ruling, therefore, of Gray v. Manhattan Railway Co., 128 N. Y., 499 ; 40 St. Rep. 478. I am constrained to dismiss the complaint, the plaintiff having failed to substantiate his right to injunctive relief. The judgment for such dismissal should, however, be without prejudice to a future action for the defendants’ continued trespass.

It is conceded that the plaintiff’s premises have shared in the general depression of fee and rental values which followed the commercial panic of 1873, and continued until about 1876, when there began a period of gradual reversion of real estate towards the values which had obtained before the panic. • From the plaintiff’s own showing, his premises have also shared in this general recovery, and since the advent of the railway in the street in front thereof, in 1879, have steadily increased in both fee and rental value, until at the time of the trial those values were in excess of what they were in any previous year. Instances appear of other premises in the vicinity of those in suit, but situated upon streets along which the railway did not extend, which had increased in fee and rental value to a greater extent than the plaintiff’s ; but in other instances, also in evidence, the premises were shown to have suffered a continued diminution of values. These last-mentioned premises, also, were situated upon streets other than Park Bow, and in the vicinity of the plaintiff’s premises. No satisfactory evidence, however, was adduced from which it may be legitimately found or inferred that the plaintiff’s premises were prevented from sharing the greater enhancement of values by the presence of the railway. A fair consideration of the evidence leads rather to an opposite conclusion. With but a comparatively slight outlay for alterations, the premises 188, 190, and 192 Park Bow, in the immediate vicinity of the plaintiff’s premises upon the same street, were caused to produce an actual rental nearly double of what it had been. Be it so, that Park Bow has suffered generally since the advent of the railway by the substitution of a less desirable class of business for that which generally prevailed; still that fact does not sustain the allegation of damage, in view of the further fact that the plaintiff's premises at the time of the trial in respect to both fee and rentals, were worth more than at any time before. A general change of character of the neighborhood affords no sufficient basis for the predication of damages, the plaintiff’s right of recovery being confined to the specific injury to his ” premises. It was incumbent upon the plaintiff to show that, but for the railway, his premises would have been worth more than they were shown to be, and in the respect he has failed. American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252 ; 41 St. Rep. 531; Bohm v. Metropolitan El. Railway Co., 129 N. Y. 576; 42 St. Rep. 247; Somers v. Metropolitan El. Railway Co., 129 N. Y. 576; 42 St. Rep. 247 ; Becker v. Metropolitan EL Railway Co., 131 N. Y. 509; 43 St. Rep. 726; Storck v. Metropolitan El. Railway Co., 131 N. Y. 514; 43 St. Rep. 730; also see, Mattlage v. New York Elevated Railroad Co., 1 Misc. Rep. 339 ; 48 St. Rep. 683. Complaint dismissed, with costs.