text:
    The New York Rubber Co., App’lt, v. John Rothery et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Watercourse—Diversion—Rights of riparian owners.
    Plaintiff owned lands opposite and below defendants’ manufactory and' claimed that the latter diverted the stream so that the water which would naturally flow past and over plaintiffs’ land was prevented from doing so. The court charged that defendants “have the right to use. this water to-run their wheel provided they do not interfere with the stream to an extent which you can say is both appreciable and material. * * * The question is, have they by this watercourse diverted the water so as to leave the stream to a material and appreciable extent insufficient for the purposes of plaintiffs’ business; that is all there is of the case.’” °Held, error.
    2. Same.
    The court refused to charge, on plaintiff’s request, “that the plaintiff’s right to maintain this action and to recover a verdict' for -nominal damages does not depend at all upon the plaintiff’s showing any actual or any perceptible damage, but solely upon the question whether the defendants have, by the use of their race, at any season of the year, diverted water from M. creek, and thereby have reduced perceptibly and materially the volume or current of water which otherwise would have flowed by plaintiff’s premises.” Held, error.
    Appeal from a judgment of the general term, second department, affirming a judgment for defendants entered upon the verdiet of a jury, and from an order made at the circuit denying a motion made upon the minutes for a new trial
    The action was brought to recover damages for the alleged diversion of the waters of a stream. The plaintiff owned two lots, both upon the left bank of the Matteawan creek extending to the middle of the stream, and separated by an intervening lot •of a third person.
    The defendants owned lands upon the right bank opposite the-plaintiff’s lands and extending up the creek above it. Above -the plaintiff's lands the defendants had a dam across the stream from which they diverted the water into a raceway constructed by them upon their own lands. The raceway was about 300 feet long, 8 feet wide and 10 feet deep. The water flowed in the race to defendants’ factory, was there used, and then discharged into the creek entirely below plaintiff's upper lot, and below the middle of his lower lot The defendants had expended about :$50,000 in utilizing the water power and constructing their factory. The plaintiff’s lots were not used for manufacturing purposes. The upper lot had a slaughter house upon it, and the lower lot a tenement house. The fall in the bed of the stream from defendants’ dam to plaintiff’s lower lot is ten inches. The-' evidence tended to show that during the periods of the flow of the normal volume of water in the stream the whole of its waters were diverted into the raceway except smch as' escaped through leakage; that there always was some leakage.

      B. F. Lee, for app’lt; II. E. Eustis, for resp’ts.

       Reversing 32 St. Rep., 905.

   Landon, J.

Upon the former appeal, 107 N. Y., 310 12 St. Rep., 63, this court held that it was for the jury to determine upon the evidence whether the plaintiff’s riparian rights were injured by the defendants' use .of the water,-that the test was whether that use' “ was such that at various times the quantity which would otherwise have flowed past plaintiff’s lots was perceptibly and materially diminished, and to such an extent that frequently when the water was running through the tail race of defendants, there was none running over or through the dam except leakage, and of course none flowing past the plaintiff’s lots, the whole substantial part of the water of the stream going through defendants’ tail race instead of down its original and' natural channel.” Upon the re-trial the evidence was addressed to this subject, and the question presented upon the present appeal is whether the plaintiff’s exceptions to the charge of the learned trial court and to the refusals to charge are valid.

The court charged the jury that if the defendants used and diverted the water to a degree that materially and appreciably lessened its flow along the lots of the plaintiff, the plaintiff was entitled to recover nominal damages. But the court also charged “These defendants have the right to use this water to run their wheel provided they do not interfere with the stream to an extent which you can say is both appreciable and material. That question will of course be determined with reference to the land as it was, and not with reference to the future for an instant Be sure as to that; do not change the question from just what it is. Have the Rotherys, by this watercourse, diverted the water so as to leave the stream to a material and appreciable extent insufficient for the purposes of plaintiff’s business? Now gentlemen, that is all there is of the case.” The plaintiff excepted to this portion of the charge and requested the court to charge: “ That the plaintiff's right to maintain this action and to recover a verdict for nominal damages does not depend at all upon the plaintiff’s showing any actual or any perceptible damage, but solely upon the question whether the defendants have, by the use of their race, at any season of the year, diverted water from Matteawan creek, and thereby have reduced perceptibly and materially the volume or current of -water which otherwise would have flowed by the-plaintiff’s premises. ” This was refused.

Both the charge and refusal were erroneous.

The plaintiff’s right to recover nominal damages was substantial, though the quantity of damages was not. The defendants probably did leave water enough in the stream for the purposes of the plaintiff’s business, as that business had been conducted. But the plaintiff's title to its water rights, and its right to redress for their invasion, were not conditional upon the beneficial user of them. Corning v. Troy Iron & Nail Factory, 40 N. Y., 191; Crooker v. Bragg, 10 Wend., 260; Webb v. Portland Mfg. Co., 3 Sumner, 189; Parker v. Griswold, 17 Conn., 288; Clark v. Penn, R. R. Co., 22 Atl. Rep., 989.

The plaintiff may, however, lose its title by the defendants’ prolonged adverse user of the water of the stream, and this is the-more probable if such adverse user is protected by the verdict of the jury. It is not improbable that this action was brought to-prevent the defendants from acquiring a prescriptive right to divert the water. The charge which makes “ the purposes of the plaintiff’s business ” material to its right to recover, and cautions-the jury to regard plaintiff’s land “as it was agd not with reference to the future,” tended to lead the jury to disregard the inviolable character of the plaintiff’s property rights, or at least, expose them to sacrifice if plaintiff’s actual. and immediate pecuniary damages were inappreciable The plaintiff might thus lose its right to the beneficial use of the water as it was accustomed to flow before defendants began to divert it, simply because it had not as yet found it convenient to use it. In such a case nominal damages given confirm the plaintiff’s right, but withheld, impeach and may destroy it. Hammond v. Zehner, 21 N. Y., 118.

The request to charge presented the plaintiff’s rights clearly. Garwood v. N. Y. C. & H. R. R. R. Co., 116 N. Y., 649, 26 St. Rep., 620.

The defendants’ counsel contends, and his contention is not wholly unsupported, that the court did in his main charge instruct the jury substantially as the plaintiff requested, and also instructed the jury substantially and nearly literally in the language of the opinion of this court. The evidence, however, tends to show that the defendants diverted into their race nearly the whole volume of the stream, during a considerable portion of each year, leaving •only the small part which escaped from the dam through leakage ■to flow past the plaintiff’s upper lot and the greater part of its lower one. The verdict can hardly be accounted for except upon the theory that the jury were influenced by that portion of the ■charge, and by that refusal to charge, upon which we have commented. They seem to have prejudiced the plaintiff.

The judgment should be reversed, new trial granted, costs to abide event.

All concur, except Follett, Ch. J., not voting.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Charlotte Wainwright, Resp’t, v. William G. Low and The Sailors’ Coffee House, Limited, App’lts.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Ante-nuptial agreement—Aliens—Laws 1874, chap. 261.
    An ante-nuptial agreement declared it was in trust to receive the rents, or permit the grantee to take, hold and use the same for her own use and benefit, and on her death to convey to such person as she should appoint by deed or will. She occupied the premises until her •death, when an instrument was found among her papers, signed by her, but not acknowledged or witnessed, directing the trustee to convey to her husband. After her death the legislature passed an act, chap. 184, Laws 1876, releasing the right of the state in the real estate to her husband^ she having been an alien, but providing that it should not ‘ ‘ affect the right of any heir at law.” Plaintiff, an alien, was her sister, and sole heir at law. Held, that chap. 261, Laws 1874, operated as a surrender by the state of its title to said property, and made plaintiff capable of taking and holding the same as said heir, and the state had no interest in the premises which it could release to the husband in 1876.
    .3. Same—Trust.
    As the grantor was the sole beneficiary, having by the terms of the deed the right to the actual possession and use of the premises, no title vested in the trustee, and if the trust had been within the 55th section of the statute it terminated with her death, and, unless willed, descended to her heirs.
    3. Same.
    The husband took no title through the act of 1876, or by the deed made by the new trustee, who was appointed by the court on the assumption that a valid deed of appointment had been made, and plaintiff as heir at law became vested with the title by descent.
    Appeal from judgment entered on order of the general term of the supreme court in the second judicial department, affirming judgment entered upon report of a referee. '
    ' The action is ejectment brought to recover certain premises situated in the city of Brooklyn. They were conveyed to Sarah Ann Wood in May, 1846. She was then the widow of one Wood, ■who died in or about the year 1836." She married Greorge Gk Ackley, July 8, 1846. And shortly before and in contemplation of such marriage, she entered into an ante-nuptial trust deed in which Ackley and Edward F Sanderson joined, whereby in terms the premises were conveyed to Sanderson in trust to receive, take and hold the rents, issues and profits, and to pay the same or any portion thereof to her or to such person or persons as she should require or direct for her sole and separate use, or at- her election to suffer and permit her to take, hold, receive and use such real estate for her own separate use and benefit, and upon her decease to convey the premises to such person or persons and for such ■uses and purposes as she “ by deed of appointment or instrument in the nature of a last will and testament under hand and seal duly made and executed in the presence of two or more witnesses” ■should “ order, direct or appoint” Mrs. Ackley continued in the possession of the premises, and she and her husband (Ackley) resided there until her death in 1871, and Ackley continued to reside there until his death in August, 1876.
    After her death a deed bearing date July 8, 1847, having her name subscribed to it, but without any attesting witness or certificate of acknowledgment, was found in her bureau drawer, by the terms of which instrument, after reciting something of the ante-nuptial deed before mentioned, she authorized and directed Edward F. Sanderson to covey the premises to George G. Ackley. The referee found that Mrs. Ackley signed her name to this deed of •appointment, but that she did not do so with the intent to execute and give legal effect to it, and she did not during her life deliver such instrument to Acldey or Sanderson or to any other person; but that she retained such paper in her possession to the time of her death. Sanderson died in 1866.
    In April, 1876, the legislature passed “An act to release the right, title and interest of the People of the state of New York to George G. Ackley, husband of Sarah Ann Ackley, deceased, in certain real estate situate in the city of Brooklyn, and also in the town of Flatbush, in the county of Kings and state of New York.” The land in question was included in that mentioned in the act; and by the second section it was provided that “ nothing in this act contained shall be so construed as to affect the right in ■said real estate of any heir at law.” In May, 1876, Ackley, by his petition to the supreme court, sought the appointment of a trustee in place of Sanderson, deceased, and "direction to him to convey the premises to the petitioner ; and such proceedings were thereupon had that David Barnett was appointed such trustee, and directed to make such ‘conveyance. The direction was executed. And in July, 1876, Ackley and his wife, Margaret Ackley, conveyed the premises to one Hunting, who immediately re-conveyed them to Mrs. Ackley. She conveyed to one Sayres in February, 1882, and he reconveyed to her in April, 1885. In April, 1885, she conveyed to defendant Low, under whom the ■other defendant occupied the premises. Mrs. Sarah Ann Ackley ■died intestate in 1871. The plaintiff, her sister, and her only heir at law, was born in England, and has never resided in or become a citizen of the United States, but is a subject of the crown ■of Great Britain. The intestate was also a native of England. Her first husband, Wood, was, at the time of her marriage, a citizen of the United States.
    The referee directed judgment for the plaintiff.

      William G. Low, for app’lts; 8. B. Ten JEych, for resp’t.

       Affirming 32 St. Rep., 1044.

   Bradley, J.

The plaintiff’s right to recover is dependent upon her having the legal title to the land in question. Prior to-her marriage to Wood, Sarah Ann was an alien, but by her marriage to Wood, who was a citizen, she became a naturalized citizen of the United States. Luhrs v. Eimer, 80 N. Y., 171.

At the time of her death in 1871, her sister, the plaintiff, her heir at law, being an alien was incapable of inheriting the land,. Laws 1845, chap. 115, and assuming that Mrs. Ackley in her lifetime made no provision for the disposition of the property, it es^ cheated to the state. The plaintiff had no support for her claim to the premises prior to the passage of the act of 1874, chap. 261,. so amending § 4 of chapter 115, Laws 1845, as to provide that “if any alien, resident of this state, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this state, has died, or shall hereafter die, leaving persons who, according to the statutes of this state, would answer the description of heirs of such deceased person, such persons so answering the description of heirs of such deceased person, whether they arc-citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold as heirs of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease.” This statute, as well as Laws 1875, chap. 38, by its terms includes within its effect the heirs of those-■who had died before as well as after its passage and without distinction between citizens and aliens otherwise than in relation to alien males of full age, who are required to make and file in the office of the secretary of state the deposition or affirmation required by 1 R. S., 720, § 15. And although the land had escheated to the state when the act of 1874 was passed, the legislative purpose is by its provisions quite apparent to surrender the title to lands taken by escheat, and of which the state had not before that time assumed in any manner to make disposition. Luhrs v. Eimer, 80 N. Y., 171; Hall v. Hall, 81 id., 130. In that view there was-nothing in the escheat to prevent the plaintiff from effectually asserting her claim to the land after the passage of that act, as no proceedings for any purpose had been taken on the part of the state prior to that time founded upon the title taken in that manner on the death of Mrs. Ackley. And, therefore, at the time of the passage of the act of 1876, chap. 184, no title was in the state and the act was ineffectual to vest any title in Mr. Ackley. And it may be observed that by its provisions the rights of heirs were expressly saved from its operation. Maynard v. Maynard, 36 Hun, 227.

It is urged that there is nothing in the act to operate as a grant of the title to the plaintiff, and in support of the view that it was not within its purpose to divest the state of the title, reference is made to § 11 of the act of 1845, which provided that it should “ not affect the rights of the state in any case in which proceedings for escheat have been or shall, before the making and filing the deposition or affirmation in the first section of this act men.tioned, be commenced or the rights of any person or persons whose interest may have become vested in any such lands or real estate.” As before remarked, no proceedings for ‘escheat had been taken when the act of 1874 took effect, nor had any person ac-quired any rights founded upon any interest which had become vested in him. And in view of the provisions of the fourth section as amended in 1874 and as further amended in 1875 (chap. •88), no express grant to the plaintiff was essential to vest the title in the plaintiff as heir-at-law of Mrs. Ackley, assuming ■that the real estate was owned by the latter at the time of her •death.

It is contended that, by reason of the ante-nuptial trust deed made by her to Edward F. Sanderson in 1846, she had no title •thereafter prior to the time of her decease. This would be so if the deed created a trust within the meaning of the statute, 1 R. S., 728, § 55, because on the death of the trustee the trust would have become vested in the supreme court to be executed by some person appointed by it for that purpose. R. S., 780, § 68. But while the trust deed contained a provision for the receipt by the trustee of the rents and profits and the application of them to the use of the grantor during her life, such power was made .•dependent on her election to permit him to do so; and she reserved the right, which she exercised, of taking and holding the property for her own use and benefit. It would therefore seem that the-trustee acquired no right by the instrument to take possession and control of it and receive and apply the rents and profits in the sense requisite to a trust having the support for its execution of title in the trustee. The grantor was the sole beneficiary, having by the terms of the deed the right to the actual possession .and use of the premises; and therefore no title vested in the . trustee. 1 R. S., 727, § 47_; id., 728, § 49; id., 729, § 58.

If the trust had been within the fifty-fifth section of the statute it terminated with the death of Mrs. Ackley, and in that case the real estate, unless other disposition of it was legitimately directed by her, would have descended to her heirs if she had any capable of taking it. 1 R. S., 754, § 21; Watkins v. Reynolds, 123 N. Y., 211; 33 St. Rep., 173. In the view taken it is unnecessary to consider the question whether in that event the real estate would, within the meaning of the provisions of the acts of 1874 and 1875, have been deemed owned and held by her at the time of her decease. The provision of the trust deed for the execution by the trustee of such power of appointment as the grantor should create by deed or will duly made and executed under her hand and seal in the presence of two witnesses, it is insisted on the part of the defendant was made effectual by a deed of appointment made by her, and that through its execution by a trustee appointed after her death the defendants’ title to the premises is supported. The new trustee then appointed pursuant to the direction of the court assumed to convey the land to Mr. Ackley in execution of what was treated as a deed of appointment made by his wife and bearing date in 1847. The plaintiff had no notice of the proceedings, which were taken in 1876, for the appointment of the new trustee; and it was represented by the petitioner, Ackley, in the proceeding that Mrs. Ackley left no heir at law; and, that the deed of appointment had been in his possession from the: time of its execution by her, which he also verified.

The execution of this deed of appointment was neither attested' by any witness or acknowledged by the person whose name was subscribed to it. And the referee found that Sarah Ann Ackley did not sign the paper with intent thereby to execute it and give it legal effect as a deed of appointment, and that she did not in her lifetime deliver it to Mr. Ackley, or to Sanderson, or to any other person, but retained it in her possession down to the time, of her death. This finding of the referee was permitted by evidence and for the purposes of this review must be deemed conclusive. And as the inference was warranted that she did not at any time during her life intend to give any legal effect to the instrument as one of appointment for execution by the trustee pursuant to the provision of the trust deed in that respect, the retention of it in her possession in the manner it appears she did up to the time of her death is accounted for. It may be that the referee-would have taken a different view of the intent of Mrs. Ackley in that respect, and of the effect of the paper if it had been executed by her in the manner and as provided in the deed of trust. And here it must be assumed that the questions of fact presented by evidence were properly disposed of in the court below.' -

These views lead to the conclusion that Mr. Ackley took no-title through the release to him by the legislative act of the state in 1876, or by the deed made to him by the new trustee, who was appointed by the court on the assumption that a valid deed of appointment had been made, without which there was no support for the application to the court for that purpose. But th&t on the passage of the act of 1874 the plaintiff as heir-at-law of Mrs. Ackley became vested with the title by descent.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Brown, J.

text:
    John R. Putnam, App’lt, v. The State, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Canals—Bridges.
    Appellant was the owner of a dry dock in $\ connecting with a large basin which opened into the canal, and the surplus waters of which flowed through plaintiffs lands. A bridge across the basin was at one time an elevated one, then a draw, and after that a swing bridge erected by the claimant with the consent of the state. In the fall of 1886 the state removed the swing bridge and erected a stationary bridge at the same level as the tow path, thus shutting in a canal boat of claimant’s.^ as there was-no water in the canal at the time. Held, that the state was liable.
    2. License.
    The privilege which claimant enjoyed was revocable at .the will of the state, but it included an obligation which the state could not withdraw from arbitrarily and subvert at its mere will and, pleasure, and having been permitted to place his boats inside of the bridge in the fall of the year, and the state having thereafter withdrawn the water from the canal it was bound to afford him a reasonable opportunity to remove them. -

      Appeal from a decree of the board of claims dismissing the claim herein and awarding nothing thereon.

      TT. B. Cushney, for app’lt; S. W. Rosendale, attorney-general, for resp’t.
   Brown, J.

The claimant sought to recover damages for several alleged causes. We concur in the conclusion reached by the board of claims in all except one. It appears from the findings of the court that for many years prior to 1886 the claimant was the owner and in possession of a dry-dock in the village of Fultonville, situate on the northerly side of the Erie canal. The dock connected with a large basin which opened into the canal. The basin was upon the land of the state and across its mouth was maintained a bridge which was a part of the tow-path.

The water from the canal filled the basin and thence flowed into the dry-doclc. The only means of communication between the canal and the dry-dock was through the basin.

The bridge maintained across the basin was at one time an elevated one, at another a draw-bridge, and after that a swing-bridge which had been erected by the claimant with the consent of the state.

In the spring of 1886, for reasons satisfactory to the state, it, removed the swing-bridge and erected in its place a stationary bridge at the same level as the tow-path.

At that time the claimant had a canal boat lying in the basin and one in the dry-dock, and by reason of the construction of the said stationary bridge he was unable to move said boats from said basin and dry-dock and lost the use thereof. It appeared from the evidence that the reason why the boats could not be moved was that the bridge was constructed before the opening of navigation and when there was no water in the canal.

The court further found that at the time of constructing said bridge the assistant superintendent of public works told the claimant that he (claimant) could erect a suitable bridge that would meet the requirements of the state and permit the use of his property, if he wished, and when he did so the stationary bridge would be removed, and that the claimant did not avail himself of that privilege.

Upon such facts the court found that there was no liability upon the part of the state.

We think this conclusion was erroneous.

The privilege which the claimant enjoyed was one revocable at. the will of the state, but it included an obligation which the state-could not withdraw from arbitrarily and subvert at its -mere will' and pleasure. It appeared that the surplus waters of the canal flowed out through the claimant’s land, and that the bridge which was removed in the spring of 1886 had been erected at the claimant’s expense, and it is fair to assume that these things constituted in some measure the consideration for the privilege which the claimant enjoyed in the basin. In the absence of express contract the- law often infers a promise from one party to the other arising from the nature of the transaction and when the circumstances authorize the assumption that such was in the contemplation of the parties, and the implied promise in such cases is such that justice would dictate under the particular facts presented to the court.

We must assume such a promise in this case, for it cannot be that it was in the contemplation of the parties that the privilege given could be withdrawn at a time and under circumstances that would inflict severe loss upon the claimant. And having been permitted to place his boats inside of the bridge in the fall of the year, and the state having thereafter withdrawn the water from the canal, it was bound to afford him a reasonable opportunity to remove them.

This he was deprived of by the construction of the low stationary bridge before there was water in the canal upon which to float the boats. This right, of which claimant was deprived, was not overcome by the offer to permit him to erect a new elevated bridge at his own expense. There is no finding or evidence that he accepted that offer. He was entitled to reasonable notice and opportunity to remove the boats, and unless it appeared that in some way he had waived or surrendered such rights, he had a valid claim for damages against the state.

The order and award should be reversed and a new trial granted, costs to abide event.

All concur, except Yaw, J., absent.


author: Follett, Ch. J.

text:
    Rozellen Aldinger, Resp’t, v. Emery S. Pugh, App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Injunction—May be granted by special surrogate.
    The special surrogate of Oneida county has power under chap.306, Laws 1849, as amended, to grant an injunction ex parte in the supreme court. By these statutes the special surrogate had ail the powers of a county judge out of court, and they were not repealed by the Code of Civil Procedure.
    ■ Appeal from an order of the general term of the supreme court for the fourth judicial department, which affirmed an order of the special term adjudging the defendant in contempt for violating an injunction order, granted December 7, 1888, by the special surrogate of Oneida county, in an action pending in the supreme court.

      Edward Lewis, for app’lt; James Coupe, for resp’t.

       Affirming 32 St. Rep., 513.F

   Follett, Ch. J.

Chapter 306 of the Laws of 1849, as amended by chapter 108 of the Laws of 1851, provides that the special surrogates of Oneida and of certain other counties “ shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court.” It is agreed that prior to the adoption of the Code of Civil Procedure these special surrogates had power to grant such an injunction as was granted in this case, and § 606 of that Code expressly confers jurisdiction on county judges to grant such injunctions. But the appellant contends that the statutory provision above quoted was repealed by the Code of Civil Procedure. This question is not an open one, it having, in principle, been settled by this court adversely to the appellant’s contention. Ross v. Wigg, 36 Hun, 107; affd, 101 N. Y., 640. That case arose out of the following-facts : March 24, 1884, a judgment was recovered against Wigg in the supreme court, which was entered and docketed in the office of the clerk of Oswego counry. April 29, 1884, the recorder of the city of Oswego granted an order in proceedings supplementary to execution issued on the judgment.

The judgment debtor-was examined, and June 4, 1884, the recorder appointed a receiver of the property of the judgment debtor. A motion was made to set aside the orders on the ground that the recorder had no jurisdiction of such proceedings. By § 4 of chapter 96 of the Laws of ,1857, the recorder of the city of Oswego was authorized “ To exercise any power or authority in any proceedings supplementary to execution in the county of Oswego which the county judge or a justice of the supreme court can exercise therein, whether such supplementary proceedings be in an action in said recorder’s court or in any other court.” Section 2434 of the Code of Civil Procedure, as it stood in 1884, provided that supplementary proceedings might “ be instituted before a judge of the court out of which, or the county judge, the special county judge or the special surrogate, of the county to which the execution was issued.” The recorder of the city of Oswego was not mentioned in the section. It was argued in that case, as in this, that the Code of Civil Procedure was intended to be a codification of the laws prescribing the practice in the actions and proceedings embraced therein, and by implication the power conferred upon the recorder by chapter 96 of the Laws of 1857 was repealed. It was held otherwise in the case cited. The opinion delivered in the case at bar by the learned general term, and reported in 57 Hun, 181; 32 St. Rep., 513, satisfactorily discusses and disposes of the jurisdictional question, and we are quite content to affirm, and we do affirm, the order upon that opinion.

The order is affirmed, with costs.

All concur.


author: Haight, J.

text:
    Mary V. Amerman, App’lt, v. Bertha A. Deane, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Deed—Covenants against erection op a tenement-house—When INJUNCTION NOT THE PROPER REMEDY.
    An owner of a block conveyed lots to several grantees, with a covenant in each deed that neither the grantee nor his assigns would erect or permit a tenement-house on the land conveyed, and it was agreed that this covenant should run with the land. In an action by one lot owner against another for an injunction to prevent the violation of the covenant, HeV7, that as the neighborhood was made up of .tenement-houses and similar structures, the trial court properly withheld a permanent injunction, and confined plaintiff’s relief to damages.

      3. Same—Damages. .
    Defendant’s building was in process of construction when this action was brought, and at the time of trial completed, but only partially occupied. Held, that it was a case for damages for the permanent injury sustained.
    Appeal from'an order of the general term of the superior court of the city of New York, reversing a judgment entered upon a decision at special term, and ordering a new trial.

      W. J. Townsend, for app’lt; Cephas Brainerd, for resp’t.

       Affirming 26 St. Rep., 165.

   Haight, J.

This action was brought for a permanent injunction, and for damages. Clarence S. Brown was the former owner óf a block of land in the city of New York,' bounded on the north by Sixty-fourth street, on the east by Ninth avenue, on the south by Sixty-third street, and on the west by Tenth avenue. He made conveyances of separate parts of such block to different parties, all of which conveyances were made subject to certain restrictions and covenants, among which was that the grantee, his heirs and assigns, would not, at any time thereafter, erect, Suffer or permit upon the premises thereby conveyed, or any part thereof, any tenement house; and it was agreed between the parties to such conveyance that such covenants should run with the land.

The defendant, through variousrziesne conveyances from Brown; under deeds containing the restriction and covenant above mentioned, has become the owner of a lot on the south-east comer of' Tenth avenue and Sixty-fourth street; the plaintiff, in like manner, has become the owner of a private residence on the south side of Sixty-fourth street distant forty-two feet and nine inches easterly from the rear of defendant’s lot. Since the purchase by the plaintiff of her residence, the defendant has erected upon her lot a tenement house, in violation of the restriction and covenant alluded to. The building contains a frontage of seventy-five feet on Tenth avenue and ninety-five feet on Sixty-fourth street. It is arranged for three stores fronting upon the avenue, and three stores fronting upon Sixty-fourth street, with four stories above the first floor, each arranged for the accommodation of four families!

Flat or tenement houses of the ordinary description have been erected for a considerable distance, below Sixty-third street on both sides of Tenth avenue; also on the opposite side of Tenth avenue between Sixty-third and Sixty-fourth streets;. also upon the entire block fronting on the easterly side of Tenth avenue from Sixty-fourth street to Sixty-fifth street; also in the middle of the block between Ninth and Tenth avenues on the northerly side of Sixty-third street; ordinary tenement houses have been built on the southerly side of Sixty-third street from Ninth avenue westwardly, covering more than half of the block; flat or tenement houses have been built opposite the premises of the plaintiff on the northerly side of Sixty-fourth street, and like houses have been built for a considerable distance northward on both sides of Tenth avenue. On the northwesterly corner of Tenth avenue and Sixty-fifth street is an establishment for .the manufacture of.illuminating gas, and on the block below, on the westerly side of Tenth avenue, are carpenter shops, liquor and-beer saloons, blacksmith shops, and one tenement or flat house.

The trial court refused a permanent injunction, but awarded' damages to the plaintiff in the sum of $1,500, and an injunction restraining the defendant from renting the building upon her lot to any tenant until such damages, together with the costs of the action, shall be paid.

The facts to which we have alluded were found by the trial court, and are such as to entitle the plaintiff to an injunction, were it not for the fact that the surrounding neighborhood has been chiefly built up and occupied with flat or tenement houses. The defendant’s building is a large one, constructed at considerable expense, and is in a neighborhood devoted chiefly to the residence of people for which the defendant’s building was designed; if enjoined from using the same for that purpose the defendant must necessarily suffer damages greatly in excess of any which is likely or possible to be sustained by the plaintiff.

In the case of the Trustees of Columbia College v Thacher, 87 N. Y., 311, it was held that whilst a court of equity has jurisdiction to enforce the observance of covenants made by an owner of lands in a city with an adjoining owner, in consideration of similar reciprocal covenants on the part of the latter, restricting the use of the lands to the purposes of private residences, the exercise of this authority is within its discretion; and where there has been such a change in the character of the neighborhood as to defeat the object and purposes of the agreement, and to render it inequitable to deprive such owner of the privilege of conforming his property to that character, such relief will not be granted.

In High on Injunctions, § 22, it is said, if it is apparent upon an application for an injunction that the relief sought is disproportioned to the nature and extent of the injury sustained, or likely to be sustained, the court will- decline to interfere. And again, at § 1158, where the character and condition of the adjoining lands, with reference to that conveyed, have so changed as to render the restriction in the conveyance inapplicable, according to its true intent and spirit, a court of equity will not interfere by injunction to prevent a breach of the covenant, but will leave the party aggrieved to his remedy at law. See also Conger v. N. Y., West Shore & Buffalo Railroad Company, 120 N. Y., 29; 30 St. Rep., 124; Margraf v. Muir, 57 N. Y., 155; Peters v. Delaplaine, 49 id., 362.

Under the rule to which we have called attention, and the facts disclosed, the trial court properly withheld a permanent injunction, and confined the relief of the plaintiff to damages.

As we have seen, the trial court awarded fifteen hundred dollars as damages. This was found to be the difference in value of the plaintiff’s premises, with and without the defendant’s tenement building. The award is for the permanent injury sustamed. The defendant’s building was in process of construction when this action was brought. At the time of the trial it had been completed, but was only partially occupied. The plaintiff's damages depended, not upon the construction of the building, but the use made of it. If it should never be used for a tenement building, no damages would result, and if, as is claimed,’ damages only could be awarded to the time the action was commenced, none could be allowed, for the reason that at that time none had been sustained.

It appears to have been upon this theory that the general term ordered a reversal of the judgment, following the cases of Pond v. Metropolitan Railway Co., 112 N. Y., 186; 20 St. Rep., 479; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98, and other kindred cases; but those cases were actions for damages and .were disposed of upon the theory that as to the plaintiff there was an unlawful structure upon his easement, amounting to a nuisance. That being a nuisance, the defendant was under a legal obligation to remove it, and the law would not presume that he would not do so. For that reason damages could only be recovered up to the time of the commencement of the action.

We do not regard these cases as having any application to the question under consideration. The defendant’s building does not incumber or interfere with any easement of the plaintiff; it is not unlawful or a nuisance. There is consequently no presumption that it will be abated or discontinued. The devoting of it to the use for which it was constructed operates as a breach of the covenant embraced in the deeds to which we have alluded, and because of such breach the plaintiff is entitled to damages. The building is a permanent structure, specially arranged for continued use as a tenement or flat house. This action is in equity and one of the objects sought is to avoid a multiplicity of actions which might be brought in case only past damages could be recovered.

We see no reason why permanent damages may not be awarded. This right is recognized" by the recent cases.

In Pappenheim v. The Manhattan Railway Company, 128 N. Y., 436; 40 St. Rep., 445, Peckham, J., in delivering the opinion of the court, says: In an action at law the owner of the property interfered with, or trespassed upon, cannot recover damages to his premises based upon the assumption that such trespass is to be permanent. He can only recover the damages which be has sustained up to the commencement of the action. * * * But the owner can resort to equity for the purpose of enjoining the continuance of the trespass, and to thus prevent a multiplicity of actions at law to recover damages; and in such an action the court may determine the amount of damages which the owner would sustain if the trespass were permanently continued, and it may provide that upon payment of that sum the plaintiff shall give a deed or convey the right to the defendant.” See, also, Thompson v. Manhattan Railway Company, 41 St. Rep., 697; Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423-434.

• We discover no exceptions in the case that call for a reversal of the judgment. Evidence was received in reference to there "being windows on the east end of the building, but it was received only for the purpose of showing the kind of house that was erected, and no claim for damages was made by reason of such windows. To the question as to what the effect would have been upon the plaintiff's property if, instead of the house erected by Mrs. Deane, there had been placed houses corresponding in quality and character to those which front on Tenth avenue above Sixty-fourth street, the answer of the witness is, that he did not know the character of those houses. He does not pretend to speak as to the effect, and consequently the exception taken is not available. His answer to. the next question is in favor of the defendant and consequently did her no harm.

The damages awarded by the trial court were for the permanent injury sustained by the plaintiff, by reason of the breach of the covenant alluded to. Under the practice adopted in kindred cases, the trial court might properly have required the plaintiff, upon the receipt of the damages awarded, to have duly executed, acknowledged and delivered to the defendant a release from the covenant, so far as it restricts the use of the premises for the purpose of a tenement house. Whilst this requirement may not be necessary to bar a further action for damages, it seems but just, under the circumstances, and in view of the liberal award made, that the release should be given.

The order of the general term will, therefore, be affirmed and judgment absolute ordered against the appellant upon her stipulation, with costs, unless within thirty days she stipulates that the judgment of the trial court be modified by adding thereto a provision that upon the payment to her of the damages and costs awarded by the trial court she execute, acknowledge and deliver to the defendant a release from the covenant embraced in the deed, so far as it restricts the use of the premises for the purpose of a tenement house.

If such stipulation is given, the order of the general term is reversed, and the judgment of the trial court, as so modified, affirmed, without costs.

All concur.


author: McAdam, J.

text:
    Elizabeth Buckel, Pl’ff, v. Ann Suss, Def't.

      (New York Superior Court, Trial Term,

      Filed January, 1892.)

    Husband and wife—Action fob enticing husband.
    An action by a wife for the enticement of her husband cannot be maintained where she has voluntarily left her husband and entered into an agreement for separation under sanction of the court.
    The plaintiff sued to recover $50,000 damages, because, as she alleged, the defendant enticed away her husband and deprived her of his comfort, society, assistance, consort and support. The complaint was dismissed at the conclusion of the entire evidence, and the present application is for a new trial. ■

      A Steckler, for motion; Guggenheimer & TIntermyer, opnosed.
   McAdam, J.

The plaintiff is concluded by the nature of her action, as set forth in the complaint, which is for “ enticing away the plaintiff’s husband,” and the form of complaint used is that found in 1 Abbott’s Forms, page 504, No. 608. It is not for crim-con,” in which the words “ debauched and carnally knew ” are necessary allegations. McCall’s Forms, 3d ed., p. 270, No. 435; 1 Abbott’s Forms, p. 504, No. 609. So considered, the plaintiff is without a cause of action, for, according to her own testimony, she cohabited with her husband, until, by the advice of her counsel, she left his home, hired rooms in another house, and brought an action in the supreme court for a limited divorce, which resulted in July, 1888, in an agreement for separation, by and with the sanction of the court, whereby her husband agreed to pay her alimony at the rate of $1,000 per year, payable monthly. While the wife’s right to maintain an action for enticing away the husband is now affirmatively established, Bennett v. Bennett, 116 N. Y., 584; 27 St. Rep., 679, the enticing must be clearly proved. An action for harboring a husband or wife is maintainable without the element of “crim-con.” 2 Hilliard on Torts, 4th ed., 510. But the harboring means something more than receiving a visitor casually entertaining a guest; it means some act or influence by which the husband or wife is induced to remain away from home, or encouraged in some manner to desert the companionship of his or her life partner. Warner v. Miller, 17 Abb. N. C., 224.

There was no enticing away of the plaintiff’s husband, but a voluntary departure from him by the plaintiff; followed by the agreement for separation, “by judicial sanction,” in July, 1888, the consequence of which is to discharge the defendant from all liability for harboring the plaintiff’s husband, if her conduct rises to the gravity of such an offense. This results from the nature of the damages recoverable and the effect of a legal separation upon marital rights.-

The damages recoverable are for the loss of the “societ}r,'comfort and assistance ” of the husband or wife. Selwyn’s M. P., 6 ; Bigelow on Torts, 153; Bennett v. Bennett, supra. Where the wife sues, she must rely upon the loss of consortium or conjugal society of the husband (id.), and these things are renounced by a legal separation, Beeves Dom. Bel, ed. of 1867, p. 175, for, while united in form, the parties are divided in fact; “ they are thrown upon society in the undefined and dangerous character of a wife without a husband and a husband without a wife.” Evans v. Evans, 1 Hagg. Cons., 36, 37. The spirit of the marriage contract, all that dignifies and ennobles it, is gone; the letter alone remains.

For the reasons stated, voluntary contracts for separation - have in many cases been held illegal, unless entered into after actual separation, and made through the intervention of a trustee,oor by sanction of the court. A deed of separation executed in contemplation of and as an inducement to afuture separation is void. Florentine v. Wilson, Hill & D. Supp., 303. This is because the law does not encourage husbands and wives to separate. Although a contract for future separation is Void, it is valid if made after separation. Galusha v. Galusha, 116 N. Y., 635; 27 St. Rep., 738; Allen v. Affleck, 64 How. Pr., 380. Judge Cowen, in. The People v. Mer ein, 3 Hill, 410, calls these articles “ a kind of divorce which the courts cannot very well, at this day, gainsay.” In other words, ■whenever legal ground for separation exists, the parties may agree •to it without compelling the court to hear the grievance and award a decree, for what the court would be required to do the parties may themselves do. An agreement of separation, followed by .an immediate actual separation, is valid, and the covenant on the part of the husband to pay instalments to a trustee for the support of the wife and their children is enforceable in an action by the trustee, Clark v. Fosdick, 118 N. Y., 7; S. C., 27 St. Rep., 750; 28 id., 449, and, in the absence of a provision in the agreement to that effect, the act of the wife in subsequently obtaining •a divorce, no alimony being awarded, will not terminate the obligation of the husband to pay the instalments. Id. The case was tried on the theory that the separation between the plaintiff and •defendant was by decree of the court. It appears now that it •was effected by agreement, under sanction of the court The legal result is in either case the same, and the circumstance required ■no more than passing notice, although technically the plaintiff is ■ bound by the theory on which the case was tried. Frear v. Sweet, 118 N. Y., 454; 29 St. Rep., 972.

In Weedon v. Timbrell, 5 T. R., 357, it was ruled by Lord Kenyon that actions of this description, being founded .on the injury which the husband has sustained in the deprivation of the •comfort, society and assistance of his wife (an allegation to that effect being always inserted in declarations of this kind as being material and substantial), the consequence must be that when the husband voluntarily relinquishes the comfort, society and assistance of his wife, by consenting to a separation from her, he ■can suffer no loss from her incontinency whilst such separation continues. See 2 Bright on Husband and Wife, 351; Fry v. Derstler, 2 Yeates, 278; Roper Husband and Wife, 322; Bartelot v. Hawker, Peake N. P. C., 7; Hodges v. Windham, id, 39; 4 Vin. Ab., 173; 2 Stark. Ev., 698; Shelf, on Mar. and Div., ch. 6, p. 608.

If the action had been brought for “ crim-con,” i. e., corrupting the mind and affection of the plaintiff’s consort, a brief review of rules regulating such actions and the authorities in regard thereto, to which attention has been called by the plaintiff’s counsel, might have been necessary; but as “crim-con.” is not charged, these matters, “ like the flowers that bloom in the spring, have nothing to do with the case,” and require no comment. The motion for new trial must be denied.


author: Per Curiam.

text:
    The People ex rel. Henry Day, Trustee, Resp’t, v. Edward P. Barker et al., Tax Com’rs, App’lts. (5 cases.)

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    ‘Taxes—Personal- property out of state.
    The mere fact that securities forming part of a trust fund which is actually deposited outside of the state are liens on property located in this state is not sufficient to render them liable to taxation here.

      Appeals from orders vacating or reducing assessments.

      George S. Coleman, for app’lts; Daniel Lord, Jr., for resp’t.

         Affirming 42 St. Rep., 449.

   Per Curiam.

With the exception of slight differences which, were .stated by counsel on the argument of these appeals and. to which it is not now necessary to advert, it is conceded that these cases are similar in principle to and are to be governed by that, of the People ex rel. Darrow v. Coleman, 119 N. Y., 137; 28 St. Rep., 937, and unless a distinction of a radical character is to be, found between the cases, the decision of the judge below in making the orders appealed from was correct.

On an examination of all the facts disclosed in the record before us, we can find nothing which should change the application of the principle laid down in the Darrow case, with the single possible exception of the fact that some of the securities are liens, upon property located in the city of New York. There does nof seem to be any other circumstance in the cases now at bar that make them differ from that authority which we conceive to be controlling, and that circumstance we do not regard as sufficient to change the clear rule of law asserted in the Darrow case as we understand that decision.

All of the orders appealed from must therefore be affirmedi. with ten dollars costs and disbursements in one case.

Yan Brunt, P. J., O’Brien and Patterson, JJ., concur.


author: Patterson, J.

text:
    Frank D. Schuyler, Resp’t, v. Josephine M. Schlicht, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Pasties—Additional.
    A person who claims to have some interest in or to the subject matter of. an action is a proper, although not a necessary party, and may be brought in to have his rights ascertained and defined.
    " Appeal from interlocutory judgment and order overruling^ demurrer to supplementary complaint.

      Waldo G. Morse, for app’lt; Henry W. Bean, for resp’t.
   Patterson, J.

The record in this case is very unsatisfactory,, for the reason that we cannot ascertain from it how the supplemental complaint comes into the action as a pleading. Whether it is introduced by consent or by order of the court, and if the latter why or for what reasons it was allowed to be served we cannot tell. We are left to surmise as to that. But taking up. the record as it comes to us we find that the defendant, Josephine M. Schlicht, has demurred to a supplemental complaint, and her demurrer was overruled in the court below. Nothing was brought up for consideration on that demurrer except the sufficiency of the supplemental complaint. The appeal book consists of a complaint, supplemental summons, what is called a supplemental complaint and a demurrer to that supplemental complaint, the decision of the judge on the demurrer, the- order overruling it and the interlocutory judgment Prefixed to these records is a statement of the case, and from that alone do we learn that the defendant, Josephine M. Schlicht, was brought in as a defendant and was ■served with a supplemental summons and complaint. Her demurrer applies only to that supplemental complaint.

That the demurrer was properly overruled is evident. We may assume that under § 544 of the Code of Civil Procedure the supplemental complaint is in proper form and is in addition to the ■original complaint, but the present demurrer does not apply to the original complaint, but only to what is added by the so-called supplemental complaint, and that is that the demurrant claimseto have some interest in or to the proceeds of the joint enterprise of the plaintiff and Paul J. Schlicht It is quite clear that the de.murring defendant was therefore brought- in to have her rights ascertained and defined, if she had any. She may not have been a necessary party to the action, but she was a proper party, and the courts have so often passed upon the question of bringing in proper parties where substantial rights are in controversy that it is unnecessary to say anything further on that subject. If any .authority is wanted it may be found in Towsend v. Bogert, 126 N. Y., 370; 37 St. Rep., 488.

The interlocutory order and judgment appealed from are .affirmed, with costs.

Van Brunt, P. J, and O’Brien, J., concur.


author: O’Brien, J.

text:
    Francisco Roca et al., Resp’ts, v. Anna D. Byrne, Adm’rx, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Injunction—Pendente lite.
    In an action to recover the proceeds of certain drafts collected by defendant's intestate, as plaintiffs’ agent, for application to specific obligations, and which were deposited by him in bank, where the defendant denies that they were lo be so applied and alleges a balance due to the intestate, and it appears that he died insolvent, Reid, that it was proper to continue a preliminary injunction restraining the bank from paying out the moneys.
    Appeal by defendant Byrne from an order of the special term, ■continuing during the pendency of the action an injunction restraining the Corn Exchange Bank from paying certain moneys ■deposited with the bank.
    ■ Harmon & Maithewson, for app’lt; Michael H. Gardozo, for resp’ts.
   O’Brien, J.

The action is brought by plaintiffs to recover the proceeds of certain drafts transmitted to defendant Byrne’s intestate, who, it is claimed, while acting as the agent of plaintiffs, in a fiduciary capacity, collected the same for the purpose of applying the proceeds thereof to the payment of specific obligations of plaintiffs, and which proceeds were deposited in the Corn Exchange Bank, where they' remained until Byrne’s death. The answer of the defendant admits that certain drafts were collected and received for the plaintiffs, but denies that the same were ¡received and the proceeds thereof collected upon any arrangement or agreement that they should be applied upon specific obligations, of the plaintiffs, but, on the contrary, alleges that between the parties there was a running account, and that at the time of. Byrne’s death a large credit balance existed in favor of Byrne. The complaint and answer are supplemented by affidavits, and the1 issues are thus presented, not only as to the terms and conditions, under which the drafts were received and collected, but also as-to the state of the account between the parties at the time of Byrne’s death. The court is reluctant to try issues of the character presented upon affidavits, and it is only in cases where, from the papers themselves, the position of either side is fully sustained, that it will hazard a determination of all their rights upon a preliminary motion, where the facts are supported only by ecc parte statements. An examination of the papers on appeal fails to disclose such a state of facts as would warrant our deciding all tho questions in dispute in favor of the defendant.

■ The suggestion of appellant that plaintiffs’ allegations being,, for the most part, upon information and belief, are insufficient to sustain an injunction pendente lite, is to be considered together-with the fact that most of the answering affidavits are likewise upon information and belief. The sources of information and the ground of belief of the affiants are set forth, and, in addition, there is the affidavit of one Jones, whose knowledge is stated to have been derived not only from conversations with the deceased,, but also from the fact that he personally collected some of the drafts, the proceeds of which were deposited with the bank, and. which are sought to be reached in this action. We may admit that, as presented, there is much force in the contention of the defendant, that there was no special appropriation of these drafts, but that, for years, there was a running account between the parties. There are, however, other considerations which we think should induce us to uphold the injunction until the fact can be-fully presented at the trial. It is asserted that Byrne, to whose-credit the moneys received from the collection of the drafts were-deposited, died insolvent, and that the payment over of the moneys to the administratrix would, even though plaintiffs should succeed, leave them remediless. The only injury that could result from retaining the moneys in the bank during the pendency of the action to the administratrix, would be the consequent delay. This, to a great extent, could have been obviated by accepting the suggestion of the court below, as to embodying in the order a condition which would have insured a speedy trial. We see no good reason, therefore, for disturbing the order, and; it should accordingly be affirmed, with costs to abide the event.

Van Brunt, P. J. I am of the opinion that it is in furtherance of justice to retain the injunction until the rights of the: parties can be determined after a trial.

Lawrence, J., concurs.


text:
    The Holland Trust Co. of New York, Trustee, Resp’t, v. Isabella V. Hogan et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    I. Foreclosure—Parties.
    The owner of the equity of redemption moved to open a"decree of foreclosure and compel plaintiff to bring in as defendant a former owner on the ground that it did not appear in the judgment roll whether such owner was married or not, his deed being from himself alone. It appeared that the deed from such owner declared that he was unmarried, and that he had, in actions in which the agent of the owner of redemption was a party, made affidavit to the same effect. Held-, that the objection was frivolous,, and the motion was properly denied.
    2. Same—Part payment.
    The agent of the owner paid plaintiff’s attorney money to procure adjournments of the' sale. The attorney claimed that the payments were-made for the purpose of paying the cost of readvertisement and produced bills therefor amounting to that sum. Held, such payments could not ba applied to the reduction of the amount due on the decree.
    3. Same—Sale—Attorneys.
    The attorney for the plaintiff, whose conduct is perfectly fair and honest, may bid in the premises at a foreclosure sale as against the defendants in, the action.
    Appeal from, order denying motion to set aside a judgment .of foreclosure and the sale thereon.

      Wm. H. Knox, for app’lts; Morris P. Ferris, for resp’t.
   Patterson, J.

The order from which this appeal is taken was' properly made by the justice at special term. The motion before him was directed to the accomplishment of three things, viz, : the setting aside of a sale of mortgaged premises; the application of two certain sums, paid to the attorney of the plaintiff intermediate the first advertisement of sale and the actual sale, to the reduction of the amount due on the decree; and the opening of the; decree and compelling the plaintiff to bring in as a party defendant a man who at one time held the legal title to the mortgaged premises. '

Considering the several grounds” in the reverse order of their, present statement, it appears that the owner of the equity of redemption in the property was one Kate J. Murphy. She does not personally make any affidavit on this motion. It is based air together on two affidavits of the defendant, John Hogan, her brother-in-law, and, as he says, her agent; but it is apparent he isl really the party interested. Hogan swears that the judgment is defective, because one O’Connor, who conveyed to the defendant Murphy, was not a party to the action. O’Connor was the grantee of this same affiant, and the person through whom the title passed into the name of Hogan’s sister-in-law, and the reason why it is claimed O’Connor should be made a party is, that it does not appear in the judgment roll, whether the O’Connor was married, or has a wife living, there being no other party named as a grantor in the deed to Kate Murphy than O’Connor himself. This objection is utterly frivolous, and its presentation as a ground for setting aside a decree should be rebuked. It is disingenuous in the extreme. It appears in the answering affidavits, and is not -denied, that in the conveyance of this and other property from •O’Connor to the defendant Murphy, he described himself" as un.married. Hogan conveyed to him, as he states in his own affidavit. He does not swear that O’Connor was married, nor is there ¿anything to show he was. On the contrary, in various suits in the court of common pleas, to which this same Hogan was a ■j>arty, O’Connor made an affidavit that he was unmarried, and it is simply incredible that Hogan did not know it. This attempt to deceive the court is quite enough to deprive the affiant’s statements of any force at all.

On that branch of the motion which relates to the application of certain moneys to the reduction of the decree, it appeared that •the sale was first advertised for October 6, 1891. Hogan swears he first learned of the date they fixed on that morning, and then he arranged on the payment of $100 to have it postponed for a .fortnight.

That again at the expiration of that time he arranged on payment of $100 more for another postponement of two weeks, which carried the day of sale, to November 2d. That he (Hogan) miscalculated the time of sale thinking it was the 3d, and that he intended to go again to the office of the plaintiff’s attorney in quest of another and third adjournment; that he discovered on the second that the sale was advertised for that day, went to the sales rooms but arrived too late, the property having been struck -off to a purchaser. If these two amounts were paid for and ex- . acted by the attorney for the plaintiff as conditions of an adjourn■ment and nothing else, we might well exercise the discretion residing in the court to direct a re-sale, but Mr. Ferris, the attorney, swears positively that the two payments were merely to cover ithe cost of re-advertising, and in corroboration of his statement produces the bills of two newspapers for such advertisement. 'These bills of the “ Law Journal” and “ the Sun’ aggregate two hundred and eighty-five dollars, and it was not at all unreasonable that the payments made by Hogan should be required as conditions of the postponements of the sale.

The remaining ground upon which the interposition of the • court was asked to set aside the sale is that the property was bid in by the plaintiff's attorney in his own name and for his own benefit. It is claimed that for some reason the general principle "that trustees, receivers and those standing in fiduciary or confi-' ■dential relations to others, and to property in which such others are interested, can acquire no advantage to themselves from or out •of such property as purchasers, has application to this purchase. Hut Mr. Ferris stood in no fiduciary or confidential relation to Hogan or the defendant Murphy, and certainly not as to the property, for the very purpose of the suit was to sell that property ■away from'the defendants.

He owed them no direct duty and was not bound to do more than conduct the foreclosure suit honestly, lawfully and without «oppression or deceit, as an adversary proceeding. If his own. client were to come in and claim the benefit of the purchase a-very different question would arise, but as to the parties making-the present motion, the simple question is as to the right of am attorney for an adverse party, whose conduct is perfectly fair and honest, to bid in the premises at a foreclosure sale. That is exactly what was done in McCotter v. Jay, 30 N. Y., 80, and in that, case the purchase was sustained.

We have examined the papers used in this'motion with care, to. ascertain if there .exists any ground on which to set aside this sale, and can find none. Both the auctioneer and referee swear that it was well and honestly conducted; that the attendance thereat was-large; that the bidding was spirited and there was much competition, no less than thirteen different bids having been recorded by the auctioneer in his book. [Nothing whatever was done by the attorney of the plaintiff at any time to mislead the defendants,, but, on the contrary, all his proceedings were fair, open and regular. The order must be affirmed, with ten dollars costs.

Yah Brunt,- P. J., and O’Brien, J., concur.


author: Patterson, J. Van Brunt, P. J.

text:
    Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al. Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Pleading—Equity.
    Where an entire scheme of action is set forth against many defendants, for equitable relief and nothing else, and the bill fails, plaintiff cannot turn it into a legal action against some one of the defendants, because as; to him certain facts are pleaded which might entitle plaintiff to damages-against him. .
    Appeal from judgment dismissing complaint.
    Action to procure the cancellation of a contract, the return of certain shares of stock and for other relief.

      B. J. Moses, Jr., for app’lt; E. Louis Lowe and H. Major, for resp’ts.
   Patterson, J.

This is an appeal from a judgment directed at. the circuit dismissing a complaint on the merits and also from what appears to be an order directing the judgment, and in which are stated, among other things, the peculiar circumstances under.which that direction for judgment was given.

The judge below dismissed the complaint on a concession of" counsel “ that by an order entered herein on [November 15, 1888,. this court at a previous circuit thereof has already decided that no. relief can be granted to the plaintiff under the complaint in this-action and that the said complaint should be dismissed on the-merits unless the plaintiff paid the costs of the last named circuit, and applied at special term, for leave to amend said complaint, and. it having been also conceded that the plaintiff paid said costs and made said application under and pursuant to said-order, but that, said application was denied and the order denying the same was affirmed at the general term of this court on January 16, 1891. ”J It therefore clearly appears that what induced the court below to> dismiss the complaint was an admission that certain anterior proceedings in the action were of such a character as in the mind of ■.the learned judge required that course to be pursued.

On studying the record we find that the complaint is one .strictly drawn as presenting a cause of action of purely equitable cognizance as between all the parties. It was framed to present nothing but the alleged equities of Sleeman,' the plaintiff, under contracts with parties interested in the National Gas Saving Company, and to protect him from alleged wrongs intended to be perpetrated on -him by persons acting for him or in his interest either .as his attorneys or being bound to him by sotiie fiduciary rela■tion. It is not necessary to state in detail the alleged facts constituting. the supposed cause of action. It suffices that the complaint in its structure is one purely and simply presenting equities as against defendants who could not on the very facts pleaded •all be liable at common law for all that is set forth therein, and on the whole case as stated the relief demanded was only such, as -a court of equity can award.

As an equity cause it came up for trial at the special term before Mr. Justice Yan Brunt in December, 1886. It then appeared that in consequence of the non service of process on certain of the defendants the complaint must be dismissed and that was done 471.S0 far as it prays for equitable relief in this action.- As nothing but equitable relief was prayed for that ought to have been. ■enough to dispose of the whole case, but two years later it came ■ on-for trial at circuit, it evidently having been supposed that there ■was enough in the complaint and answers to raise a common' law issue against somebody, to be tried by jury. Mr. Justice Barrett, ■presiding at the circuit, disposed of the whole casé very properly •on a simple inspection of the pleadings and held, That the court .having inspected the complaint and having determined that no relief can be had thereunder ” a juror might be withdrawn, and the plaintiff was allowed to move at special term to amend the complaint in compliance with certain terms imposed. This permission was availed of and the terms were accepted. Subsequently the motion made at special term was denied; an appeal was taken from the order and it was affirmed at the general term. The learned judge at the last trial evidently regarded the order made by Mr. Justice Barrett as concluding the plaintiff from bringing the case on again on the same complaint; but without holding that Judge Barrett’s decision is res adjudicata, it is quite plain that the complaint was properly dismissed. As said before, it is drawn as one in equity setting forth'facts for equitable relief against all of the defendants. The effort made was to turn it into a common law suit against some of the defendants because there are several allegations of facts which might sustain an action at law against one or more of such defendants. 'It was never intended to carry the rule of Sternberger v. McGovern, 56 N. Y., 12, to that extent.

■ That was an action for specific performance, but the complaint filso showed facts which would entitle the plaintiff to damages ior a breach of contract in case the equitable remedy could ■ not be allowed, and it was held that under such circumstances, the ■equitable cause of action failing, the defendant would not be put to a new suit, but might recover his damages in that action. That is very far from holding that where an entire scheme of action is set forth against many defendants for equitable relief and nothing ■else, and the bill fails, the plaintiff may turn it into a legal action against some one of the defendants because as to him certain facts are pleaded which might entitle the plaintiff to damages against that defendant.

The judgment appealed from so far as it dismissed the complaint must be affirmed, but there is also an appeal from the ■order granting an extra allowance of $500. There was no foundation we think for such an allowance, and the judgment should be modified by deducting therefrom the amount thereof, and as modified affirmed, without costs.

O’Brien J., concurs.

Van Brunt, P. J.

I concur in the result. In so far as the •complaint was dismissed upon the ground that the order of Mr. Justice Barrett was a binding adjudication, an erroneous view of the effect of that order was taken.

The question of the sufficiency of the complaint upon the last trial was unaffected by the order of Mr. Justice Barrett, and should have been decided as though no such order had been made. I agree with Mr. Justice Patterson that no common law cause of action was set out, and the complaint was therefore properly dismissed.


author: Van Brunt, P. J.

text:
    Lansing D. Lyon et al., Resp’ts, v. The Union Mutual Life Insurance Co. of Maine, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Insurance (Life)—Policy.
    A policy payable to the children of- the assured provided that after the ■payment of two or more premiums it should become a paid up non-forfeiture for an amount equal to one-tenth of the sum insured for each premium paid, requiring payment of no further premiums, subject to no assessments, but entitled to its pro rata apportionment of the surplus accumulation. Ilel I, that there was no agreement therein to issue a paid up or any kind of policy; that the rights of the parties depended upon the original policy, and that no action could be maintained by either party, either for a paid up policy or the cancellation of the original one, during the life of the assured.
    ‘3. Sams—Judgment.
    The only judgment to be rendered in such a case is one dismissing the complaint. The reasons for arriving at the decision are immaterial, and, therefore, improper to be incorporated in the judgment.
    Appeal from judgment of special term dismissing complaint.

      4Sawyer & Getty, for app’lt; G. W. Van Slych, for resp’ts.
   Van Brunt, P. J.

This action was brought to have declared the interest of the surviving.children of James W. Lyon in and to a policy of insurance issued by the defendant upon the life of their father as being in full force against said defendant upon the death of said Lyon, or for the delivery of a paid up policy for said interest or amount. The defense set up in the answer is in substance that Lyon, the insured, paid a portion only of the premium in cash during the period of ten years after the issuing of the premiurn, and gave the defendant a premium note for the residue,. and that the interest on said note has not been paid, and that, said policy by reason thereof has become and now is forfeited. It then alleges the amount of the note as a set-off against any claim, the plaintiffs might have under the policy; and demands affirmative relief that the amount of said note be adjudged to be a set-off, and that it should be adjudged that none of the annual premiums have been promptly and fully paid, and that said policy is-wholly void and wholly forfeited, and should be delivered up by plaintiff to be destroyed.

It appears from the evidence that by the policy the defendant, agreed to pay, upon the death of Lyon, the sum of $5,000 to his-surviving children, share and share alike, in consideration of- the-payment of the annual premium of $323.25, the payment of the-, premiums to cease after ten years. And the policy also contained the following provision:

“And it is hereby understood and agreed that after two or more of said annual premiums have been fully paid, this policy becomes a paid-up non-forfeiture for an amount equal to a sum of one-tenth of that hereby insured for each and every premium which shall have been so paid, requiring no further payment of premiums, subject to no assessments, but entitled to its apportionment of the surplus accumulation in the ratio of its contribution thereto.”

And the learned judge held that the court could not requirethé defendant to issue a paid-up or any kind of policy; that there was no such agreement in the policy in question' and no agreement to do anything until the death of the assured, which had not yet happened; that upon the happening of that event the defendant agreed, upon compliance by the assured to certain conditions, to pay to his surviving children the sum of $5,000, or a smaller sum in cáse the premiums were not all paid, but it had not agreed to issue any further policy or instrument of any kind.

This seems to be clearly sustained by the language of the policy. There is no agreement to issue any policy; all the rights of the-parties, whatever they may be, to a recovery depend upon the original policy and are to be governed by it; and their rights-under that original policy can only be determined when a cause; of action thereunder arises.

In respect to the relief asked for by the defendant, that the-policy should be declared null and void and wholly forfeited, and delivered up to be destroyed because of the non-payment of the-annual premiums provided for by the policy, the learned judge said: It is clear that the defendant is not-entitled to this relief. If by reason of the non-payment of the premiums there has been a forfeiture of the policy, that defense can be interposed when any attempt is made to enforce the policy, andn o reason exists to-justify a judgment at this time that the policy has or has not been forfeited.

This was a clear and sound exposition of. the law, and this was all that it was necessary for the court to decide in order to determine the issues which were properly before it

But the learned judge went further, and found that the annual .premiums had been paid as agreed upon to a certain extent, and in his judgment adjudged that the defendant was not entitled to a judgment declaring the policy to be wholly forfeited; but that the said policy had not been whplly forfeited by reason of the action of the plaintiffs and said James W. Lyon in not paying the .interest upon the note after the year 1883; and also adjudged .that by reason of the failure to pay the amount due on the outstanding premium note, and the interest thereon after the year 1883, and the consequent absence of any refusal on defendant’s part to accept the same, the plaintiffs were not entitled to relief in the action; and also that the contingency upon which the defendant had agreed to pay said sum of $5,000, to wit, the death .of James W. Lyon, had not yet arrived, and finally that the plaintiffs were not entitled to any relief in this action, and that .the complaint should be dismissed.

We think that the only judgment which should have been rendered was a dismissal of the complaint. The court had decided .that the plaintiffs were not entitled to any relief, and that the defendants were not entitled to any relief. The reasons why formed -no part of the judgment. The court had decided that because fhe assured was alive the plaintiffs had no standing in court. ' It .also decided that whatever may be the facts in reference to the payment of these premiums, if they were unpaid, that was a defense which might be availed of by the defendant when called upon to pay the policy upon the death of Lyon, and therefore all discussion as to the payment of those premiums was immaterial, and had no relevancy to the result which must necessarily be reached, and was therefore improper.

The judgment should be modified by striking out the first, second and third paragraphs thereof and affirmed as to the fourth .paragraph thereof, without costs to either party.

O’Brien and Lawrence, JJ., concur.


text:
    Eliza M. Sloane, Resp’t, v. The New York Elevated Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Railroad—Elevated—Damages.
    Although no diminution of rental value in the past is shown, the court may determine the value of the easements taken in view of the fact of the permanency of the railroad structure and of any purposes to which the premises in question might be applied.
    2. Same.
    In determining file damages the court may take into consideration the incidental annoyances from the running of trains in the future in relation to the effect upon the light, air and access, smoke, dust, cinders and the like.-
    3. Same—Benefits—Stations.
    The proximity of a railroad station, which may be removed at any time, should not be considered as a permanent element of benefit.

      Appeal from judgment of the special term.

      A. 0. Townsend, for app’lts; G. A. B. Pratt, Jr., for resp’t.
   Van Brunt, P. J.

This action was brought for an injunction restraining the defendants from maintaining and operating their elevated railroad in Ninth avenue in front of the plaintiff’s premises. The court held that there had been no diminution in the rental value of the premises in suit shown to have been caused bv the acts of the defendant up to the time of the trial, and consequently that the plaintiff had sustained no damage to the rental value of the premises; but that the easements* taken by thesti ucture of the defendants were of the válue of $3,500, upon. the payment of which amount the defendants might acquire the-easements in question.

The principal ground upon which this appeal is based arises-from the fact that the court found that the plaintiff had not sustained any rental damage up to the time of the trial, and that, therefore there was no basis for the finding as to the value of the-easements.

There is no question that the court will not grant an injunction merely for the purpose of protecting a technical or unsubstantial right; and therefore unless it was shown that the easements taken by the defendants were of some value as connected with the plaintiff’s property the .complaint should have been dismissed.

But we think that the fact that there had been no diminution in-"the rental value for the past was by no means conclusive proof that the premises in question were as valuable with the easements-severed therefrom as they would be with the easements attached.

It is true that it is claimed that the improvements upon the 'property are of a permanent character and not likely to be changed. " But it is also equally true that the question as to the impairment of value is to be considered in view of the fact of the permanency of the structure of the defendants and of any purposes to which the premises in question might be applied. The market value of premises is determined by the uses to which they may possibly be put, not necessarily by the uses to which they are put; because changes may occur, from which it might be more profitable to apply the premises to other uses ; and these considerations always have an effect upon value.

It is alleged that the court erred in taking into consideration the incidental annoyances from the running of trains in the future. But these all related to the effect upon the light, air and access to the plaintiff’s premises, smoke, dust, cinders and the like. They were elements which the court was justified in taking into consideration, and have been recognized as proper in. numerous cases which have been heretofore decided. It is: claimed however that if no. error was committed in considering the incidental facts and estimating the future damage to be paid for the land not taken, then it was error not to consider all such facts, including those which were beneficial -to the property. And our attention in this connection is called to the refusal to find certain requests to the effect that the proximity of the defendant’s station to the premises in suit is advantageous to the business portion of said premises, etc.

Upon this question of the advantageous proximity to stations being a subject to be taken into consideration, it seems to me we are very liable to fall into an error. The station may be there today, and it may be removed to-morrow, as has been done in respect to at least one of the stations of these elevated railroads, leaving only the damages of the structure without the advantageous proximity of the station. The railroad company is under no obligation to maintain the station in the position in which it is placed, and as this is a question which is to settle the rights of these parties as to all the future, the proximity of a station which may be removed at any time does not seem to be a very permanent element of benefit.

There was evidence which supported the finding of the court in reference to the damage to these premises and we see no reason ior interfering with the conclusion arrived at by the court.

The judgment should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.


text:
    Isabel S. Tripler, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Payment—Void assessment.
    On the sale of property by plaintiff an assessment thereon which was in fact void was paid out of the consideration money for the purpose of clearing up the title. No steps had been taken to collect the assessment. In an action to recover back the money so paid. Held, that there was no such coercion as to render the payment involuntary, and that a judgment in favor of plaintiff could not be sustained.
    3. Same—Burden of proof.
    In such an action the burden is upon the plaintiff to show that at the time of payment she was not aware of the facts in respect to the illegality of the assessment.
    Appeal from judgment after trial at circuit and from order denying motion for new trial.

      G. L. Sterling, for app’lt; J. A. Peering, for resp’t.
   Van Brunt, P. J.

This is the second time that this case has been to the general term. Upon a previous trial judgment was rendered in favor of the plaintiff and affirmed by the general term upon the authority of Peyser v. Mayor, 70 N. Y., 497. Upon appeal to the court of appeals the judgment was reversed, 125 N. Y., 617; 36 St. Rep., 141, it being claimed that the Peyser case did riot apply, because the opinion proceeded upon the assumption that the party paying was not aware of the facts which rendered the assessment void, and that in this case, as it was then presented, such facts did not appear.

We do not see how the judgment in question can be maintained in view of the expression of opinion that the facts, which were-then before the court, and which are the same in the present record, establish no coercion either in fact or law, and that such coercion must exist in order to make a payment involuntary ; the-definition of the words “ involuntary payment,” as given by the court, being that it implies there is some fact or circumstance-which overcomes the will, and imposes a necessity of payment in, order to escape further ills, and then holds that upon the facts-proven in the case there can be no claim that the payment was. made by any coercion of fact, or coercion in law. Such being the case, the element of involuntary payment was wanting in the case-at bar.

It is to be observed upon examining the charge of the court,, although no exception was taken thereto, that an error in respect to the burden of proof was fallen into, and that it was necessary-for the defendant, in order to escape the repayment of this assessment, to show that the plaintiff did know, as matter of fact, that the assessment was unlawfully levied. Upon the contrary, the; burden is upon the plaintiff to show that she was not aware of the facts in respect to the illegality of the assessment.

The judgment should be reversed and a new trial granted, with costs to appellant to abide event

O’Brien, J., concurs.


author: Van Brunt, P. J. Patterson, J.

text:
    In the Matter of Robert A. Chesebrough.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    Municipal corporations—Assessments.
    The court has no power under § 903 of the consolidation act to disturb-an assessment which is equivalent to the fair value of the local improvement for the purpose of a redistribution of the same on the property-assessed.
    Appeal from order denying motion to reduce assessment

      T. H. Baldwin, for app’lt; (7. L. Sterling, for resp’t
   Van Brunt, P. J.

This proceeding was by petition under- § 903 of the consolidation act, to reduce the assessment to the extent that the same may be shown by parties complaining thereof to have been increased in dollars and cents by reason of fraud or substantial error.

The assessment complained of was laid for the building of a sewer at Eighth avenue, from One Hundred and Fifth to One-Hundred and Tenth street. This sewer was built on the westerly corner of Eighth avenue, and the whole cost of that part of the sewer was assessed upon the private property alleged to have been benefited thereby, except the sum which wms assessed upon the-Central park for the cost of the receiving basins on the easterly curb line.

It is complained upon the part of the appellant that the manner in which this assessment was laid was different from that which had previously obtained, and that there was a gross error o£ principle and misconception of benefit upon the part of the assessors in determining that the park should only pay for its receiving basins and culverts, but should pay no part of the cost of the sewer, without which these basins and culverts would be useless, .and the drainage of which the sewers were built to accommodate.

It is conceded that there is no power to send the assessment back to the assessors for correction and that the only relief which the court might grant is to reduce the assessment upon the petitioner’s lots to the extent of the increase in dollars and cents on ■account of substantial error.

Whatever may be the hardships which arise to the appellant because of the inability to review and revise the action of the assessors, it seems to us that the statute confers upon this court no such power.

The section under which this proceeding is instituted provides that in no event shall that proportion of any such assessment which is equivalent to the fair value of any actual local improvement, with interest from the date of confirmation, be disturbed for any cause. Therefore, .it would seem that it was the intention simply to give the court power to look into the question as to whether by reason of fraud or substantial error the whole cost of ■the work had been increased, and to afford relief to the extent in which it was shown the assessment had been so increased in dollars and cents above the fair value of the improvement by such fraud or substantial error.

It does not seem therefore that the court has any jurisdiction unless there is an increase in the cost of the work by fraud or substantial error. Jurisdiction is not conferred, even if in the opinion of the court an erroneous principle is adopted in the le.vying ■of the assessment. The court has no power to send back the assessment to the assessors for a rehearing. Mor in the levying of the assessment can they substitute their judgment for that of the assessors. The only power which they have is to reduce the assessment where the fair value of the work is- below the sum assessed therefor, which excess has been produced by. fraud or substantial error. This is recognized in the Matter of the N. Y. Prot. Epis. Public School, 75 N.Y., 324. It was there held that under the law as it then stood where fraud or substantial error was committed in the manner of the levying of the assessment, ■the only power of the court was to vacate the assessment entirely ; and that the court had no power to order back the assessment for a rehearing with a view to reducing the petitioner's assessment because there was no fixed sum or criterion for the court to act upon, and the court in making such a reduction would occupy the position of the assessors, and the assessment would be according to its judgment instead of the judgment of the assessors. And besides that it would have no power to make assessments for the omitted parcels and thus make a valid assessment for the improvement. So in the case at bar there is no fixed sum or criterion for the court to act upon; and in view of the location of the sewer and the function which it is to serve,, this court cannot say what would be the judgment of the'assessors in respect to the benefits conferred. It was evidently in order to meet the exigencies which arose under the circumstances existing in the case cited that the provision of law hereinbefore referred to was enacted.

It is clear that in no event can an assessment which is equivalent to the fair value of the local improvement be disturbed for any cause. This may work a hardship to the property owner but-it seems to be the law; and as the authority of the court to act. in proceedings of this kind must be derived from the statute and the statute alone, unless such authority is found therein no such, power exists.

The order should be affirmed, with ten dollars costs and disbursements.

Patterson, J.

I concur on the ground that the only question involved is that of a re-distribution on property assessed of the-total amount of the assessment, and we have not the power to do-that.


text:
    In the Matter of Opening Lexington Avenue. In re S. H. Thayer.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Eminent domain—Confirmation—Death of property owner.
    Where a property owner dies after receiving notice of motion to confirm the report of the commissioners and failure to appear at the hearing-which was adjourned, his executors are not entitled to notice or to he-made parties to the proceedings.
    Appeal from order of the special term denying motion made on behalf of the executors of Thayer, deceased, to vacate order-confirming report of commissioners of estimate and assessment or that said report be re-committed for correction.

      J. A. Beering, for app’lts; G. Berry, for resp’t.
   Van Brunt, P. J.

All the questions involved in this appeal, except one, have been disposed of in similar cases . decided, herewith.

It appears that Stephen H. Thayer appeared before the commissioners and filed objections to the report of the commissioners-which were subsequently overruled and the report signed, and, pending a motion for its confirmation, of which he had notice, died, and the appellants were appointed his executors.

It is now urged that it was error that the report was confirmed without notice to the appellants and without making them parties-to the proceedings after the death of said Stephen H. Thayer.

It appears that the original motion to confirm the report was-made returnable on the 4th of January, 1889, and. there is no-claim but that Stephen H. Thayerffiad notice of this motion, and it further appears from the record by the order entered on the 2nd of August, 1889, that this motion had been duly and regularly adjourned to this date, and that it was brought on for a hearing and at the same time a motion that the proceedings be discontinued was also heard, and that upon this hearing no one-appeared for Thayer and the order was entered referring the question arising upon the discontinuance proceedings and postponing: the further hearing of the motion to confirm the report until after the coming in of the report of the referee, the same to be brought, up on two days notice to the attorneys (naming them) who had appeared for objectors, among whom said Stephen H. Thayer is not mentioned. It was subsequent to the making of this order that Stephen H. Thayer died. ■ The motion to confirm the report of the commissioners was brought up upon notice to all the parties who were mentioned in the order of August 2, 1889, and therefore seems to have been regular.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien and Lawrence, JJ., concur.