text:
    Clarence F. Hill et al., Infants, by Guardian ad litem, etc., Resp’ts, v. The Board of Water and Sewer Commissioners of Village of Watkins, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Infant—Guardian ad litem—Appointment.
    Where the person named in the complaint as guardian ad litem for the infant plaintiffs, was not duly appointed, another person may be appointed and substituted in his place, and the pleading amended accordingly.
    2. Trial—Opening case.
    It is in the discretion of the court not to permit the defendant’s counsel, at the opening of his case, to explain the facts from a map which has' not been proved or put in evidence.
    3. Pleadings—General denial—Proof.
    In an action of trespass on real estate in the actual possession of the plaintiff, it is no defense to show title in a third person.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      G. M. Woodward and Ó. P. Surd, for app’lt; Irving W. Cole, for resp’ts.
   Merwin, J.

This action is brought to recover damages for the diversion of a stream of water: In the complaint it is alleged that the plaintiffs are, and were at the time of the alleged diversion, the owners and in possession of certain real estate in the village of Watkins, consisting of a house and twelve lots, of the value of $10,000; that about 1,243 feet to the westward of plaintiff’s premises a natural stream of water arises from several springs of water on the lands of one Beach, and, prior to its diversion by defendant, flowed from thence, in an easterly direction, in a clearly-defined natural channel, down across the plaintiff’s premises, and thence into Sene’ca lake; that this stream had always been a living and perpetual stream of water, and had always run down such natural channel, about 300 feet of which was .across the plaintiff’s premises; that in the years 1890 and 1891 the defendant constructed a system of waterwdrlcs and built reservoirs, and, in obtaining water to fill the same, it did, without the authority of plaintiffs, and without right so to do, wrongfully appropriate and divert the said stream of water at a point where it is fed and supplied by the said springs, and ap propriated the waters of said springs and stream to its own use; and that the plaintiffs are thereby deprived of the use and benefit of the same, to their great damage. The answer contained, among other things, a general denial, and an allegation that the defendant had a right to take the water in controversy under a deed from Beach dated December 3, 1890. The verdict represents the diminution in rental value of plaintiffs’ premises by reason of such diversion from the time of the diversion in June, 1891, to the time of the commencement of the action, in April, 1892.

1. Evidence was given on the part of the plaintiffs tending to prove the allegations of the complaint, and the motion for a non-suit was, we think, properly denied. It was a question of fact whether the defendant appropriated springs from which there flowed a water course, as claimed by the plaintiffs.

2. At the time of the commencement of this action the plaintiffs were infants, and the action was, in form, by George G. Hill, their guardian ad litem. In the complaint it was alleged that George G. Hill had been duly appointed such guardian, and this was denied by the answer. Upon the trial it appeared that he had not been duly appointed. Thereupon, upon the application of the counsel for the plaintiffs,—the original petition being before the court, and it appearing that Emmett B. Bussell was a responsible and proper person and had filed a written consent, duly executed,—the court made an order appointing Mr. Bussell guardian, and substituting him in the place of Mr. Hill, and directed that the pleadings be amended in conformity with the appointment. The defendant objected that the appointment at that time was not proper. It was, we think, authorized by the rule laid down in Rima v. Rossie Iron Works, 120 N. Y. 433; 31 St. Rep. 590. The order itself, as entered, is not appealed from.

3. The counsel for the defendant, in opening the defendant’s case, asked to be allowed to explain the facts of the case from a map which had not then been proved, or put in evidence. The plaintiffs’ counsel objected, and the court sustained the objection, and defendant excepted. This was a matter in the discretion of the court, and no circumstances are apparent indicating an abuse of such discretion. The case of Battishill v. Humphreys, 64 Mich. 494, is cited to sustain the exception. In that case a new trial was granted. In an opinion by one of the justices, several grounds for reversal are stated ; and, among others, it is stated that the counsel for the defendant should have been allowed, in the opening, to use a diagram of the premises. The other justices concurred in the result. It does not appear that they placed any reliance on the point as to the diagram.

4. The defendant, at the close of its case, offered in evidence a deed from George G. Freer to John Magee, dated September 1, 1862, and. recorded December 11, 1862, and, in connection with this, offered to show that Freer was the original owner of the Beach farm, on which the springs in question are situated, and also of the premises now owned by the plaintiffs, and that, before he conveyed to the parties who conveyed to plaintiffs, he gave the deed to Magee. This evidence was offered with a view of showing that the plaintiffs had no right in the stream, the defendant claiming that .the deed to Magee operated to transfer to him all the water rights on the farm. To this evidence the plaintiffs objected that no such defense was set up in the answer, and upon that ground the court excluded it. It was also objected to as incompetent and improper, and the objection sustained. Exception was duly taken. Upon this matter there are two questions; one being whether under a general denial, 'in a case like the present, the defendant can show title in a third person, and the other being whether the evidence offered, assuming it to be admissible under the pleadings, amounted to a defense or was material.

It has been held that in an action of ejectment the defense of want of title in plaintiff is admissible under a general denial. Benton v Hatch, 122 N. Y. 322; 33 St. Rep. 517; Gilman v. Gilman, 111 N. Y. 265; 19 St. Rep. 283. In Wheeler v. Lawson, 103 N. Y. 40, it was held that where, in an action of trespass for the unlawful taking and conversion of personal property, it appears that at the time of the taking complained of the plaintiff was in the actual possession thereof, it is no defense to show title in a third person. The defendant must connect himself in some way with the owner. A like view was taken in Griffin v. L. I. Railroad Co., 101 N. Y. 354; 1 St. Rep. 56; People v Hagadorn, 104 N. Y. 519, 520 ; 5 St. Rep. 782. So that in 'such a case the evidence of want of title in plaintiff would not be available under a general denial. The general rule is that, in an action of trespass on real estate in the possession of the plaintiff, the possession is sufficient to maintain the action against a wrongdoer, Wood v. N. Y. & E. Railroad Co., 18 Barb. 84; 2 Greenl. Ev., § 618, and therefore a general denial does not put, the title in issue. Squires v. Seward, 16 How. Pr. 478. There is some force in the suggestion that in the present case the action is, in substance, for a trespass upon rights in plaintiffs’ possession, and that a general denial by the wrongdoer does not put in issue the title.

Assuming, however, that the evidence was admissible under the pleadings, did it amount to a defense ? It was not claimed that defendant held under Magee. It, in fact, already appeared that defendant claimed under Beach, by deed subsequent to that under which plaintiffs held. The terms of the deed to Magee are to be considered. By it, Freer granted to Magee, and to his heirs and assigns, forever, “the right and privilege of taking water from the farms of the said George G. Freer [describing them in general terms], and gathering together and concentrating said water in one or two reservoirs, and from thence conducting the same through any lands of the said George G. Freer into the said village of Watkins, with a view of supplying such of the inhabitants of said village with water as may agree for the same with the said John Magee, his heirs or assigns, and for other purposes; and the said John Magee shall have the privilege to enter upon said' farms and premises to effectuate said purposes, and to make ditches and drains, underground or otherwise, for the purpose of collecting the water into a body, and to dig, construct, and finish reservoirs to receive and hold the same in such place or places as he shall deem necessary, and at all times to enter upon said farms and premises, doing as little damage as may be, for the purpose "of repairing and keeping the waterworks in order.” It is not claimed that Magee or his assigns ever entered or asserted any rights under this deed. The grant was only of the right and privilege to take. The amount was indefinite. Whatever was not taken belonged to the owner of the farms, to the same extent as before the grant. So, until the water was taken, it remained a part of the farms as before; and, so far as it was a natural stream, the owners, or whoever was interested, were entitled to have it run as before. The subsequent deed from Freér to the predecessors of plaintiffs gave them the right to have the stream run in its natural course, subject only to the exercise by Magee of his right and privilege. Until that was exercised the plaintiffs’ right to use was perfect. Washb. Easem. (4th Ed.) 306; Canal Co. v. Kidd, 37 Cal. 282, 311, 319. It would therefore follow that in the absence of any claim that Magee or any one under him, bad ever entered under his deed, or made any claim to the water, the deed itself did not show a want of right in plaintiffs to have the water continue in its natural course. Upon this ground the deed was not material, and was properly excluded.

5. Our attention is called to some other exceptions to rulings upon evidence, but we find in them no sufficient basis for reversal. The defendant also claims error in the refusal to charge several requests. The court, in its charge, very distinctly placed the right of the plaintiffs to recover upon the question whether, at the point where the defendant made its excavations, there was then a spring or springs from which there 'was a water course extending to and across the plaintiffs’ lands. This was the vital question in the case. Bloodgood v. Ayres, 37 Hun, 359; Colrick v. Swinburne, 105 N. Y. 503; 8 St. Rep. 172. The charge covered the substance of most of the requests, and contained all that was material for the fair disposition of the case. We are not persuaded that the court, in its refusals to charge requests, committed any error that calls for the intervention of the appellate court The foregoing considerations lead to an affirmance.

Judgment and order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Alfred C. Lewis et al., Resp’ts, v. Barbara Yagel, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 14, 1894)

    1. Contract—Substantial defects.
    Where the defects are substantial and important, running through the whole work, and so essential that the purpose of the owner has not been accomplished, no recovery upon the contract can be had.
    8. Same—Architect.
    Where a provision for the acceptance or rejection by the architect is merely an additional safeguard for the benefit of the owner, his acceptance of a different class of work or of an inferior material than that which the contract calls for, will not bind the owner, nor relieve the contractor from the agreement to perform according to the plans and specifications.
    '3. Same—Extra work.
    Where the owner makes a valid, oral agreement with the contractors to perform and furnish extra work and materials, and they, relying thereupon, perform it, a provision in the contract that no work should be considered as extra unless a separate estimate in writing for the same should be submitted by the contractors to the architect and the owner or her agent and their signatures obtained thereto, will not prevent a recovery of the price agreed to be paid therefor.
    4. Same—Stipulation—Inspection.

      A stipulation in a building contract that the referee, with a person of his selection, may examine the building, and may. in making his decision, consider what he discovers on the inspection, does not confer upon the referee the absolute right to determine the questions upon hid own inspection, or upon the unverified statement or report of a third person, as to whether there had been a substantial compliance with the contradi.

      5. Evidence—Parol.
    All previous negotiations or conferences between the parties are merged in the written instrument, where one exists between them and contains the whole contract.
    Appeal from a judgment in favor of the plaintiffs.

      James A. Lynes and II. D. Luce, for app’lt; H. J. Palmer and 'William II. Johnson, for resp’ts.
   Martin, J.

In the complaint, as a first cause of action, it was alleged that the plaintiffs were copartners; that on the 2d day of June, 1886, they entered into a written agreement with the defendant to construct two three-story stores, except party walls, plumbing and painting, and to furnish the materials therefor, for the sum of $7,700, part of which was to be paid in installments as the work progressed, and at the completion, upon the production of the architect’s certificate that the work was completed in accordance with the contract, the remainder was to be paid ; that they performed such work on their part, and the stores were completed and accepted by the defendant; that she paid them the-sum of $7,388.85, leaving unpaid $311.85. For a second cause of action it was alleged that on the 5th day of June, 1886, the parties entered into another written contract, whereby the plaintiffs agreed to do the area-wall work, plumbing, gas-fitting, put down two wells, and furnish the labor and materials for all such work for the sum of $587; thaj; they performed the contract upon their part, but that no part thereof had been paid. For a third cause of action the plaintiffs allege that between the 2d day of June, 1886, and the 10th day of December of the same year," the defendant became indebted to them in the sum of $9,494.26 for work, labor, and services rendered and performed and for materials furnished at her request, and for which she agreed to pay that sum; that she had paid thereon the sum of $8,595.91, leaving a balance unpaid of $898.35, with interest from December 11, 1886, for which sum judgment was demanded. The defendant set up in her answer that all the work performed or materials furnished by the plaintiffs were furnished under written contracts' which were entered into by and between the parties, and copies of which were made a part of the answer; that the contracts were not fulfilled by the plaintiffs, and by reason thereof she suffered damage to an amount greatly in excess oi[ the amount claimed by them, which was set up as an offset or counterclaim. It was also alleged that she had paid the plaintiffs more than was due upon the contracts between them; that she was not indebted to them in any sum whatever; that certain conditions precedent to the plaintiffs’ right of recovery were not performed by them; that tlicsecond contract, so far as it related to the area wall, was obtained from her by the fraud and misrepresentations of the plaintiffs, and-that it was' not performed by them. The answer likewise contained a denial of all the allegations of the complaint not admitted by the answer, and contained allegations that the plaintiffs had been fully paid; that the contracts between the parties had not. been either actually or substantially performed by the plaintiffs;. and that the defendant had sustained material damage by reason thereof,-and demanded judgment for the amount of such damage. The plaintiffs replied to the defendant’s answer, denying each and every allegation thereof, and alleging that each and all of the changes which were made in the construction of the buildings mentioned in the complaint and answer herein, so far as the same differed from the plans and specifications thereof, were made at the request of the defendant, with her knowledge and consent, and under the direction of her architect. The defendant served an amended answer, wherein it was averred that the plaintiffs did not perform the work under the second contract betwéen the parties according to the contract, plans and specifications, and omitted to do the same in a good, proper and workmanlike manner; that they omitted to put in ventilating pipes, and to vent the traps to the water-closets and sinks, according to the plans and specifications, and as required by the contract for such plumbing; that they omitted to construct the area wall in the same manner as the area wall of the First National Bank building, mentioned in the contract; that the same was constructed in an improper, imperfect and unsubstantial manner, and that she sustained damage thereby to the amount of $500, which was set up as an offset or counterclaim in the action. The plaintiffs’ reply to such amended answer denied each and every allegation contained therein respecting the alleged counterclaims, and also alleged that each and all of the alterations and changes or omissions which were made in the work and materials mentioned in the amended answer, so far as the same differed from the plans and specifications, were made at the request of the defendant, with her knowledge or consent, and under the supervision and direction of her architect.

That the work performed and materials furnished, for which this action was brought, were performed and furnished under the two written contracts between the parties, and in pursuance of their provisions, there can be no manner of doubt. Therefore, to a proper understanding of the questions involved on this appeal, it becomes necessary to examine some of the provisions contained in the contracts between the parties. The first contract between them, which was made June 2, 1886, provided that the plaintiffs should erect, finish, and deliver in a true, perfect, and thoroughly workmanlike manner the building mentioned, except plumbing and painting, agreeably to the plans, drawings, and specifications, referred to, under the direction of Blend, who was an architect; the plaintiffs to furnish all the labor and materials, and to be paid therefore the sum of $7,700, which ,the defendant agreed to pay in the manner stated in the contract. Among others, the contract contained the provision that, should the owner, or her agent, during the progress of the work, require any alterations of, deviations from, additions to, or omissions in the said contract, she should have the right to make such changes, and- the same should in no way injuriously affect or make the contract void, but the difference should be added to or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation. It also provided : “ No work shall be considered as extra, unless a separate estimate, in writing, for the same shall have been submitted by the contractor to the architect and the owner, or her agent, and their signatures obtained thereto.” It contained the further provision that in case of dispute as to the value of extra work or work omitted the same should be valued by two competent persons, one employed by the owner, or her agent, and the other by the contractor, and they should have the power to name an umpire, whose decision should be binding on all the parties. By the contract the last payment was to he made when the building was all completed, and the drawings and specifications returned to the architect, provided that in each case of payment a certificate should be obtained from, and signed by, the architect to the effect that the work was done in strict accordance with the drawings and specifications, and, that he consider the payment properly due ; the certificate, however, in no way lessening the total and final responsibility of the plaintiffs, and providing further that when the work was all completed a certificate should he obtained^ by the plaintiffs from the clerk of the office where liens are recorded, and signed and sealed by said clerk, that he had fully examined the records, and found no liens or claims recorded against said work, or on account of the plaintiffs. A.11 ceilings were to be seven-eighths of an inch thick, instead of one-half of an inch,- as mentioned in the specifications ; and the floors in the third story were to be one and one-eighth inches in thickness, instead of the thickness mentioned therein. The plaintiffs were to take out the subcellar windows, and doors, and put in stonework in their place, and two small windows, as owner should direct. The drawings and specifications were made a part of the contract. In the specifications it was provided that the work was to be executed in the best and most substantial and thoroughly workmanlike manner, according to the true intent and meaning of the particulars and 'drawings referred to, which were intended to include everything requisite and necessary to the proper and the entire finishing of the work, notwithstanding every item necessarily involved was not particularly mentioned and set forth ; and all the work, when finished, to be delivered up in a perfect and undamaged state, without exception. No part of the work under the contract was to be sublet. Each fourth beam in the brick walls was to be anchored with iron anchors, and the timbers were to be also anchored to the end walls. A curb was to be set in front of the building. All brick walls were to be perfectly level and straight, and to the proper and exact lieighth, so that the carpenter could size the timbers and place them upon the wall without blocking up with chips or pieces of wood. The front was to be of Philadelphia brick and terra cotta, as shown on elevation. An ash cleaner was to be placed in each chimney. All partitions and brick walls, except when otherwise specified, were to be plastered with two coats of good mortal-, made and stacked in heaps at least 10 days before being used, and all to be well haired. The first coat was to be put ou with sufficient force to secure good, strong clinches, and to be level, and well scratched with a tooth-board paddle, and to stand until dry before the second coat was put on. The second coat was to be put on and made straight, true, and plumb, and to be left finished under a muffled float, in the best manner, so as to secure a good and workmanlike job. All the lathing and plastering was to extend down to the floors and up to the door and window jambs, and all the walls to be -straight and plumb, and the angles to be maintained sharp and regular in form. Brick “discharging” arches were to be built to take the weight of all brick walls off the lintels over the door and window frames or other openings. The basement joists were to be 2% by 12' inches, the first floor joists 3 by 12, the second and third floors and ceiling joists 2-l¿ by 12 inches, and the roof 2 by 7 ; all of which were to be laid 16 inches from center to center. The studding for the basement was to be 2 by 4, set 16 inches from center to center; for center partition to be 4 by 5 and 4 by 6; for second story to be 4 by 5,4 by 6, and 3 by 6 ; for third story to be 2 by 5 and 3 by 5. Double plates, 2 by--width, of studding were to be put on all studding, and well spiked. There were to be put on brick walls in basement oak plates, good, sound, well-seasoned oak, 4 by 8, well bedded in mortar. All floor joists, including ceiling joists, were to be properly bridged with two rows in each space, of two by three cross bridging, well nailed. All studding and floor timbers to be placed 16 inches from center to center. All timbers were to be framed, so that important timbers would not require cutting for chimneys, plumbing pipes, etc., but were to be framed so that the pipes could pass through or run between them. All the partitions shown by the drawings were to be set, all door studs to be set double, all openings therein to be properly trussed overhead, and to have plates and. sills. Good two-inch axle pulleys were to be placed in the window frames. All the lumber for the window and door frames, the store fronts, for ceiling, inside finish, sash and doors, was to be clear, white pine, well seasoned and dry. The lumber for the basement stairs was to be of red oak. All the treads, risers, and wall stringers for inside stairs were to be of good, clear, red oak, well seasoned and dry. The basement floor was to be seven-eights of an inch thick; the store and second story floors one and one-eighth inches in thickness, and of first quality, well-seasoned, planed, and matched Georgia pine. On the stairs from the street to the second story,.good oak rails, supported by iron brackets, were to be placed on one side. The stairs from the street to the second story, and from the second to the third story, were to be made with one and one-half inch treads and seven-eights of an inch risers, and one and one-fourth inch wall stringers, all to be well put up. The front basement stairs were to have two-inch treads, and one and one-fourth inch risers, and good substantial stringers. The basement stairs for the stores to have one and one-fourth inch risers, seven-eighths of an inch tread, and good substantial stringers. Around the landing of the third story, and in the stores, five by five oak newels, rails, and two-inch balusters were to be put up, newels and balusters to be turned. Grounds were to be set for the mason work. As to the plumbing, all necessary clean-out places properly capped, and all -necessary Y branches for water-closets and other fixtures were required to be put in. The pipes for the water-closets and sinks were to be properly set and connected, all wastes properly trapped and connected with the soil pipe, and all traps to be well ventilated, and connected with the vent pipes running up through the roof, and cast-iron vent pipes were to be put in to pass through the roof, and be capped with a globe ventilating cap. The plumbing work and gas fixtures to be done'so that the entire work would be complete in every respect, and would include everything requisite and necessary to fully -complete it. The plaintiffs were also to put in two driven wells. The foregoing is the substance of some of the provisions of the contract between the parties, and perhaps all to which we need refer to a proper understanding of the questions involved on this appeal.

The evidence of the defendant was to the effect that a portion of the work on this building was sublet without the written consent of the owner; that there was no hand rail along the stairway; that there was not a ventilating pipe in the building; that the two wells mentioned in the contract were not driven ; that there were no arches over the doors in the basement; that the plastering did not extend down to the floor, as required by the contract; that there was but one course of bridging of the joists, where the contract required two; that the area wall was not built in accordance with the contract; that no curb was put down as required ; that the plastering was improperly done, and not according to the provisions of the contract; that the building was not of the height called for by the plan; that the wall was not laid level, but the joists were blocked up with chips and pieces of wood; that a portion of the ornamental brick on the arches in front of the building was left out, and plain brick substituted ; that the brickwork does not fit closely to the window frames; that none of the walls were plastered where the wainscoting was put on; that the mortgr which was used for the walls was poor, and improperly made, and that the walls were in no respect in accordance with the contract; that there were no clean-outs in the drain, as required; that the joists were not placed 16 inches from center to center, as required, but that they were in many instances from 18 to 19 inches from center to center; that one door was omitted in the division wall in the basement; that the lumber used in the ceilings, wainscotings, and for finishing the building was Norway pine, instead of clear white pine; that there were 50 feet of partition omitted in the basement; that the wall plates were hemlock, instead of oak; that some of the trussing over the doors was not put in; that' there were no oak wall stringers ; that the main stairs were built without oak wall stringers housed on both sides as required, but were constructed without any stringers at all, the'stairs resting upon four by six joists; that the valley in the roof was not formed so as to carry off the water; that the basement stairs were of pine, and not oak as required; that there was no threshold under the north store door; that the coal bins mentioned in the contract were omitted; that the doors to the vault were not trimmed; that the flooring in the third floor was not of the quality specified in the contract, and was seven-eights of an inch thick instead of one and one-eighth inches; that some of the window frames were falling apart, and were braced with iron braces; that in front windows the lights above the transoms were not laid in marginal lines according to the elevation, but consisted of a single light; that the roof was not properly trussed; that the foundation was not constructed in accordance with the contract; that the footings were not of the thickness called for, and that there was running water and .a barrel under the centre wall; that the area wall was not constructed according to the contract ; that the floors were of poor quality of lumber; that two trapdoors were omitted; that no place was left to clean chimneys; that the studding at the doors was single, instead of double; that there were no caps or bond stones in the piers to support the flagging; that timbers were cut away, so as to weaken the structure; that the doors were not of tl^e height required; that the sash cords were of poor quality; that two windows were not hung; that the plumbing pipes were not cased; that the floor, beams were not properly anchored, or anchored as required bjr the contract; and' that the contract was not complied with in other respects.

While there is a conflict in the evidence as to many of the omissions and changes claimed by the defendant, yet there are numerous instances where the undisputed evidence shows that the plaintiffs have not performed the contract according to its terms ■and specifications. A careful study of the evidence renders it ■extremely difficult to discover how it could properly be found .that there was a ' substantial performance of their contract by the plaintiffs. While the rule relating to substantial compliance with the terms of a building contract may have been by the later decisions somewhat relaxed, yet as it now stands we think that, where one enters into a contract to furnish materials, and perform work of a specified character, to be paid for on performance, although materials may be furnished and the work performed, still, if it is not done in the manner stipulated, no action, will lie for the compensation, and that a substantial performance must be shown, unless it has been waived or released. The right of recovery will not, however, be forfeited by reason of technical, inadvertent, or unimportant omissions or ■defects. But where the defects are substantial and important, running through the whole work, and so essential that the purpose of the owner has not been accomplished, no recovery upon the contract can be had. Where, by a contract, it is stipulated that the materials shall be of the best or a specified quality, and the work performed in the best manner, subject to the acceptance or rejection of an architect, all to be done in strict accordance with the plans and specifications, and to be paid for when done completely and accepted, the acceptance by the architect of a different class of work, or of an inferior material, will not bind the owner, and does not relieve the contractor from the agreement to perform according to the plans and specification ; the provisions for the acceptance being but an additional safeguard against defects mot discernible by an unskillful person. In most cases the question whether the defects are substantial or technical and unimportant is a question of fact. Glacius v. Black, 50 N. Y. 145 ; Woodward v. Fuller, 80 id. 312; Flaherty v. Miner, 123 id. 382; 33 St. Rep. 681; Crouch v. Gutmann, 134 N. Y. 45; 45 St. Rep. 470. As bearing upon the question as to whether the omissions of the plaintiffs in this case were substantial or merely technical and unimportant, it may be proper to consider the evidence as to the value of some of the work and materials omitted, and the amount it would cost to make the building conform to the provisions of the contract. , The extra work for which the plaintiffs were allowed, and for which no estimate in writing was made 'or submitted by the contractor to the architect and owner, and their signatures obtained thereto, amounted to the sum of $253.14. The hand rail and brackets omitted would have cost $16.20. The ventilating flues omitted would have cost $112.72, if put in during the erection of the building; after its completion, $255.75. The wells omitted would have cost $85 at the time, and now $100. The arches over the doors, which were omitted, would have cost at the time $15 ; afterwards, $50. The plastering, if done according to the contract, would have been worth $399.12 more than it was as done, including the omission to plaster under the wainscoting and down to the floor. It would have cost $34.80 to put in the bridging that was omitted if done while the building was being constructed, and after its completion it would have cost $68.57. To have constructed the area wall and vaults under the sidewalks as required by the contract would have cost $24 more than it cost to build them as they were if done while the building was in process of construction; if done afterwards, would have cost $40. It would have cost $30 at the time the building was being built to put in the curb which was omitted. It would have cost $200 additional to make the building of the height called for by the plans. It would have cost $9.80 to furnish the ornamental brick omitted if furnished at the time and $60.40 if put in now. To put in clean-outs to the drains would1 have cost $6.50 if done at the time; if done now, $25. It would have cost about $30 more if joists had been put in sixteen inches from center to center, instead of eighteen. The door omitted in the basement would have cost about $11. The difference between the value of the materials used for ceiling, finishing, and wainscoting was $320.56 less than that provided for in the contract. The partition omitted in the basement would have costs $10.20, and the wainscoting $42.70. The trussing over the doors omitted would have cost $9.60; would now cost $27.60. The oak wall stringers that were omitted would have cost $30 if put in when the building was constructed; to put them in now would cost $75. It would have cost at the time $25 more to build the stairs of oak than pine, and would cost $82.50 now to make them according to contract. The coal bins omitted were worth $9. It would have cost $10 to trim the doors to the vault. The difference in value between the floor as put down in the third story and that agreed to be put down was $24. It would have cost $8 more to construct the lights above the transoms as required by the contract than as put in. The cost would have been $54.60 to properly truss the roof, and $64 more to fix it so that it would carry off the water. It would have cost $84.64 more to put in the floors of the materials required by the contract than that used. The trapdoors omitted would have cost $15. It would have cost $10 for chimney cleaners omitted. The using of single studding instead of double, as required, made the cost less by the sum of $5; in would now cost $80 to put in such studding. There are many other items omitted or changed to which we have not referred that were proved on the trial.

The foregoing statement is based upon the evidence of the defendant as to the work omitted, its cost, and the difference in the value between the materials and work as furnished and that called for by the contract. It should, however, be stated that, while many of the omissions referred to are conceded by the plaintiffs, their evidence as to the value of the work and materials omitted, and the difference between that furnished and agreed to be furnished, vary very essentially from that of the defendant. As to many of the particulars mentioned, it may, I think, be safely said that the question whether the changes and omissions occurred or wore of the character and extent claimed by the defendant were questions of fact to be determined by the referee. There are, however, numerous instances in which there is no dispute as to the fact that the building was not constructed in compliance with the contract between the parties, and that by reason of the omissions or changes made in the materials and manner of construction the contractors were required to expend a much less sum than it would have cost them to build according to the provisions of the contract. As has already been intimated, it is extremely difficult to see how, under the circumstances of this case, and in view of the character and extent of the omissions and failures to perform the contract as shown by the evidence, it can fairly be said that there was a substantial performance of the contract by the plaintiffs. It may be. however, that the question was one of fact, and that the finding of the referee is sufficiently sustained by the evidence to be upheld. If, however, it were to be held that- there was a substantial performance of the contract, the questions as to whether the plaintiffs were properly allowed for the extra work which they performed for the defendant, and whether the defendant was allowed a fair and reasonable valuation for the differences which should have been deducted from the amount of the contract by reason of the changes -and omissions referred to, must still be determined. As we have seen, the contract provided that no work should be considered as extra unless a separate estimate in writing for the same should be submitted by the contractor to the architect and the owner or her agent, and their signatures obtained thereto. Confessedly, no such estimate was made or signed, either by the architect, owner, or her agent. Thus the question is presented whether this provision in the contract is a bar to the plaintiffs’ right to recover for such extras. In the case of Sutherland v. Morris, 45 Hun, 259; 10 St. Rep. 348, where there was a written contract between the parties which provided: “'The contractor, will take notice that there will be no extra work done unless agreed upon by the superintendent, the price put in writing, and signed,”'—it was held that, in the absence of any evidence showing a compliance with this condition of the contract, the court properly excluded the testimony offered by the plaintiff to prove the furnishing of the materials and labor. In Woodruff v. R. & P. Railroad Co., 108 N. Y., 39; 12 St. Rep. 821, where there was a contract which provided that no claim for extra work should be allowed unless done in pursuance of a written order from the engineer in charge, and the claim made at the first settlement after the work waS1 done, it was held that where there was no such order the plaintiff could not recover. These authorities perhaps tend to sustain the contention of the defendant that she was not liable for the extra work done by ttie plaintiffs, and for which she has been charged by the referee in this action. But we are disposed to think that the cases cited are distinguishable from this case, and, if the defendant made a valid, oral agreement with the plaintiffs to perform and furnish such work and materials, and they, relying thereon, performed it, this provision in the contract would not prevent a recovery of the price agreed to be paid therefor.

This brings us to the question whether 'the defendant was allowed a fair and reasonable valuation for the difference which should have been deducted under that part of the contract which provides that, where changes were made, the differences should be added to or deducted from the amount of the contract, as the case might be, by a reasonable and fair valuation. It seems impossible to read the evidence in this case without concluding that the defendant has not been allowed the deductions to which she was fairly entitled under this provision. As already pointed out, the omissions to perform the labor and furnish the materials in accordance with the contract were many, and the difference in the cost essentially less, so that a fair compliance with the contract required the plaintiffs to make many substantial deductions. It is unnecessary to again call attention to these omissions and changes in detail. Among them will be remembered the change which allowed the plaintiffs to use Norway pine instead of good, clear, white pine, and the evidence which shows the difference to have been several hundred dollars. Attention may also "be called to the omission to plaster behind the wainscoting, and the inferior plastering that was put upon the walls. If the defendant’s evidence is to be relied upon, nearly, if not quite, $2,-000 should have been deducted from the contract price to give fair and reasonable effect to this provision. From a careful examination of the evidence, we are satisfied that the defendant has not had that fair allowance to which she was entitled, and that the referee erred in not allowing her the difference between the cost of the work and materials used where changes were made, and the cost of the materials and work which by the contract were to have been used, and in not allowing her the value of the omitted work and materials. It is quite obvious that these allowances, if properly made, would amount to a substantial sum, and therefore the error in omitting to allow them should not be disregarded by this court. It may be said that these changes were made by the consent of the architect or the defendant, and hence that no such ■allowances should be made. We doubt if the architect had the right to permit such changes without the consent of the defendant, and, feel confident that he did not and could not so change the contract as to deprive the defendant of the benefit of the provision which entitled her to such deductions. Fitzgerald v. Moran, 141 N. Y. 419 ; 57 St. Rep. 579. An examination of the proof bearing upon this question renders it quite manifest that the defendant did not consent to the changes and omissions, upon any agreement, or with the understanding, that she should not have the benefit of the provision in the contract which allowed deductions therefor. We find the evidence insufficient to show any such ■consent, or any waiver of her rights under this provision. The evidence shows that the architect was a subcontractor under the plaintiffs, and also tends to show quite plainly that he did not attend to or guard the interests of the defendant with that watchful diligence that she had a right to expect. Indeed, the evidence indicates with unpleasant certainty that the architect, contractors, subcontractors, and some of their employees were quite diligent in seeking to obtain advantage of the defendant to the plaintiffs’ benefit, instead of trying to perform the contract, or have it performed, fairly, and according to its terms and provisions. The learned referee has found that the value of the building as completed was equal to the value if constructed precisely as called for by the contract and specifications. This finding, as well as the rulings upon the trial, seem to indicate that the referee was of the opinion that, if the plaintiffs furnished a building as useful or of equal money value with the one called for by the contract, they were entitled to recover their full compensation therefor, without regard to the provisions of the contract under which it was to be constructed. In this, we think, he erred. The defendant was entitled to have her contract at least fairly, if not strictly, performed. The referee also found that the defendant, about the 1st of December, duly accepted the building, having before that time taken possession of a portion of it. We think this finding cannot be sustained. The evidence renders it quite clear that there was never any acceptance of the building by the defendant as in full performance of the contract between her and the plaintiffs.

There was an issue between the parties as to one payment of $500. The defendant claimed that she paid the plaintiffs or the architect, who was their agent, $500 in cash, November 27th, and paid an equal amount on November 29th by the check of her husband. That the plaintiffs received the check is admitted. On the trial the defendant produced a feceipt, dated November 27th, for $500, signed by Blend for the plaintiff. They contended that the receipt was given for tlie'payment made by the check dated November 29, and that no payment in cash was made on the 27th, as was claimed by the defendant, but that the check was in fact given November 27th, and that the receipt was dated on the day the check was received. The defendant’s witnesses testified that the check was given on the day of its date, and not on the 27th, as claimed by the plaintiffs. The weight of the evidence upon this issue was on the side of the defendant, and seems well-nigh conclusive. AYhile there is some evidence upon the part of the plaintiffs, which perhaps tended to show that no such payment was made, and some circumstances may have been testified to which corroborated the plaintiffs’ claim, and tended to cast suspicion upon the validity, in some ¿respects, of the receipt produced, still the evidence of a number of appai'ently disinterested witnesses was to the effect that the check which the plaintiffs claim was given upon the 27th of November was not in fact given until the 29th of that month, and hence that the receipt of the 27th must have been for a payment made at that time. AYhile ordinarily, where there is a conflict in the evidence upon a question, it becomes one of fact to be determined by the jury, court, or referee, and their determination should be regarded as final, and while perhaps in this case the question was one of fact for the referee, yet we are strongly impressed with the idea that the finding in this case "was against the weight of evidence.

On the trial the following stipulation was made and entered in the minutes of the referee: “It is stipulated that the referee may, at his convenience, at any time before the close of the testimony in this case, or before the case is finally submitted, take with him a person of his own selection, and make an examination of the building it question, and that for the purposes of his decision in this case he may take into consideration what he discovers in making the said inspectionbut this arrangement is not to be deemed as limiting either party in the further testimony which they shall give upon the trial of this action. Also that the referee shall make the inspection in such manner, and using such'papers in connection therewith, as he shall deem necessary and proper, each party to pay one-half of the expense of the person whom the referee may select; and .the expense of such person accompanying referee shall be paid one-half by each party, to be taxed in with the referee’s fees.”

The referee, when he made his report, referred to such stipulation, and his proceedings under it, as follows: “ This action having been referred to me to hear and determine, and having heard the proofs and allegations of the respective parties, and stipulation having been made in open court before the close of the testimony, as appears at page 1871 of the stenographer’s minutes, that the referee might, before the cause was finally submitted, take with him a person of his own selection, to make an examination of the building in question, and that for the purposes of his decision in this case might take 'into consideration what he discovered in making the said inspection, and having made such inspection, and having Oesignated, in pursuance of said stipulation, AYilliam H. Murphy, a builder and architect, of Cobleskill, N. Y., he, the said Murphy, and the referee, on or about the 25th of February, made an examination of said building; that said Murphy continued said examination the next day and made his written report to the referee, signed March 25, 1892. Before making said report, and before said examination, said referee, in writing, made certain inquiries; that said inquiries and reports are hereto annexed, and are made a part of this, my report.”

The inquiries referred to by the referee in his report were as follows: ‘‘Mr. Murphy, builder, etc.: In pursuance of stipulation made by the above parties in the above cause, I desire you to examine the Yagel building in Oneonta, N. Y., with reference to to the following points: (1) The walls,—rear wall, central wall, and the area wall; this last being wall under flagging in front of building, and between building and curb. In this I want your examination to be: Eeference to quality of stone and brick used, as to construction, and as to whether the rear or middle wall has settled, and, if they have, state the cause. (2) As to blocks or blocking under floor joists. If found, state extent, and what is used, why used, and effect. (3) Plastering. How many coats, whether properly put on, and material making plaster. (4) What is the difference in value, if any, in the Norway pine used, between that and pine called for by building contract? What is the effect of its use on the value of the building as completed ? Examine contract and specifications, and then, from your examination of building, state whether, in the construction of the building and the materials, has there been a substantial compliance with the contract ? If there has been a material variation in the construction of the building.from that provided in the contract, is the building, as-it stands, better or worse by reason of it? What would this building have been worth December 11, 1886, if built as provided for in the contract and specifications ? What was it worth on that day, built as it was ? Please answer the foregoing in writing

“February 25, 1892. W. C. Lamokt.”

In compliance with this request, Murphy 'made, signed and sent to the referee the following paper: “To William C. Lamont, March 24, 1892. From William H. Murphy, as inspector on the Yagel block, in Oneonta, N. Y. I have examined the same, and find it: (1) I find that the foundation in under the basement as a partition wall has cracked, and my best judgment is that the same has been undermined by excavation since the erection of the building, and allows the water to flow to and under the said wall, and comes from the embankment under basement floor causing the same. (2) The rear wall shows a crack to the end of iron girder. Is caused by the weather expansion and contraction,—by heat and cold,—but there is no settling whatever. (3) The area wall is perpendicular, and put up -in a good, workmanlike manner, as such wall should be. (4) Stone and brick. Stone are limestone, as I call good and sound material. Brick are good, hard brick, and front is hard-pressed, and ornamented for front. (5) As regard to the blocking under joist, I find blocks and furring under the same, both under party and partition walls. I do not believe that the same does any damage as to the settling, or any damage to the building, as it is customary to level up the timber in this way. (6) The plastering I find to be two coats; wall a green finish, and second coat skin finish; a good, hard wall. (7) Interior finish between Norway and white pine. The difference is of no account, except the Norway can be kept better and cheaper; and, as to quality'-, the Norway is No. 1, and is better than white pine, in my mind. (8) In my examination of the building I find that there has been changes from the contract in many details, viz: stairs, closet, and also material, and other changes. But, as a whole, the general erection of the building as to plans and specifications has been in good, workmanlike manner; and as to the value of the building in December, 1886, that the changes do not, in my judgment, materially change it Yalue: In other words, the changes in material and workmanship have not lessened the value of the building in December, 1886. From my examination I am led to believe the building has been most shamefully abused and torn, and has not been properly cared for. It seems to have been the desire of some persons to make it appear as bad as possible in some respects, and this is especially so as to digging around and along the center wall. All respectfully submitted.

“Cobleskill, N. Y., March 25, 1892. ' W. H. Murphy.

To expenses..................................... $6 50

Two days examining building...................... 20 00

One day making out report........................ 10 00

$36 50”

Whether the referee, in determining this case has relied entirely upon the report or opinion of Mr. Murphy, or somewhat upon the evidence taken before him, is not disclosed. That the unverified statement made by Murphy was considered by him, and to some extent made the basis of his decision, is to be inferred from his report. The defendant insists that the course pursued by the referee was illegal, and entirely unwarranted by the stipulation of the parties. That it was illegal unless justified by such stipulation, there can be no doubt. So that, in deciding this question, it becomes necessary to determine whether the referee was authorized by the stipulation not only to make an examination of the premises in the presence of a person he might select, but also to delegate the power to make such an examination to a third person, to be made in the absence of the referee, and to call upon such third person to make an unverified report, which, if relied upon, substantially determined the questions involved in the case. We tlfink the only right conferred upon the referee by the stipulation was to examine the building in the presence of a person to be selected by him, to the end that he might better .understand the evidence which had been given by the witnesses in relation to the building and the defects and changes therein. We cannot believe that it was the intent or purpose of the parties to confer upon the referee the absolute right to determine the questions in this case upon his own inspection of the building, or upon the unverified statement or report of a third person as to the facts in issue, and whether there had been a substantial compliance with the contract by the plaintiffs. If such had been their intent, there would have been no reason for the further examination of witnesses upon the questions involved, provided for in the stipulation. Nor would it seem to have been very necessary to retain the services of the referee after he had designated another person to determine the issues between the parties. If it was the intention of the parties to absolutely submit this case to the decision of this referee, or such person as he should select, irrespective of and uncontrolled by the evidence, then it became an arbitration, and the stipulation effected a discontinuance of the action. Larkin v. Robbins, 2 Wend. 505; Merritt v. Thompson, 27 N. Y. 225; Jordan v. Hyatt, 3 Barb. 275, 283; Claflin v. Meyer, 75 N. Y. 260, 266; Jacoby v. Johnston, 1 Hun, 242; Keep v. Keep, 17 id. 152. We do not suppose such to have been the purpose or intent of the parties in making this stipulation, nor that the action was discontinued by reason thereof. We think the insistence of the defendant that the course pursued by the referee was unwarranted and illegal must be sustained.

On the trial, during the examination of the plaintiff Lewis, the plaintiffs counsel asked the following question : “In reference to the portion of the work which was designated by the counsel as subletting, you may state if, in your conversation with the defendant, it was talked that other persons than yourself would do the woodwork, when you were conversing about taking the contract. (Objected to on the ground that the witness should state the conversation, and any conversation prior to or at the time of entering into the contract merges in the writing itself, and is the best evidence. The terms of the contract cannot be impeached by parol. Objection overruled. Exception by defendant.) A. I did. There was competition in the letting of this contract. There were various other persons besides the plaintiffs that put in bids for the work. Q. In conversing with the defendant in reference to the manner in which the work was to be done (that is, the persons who were to perform the labor), you may state what was said as to who was to do the woodwork—whether yourself, or whether you were to make arrangements with others to do the woodwork. (Objected to as incompetent and improper; second, the writing itself, the contract, is the best evidence; and any conversation prior to or at the time of entering into the contract is merged in »that writing, and the contract cannot be thus impeached or destroyed by parol evidence. Objection overruled. Exception by defendant.) A. I had a talk with Mrs. Yagel, and told her that Potter & Oo. would do the woodwork if we took the job; that they were our carpenters. She said that was all right; from what she had seer; of their work, she would as soon have them do it as any one else, and rather.”

The specifications which were made a part of the contract provided : “ No part of the work to be underlet, unless by the written consent of the owner; otherwise subcontractors will not be allowed on the work.”

While a breach of this provision of the contract would not, perhaps, deprive the plaintiffs of their right to recover payment under it especially where the subcontractors were allowed to perform the work, Beinhauer v. Gleason, 15 St. Rep. 227; affirmed 29 St. Rep. 994, yet it is very manifest that the effect of the evidence admitted under the defendant’s objection was to contradictor vary the terms of the written contract between the parties. The wiitten contract was that no part of the work was to be underlet unless by the written consent of the owners. The evidence was to the effect that the defendant had consented to such subletting previous to the making of the written contract. It is a general rule of the law of evidence that all previous negotiations or conferences between the parties are merged in the written instrument, where one exists between them. While to this rule there are several qualifications, the ruling in this case does not fall within any of them, but was, we think, a clear infraction of the rule, as from an inspection of the written contract between the parties it appears to contain their engagements, and to define the object and measure the extent of such engagements, and is presumed to contain the whole of their contract; and therefore parol evidence of the previous negotiations between the parties was inadmissible. Eighmie v. Taylor, 98 N. Y. 288; Thomas v. Scutt, 127 id. 133; 38 St. Rep. 692; Case v. Phenix Bridge Co., 134 N. Y. 78; 45 St. Rep. 603. It is also a general and well established rule that parol evidence, when offered to contradict the terms or provision of a written instrument, is not admissible. While to this rule there are also exceptions, still the ruling in this case does not, we think, fall within them. The obvious result of the evidence introduced, if given effect, was to show that, anterior to the making of the written contract, there had been an agreement between the parties that a portion of the work should be sublet, and performed by others than the plaintiffs. We think this evidence wTas clearly inadmissible, and that the learned referee erred in admitting it. Woodard v. Foster, 64 Hun, 147; 45 St. Rep. 77; affirmed on opinion of the general term, 138 N. Y. 674; 53 St. Rep. 933. Henry W. Brown was called and sworn as a witness for the defendant, and testified to a thorough inspection and examination of the building, and detailed such defects in the construction and materials as he discovered. Among other things, he found that the belt course of stone was discontinued at the balcony. He was then asked, “And what put in their place?” This was objected to by the plaintiffs as incompetent, and the objection was sustained. We think this was error. The defendant clearly had t]ie right to show any defects that existed in the building, and, where there had been an omission of the materials provided for by the contract, to show what had been substiruted in their place. On the cross-examination of Edward A. Walsh, who was called as a witness for the defendant, after giving the price of pine lumber, and stating that only perfectly clear pine was what was called “uppers," was asked the following question : “ You used very little of that, compared with the other qualities ? (Objected to as immaterial. Objection overruled, and exception by the defendant.) A. I don’t know how to answer that question. We used cheap lumber; a good deal more of 1 selects ’ than ‘ uppers. ’ Do not use most all ‘selects.’ ” We do not think this evidence was admissible. The question at issue was not as to what was used by others, nor what was in general use; and hence what the witness, who was an experienced builder, might or might not have used, was wholly immaterial. Peter Bogart, who was called as a witness by the plaintiffs, and who testified that he was employed by them to work on the defendant’s building, was asked this question: “Did Mr. Lewis frequently tell you, when you was doing this job, to do a good job, so that no fault could be found with it ? ” This was objected to. The objection was overruled, and the defendant excepted. The witness answered, “ Yes, sir.’’ This was, at most, a declaration of one of the plaintiffs to a third person in the absence of the defendant, and was clearly inadmissible. Our attention has been called to many other rulings of the referee which present grave questions as to their propriety, but, as we think the j udgment should be reversed for the reasons already given, and as these rulings are not liable to occur upon another trial, we deem it unnecessary to specially discuss them at this time.

judgment reversed on the law and facts, and a new trial ordered, with costs to abide the event.

All concur.


author: Merwin, J.

text:
    Andrew Outterson, App’lt, v. G. Henry P. Gould, Resp t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    Riparian owners—Logs and logging.
    The log owner is not, ordinarily, liable for any damages arising incidentally and without liis fault, from the reasonable use of a river through the lands of riparian owners, in navigating or floating logs thereon.
    Appeal from a judgment dismissing the complaint on its merits.

      S. S. Trowbridge, for app’lt; H. W. Bentley, for resp’t.
   Merwin, J.

The plaintiff, and those whom he by assignment represents, were, from 1881 to 1887, the owners of certain premises and water rights on Moose river, in the town of Lyonsdale. They kept and maintained thereon three dams for the purpose of accumulating and holding the water of the river for the use of a pulp mill. About three miles below, on the same river, the defendant, during that period, and fob many years previous, was the owner of a sawmill, and was engaged in manufacturing lumber. In this business he was accustomed to obtain logs upon property above plaintiff’s mill, and float them down the river. This action is brought to recover damages which the plaintiff claims his property has sustained by reason of logs so floated by defendant down the river. The claim of the plaintiff is that upon three occasions —one in or about January, 1884, one in the spring of 1885, and the other in November, 1886—the defendant’s logs floated down the river to such an extent that they injured or partially destroyed the plaintiff’s dams, thereby causing damage in the stoppage of the mill,, and the necessity for repairs. It is not disputed that the dams of plaintiff were injured upon the occasions referred to, but the referee declines to find that the logs of the defendant, on either occasion, caused the injury. Upon each occasion the water in the river was high. Upon the first two occasions the ice was breaking up, and the referee attributes the injury upon those occasions to the ice and the high water. Upon the last occasion he attributes the injury to the improper construction of the plaintiff’s dams. Upon each occasion there were logs of the defendant in the river that had been left over from previous drives. Whether this was done to an unreasonable extent was a question of fact. The referee has found that the defendant used reasonable care and caution in driving his logs in the river past the plaintiff’s mill, and was not guilty of negligence in that regard. The evidence authorized the referee to so find.

It was conceded that Moose river is a navigable stream, for the purpose of floating logs, and has been for many years, and that defendant had the right to use the portion of the river through plaintiff’s lands for the purpose of navigation or floating of logs thereon. In the exercise of such right he had the right to the reasonable use of the river. Ang. Watercourses, § 541a ; Gould, Waters (2d Ed.) § 90; Buchanan v. Log Co., 48 Mich. 364. What is a reasonable use in a question of fact depending upon all the circumstances of the case. Bullard v. Saratoga V. Mfg. Co., 77 N. Y. 525 ; Pearson v. Rolfe, 76 Me. 380. The log owner is not, ordinarily, liable for any damages arising incidentally, and without his fault, from reasonable use. Witheral v. Booming Co., 68 Mich. 48; Carter v. Thurston, 58 N. H. 104. In Field v. Log Driving Co., 67 Wis. 569, it was held that, where logs are driven in a navigable river, in an ordinarily prudent and skillful manner, the owner is not liable for damages which may result to the lands of riparian owners. So it has been held that, if the owner of a dam that has been injured by the floating of logs has himself been guilty of negligence in the construction of his dam, and that 1ms contributed to the injury, he cannot recover. Miller v. Sherry, 65 Wis. 129. The same principle was held in Harold v. Jones, 86 Ala. 274. The main question in the present case was whether there had been any unreasonable use by defendant of the river, by reason of which the plaintiff’s property was damaged. This was a question of fact, and the referee has, in effect, determined it against the plaintiff. The evidence is, we think, sufficient to justify the conclusion of the referee. The case of Sheldon v. Sherman, 42 N. Y. 484, is cited by the counsel for plaintiff as applicable here. We think it is not. That was not .the case of an injury arising incidentally from the reasonable use of the stream without fault on the part of the defendant. M"o sufficient reason for the reversal of the judgment is apparent, and it should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Mbrwin, J.

text:
    John J. B. Primeau, Resp’t, v. The National Life Association, App’lt.

      (Supreme Court, General lerm, Fourth Department,

      Filed May 18, 1894.)

    Insurance—Life—Payment of premiums.
    Payment of premiums, when authorized by the company to be made by mail, is made when the letter containing the remittance is deposited in the post office.
    Appeal from a judgment in favor of plaintiff.

      W. A. Sutherland, for app’lt; Henry Purcell, for resp’t.
   Mbrwin, J.

The appeal in this case is heard upon the judgment roll. In such a case it is incumbent on the appellant to show that the trial court could not, in any view of the fact found, properly order a judgment for plaintiff. Agri. Insurance Co. v. Barnard, 96 N. Y., 525. The defendant is a foreign corporation, located at Hartford, Conn., and is doing a life insurance business in the state of New York upon the co-operative or assessment plan. On the 10th June, 1892, the defendant duly issued and delivered to the plaintiff a policy of insurance upon his life in the sum of $2,000. The beneficiary was Kate A. Primean, the wife of plaintiff. This policy, among other things, provided that the premium thereon should he paid at Hartford, Conn., on the first week days of the months of February, April, June, August, October, and December in each year, and that a failure to make any payments of premiums on or before the day they were due would work a forfeiture of the policy. The plaintiff was a resident of the city of Watertown, in this state, and he regularly paid all assessments or preminnms made or called for by defenant to and including the one due December 1st, 1892. Another assessment or premium became due February 1st, 1893. Whether the plaintiff made default in the payment of this is the main question in this case. On the 2d day of January, 1893, the defendant sent by mail ,to the plaintiff a notice, signed by its secretary, stating as follows: “ The bi-monthly premium on your policy No. 1,652, of $8.50, will be due and payable at this office on or before the 1st day of February, 1893. Agents are not authorized to collect the above amounts. Make all checks and post-office orders payable to the National Life Association. Please inclose this notice" with your remittance, and it will be stamped ‘Paid,’ and returned to .you.”

On the same page, below this notice, there was printed matter, headed “Important,”' and signed by the general manager of the defendant, as follows: “Notice. This premium is payable at Hartford, Conn., on or before February 1st. While most of our members make their payments promptly, there are some who are always late, and who seem to think that their payments ought to he accepted by the company whenever they are ready to pay. We would call especial attention to the fact that the last day of payment named in this notice is the same as the last day of grace on a note, and that, if payment is not made on or before the day due, that the policy is lapsed, and can only be reinstated at the option of the association, and if reinstated, parties will be required to sign a health' certificate. * * * We inclose you an envelope directed to the company, which please use in sending your remittance.”

Notices identical with this, excépt as to the dates and amounts, had been sent by defendant to jdaintiff by mail prior to each of the prior payments. The payments wore all made by checks drawn to the order of defendant upon a Watertown bank, and each was sent to defendant by mail in the envelope mentioned in the notice. The notice for the payment due October 1st, 1892, was sent to plaintiff on September 10th, 1892,' and was subsequently stamped “Paid ” October 1st, 1892. The notice for the payment due December 1st, 1892, was sent November 10th, 1892, and was stamped “ Paid ” December 1st, 1892. The payments of October 1st and December 1st were made by depositing, the check and envelope in a street letter box of the post office of the city of Watertown, which is located about 20 rods from the post office, on the day next preceding the said 1st October and 1st December, respectively, and the letters so deposited left Watertown by the evening mail, and were delivered to the defendant at its home office on the days following the mailing of the same. On the 81st January, 1893, the plaintiff was sick, and unable to attend to any business. Thereupon his wife, the beneficiary in the policy, for the purpose of paying the amount, made her check for the proper amount on a Watertown bank to the order of defendant, and placed it, with the notice, in the envelope sent by the defendant for that pupose, properly sealed, and postage prepaid, and deposited it in the same letter box where she had previously deposited like remittances to the defendant. Tins was done at five o'clock in the afternoon. There was a regular collection of mail from this letter box at four o’clock in the afternoon, and collections were also made from it by the letter carriers of the post office upon their return trips from distributing a mail which at that time arrived, or wras due to arrive, at four o’clock, and these collections, when the four o'clock mail arrived on time, were made in time for the-outgoing mail that evening for New York and Hartford. This four o'clock mail was late on the afternoon of January 31st, so that the carriers who made collections on their return from distributing it did not take up the "letter in question in time for the outgoing mail that evening, which left at six o’clock. As a result, the letter to defendant left Watertown on the morning of February 1st, readied Hartford the evening of that day, and was delivered to defendant the morning of Februry 2d. On that day the defendant notified plaintiff by letter that the premium was not received on the 1st day of February, and that, in order for the plaintiff to be reinstated, it would oe necessary for him to sign a certificate of good health in a certain form. To this the plaintiff, on the 3d February, caused a reply to be sent that he could not then give such a certificate. The defendant kept the check until February 6th, when it was returned to plaintiff's wife, with a letter acknowledging the receipt of the letter of 3d February, and saying that, as the husband cannot sign the health certificate, they return the check, and nave marked the policy “ lapsed ” on their books. On the 8th of February the plaintiff made an offer to defendant of the money for the premium, but the defendant refused to take it, on the ground that the policy had previously lapsed, and been canceled. The check sent by plaintiff’s wife on 31st January was a good one, and no objection was made to accepting it, except that it was not received by defendant on or before the 1st day of February. The defendant, in all the notices to plaintiff, authorized and empowered him to make payments by checks upon bank in Watertown. On the day in question the plaintiff’s wife did not know that the four o’clock mail was late, or that the carriers went out late from the post office. She was a milliner, engaged in business at a place near the letter box referred to, and had often observed the mail carriers, on their return trip from distributing the four o’clock mail, collecting mail from that box after five o’clock and before six o’clock, and when she deposited in that box the letter on the 31st January she understood and believed that the same was deposited in time to leave Watertown by the outgoing mail at six o’clock. The irregularities in the time of the collection of mail from the box in question after the incoming of the four o’clock mail about the time in question were due largely to the weather, which delayed the trains, and the plaintiff and his wife knew or had reason to know of such delays of the trains. In the month of January these irregularities were such that upon a majority of the days of that month the collections by the returning carriers were too late for the evening mail These are the main facts, as appearing from the findings, on the subject of the disputed payment. It was held by the special term that the mailing of the check by the plaintiff’s wife on January 31, 1893, was such an act on the part of plaintiff and his wife as to prevent the defendant from declaring the policy lapsed, and that the policy did not lapse and become null and void on February 1, 1893.

It is to be observed that the defendant authorized the plaintiff to make payments in checks upon a Watertown bank. It is also very clear that the defendant authorized, and in substance requested, the plaintiff to make the payment in question, as well as previous payments, by mail. It sent each time to the plaintiff an envelope, directed to the company, and requested him to use it in sending his remittance; and the payments had previously been so made. We have then, in effect, a case where, by the authority of the creditor, a payment is sent by mail. In such a case, after deposit in the post-office, it is at the risk of the creditor, and the payment is deemed to have been made at the time'of the deposit. 2 Greenl. Ev., § 525 ; 2 Pars. Cont, 620 ; 2 Chit. Cont. (11th ed.), 1106; 2 May, Ins., § 340; Morgan v. Richardson, 13 Allen, 410, 411; Buell v. Chapin, 99 Mass. 596; Colvin v. U. S. Mut. Ac. Association, 66 Hun, 543; 50 St. Rep. 345. In Palmer v. Phoenix Mut. L. Ins. Co.. 84 N. Y. 71, it was held that, if money was sent to the defendant by mail, according to its request, it was at the defendant’s risk, and the same thing was held as to a check in Kenyon v. Knights, etc., Association, 122 N. Y. 247; 33 St. Rep. 467. If the i jay men t in question took effect at the time of deposit, then there was no default, and the defendant would not be in a position to claim a forfeiture. It had a right to receive it, or agree to receive it, at some other place than its home office, or out of the state. Hastings v. Brooklyn L. Ins. Co., 138 N. Y. 474, 479 ; 53 St. Rep. 63. Authority or request to send by mail was a waiver of the provisions for payment at the homo office. But it is argued that the letter should have been mailed' in time, so that by the regular course of mail it would have reached the defendant on the 1st day of February. This depends on whether the authority from defendant to the plaintiff to make payment by mail was restricted in that way. There was no such restriction, in terms at least, in the notice the defendant sent to the plaintiff. That stated that the premium was due and payable at the home office, or at Hartford, on or before the 1st day of February. It also, in effect, stated that the plaintiff might make payment by mail in Watertown checks. It did not state that, if payment was made in that way, the mailing must be made long enough before the 1st of February to enable the letter to reach the defendant by the 1st. A number of cases are cited as to the rule in case of mailing notice of protest to a party living at the same place with the party giving the notice. Those cases hardly apply here. The case of Hodgkins v. Ins. Co., 34 Barb. 213, seems to have been reversed in the court of appeals. See 41 N. Y. 620. In the answer in the present case it is alleged that the only objection the defendant made to accepting the check was that it was not received by the defendant on or before the 1st day of February. If the defendant, although authorizing or requesting payment by mail, still designed to claim forfeiture if the letter did not get to the home office by the 1st of February, should it not have so stated in its notice to the plaintiff ? A restriction of that kind, and with that effect, should not be inferred from doubtful language. A forfeiture will not be permitted upon equivocal or doubtful clauses or words contained in the contract of the party himself who claims the forfeiture. Baley v. Homestead F. Ins. Co., 80 N. Y. 23 ; Griffey v. N. Y. Central Ins. Co., 100 N. Y. 417. In view of the authority to make payment by mail in checks, and the failure to give any specific restriction as to the time of mailing, and in view of the circumstances under which the mailing was in fact made, it should not, I think, be held that the defendant had a right to claim a forfeiture.

It is further claimed by the defendant that the plaintiff cannot maintain this action, because he has made no tender of premiums coming due since February 1, 1893. The defendant informed the plaintiff that his policy had lapsed and been canceled, made no further calls upon him, and substantially admits that, if money for subsequent premiums had been tendered, it would not have received it. We think that a tender for subsequent premiums was not necessary. Meyer v. K. L. Ins. Co., 73 N. Y. 516, 528 and cases cited : 2 May, Ins., § 358. No fault is found with the form of the judgment. These considerations lead to an affirmance.

Judgment affirmed, with costs. All concur.


text:
    Thomas D. Reilly, Resp’t, v. Milton C. Gray, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Constitutional law—pool selling.
    Chap. 479 of 1887, authorizing pool selling bn races conducted on the track of any incorporated association, is constitutional.
    8. Same—Private and local bills.
    Such act is not a private or local bill within §§ 16 or 18 of article 3 of the state Constitution.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      M. 0. Gray and 17. A. Matteson, for app’lt; A. M. Milk, for resp’t.
   Merwin, J.

There is practically no doubt that, as the law stood prior to the passage of chapter 479 of the Laws of 1887, the transactions described in the complaint were unlawful and prohibited, and the money which the plaintiff lost could be recovered of the defendant. It is also quite evident that the legislature, by the act of 1887, intended to legalize pool selling at certain horse races. It was so held ia Brennan v. Brighton B. R. Association, 56 Hun, 188 ; 30 St. Rep. 406, and that a pool-selling contract could be enforced. Under the allegations of the complaint, we must assume that the pool-selling transactions, between the plaintiff and defendant were covered by the provisions of the act of 1887, so that, if that act is valid, the plaintiff has no cause of action. To meet this aspect of the case, the plaintiff claims that the act of 1887 is invalid upon the ground that it is in violation of that part of | 10 of article 1 of the constitution of the state which provides as follows : “Nor shall any lottery hereafter be authorized or any sale of lottery tickets allowed within this state.” This contention of the plaintiff was sustained at the special term, and the act in that respect was held to be unconstitutional.

The question, then, is whether the pool selling, in the management of which the defendant was engaged, was a lottery, within the meaning of the constitution. We are referred to no direct authority upon this subject in this state. The question might have been raised in the Brennan Case, above cited, but apparently it was not. We are referred to several cases in other jurisdictions that are claimed to have a bearing. In State v. Lovell, 39 N. J. Law, 458 (decided in 1877), it was held that auction pools and French pools upon horse races, like those here in controversy, were lotteries, within the crimes act of that state. The particular provisions of that act do not appear in the report. The charge against the defendant was the setting up of a lottery for money, and selling a lottery ticket therein. In Tollett v. Thomas, L. R. 6 Q. B. 514, it was held that a scheme for betting on horse races, quite similar to the French pool, was a game of chance, not because of the uncertainty of the event of the race, but because of the uncertainty in the final amount of the stakes. In People v. Reilly, 50 Mich. 884 (decided in 1883), it was held that pool selling, where the pools were made up of amounts bid for the privilege of selecting-horses out of those running in races, and of bets of as many as saw fit to do so by purchasing checks deposited on baseball matches, where those who bet on the winning combination received the pool, did not constitute “ a lottery for disposing of money,” within the meaning of a municipal ordinance against keeping any “ lottery, policy, bucketshop, board of trade or any other scheme or place for drawing or disposing of money, wdieat or other property within the city.” Buckalew v. State, 62 Ala. 334, where the theory of the game was that several persons contributed equal sums to a common purse, which was awarded to the contributor whom chance so favored as to register for him the highest number in the whirl of a hand upon a pivot, this was held not to constitute a lottery. Generally speaking, a lottery is a scheme for the distribution of prizes by chance. 2 Bouv. Law Dict. The prizes may be in money or in specific articles of other property. In Bish. St. Crimes, § 954, it is said to be an essential element that the lot is in some way to be cast or ascertained by the managers of the scheme. By the Penal Code (§ 322), a lottery is defined to be “ a scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise or by some other name." In .the Penal Code, pool selling is not considered in the chapter concerning “lotteries,” but is in the chapter concerning “gaming,” and is classified with bets and wagers. The term seems to have first appeared in our penal statutes in chapter 178 of the Laws of 1877, entitled “ An act in relation to bets, wagers and pools.” In Com. v. Ferry, 146 Mass. 203, a pool is defined to be a combination of stakes, the money derived from which is to go to the winner. It is there said that registering bets and selling pools are not distinct kinds of unlawful business, but different parts of one transaction, representing different stages of it. Pool selling, as described in the complaint, is simply a scheme for facilitating betting on horse races. The manager is the stakeholder. The better deposits his money and selects his horse. In one kind of pool the highest bidder has the first choice of horses. The event of the race determines the winner, and he gets the whole, less the commissions of the manager. There exists all the characteristics of betting. The fact that several may combine upon the same horse does not change the character of the transaction. The pool manager has nothing to do with the race, or with the moneys, except to safely hold them until the race is decided, and then hand them over to the winner or winners, less his commissions. The essence of the whole thing is the betting, and that should determine the category to which such transactions belong. The provision of the constitution of 1846 was in substance the same as in that of 1821. The latter was : “No lottery shall hereafter be authorized in this state; and the legislature shall pass laws to pre-. vent the sale of all lottery tickets within this state except in lotteries already provided for by law.”

For many years prior to 1821 there had existed' laws for the prohibition of all lotteries other than such as should be authorized. by the legislature. See Laws 1783, c. 12 (1 R. L. 1802, p. 35); Laws 1819, c. 206. The legislature, however, had by special acts authorized them to such an extent as to call for a constitutional prohibition. Evidently, it was not deemed wise to trust the legislature on the subject. Hence the provision in the constitution of 1821, and continued in the constitution of 1846. There had also existed, prior to 1821, a law for the prevention of betting upon horse races or on any game of chance. See Laws 1802, c. 44 (1 R. L. 1813, p. 222). This, in substance, Was carried into the Revised Statutes of 1827-1830 (1 Rev. St. pt. 1, c. 20, tit. 8, art. 3)., This was a subject distinct from the subject of lotteries, and treated in the Revised Statutes and in the prior laws. The one was forbidden in the constitution, and the other was not. In Cooley’s Constitutional Limitations (6th ed., 69) it is said : “The meaning of the constitution is fixed when it is adopted, and is not different at any subsequent time when a court has occasion to pass upon it. The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it.”

In construing a provision of the constitution, its history and the conditions and circumstances attending its adoption must be kept in view: Sweet v. City of Syracuse, 129 N. Y. 316; 38 St. Rep. 933. It seems to me veiy clear that it was not the intent of the framers of the constitution either of 1846 or 1821, in the use of the word “lottery,” to include in it the subject of betting as then prohibited by statute. They were distinct subjects upon the statute book and in the public mind, and, if the design had been to cover both, they would have been named. It is not enough to say that they both involve, to some extent, the same kind of evil. It may be difficult to precisely define the difference between the two.- It may be said, as in People v. Elliott, 74 Mich. 264, 268, that in betting there is an opportunity for the exercise of reason and judgment, while in a lottery there is no such opportunity. It may be said that betting is not a distribution of property, but an agreement to pay the winner certain sums in a certain contingency, or that the winner shall have certain- sums which are deposited as stakes. But be the distinction what it may, it is very clear from the state of the statutory law in 1846, as well as in 1821, that betting upon a horse race was not then understood to be a lottery. That being so, we must assume that it was not meant to be included in the term “ lottery ” as used in the constitution. The same rule must apply to the pool selling complained of, as it must be classed with betting, and is a development—a combination—-in the same line. It follows, therefore, that the constitutional prohibition against lotteries does not apply.

Some other objections to the law of 1887 were raised at the special term, but they were held not to the tenable. In this regard we think the special term was correct. The act is not a private or local bill, within the purview of § 16 of article 3 of the constitution. People ex rel. N. Y. El. L. Co. v. Squire, 107 N. Y. 601 ; 12 St. Rep. 832. Nor is it within the provisions of § 18 of the same article. The act is a general one, applicable to all associations of the character referred to, in any part of the state. Nor do the cases of In re Jacobs, 98 N. Y. 98, and People v. Marx, 99 N. Y. 377, apply. No constitutional rights of the plaintiff are infringed upon, as in those cases. Our attention is called to the peculiar character of the act of 1887, and its purpose and effect. It seems to be somewhat anomalous; but with this we have nothing to do, provided the legislature had power to pass it. We must apply to the case the same rule of construction as in other similar cases. "If the law is in fact improper and a source of evil, and still within the power of the legislature, the responsibility and the remedy are with the legislature, ,and not with the courts. It has been held in many cases that a statute will not be be declared unconstitutional unless a clear and substantial conflict exists between it and the constitution. People v. Gillson, 109 N. Y. 397; 16 St. Rep. 185; People ex rel. Carter v. Rice, 135 N. Y. 484 ; 47 St. Rep. 702. We do not find in the present case such a conflict. It follows that the judgment must be reversed. Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend his complaint within 20 days upon payment of costs of demurrer and of this appeal.

Martin, J., concurs; Hardin, P. J., not voting.