text:
    WILLIAM C. ALLISON and Others, Appellants, v. WILLIAM P. ABENDROTH, Respondent.

      Special partnership — when a creditor who has assigned his dawn to a special partner without knowledge that the latter has rendered himself liable as a general partner, ca/nnot enfoi'ce such liability of the special partner.

    The firm of Griffith & Wundram having failed, the defendant Abendroth, who was then believed to be a special, but who was in fact liable as a general partner, entered into an agreement with the plaintiffs and other creditors of the firm by which they agreed to sell and assign their claims against the firm, to him or to such person as he might direct, and he agreed to purchase the same at the rate of twenty-five cents on the dollar and pay therefor in his notes. Pursuant to this agreement the plaintiffs, upon receiving has notes for the amount provided, assigned all their claims and demands against the firm to him.

      Held, that as they thereby parted with and assigned all their claims and demands, nothing was left in them upon which an action could be maintained against the defendant Abendroth, even though they did not understand that he was liable as a general partner when executing the assignment.
    Appeal from a judgment recovered on a trial before the court.

      Carlisle Norwood, Jr., for the appellants.

      William JS. Arnome, for the respondent.
   Daniels, J.:

The action was to recover the amount remaining unpaid upon an account stated, upon which a balance of $10,490.01 was alleged to-be due. The account had been - made with the firm of Griffith & Wundram. That was designed to have been a special partnership, under the statute of the State, in which the defendant Abendroth was to have been the special partner. But because of a failure to pay over the capital to be supplied by him, at the time when the affidavit was made by the general partner stating its payment,- he did hot become a special partner in the firm, and incurred the liability, under the statute, of a general partner. (Durant v. Abendroth (69 N. Y. 148.)

And the action in effect was brought against him, as the other two members of the firm had been discharged as bankrupts, to recover this indebtedness. It was resisted in part upon the effect of the proceedings in bankruptcy, in which it was adjudged that the-defendant was a special partner in the firm. And upon the effect-of that adjudication, the decision of the court in part proceeded in. favor of the defendant. But since then this point has also been, presented to the Court of Appeals, and it was held that the proceedings in bankruptcy were entitled to no such consideration or effect in an action brought against the defendant. (Durant v. Abendroth, 97 N. Y., 132.)

But at the trial it was proved that, after the account had been-made, four notes were given for it by the firm of Griffith & Wundram, aggregating the sum of $12,967.63, which the plaintiffs, acknowledged, with interest thereon, made the amount of their claim against the firm of Griffith & Wundram.

Upon the understanding that Abendroth was a special partner in-, the firm of Griffith & Wundram, a settlement of these notes took, place between himself and the plaintiffs. In that settlement they consented to accept from him his notes for twenty-five per cent of' the amount of the notes held by them against the firm of Griffith. & Wundram. Notes to that amount, payable to his own order, and indorsed by him to the plaintiffs, were given by him, on the 21st of November, 1872, and the plaintiffs received these notes for the-notes which they held of Griffith & Wundram, and they wereafterwards paid by the defendant as they matured. This séttlement was made pursuant to an agreement executed by the plaintiffs and ■other creditors of the firm of Griffith & Wundram. This agreement was dated on the 21st of November, 1872. By this agreement it was agreed that:

I, William P. Abendroth, hereby agree with the undersigned ■creditors of Griffith & Wundram, to purchase their claims against said firm to the amount set opposite their names, at the rate of twenty-five cents for each and every dollar of said claims, and to pay the same in my notes, payable in equal installments, at three, ■six and nine months from this date, without interest; and we, the undersigned creditors, do agree with said Abendroth to sell and assign to him, or to such person as he may direct, our said claims, at the rate aforesaid, and to accept payment therefor in his notes, as •above mentioned.

“ Dated November 21, 1872.

“W. 0. ALLISON & 00., about $13,000.”

• Here follow the names of other creditors. And by its language the plaintiffs not only agreed to accept his notes for those held byj them against the firm of Griffith & W undram,, but also to sell and! assign to him, or to such person as he directed, their claims. And after that, and in October, 1873, a further and formal assignment was made, entitled in the bankruptcy proceedings, by them to him, by which, in consideration of the sum of one dollar to us paid by William P. Abendroth, of the city of New York, we do hereby sell, •assign and transfer to the said William P. Abendroth, all and •singular the debt and debts, claim and claims, demand and demands, this day proved by us against Griffith & Wundram, the bankrupts •above named, and against the estate in bankruptcy of the said bankrupts, and all promissory notes or other evidences of indebtedness held by us against the said Griffith & Wundram, and all debt or •debts, claim or claims, demand or demands, of what kind soever which we have or may have against, or payable out of, the estate in bankruptcy of the said Griffith & Wundram, and authorize the said William P. Abendroth to collect and receive any dividend or dividends upon the said debts, claims or demands, which may be or may become payable out of the said estate in bankruptcy, and valid receipts or acquittances for the same, to sign and deliver, and we hereby constitute the said William P. Abendroth our lawful attorney, irrevocable to represent and act for us at all meetings of creditors, and in all proceedings in tbe said bankruptcy, and to assent in writing to the discharge of the said bankrupt.

By these instruments the plaintiffs parted with the indebtedness-held by them against the firm of Griffith & Wundram, and transferred all the demand they had to the defendant in this action. When that was done it is true that they did not understand that he-was liable to them, either upon the notes or the account for which the notes had been given. But it was intended and designed, acting-upon the supposition that he was not liable, to transfer and assign their demands as completely and effectually as that could be done to-him, and to receive the notes made by him as a full and complete-satisfaction. After that, as they had in this manner parted with their demands, and assigned their interest, nothing was left in them on which an action could be maintained against the defendant. This part of the case is not controlled by that of Seybolt v. New York, Lake Erie, etc., Railroad Company (95 N. Y., 562), for it is distinguished by the circumstance that the entire title to the indebtedness passed out of the plaintiffs’ hands. And after divesting themselves of it in the manner in which they did, nothing remained on which an action could be maintained by them. The transaction was equivalent to a gift of the residue of the indebtedness to the-defendant, even if the consideration for its purchase was in any manner incomplete. (Gray v. Barton, 55 N. Y., 68.)

The case also seems to be controlled by Luddington v. Bell (77 N. Y., 138), for it was, as the facts now appear, the acceptance by the plaintiffs of the notes of one of the partners in satisfaction of the joint indebtedness of the firm. And the execution and delivery of such notes by the defendant was a sufficient consideration for the relinquishment to him of the residue of the plaintiffs’ debt. While, therefore, the court was in error in holding that the defendant was a special partner, and that the fact had been conclusively settled by the proceedings in bankruptcy, it was right in holding that the plaintiffs were not entitled to maintain their action, as it did, on the ground, in part, that they had made this settlement with the defendant and had assigned their cause of action to him. Upon this part of ,the case the defendant was entitled to judgment, and its effect was in no manner impaired by the other conclusions maintained by the learned judge presiding at the trial.

The judgment should, therefore, be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    MARY MOFFAT FIELD and Others, Respondents, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Will — construction of a devise to the survivors on the death of a member of a class — when an absolute estate is not limited by a recommendation as to the disposition to be made of the property.

    A testatrix directed that in case her child should die before reaching legal majority without lawful issue, that all her property should go to her three sisters, naming them, and her husband, share and share alike. “ In case of the death of either of my sisters, the property herein bequeathed to them is to go to the survivor or survivors, and at the death of all the persons herein named as taking on the death of my child, it is recommended the amount of property coming to them shall go to the lineal descendants of John Moffat.” The testatrix died without children.

      Held, that the sisters and the husband, surviving the testatrix, took an absolute estate to all her property, which was not limited by the recommendation as to the disposition which should be made of the property upon their death, or that of the survivor of them.
    Appeal from a judgment in favor of the plaintiffs, recovered on a trial at the New York Special Term.

      Frank A. Irish, for the appellant.

      Frank F. Blackwell, for the respondents.
   Daniels, J.:

The plaintiffs brought this action to recover the amount of an award made for property taken for the extension of a street. It was owned by' their father, whom they and their sisters Arabella survived. To three-quarters of the award the right of the plaintiffs was not questioned, but their right to recover the other quarter belonging to their sister Arabella was denied. She died without children in April, 1875, leaving her husband surviving her. Before she died she made a will for the disposition of her property, and the right of the plaintiffs to recover her fourth of the award depends upon the construction to be placed on the third and seventh paragraphs of this will. At the time when it was made she contemplated the probability of her leaving a living child, who was intended to be the principal recipient of her estate. By the third paragraph of her will she directed:

“Should my child d'ie before reaching legal majority without lawful issue, then I direct that all my property herein bequeathed shall go to my dear sisters, Mrs. Mary M. Field, 139 East Forty-fifth street, New York city; Mrs. Sarah M. Cunningham, of Yonkers, N. Y; and my dear husband, S. Patterson McDavitt, San Juan, California, share and share alike.”

And that clearly expressed her intention to be that her property not otherwise devised or bequeathed, which included that in controversy in this action, in case of the decease of her child should be divided equally between her surviving sisters and her husband. As to that being the intention expressed in this portion of the will no room for doubt appears to exist. But by the seventh paragraph of her will she declared that:

“ In ease of the death of either of my sisters, the property herein bequeathed to them is to go to the survivor or survivors, and at the death of all the persons herein named as taking on the death of my child, it is recommended the amount of property coming to them shall go to the lineal descendants of John Moffat.” Concerning the construction of the former branch of this paragraph no doubt can be entertained. Ie was her intention, as the law construes the language made use of, to provide only for the contingency of the decease of either of her sisters previous to the time of her own decease. (Kelly v. Kelly, 61 N. Y., 47; Embury v. Sheldon, 68 id., 227; Miller v. McBlain, 98 id., 517; Willets v. Willets, 35 Hun, 401, 404.) And as the plaintiffs’ survived the testatrix they are the persons who became vested with her interest in this award, the surviving husband having transferred his interest in it to them. But it has been insisted, because she recommended that the amount of her property going to her sisters, should, after their decease, go to the lineal descendants of her father, John Moffat; that their title was so far qualified as to give these descendants the remainder in the property after the decease of these sisters. But no authority has been cited or found which will now justify such a construction of this part of the seventh paragraph of the will. These descendants were given no interest whatever in the property, but all that was done was that a recommendation was made that the property should go to them after the decease of the surviving sisters of the testatrix. No intention was expressed of devising or qualifying the title of the sisters in any manner whatever, but the will was confined to this bare recommendation which could have been no otherwise designed than to indicate to the devisees and legatees what was the wish or desire of the testatrix herself. And that was not sufficient to qualify the title of the plaintiffs or reduce their interest in the property below that of its absolute ownership. The case of Warner v. Bates (98 Mass., 274) does not support the position advanced upon this portion of the will. The clause which was there held to create a limitation, declared the disposition to be made “ in the full confidence that upon my decease he will, as he has heretofore done, continue to' give and afford to my children (naming them) such protection, comfort and support as they or either of them may stand in need of.” And that was deemed to qualify this disposition of the testator’s property. It was considered to constitute a direction on his part, while the language used in this instance can, by no possibility, be so construed. The case of Van Dyck v. Van Beuren (1 Caines Rep., 84) more nearly approaches to the point taken in behalf of the defendant, and, if it stood by itself, might possibly be considered as sustaining that position. But the more modern authorities require something more explicit and controlling over the conduct of the legatee or devisee than the expression of a mere desire to qualify the title otherwise given to him or her b.y the will. These cases were very generally examined in Lawrence v. Cook (32 Hun, 126), where it was considered that something more mandatory and controlling must be found in the will than the mere expression of a desire or a recommendation to reduce the nature of the interest previously, and in other language, unqualifiedly given. And this principle was approved in Willetts v. Willetts (35 Hun, 401). In Gilbert v. Chapin (19 Conn., 342) such a recommendation as is contained in this paragraph of the will was considered by the court, and it was held to be insufficient to qualify or reduce the absolute interest previously given by the testator. It is true that the decision was made by a divided court, two of the judges joining in a dissenting opinion, but the authorities referred to in the prevailing, opinion, in principle fully supported the views which were adopted.

The court made an additional allowance of costs in favor of the plaintiffs for the sum of $100. The action cannot be said to have been either difficult or extraordinary, while the fund in controversy was held by the city in trust for whoever might be entitled to receive it. Its defense to the plaintiffs’ action was made in good faith to settle their controverted right as to this one-fourth of the award, and under these circumstances, no allowance beyond the ordinary costs of the action, should have neen made. To that extent the judgment should be reversed, but in all other respects it should be affirmed, without costs of this appeal. '

Davis, P. J., and Brady, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs of appeal.


text:
    THE ASSOCIATION FOR THE BENEFIT OF COLORED ORPHANS IN THE CITY OF NEW YORK, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, and Others, Appellant.

      Taxation — exemption of orphan asylums from — 1 It. 8. (6th, ed.), 932, see. 5 — ■ 1852, chap. 282 ; see. 827, chap. 410 of 1882 — construction of the limitation upon the exemption.

    Tie plaintiff was incorporated as a colored orphan asylum, under special acts, to provide a place of refuge for colored orphans, where they could he boarded and clothed, and also be suitably educated and receive religious instruction. The plaintiff, on the last day of July, 1877, acquired title to certain premises in the city of New York which it devoted to these purposes, having a schoolhouse thereon and also a building used for public worship.

      Held, that the property was exempt from taxation, under section 5 of 1 Kevised Statutes (6th ed.), 932, as to all taxes becoming a charge thereon after it had acquired the title thereto, but was subject to the tax for the year 1877, which was a charge thereon at the time of its purchase.

      It was not intended, by chapter 282 of 1852, or section 827 of chapter 410 of 1882— providing that the exemption from taxation of buildings used for the purposes therein specified should not apply to any building or premises in the city of New York, “ unless the same shall be exclusively used for such purposes and exclusively the property of a religious society to limit the exemption to such property as is owned by a religious soeiety, but it was intended thereby to give the exemption to such buildihg or premises as should be exclusively devoted to one or the other of the purposes therein specified, whether the property was owned by a religious corporation or not.
    Appeal from a judgment, recovered on a trial at the Special Term.

      Arthur H. Hasten, for the appellant.

      Herbert A. Shipman, for the respondent.
   Daniels, J.:

By the judgment the plaintiff was relieved from the payment of taxes imposed upon property owned by it in the city of New York, for the years 1877, 1878, 1879 and 1880. This relief was awarded to the plaintiff on the ground that its property was exempt from taxation under the laws of this State. It was -incorporated as a colored orphan asylum by chapter 232 of the Laws of 1838. Its charter was amended by chapter 255 of the Laws of 1871, and chapter 306 of the Laws of 1872. But by neither of these acts was the particular purpose or object of its incorporation any further declared than that might be inferred from its name, and the provisions in the acts concerning its management. But by its charter it was declared that the general powers provided by title 3 of chapter 18 of part 1 of the Revised Statutes should be possessed by the corporation. And under those general powers it was invested with the authority to make by-laws, not inconsistent with any existing law for the management of its property, and the regulation of its affairs. (2 R. S. [6th ed.], 391, § 1, sub. 6.) And under this authority, by.article 2 of its constitution, it was declared that “the object] of this society shall be to provide and maintain a place of refuge for colored orphans, where they shall be boarded, clothed and suitably educated, until of an age to be bound out or apprenticed. In admitting children to the asylum those deprived of both parents shall have the,preference, but if means be afforded, half orphans shall be received.”

It is evident from this article and its .other regulations that the •children in charge of the corporation were to be educated, and on the Sabbath day and national fast days, were to receive religious instructions. And the court, before which the trial took place, found, as a fact, that it was the object of the corporation not only to. provide a place of refuge for colored orphans where they could be boarded and clothed, but in addition to that should be suitably educated in religion and other branches of knowledge. That was the purpose declared and provided for by its rules and regulations, -and these objects appear to have been attained in the management of the asylum. And that rendered the building upon its property not only a school-house, but a place for public worship, as those terms were employed in the general -statutes of the State directing what property should be exempt from taxation. (1 R. S. [6th ed.], 932, § 5.) And this provision of the statute was in no manner made inapplicable to the property of the corporation by anything contained in chapter 282 of the Laws .of T852, or section 827 of •chapter 410 of the Laws of 1882, containing nearly the same enactment. That limited the property mentioned in the preceding statute to exemption from taxation in the city of New York, to -such as should be exclusively used for such purposes as were mentioned in this section of the Revised Statutes. This section of the act of 1852 was awkwardly framed, for, by its literal reading, it would require that the property exempt should not only be exclusively used for ■one of the purposes mentioned, but in addition to that should be •exclusively the property of a religious society. But that could not have expressed the intention of the legislature, for it appears by the preceding portion of the section, that the exemption, as it was qualified, was still intended to include every building for public worship, and every school-house or other seminary of learning. These were each mentioned as distinct and separate classes of property •exempted from taxation. And what the legislature intended by the succeeding portion of the section was to require that the building or premises should be exclusively devoted to one or the other of these objects, and not that they should be devoted to such an ■object, and also be the property of a religious society. This branch of the section was designed to be distributive in its effect, and to require where the building should be a school-house or other seminary of learning, that it should be exclusively devoted to that purpose. And where it should be a building for public worship that it should also be exclusively the property of a religious society. If that was not the design then all corporate property used for school-houses or other seminaries of learning in the city of New York would be subject to taxation unless it was owned by a religious society. There could be no reason for making such a discrimination, and it could not have been the purpose of the legislature to have made it in the enactment of this section of the law of 1852. But what was undoubtedly intended was to leave the property, which was exempt from taxation by the Revised Statutes-as still entitled to such exemption, provided it should be exclusively used for the purpose in this manner intended, to be protected by the law. And that the object for which the property of the plaintiff was acquired and used entitled it to exemption from taxation is clear from the language of the statute, for that has been made to include a college, incorporated academy, or other seminary of learning, every school-house and building for public worship.

The premises owned and used by the plaintiff were devoted to two of these purposes. They were a school-house and also a building used for public worship, and exempt from taxation under these statutes. A point similar to this was considered in the Hebrew Free School v. Mayor, etc. (4 Hun, 446). The object of the corporation, in that case, was to provide for the gratuitous instruction of Jewish youth in the Hebrew religion and language, and other branches of knowledge, and promote the study of Hebrew literature, which was held sufficient to entitle its property to exemption from taxation under these provisions of the statutes. As to the taxes of 1878, 1879 and 1880, the judgment was accordingly entirely right.

But the plaintiff did not- acquire its title to this property until the last day of July, 1877, after the tax of that year had become a. charge upon it. For that tax it was not entitled to this exemption, for it acquired its title subject to the payment of the lien which had then been created. This principle was applied to the purchase of property in the month of June, 1876, in the case of People ex rel. American Geographical Society v. Commissioners of Taxes, etc. (11 Hun, 505-508). And it was in like manner observed in McMahon v. Beekman (65 How., 427) and People ex rel. Twentythird Street Railroad Company v. Commissioners of Taxes, etc. (91 N. Y., 593). As to tlie taxes for the year 1877 amounting to the sum of $524.70, the judgment was erroneous and should be reversed. But the residue of the judgment was supported by the laws of the State, and to that extent it should be affirined and this modification of it should be, without costs.

Davis, P. J., and Brady, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs.


author: HaNibls, J.:

text:
    In the Matter of the Application of ADELIA L. OTIS, Executrix, etc., and Others, for an Order Directing EUSTACE CONWAY, as Committee, etc., to Pay Certain Rents.

      The committee of a lunatic is not personally liable for rent accruing on the uneapired term of a lease given to the lunatic, unless he take possession, of the premises.

    At the time of the resignation of his position by a committee of a lunatic the committee occupied certain premises under a lease which had been given to the lunatic while sane, for a term which, at the time of such resignation, was still unexpired. The new committee, upon his appointment, gave to the landlord notice that he would not take possession of the premises, nor have anything to do with the lease.

      Held, that the committee was under no obligation to pay, from the funds in his hands in preference to the claims of other creditors, the rent accruing after the service of such notice, and that an order requiring him to make such payment should be reversed.

      Matter of Otis (34 Hun, 542) distinguished.
    Appeal from an order directing the appellant, as committee of the property of Oscar Strasburger, a lunatic, to pay certain rent. The petitioners demised the premises Nos. 443 and 445 Broadway, to Oscar Strasburger for five years, from January 1,1881, at the yearly rent of $32,500, payable quarterly, on the first days of February, May, August and November, by a lease in writing, dated December 20,1880.
    The lessee entered into possession under the lease, and so remained, carrying on a general fancy goods and toy business, paying the rent until and including the 1st day of August, 1884.
    In September, 1884, proceedings were had in the Supreme Oourfc, in which said Oscar Strasburger was adjudged a lunatic, and Albert Strasburger was duly appointed committee of bis property. Albert Strasburger took possession of tbe demised premises, and thereafter used the premises. The lessors demanded of the committee the rent due November 1, 1884, and payment was refused, the committee claiming that he was liable only for the rent for the part of the quarter during which he was in possession.
    The lessors presented a petition for an order directing payment by the committee out of the assets of the lunatic. The motion was granted, an d an order made directing the committee to pay the rent due November 1, 1884, with interest, from which an appeal was taken to the General Term, and reported in 34 Hun, 542, where the order was affirmed. The rent so ordered to be paid was paid, and on February 1, 1885, another quarter’s rent falling due, an application for an order directing payment was made in the same form, the-order granted and the amount paid. In May, a motion was made for the payment of the rent due on May first. On this motion it was shown that a change had occurred; that the former committee had been discharged and Eustace Conway appointed committee, by whom the notice was given as set forth in the following opinion,, to the effect that he would not take possession of the demised premises or assume the lease thereof.

      Frcmcis Jjynde Stetson, for committee, appellant.

      John I. Gadwalader, for petitioners, respondents.
   HaNibls, J.:

The rent ordered to be paid became due, under a lease executed by the lunatic, for the quarter ending the 1st of May, 1885. Prior to the commencement of this quarter, and after preceding the appointment of another person as committee of the estate of the lunatic, an order was made directing him to pay the rent of the premises, and under that order the rent at that time due, and afterwards accruing, was paid by that committee. That order was made upon proof of the fact that the person who was then the committee of the estate had taken the possession of the leasehold property and had used it in carrying on the business of the lunatic and disposing of his property under the rights secured by the lease. It was not held that he became liable to make payment simply because the lease formed a part of tbe estate of tbe lunatic at tbe time of bis appointment as committee, but that be bad become liable to make tbe payment from tbe fact that be bad taken tbe actual possession, and bad the use and management of tbe leasehold property, and having that possession and use had thereby obligated himself to pay tbe rent accruing under tbe lease from which tbe right of possession was derived. (Matter of Otis, 34 Hun, 542.) And such is tbe tenor and effect of tbe authorities referred to in tbe decision which was then made. Tbe rule upon this subject is general that if an assignee, executor or receiver, or any other person acquiring tbe right to do so in a similar manner, elects not to take the possession of tbe demised property, and enter into their use and enjoyment, that be will not be liable for tbe rent reserved in tbe lease, but will only make himsnlf liable by taking possession of and using the demised property. (Martin v. Black, 9 Paige, 641.) And tbe accuracy of this principle was fully recognized and sanctioned in Woodruff v. Erie Railway (93 N. Y., 609). It is tbe fact of possession and use, and not tbe right to take it, that will create tbe liability.

Tbe person who was tbe committee of tbe lunatic’s estate when the preceding order was made, resigned bis office in January, 1885, and an order was made for tbe appointment, as committee, of the appellant. A contest afterwards arose as to tbe regularity of tbe proceedings, but which finally resulted in sanctioning tbe appointment of tbe appellant. After tbe order appointing him was first made be served a notice upon tbe attorneys for tbe applicants who seem to have represented them in tbe management of this business, by which be informed them that be should not take possession of these demised premises. This notice was served on or about tbe 17th of January, 1885. It was addressed to these attorneys and was subscribed by tbe appellant. By that notice be stated to them : “ I desire to notify you that, by an order of tbe Supreme Court, made on tbe fifteenth day of January, I was appointed tbe committee of tbe property of Oscar Strasburger, within tbe State of New York, in tbe place of Mr. Albert Strasburger, resigned. I also desire to notify you that I shall not take possession of tbe premises Nos. 443 and 445 Broadway, in tbe city of New York, which were demised to Oscar Strasburger by a lease executed to kirn by Adelia L. Otis, executrix, and others, and shall have nothing to do with the lease or the demised premises. I might say here that I am informed by the late committee that he has assigned his right, title and interest, if any, in said lease to some third person.

“ Respectfully yours,

“EUSTACE CONWAY,

“ Committee.”

And his own affidavit is positive to the fact that he at no time, in any manner, toot possession of, or used and controlled the demised premises, or collected any rent of the subtenant of a part thereof, and that the lease of such premises had never passed into his possession. And this statement was no farther controverted than by an affidavit made by another person, on simple information and belief. The ■ fact is therefore established that the present committee at no time had the use or possession of the demised premises, but that, on the contrary, he declined to exercise his right to take possession of them, and gave the attorneys of the applicants information that such was his purpose. This fact materially distinguishes the present application from the case that was made, which resulted in the order directing the former committee to pay the rent of these premises. The fact upon which the obligation of the committee to pay, rested, was there established, but is here entirely wanting. And as the liability arises out of the fact of possession and use, and not out of the mere right, and there has been no such possession or use by the present committee, it seems to follow very directly that no obligation existed upon his part to pay the rent otherwise than as a debt against the estate, entitled to no priority over the claims of other creditors. The order in the case should, therefore, have denied the application requiring the committee to pay the rent for this quarter out of the proceeds of the lunatic’s property. It should be reversed and an order made denying the motion, with the usual costs and disbursements.

Davis, P. J., and Beady, J., concurred.

Order reversed and motion denied, with ten dollars costs and disbusements.


author: Davis,P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE KNICKERBOCKER LIFE INSURANCE COMPANY (In Re Henderson).

      Revaluation of a claim filed with the receiver of an insolvent life insurance company —when it will not be granted on account of the uninsurable condition of the assured at the time of the valuation, which was followed by his death.

    Appeal from an order of tbe Special Term, denying a motion for a revaluation of policies of insurance upon tbe life of Elisba W. Henderson.
    Tbe Knickerbocker Life Insurance Company was dissolved and a receiver thereof appointed by a judgment entered on tbe 29th of December, 1882. An order was made by tbe court requiring tbe filing of claims within tbe prescribed period, which expired on tbe 15th of August, 1883. Before tbe expiration of that time, policies on tbe life of Elisba W. Henderson were filed as claims with tbe receiver. No claim or proof was filed with tbe receiver showing that tbe life of tbe insured bad ceased to be insurable, or that any state of facts existed which took tbe case out of the general rules of valuations. Tbe valuation of tbe policies as running claims was, therefore, made in accordance with the rule and system prescribed by tbe American Experience tables, and on or about tbe 7th day of August, 1884, tbe actuary made and filed with tbe receiver bis report, which was, on or about tbe 1st day of September, 1884, confirmed by this court, and a dividend of twenty per cent declared on tbe reserved value of all valid claims filed with the receiver. Tbe party insured by these policies died on tbe 27th of February, 1885. After bis decease, proofs of death were filed in tbe office of tbe receiver on or about tbe 1st day of July, 1885, showing that tbe direct and immediate cause of tbe death of tbe life insured was a carbuncle from which he had been suffering about two weeks, and that the remote cause of death was diabates. The affidavits now presented show that the decedent had been afflicted with diabates during the last two years of his life, and was, on the the 1st of September, 1884, at or about which time the valuation was made, in feeble health, and was not what would be considered an insurable risk at that time.
    The court at General Term said: “ TJpon this state of facts it is now moved that a revaluation of the policies be made treating them substantially as death claims. The court below denied the motion holding in substance that the rule laid down in the Croissant case (at Special Term, Baeeett, J., reported Daily Register, April 18, 1885, vol. 27, p. 768, affirmed People v. Knickerbocker Life Ins. Op., 36 Hnn, 645), should not be extended, and that the facts of this case did not show that the decedent was moribund or in extremis when the valuation was made.
    “We think the conclusion of the court at Special Term, was right and should not be disturbed. No claim was made at the time of filing the policies which would put them upon any different footing than those of other running policies, nor was any knowledge brought home to the receiver or to the actuary that any state of facts existed which required a different rule to be applied in the valuation of those policies. The valuation was complete and confirmed by the court some months before the decease of the assured. He subsequently died of a carbuncle which might have been superinduced by the previous condition of his health caused by the alleged lingering and fatal disease. But to adopt the course claimed on the part of the appellant would introduce so much uncertainty in proceedings of the receiver in cases of this kind as to render them extremely difficult and embarrasring. The party very clearly was not moribund at the time of presenting his claim nor in danger of immediate death, though his life might have become a non-insurable risk. The subsequent cause of death may have been superinduced by the existing dis< iase, and it was the duty of the assured, if he were in fact in that condition, to have presented his claim upon the basis of his non-insurable condition. If we were to-order a revaluation upon the facts presented in this case, we should open the door to incessant litigat on in the case of every person. nsured in tbe company who subsequently and before tbe final closing of tbe receiver’s account shall have died.
    “We are of opinion that tbe court below properly disposed of tbe motion, and that tbe order should be affirmed, but under tbe circumstances, without costs.”

      Horace Russell, for tbe appellant.

      J. M. Gifford, for tbe respondent.
   Opinion by

Davis,P. J.;

Rradt and Daniels, JJ.,

concurred.

Order affirmed, without costs.


author: Davis, P. J.;

text:
    JOHN LYNCH, Appellant, v. OSCAR PFEIFFER, Respondent. OSCAR PFEIFFER, Respondent, v. JOHN LYNCH and Another, Appellants.

      Religious corporation — right of, when unaible to pay its current expenses, to sell its property to another religious corporation, subject to the payment of all debts and liens.

    Appeals from judgments of tbe Special Term in both of tbe above entitled actions, which were cross actions to compel the specific performance of a contract for the sale of certain lands.
    Tbe principal question on these appeals arose upon tbe validity of tbe sale of tbe premises agreed to be conveyed, by the contract described in tbe complaint, by tbe Manhattanville Presbyterian Society to tbe trustees of tbe Presbytery of New York, a body corporate under tbe laws of the State of New York. That sale was made under and pursuant to an order of the Special Term of the Supreme Court of this district, entered on the 12th day of May, 1875, upon the petition of tbe Manhattanville Presbyterian Society, presented in that month. The petition set forth that the petitioners were a religious corporation incorporated under an act entitled “ An act for the incorporation of religious societies,” passed April 5, 1813, and the acts amendatory thereof; that the corporation was seized in fee of the premises; that the premises were mortgaged under and pursuant to an order of the court to one William Yan Allen, to secure the sum of $3,250 and interest, by a mortgage bearing date April 30, 1857, on which there was then due the principal sum of $1,500 and interest from the 1st day of June, 1877, and by several •■assignments was then held as a subsisting incumbrance by the trustees of the Presbytery of IS ew York; that there were unpaid assessments upon the premises f» r street openings to the amount of -$1,500, bearing interest at twelve per cent; that the church membership and congregation were so i educed in numbers as to make it impossible to sustain the current, expenses of the church property .and of religious worship therei i; that the corporation had no income except from the rental of pews, which was wholly insufficient for the purposes afores, lid, and that it had no means of paying the incumbrances except by a sale of the premises; that besides the incumbrances it was owing a floating debt of $300, and the church building required expensive repairs for its preservation which it was unable to make; that the property was so located as to be exposed to other assessments for street openings or •other objects, and that at a met ting of the congregation, on due notice, it had been resolved to tr¿ nsfer the church property to the trustees of the Presbytery of Neir York, and that the trustees were j authorized to take all measures i eeessary for the legal transfer of the same. The petitioners furth )r showed that the trustees were duly incorporated by act of th s legislature, and were thereby declared to be capable in law of taking by gift, devise, bequest, grant or purchase for religious or charitable purposes, and of holding and otherwise disposing of s ich property; and “ they prayed that an order may be entered her« upon authorizing them to execute -and deliver to the trustees of the Presbytery of New York a good ;and absolute deed in fee simple for conveying to them and to their ■successors and assignees the premises above described, with the ■buildings thereon erected, subject to all existing incumbrances, the amount of which, together v ith said floating debt, shall constitute the consideration to be i ^pressed therein, to be had and ■holden for the purposes expressed n their said act of incorporation.”
    Upon this petition the court granted an order reciting the material facts of the petition and authorizing the society to execute and ■deliver to the trustees of the pres jytery, etc., a good and absolute deed in fee simple, for conveying the premises, subject to all existing incumbrances, and that the ai munt thereof, together with the floating debt of $300, should constitute the consideration to be expressed in the deed, and that said premises be held by the said trustees for the purposes designed and expressed in their charter,, as set forth in the petition. Subsequently, and on the 18th of May, 1875, a warranty deed, with full covenants, was accordingly-executed, the consideration of which was declared to be the sum of $3,766, and the land was conveyed subject to all the severalincumbrances mentioned in the petition.
    The court at General Term said: “ While the question is not entirely free from doubt, we are of opinion that the court acquired; jurisdiction to make the order under the petition, that the order is-a valid one, and that the deed executed thereunder conveyed a good title to the trustees of the Presbytery of New York. That body was, at that time, the owner and holder of the mortgage to Van Allen of $1,500, with the accrued interest thereon which remained unpaid, and that indebtedness was extinguished as part of the consideration by the deed. The land was conveyed also subject to all existing incumbrances, and the incumbrances are shown to have-been assessments upon the property itself to the extent of $1,500-, and the interest at twelve per cent which had accrued thereon. This was a charge upon the land and not upon the Manhattanville Presbyterian Society; that is to say it could only be enforced against the land by a sale thereof, and not against the society or any of its other property, if any it had. The sale and purchase, therefore, of the land, subject to that assessment, was equivalent, on the part of the presbytery, to an assumption of the lien of the assessment, inasmuch as there was no way of enforcing it but by a sale of the property. It is not material, therefore, that there should be any covenants on the part of the presbytery, because the nature of the lien made the conveyance, in the form in which it was executed, equivalent to such covenants. So far, therefore, as respects the great bulk of the consideration expressed in the execution and delivery of the deed, it either extinguished it or so subjected the land to its payment, that it was equivalent, so far as the vendor is concerned, to the áctual payment of that part of the consideration.
    “ The residue of the consideration was the floating debt to which the land was subjected by the deed. The particular nature of that does not appear, but the presbytery received the property as a fund out of which, that indebted ness was to be paid, and the society executing the grant had no other means of payment. There would be little difficulty, therefore, ii holding that the property in the hands of the presbytery was a i rust for the payment of the claims constituting the floating debt, and as the case fails to show whether they were or were not paid, it s fair to presume that that part of the consideration was in some i orm paid by the purchasers. The Manhattanville Society must be assumed to have received the full benefit of the consideration to be paid for the property, and the -circumstances shown as to the < ondition of the society at the time •of the sale were sufficient to authorize the order of the court. They showed a necessity for tlu disposition of the property, and there is no reason, apparently, to doubt that the disposition made was for the best interests of the society. The title derived, therefore, under the deed executed to the presbytery, so far as the question of the validity of the order is concerned, was, we think, properly held to be good.
    “ The result of our examinatio a is that the conclusion reached by the court below was right, and tl te judgment should, therefore, be affirmed, with costs.”

      M. Daly, for the appellants.

      K F. BrovSn, for the respond mt.
   Opinion by

Davis, P. J.;

Br.dy and Daniels, JJ.,

concurred.

Judgment affirmed, with costs.


author: Smith, P, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWIN A. NASH, Surrogate, etc., Respondent, v. JAMES FAULKNER, Jr., as Executor, etc., of JAMES FAULKNER, Deceased, and HENRY J. FAULKNER, Appellants.

      Official bond of a surrogate — liability of his sureties for his failure to pay over moneys received — his good faith and the absence of negligence will not relieve them.

    This action was brought, pursuant to an order of this court, against James Faulkner and Henry J. Faulkner, to recover from them as sureties upon the official bonds of Samuel D. Faulkner, late surrogate of Livingston county, certain moneys alleged to have been paid to him as such surrogate, and not paid over or accounted for by him. The moneys in question were the proceeds of the.sale of real estate of a deceased person, made by the administrator, under an order of the surrogate, for the payment of the debts of the deceased.
    . The bonds given by the administrator complied with the terms of the statute relating thereto.
    The answer set up as a defense, and the trial court found, that the said moneys were deposited by the surrogate with a banker, who, at the time of the deposit, was in good credit and standing, but who was afterwards found to be insolvent, and by reason of such insolvency, a part of the said moneys was lost, without fault or neglect on the part 'of the surrogate.
    Held, that these facts constituted no defense to the action.

      The Bupermsoi's of Albany County v. Dorr (25 "Wend., 440, and 7 Hill, 683) overruled; and Muzzy v. Shattniek (1 Den., 233), followed.
    Appeal from a judgment, entered upon the decision of tbe court, upon a trial at the Livingston Circuit, without a jury.

      Charles J. Bissell, for the a ipellants.

      James Wood, for the respon lent.
   Smith, P, J.:

The action was brought, pursuant to an order of this court, against James Faulkner and Henry J. Faulkner, to recover from them as sureties upon the official bonds of Samuel D. Faulkner, late surrogate of Livingston coi inty, certain moneys alleged to have been paid to him as such surro gate and not paid over or accounted for by him. The answer sets up and the trial judge found that such moneys were deposited by the surrogate with a banker, who, at the time of the deposit w¡ a in good credit and standing, but who was afterwards found to be insolvent, and by reason of his insolvency a part of said moneys was lost, without the fault or neglect of the surrogate. Sul sequently to the commencement of the action J ames Faulkner di< d, and the action was continued against James Faulkner, Jr., hit executor, and Henry J. Faulkner. The counsel for the appellants contends that the facts set' up in the answer and found by the court, as above stated, constitute a defense. At common law a public officer was liable only as bailee for negligence or malfeasance. (Lane v. Cotton, 1 Ld. Raymond, 646; Whitfield v. Le Despencer, Cowp., 754; Browning v. Hanford, 5 Hill, 588.) But the duties of a surrogate in respect to moneys received by him in his official < apacity, are prescribed by statute, as is also the condition of the be nd, which he is required to execute for the faithful discharge of hii duties. The bonds in the present case comply with the statute, . rnd contain the condition that the surrogate “ shall well and truly aid faithfully perform his duties as surrogate,” and “shall well an 1 faithfully apply and pay over all moneys and effects that may cone into his hands as such surrogate, in the execution of his office.” The moneys in question were the-proceeds of the sale of real est ate of a deceased person, made by the administrators, under an ord ir of the surrogate for the payment, of the debts of the deceased.

It has been held frequently in the federal courts, and in some of the sister States, that a bond with an unqualified condition to account for and pay over public momys, enlarges the obligation of the receiving officer and deprives hi m of defenses which are available to an ordinary bailee. (The U. S. v. Prescott, 3 How., 578; The U. S. v. Morgan, 11 id., 154; The U. S. v. Dashiel, 4 Wall., 182; The U. S. v. Keehler, 9 id., 83; Boyden v. The U. S., 13 id., 17; Bevans v. The U. S., 13 id., 56; The U. S. v. Thomas, 15 id., 337; Commonwealth v. Comley, 3 Penn., 272; The State of Ohio v. Harper, 6 Ohio St. R.., 607; The People v. Powell, 67 Mo., 395; Halbert v. The State of Indiana, 22 Ind., 122; Inhabitants of Hancock v. Hazzard, 12 Cush., 112.) The case of The Supervisors of Albany County v. Dorr (25 Wend., 440) is not in harmony with those aboye cited, and that of Cumberland Country v. Pennell (69 Maine, 357) seems to conflict with them to some extent. In the case of Dorr the Supreme Court of this State held that the bond of a county treasurer, conditioned to “ faithfully execute the duties of his office ” and to “ pay, according to iaw, all moneys,” etc., was a recognition of the common law rule of liability of a bailee, and that he was not responsible for moneys stolen from his office, without negligence or other fault on his part. The court relied upon the English cases of Lane v. Cotton and Whitfield v. Le Despencer, above cited. The case was affirmed in the Court for the Correction of Errors, on an equal division. (7 Hill, 583.) That case has generally been regarded as overrule by the subsequent case of Muzzy v. Shattuck (1 Den., 233), decided by the Supreme Court and unanimously affirmed by the Court for the Correction of Errors. (See note of Hill, Reporter, Supervisors of Albany v. Dorr, 7 Hill, 584; Boyden v. The U. S., 13 Wall., 17, per StroNG, J., p. 18.) The Maine case above mentioned referred to many of the cases above cited, and declined to follow them in all respects, but it rested to a great extent upon the' fact that in Maine the common law liability of public officers, as bailees, had not been enlarged by statute.

In the case of The United States v. Thomas (supra), Mr. Justice Bradley in his opinion, in which a majority of the court concurred, took a distinction between the absolute agreement to do a thing, and a condition to do the same thing, inserted in a bond; and he said in the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. In that case the court recognized the effect of an unqualified condition in th e bond of a public officer, to account for and pay over public money ¡, to be as herein above stated, but they held that the receiver of public money, whose bond was sued upon in that case, was excused b r the forcible seizure by the authorities of the late Confederate go ’ernment, of moneys in his hands, without his fault or negligence. The doctrine of that case does not, however, relieve the defendants here.

The case of Muzzy v. Shattuck (supra) was placed not on the effect of the bond as enlarging 1 he liability of the officer, a town collector, but upon the provisior s of the statute defining his duties, which, it was held, made him a, debtor for the amount of the taxes received by him. The case seems to us irreconcilable with that of Dorr, in so far as the latter hold s that a bond executed in pursuance of the statute conditioned that tie officer shall account for and pay over moneys, etc., is but a recog aition of the common law liability of a bailee, and to that extent overrules it. But it does not hold, as do the Federal and other case 3 cited above, that the bond enlarges the liability of the officer and h s sureties. Nor are we,aware of any reported case in this State in which that point has been expressly adjudged, one way or the other. Nevertheless, we are prepared to adopt the doctiine s dvanced by the cases referred to, and to hold that the obligation to pay created by the bonds in suit, is not excused or discharged by ¿he facts alleged as a defense.

Even if we were to adopt the suggestion made by Mr. Justice TVTTT.-r.TiyB., in his dissenting opinion in United States v. Thomas (supra), that the bond does not < nlarge the obligations imposed upon the depositary by the statute, bu t is a mere security for their performance, we would reach the.conclusion above stated.

The Revised Statutes, under ' vhich the bonds in suit were executed, made it the duty of the surrogate to pay out, apply and distribute, in the particular manner there indicated, the money received by him upon the sale of the real estate of a deceased person. (2 R. S., 106, §§ 36, 37, 38.) Compliance with those provisions was expressly required fc y the condition of the bond. The payment over to the surrogate cf the proceeds of such sale had the effect to exonerate, pro tanto, ti e heirs and devisees of the testator or intestate, and all the remaining lands of which he died seized, from all claim or charge by rea- .on of the debts established before the surrogate- on the application for the order of sale (sec. 33), and ■consequently to limit the security of the holders of such claims to the fund in the hands of the surrogate. These several provisions seem to us to recognize the surrogate in the light of a debtor ” (to use the expression found in Muzzy v. Shattuck), for the amount of the money received by him, and to point out the way in which the obligation can be discharged.

It is urged that, as the surrogate is a judicial officer, it is not to be supposed that it was intended to subject him to the rigorous degree of responsibility imposed by statute, in many cases, upon collectors, receivers and other fiscal officers. The anomaly of making the surrogate the actual custodian of the funds paid into his court has been abolished by the Code, all such moneys being now required to be paid over to the county treasurer. (Code Civ. Pro., §§ 2537, 2788.) But so long as the duty of receiving and paying out the money was imposed upon the surrogate, we think that as to such <luty, and the obligations arising therefrom, he was on the same footing as if he had been a fiscal officer merely.

In regard to the certificate of deposit which was taken by the district attorney, acting in the place of the surrogate, and by him turned over to the surrogate, we think the defendants are liable. The surrogate received it from the district attorney as money, and there is no finding or proof that it was not good for its face when he received it.

The question whether the plaintiff can maintain this action was disposed of adversely to the defendants upon a former appeal. <31 Hun, 318.)

The result is that the judgment should be affirmed.

Barker and Bradley, JJ., concurred • Haight, J., not sitting.

Judgment affirmed.


author: Haight, J.

text:
       HIRAM SMITH and Others, Respondents, v. THE CITY OF ROCHESTER, Appellant.

      Wrongful diver sum of the waters of a stream — may be restrained by a riparian owner, although he sustains , w actual damages thereby.

    This action was brought by the plaintifl i, the owners of mills upon a creek, to restrain the defendant from wronglvlly diverting the waters of Hemlock lake, which formerly flowed into the said creek. It was conceded by the plaintiffs that the defendant had taker steps by means of which it was, and would be, enabled to procure, from a 1 other lake, sufflcientwater to furnish a more uniform and constant supply to tie plaintiffs’ mills than had existed before the defendant commenced to divert the waters from Hemlock lake, and that the plaintiffs had not suffered any damage by the interference of the defend ant with the waters of the latter lake,

      Meld, that as the defendant had no legal right to divert the waters of Hemlock lake, and so diminish the plaintiffs’ supply of water from that source, the plaintiffs were entitled to an injum tion restraining such diversion, even though it occasioned no actual damag< s to them. (Haight, J., dissenting.)
    Appeal from a judgment, entered upon tbe decision of tbe Special Term of Ontario county.
    Tbe plaintiffs are owners or 1 (sees of mills and manufactories situate upon Honeoye creek, below its junction with tbe outlet of Hemlock and Canadice lakes. The defendant is a municipal corporation, and in pursuance of ai act of tbe legislature, entitled “ An act to supply the city of Rochester with pure and wholesome water,” passed April 27, 1872, and tbe amendments thereto, have constructed and laid an iron pipe three feet in diameter, extending, from Hemlock lake to tbe city of Rochester, for the purpose of conveying through the same the u aters of the lake to the city, and thus supply the residents thereof. Eor the year past the defendant has diverted from the waters of the lake, through the pipe, 4,500,000 gallons daily.
    This action was brought to res bain such diversion of the waters of the lake. Hpon the first trial the court, at first instance, followed by the General Term, die missed the complaint upon the-ground that the plaintiffs had not, so far as the waters issuing from Hemlock lake were concerned, the >rdinary rights of riparian owners. This view and the judgment based upon it, were disapproved by the Court of Appeals and the action was remanded for further proceedings. Upon the second trial the facts were agreed upon and, so far as they are necessary to be considered upon this appeal, are as follows : 4‘ That at all seasons of the year, except during the dry weather in the summer and fall, the water flowing down Honeoye creek was sufficient for use in propelling the mills and machinery .of the plaintiffs, and except during such dry weather such use was not affected by the amount of water diverted by the defendant from Hemlock lake. That before such diversion by the defendant the waters flowing in said creek during the dry portion of the season furnished but a scant supply for said mills and machinery of the plaintiffs, and when said mills and machinery lay still over Sunday those lower down on the stream were compelled to delay starting until those above were in operation and the water therefrom was allowed to pass to those below. The same difficulty existed, but not to the same extent, after the defendant commenced diverting water from Hemlock lake as aforesaid. At the same time the said board of water commissioners erected the bulk-head and gates of the outlet of Hemlock lake, they also deepened the outlet of Canadice lake at the lake, and erected therein a bulk-head and gates by means of which the waters of Canadice lake were retained while there was an abundance, and defendant was enabled to, and did, when the dry season came, discharge the water so retained in said lake into the outlet until the water in said lake was reduced to eight feet below the ordinary high-water mark therein, and that the supply thus furnished for the use of the mills and machinery of the plaintiffs on Honeoye creek was more uniform and greater than the usual and natural flow of water in said creek during the dry season. Th'at such erections at the outlet of Canadice lake were so made by said commissioners expressly to supply to the plaintiffs during the dry sea-eon water for their mills and machinery in place of that taken from Hemlock lake through the said pipe for the use of the city. That the defendant has secured the control of the outlets of Canadice and Hemlock lakes to the place of their junction and has erected permanent structures by which it is enabled to and does purpose to furnish a more uniform and constant supply of water to plaintiffs’ mills than existed before it commenced to draw water from the last mentioned lake, and the plaintiffs have not suffered any damage by tbe interference of the defendant with the water of said lake.”
    The following opinion was delivered at Special Term:
    Rumsey, J.:
    The decision of the Court of Appeals has established that the diversion of the waters of Hemlock lake by the defendant, in the manner and for the purposes shown by the findings, was a violation of the right of the plaintiffs as riparian owners. The case is presented now upon the same facts that appeared when it was considered by the Court of Appeals, with the addition of a concession that the defendant has taken steps by which it is enabled to and does, and purposes to furnish, a more uniform and constant supply of water to plaintiffs’ mills t ran existed before it commenced to draw water from Hemlock lake, and the plaintiffs have not suffered any damage by the interference of the defendant with the waters of said lake.
    Upon these facts the plaintiffs move for judgment, and the defendant, in opposition, urges that, as its act has not damaged the plaintiffs, but rather has done them substantial good, they are not entitled to an injunction. The concession made in the case that the plaintiffs have not suffered any damage, is to be understood as meaning that the violation of their right has not inflicted upon them any loss for which a jury in an action at law would give them a pecuniary recompense. Such is the usual and ordinary meaning of the word damage, and such, I think, is the fair interpretation of the concession. The case stands, then, upon the proposition that the defendant, under a claim of legal authority so to do, is violating a right oí the plaintiffs as riparian owners, but that this violation of their right does not inflict upon them any pecuniary loss. The question is, whether, upon that state of facts, the plaintiffs are entitled to an injunction restraining the violation of their right. The waters of Hemlock lake, which have been diverted by the defendant, flow into the Honeoye creek, and in times of drouth, add considerably to the volume of water flowing by the. plaintiffs’ mills. To this flow, in its usual volume, the plaintiffs have a right. Their right is to. the flow, not only in its accustomed channel, but from its natural source. (Angelí on Water Courses, chap. 1, 108 q.) Any artificial supply may be cut off by the persons who furnish it, but the course of the stream, from its head to the land of the plaintiffs, cannot bo changed without their consent. For this reason I dismiss as unimportant the fact that the defendant supplies to the stream from Canadice lake an amount of water equal to that which it diverts from Hemlock lake. Upon that subject I adopt the words of the justice before whom this case was first tried. “ The defendant is not at liberty to say ‘ true, I abstract from the creek a large portion of its ordinary flow, but I furnish you otherwise as full supply and more equable flow than the natural stream supplies.’ It cannot change the absolute rights of the plaintiffs without their assent, and defend the act upon the ground that it furnishes a fair equivalent.” (People v. Vanderbilt, 26 N. Y., 297; Crooker v. Bragg, 10 Wend., 260; Harding v. Stamford Water Co., 41 Conn., 87.) But throwing out that fact (which is stated probably as a reason why there is no loss to plaintiffs’ fi om the violation of their right), and the question is still presented, whether a violation of a right not accompanied by damage is sufficient to sustain an injunction. The question has been mooted many times in the courts of this country and in England, and the authorities upon it are numerous. In actions at law it seems to be undisputed that whenever an injury is done to a right, actual damage is not indispensable as the foundation of an action. (Embrey v. Owen, 6 Exch., 352; Parker v. Griswold, 17 Conn., 288; Blanchard v. Baker, 8 Greenl., 253; Lund v. New Bedford, 121 Mass., 286.) The leading case in equity in this country is Webb v. Portland Manufacturing Company (3 Sumn., 189), decided by Judge Story, sitting in the Circuit Court of the United States in Maine. The question presented was, as stated by the court, whether to maintain an action to prevent the diversion of a water-course it is essential for the plaintiff to establish any actual damage. The conclusion reached was, that where the act done was such that by its repetition or continuance it may become the foundation or evidence of an adverse right, the case was a proper one for equity to interpose by way of injunction. This case has been cited with approval many times both in the United States and in England. The Supreme Court of Massachusetts regard it as settling the law that when a person is asserting a right, which at the time does no damage, but which may operate by long continuance to destroy or diminish the right of the plaintiff, even if that right is not then exercised by the plaintiff and there is no present intention of exercising it, he will be restrained by injunction. (Brockline v. Mackintosh, 133 Mass., 215, 224.) The same principle is established in England in actions of this class in several cases. (Crossley v. Lightowler, L.R., 3 Eq., 279, 298; Same Case, L. R., 2 Ch. App., 478.) In the recent case of Wilts and Berks Canal Navigation Company. v. Swindon W. Company (L. R., 9 Ch. App., 451), the question was squarely presented. The suit was brought to restrain a diversion of the water which supplied plaintiffs’ canal for the purpose of supplying the defendants’ works. The vice chancellor dismissed the bill because in his opinion the plaintiffs had not the right they claimed, and even if they had it, the abstraction of water by the defendants was not of such an amount as would justify the complaint. Upon appeal the decree of the vice chancellor was reversed; the lords justices agreeing that the plaintiffs had established their right, and that as the defendants had invaded it under claim of an adverse right, the plaintiffs were entitled to restrain such invasion without having suf. ered any actual damages (pp. 459, 461). The decree of the lords justices was affirmed by the house of lords. (L. R., 7 H. L., 697.) The case of Webb v. Portland Manufacturing Company, was cited and approved by the General Term in Corning v. Troy Iron and Mail Factory (39 Barb., 311, 317). Indeed, I think, that upon a careful examination, the case last cited must be regarded as establishing the same rule. It appears by the findings of fact in that case that the defendants, under claim of right, had diverted a quantity of water from the stream running through plaintiffs’ land. The quantity diverted was sufficient to run one run of stone, but the plaintiffs had never used or attempted to use the water, and there was no finding that the plaintiffs had suffered any damage from the diversion. But the court, both at General Term and in the Court of Appeals, held that where there was a clear violation of the right, the plaintiffs could recover without proof of actual damage. (39 Barb., 327; S. C., 40 N. Y., 204, 207.) It is true that Judge Woodruff says, on page 220, that if it W£-s clear that the restoration of the water was of no value to the plaintiffs the case would not call for equitable interference. But it is quite evident that he did not mean by that expression to be understood as saying that the plaintiffs must show actual damage already suffered to entitle them to their injunction, because he says that, although they have not used the water, they can make it available, and as their right is established they should have the relief. The defendant cites several •cases in which it was held that a court of equity will not interfere by way of mandatory injunction except in cases in which serious ■damage would be suffered by such interference being withheld. In Wood v. Sutcliffe (2 Sim. Ch. [N. S.], 163) the facts were that the right of the plaintiffs was admitted by defendant, and the vice-chancellor denying the injunction put his decision upon the ground that the plaintiffs were guilty of laches, and that the case showed that the injury was capable of being compensated by money. {Pp. 169, 170.) It is evident that he did not intend to hold that where a right was invaded equity would not interfere because the damages were trifling, because he had emphatically repudiated that proposition in the case of Rochdale Canal Company v. King (2 Sim. Ch. [N. S.], 78, 85). In Durell v. Pritchard (L. R., 1 Ch. App., 244) there was no invasion of the right, and the real injury was only temporary and could not ripen into an adverse right. The lords justices in that case refuse to follow Deere v. Guest (1 Myl. & Cr., 516) saying that it does not support the rule that a mandatory injunction will not be granted where the damage was completed before the bill was filed. In Jacomb v. Knight (3 DeG., J. & S., 533), no right could be acquired against the plaintiff and he could obtain adequate compensation at law.
    I have not had access to the other cases cited by the defendant.
    I have examined many other cases on this subject but 1 have found none to impugn the rule as laid down by Judge Story in Webb v. Portland Manufacturing Company (1 High on Inj., § 873).
    The objection that the injury to the defendant will be immeasurable and irreparable and will injuriously affect great public interests, if this injunction is granted, is answered by the Master of the Rolls in Goldsmid v. Commissioners (L. R., 1 Eq., 160, 169) and by Grovbb, J., in Corning v. Troy Iron and Nail Factory (supra, at page 205). As the defendants have the power to acquire the right to divert this water, the judgment to be entered may provide that the injunction shall not be operative until they have had an opportunity to do so. I think, upon the examination of authorities, the true rule to govern cases like this is formulated in Angelí on Watercourses (sec. 449), and that it requires the court to grant the injunction prayed for in this action.

      William F. Cogswell, for the appellant.

      Theodore Baeon, for the respondent.

      Decided .'uly, 1885.

   The decision below was affirmed on the foregoing opinion of Rumsey, J., the following dissenting opinion being delivered at. General Term, by

Haight, J.

(dissenting):

It appears from the stipulated facts that the plaintiffs have suffered no damage by reason of the diversion of the water by the defendant; but, on the contrary, they have been furnished with a more constant and uniform supply of water than they had before had, and that the defendant purposes in the future to continue to furnish them a more constant and uniform supply of water for their mills than existed before it commenced to draw water from Hemlock lake. The question is thus sharply presented as to whether this action can be maintained, when the plaintiffs have suffered no damage, and none is expected to result in the future, from the use of the water made by the defendant. This case has been once considered by the Court of Appeals and a new trial was granted, it then being held, among' other things, that the evidence upon the former trial tended to show that plaintiffs were injured by the diversion of water complained of. (Smith v. City of Rochester, 92 N. Y., 463.)

The case of Webb v. Portland Manufacturing Company (3 Sumn., 189) is the authority chiefly relied upon by the respondents and the court below, to support the judgment. The opinion was written by Justice Story, and because of his great learning and eminence as a judge, I have hesitated about questioning the rule as laid down by him. In view of the fact that the result reached by him is not in accord with what 1 have supposed to be the law, I have examined to some extent the authorities upon which he relies. In that case the plaintiff and defendants were owners of different mills in severalty on the same mill- dam. The defendant opened a canal into the pond at some distance above the dam, and supplied his mill with water through the canal. It was held that the defendant was not entitled to his proportion of the water until it arrived at the dam, and that although the plaintiff had suffered no damage,, he was entitled to maintain the action.

In the case of Young v. Spencer (10 Barn. & Cres., 115), relied upon by Story, J., the action was brought by the owner of a house against his lessee, for cutting an opening in the building for a new door, whereby it was claimed that the house was weakened and injured. The jury found that the lessee did cut the opening without leave, but that the house was not in any respect weakened or injured. The judge thereupon directed a verdict to be entered for the plaintiff for nominal damages. So that this case would appear to be in conflict, rather than a support to the proposition contended for. In the case of Marzetti v. Williams (1 B. & Adol., 415), the action was to recover damages against a banker for refusing payment of a check drawn by a customer after he had received ' sufficient funds to pay the check. The check was not paid until the next day after the demand. It was held that the plaintiff was entitled to recover nominal damages, and the authorities relied upon were to the effect that where a wrong is done, by which the right of the party may be injured, there is a good cause of action, although no actual damage be sustained. It will be observed that here is an important distinction made which is, that a wrong is done by which the right of a party may be injured. With this distinction in mind there is not much difficulty in harmonizing the numerous eases appearing in the books. A landlord has the right to visit the premises occupied by his lessee for the purpose of inspecting and preserving and seeing whether waste has been committed, by depriving him of this right he map be imjwed. An elector has the right to have his vote taken and counted at an election, by refusing him this right he may suffer injury. With this qualification I have no further question in reference to the rule as declared by Justice Story. In the case of Wilts and Series Canal Navigation Company v. Swindon Water-Works Company (9 Chan. App. Cases, 451), the plaintiff, a canal company, had the right to supply their canal with water from the neighboring stream. The defendant, the Water-Works Company, •diverted a part of the stream, and thereby supplied with water the neighboring town. It appeared on the trial that during a severe drought the canal was so insufficiently supplied with water that traffic upon it was stopped for several weeks. An injunction was granted to restrain the defendant from diverting the water “ so as to interfere with the supply of water requi/red by the plaintiffs for the navigation of the canal.” In other words, the defendants were enjoined from diverting the water to the damage of the plaintiffs. In the case of Kensit v. The Great Eastern Railway Company (27 Chan. Div. Cases, 122), the defendant owned land upon which their railway was built which crossed the stream over a culvert. One Robert Free had land adjoining that of the railroad company, but not •abutting on the stream. Under a license from the railway company he put a pipe through the land of the company to his own premises by means of which he pumped water from the stream to his factory, used it for cooling and ^condensing purposes and then returned it to the stream through another pipe, discharging it in the stream six feet below the place where it was taken from the stream. The’ plaintiff was an abutting owner of land upon the stream, below the j railway’s lands. .He brought action to restrain the defendant from so using the water. It was held that although the defendant had no right to grant the use of the water to Free, still, inasmuch as the plaintiff sufEered no damage, the action could not be maintained and the bill was dismissed, thus affirming the same case in 23 Chancery Div., 566. In the case of Earl of Sandwich v. Great Northern Railway Company (10 Chan. Div., 707), the defendant, a railroad company, whose land crossed a stream in the immediate neighborhood of one of their stations, took water from the stream for the purpose of supplying their engines and for the general purposes of the station. The defendant, a mill owner, lower down the stream, brought suit for an injunction to restrain the defendant from diverting the water. It was held that the company as riparian owners were entitled to take a reasonable quantity of water for their purposes, that the quantity taken was reasonable, did not reduce the depth of the water flowing in the stream one-fifth of an inch and did not cause the defendant any perceptible damage. Bacon, N. C., in his opinion, says: “Is that a case in which, if there is nothing else in it, the plaintiff could ask in this court for an injunction ? What injunction is he entitled to? Is there any damage done him?' It is not pretended that there is any damage done to him. * * * The evidence which I have before referred to satisfies me that the plaintiff’s complaint is wholly unreasonable, and that the defendants have done nothing which the law does not entitle them to.” The complaint was dismissed with costs. In the case of Elliot v. The Fitchburg Railroad Company (10 Cush., 191) it was held that one riparian proprietor cannot maintain an action against an upper proprietor, for the diversion of part of the water of a natural water-course flowing through their lands, unless such diversion causes the plaintiff actual perceptible damage. The opinion in this case was written by Chief Justice Shaw, in which he-says: “ The plaintiff contended that, if the jury were satisfied of the existence of the brook as alleged, and the diversion of the-water therefrom by the defendants, he was entitled to a verdict for nominal damages, without proof of actual damage. But the presiding judge instructed the jury that, unless the plaintiff suffered actual perceptible damage in consequence of the diversion of the-defendant, the defendants were not liable in this action.” In connection with this instruction, the judge further instructed the jury, that “if they believed that the defendants, by excavating said reservoir and spring above the dam, or that said Clark, by digging said ditches, had increased the flow of water of said brook equal to the quantity of water the defendants had diverted therefrom, then the-defendants are not liable in this action. The whole court are of the opinion that this direction was right in both particulars.” The case of Garwood v. The New York Central and Hudson River Railroad Company (83 N. Y., 400), the plaintiff, a mill owner on Tonawanda creek, brought an action against the defendant to restrain it from diverting the waters of the stream, at its station in Batavia, for the purpose of supplying its locomotive engines with water, etc. Issues were formed, and the controverted questions of fact were tried before a jury. The jury found that the defendant had so diverted the water of the creek as to perceptibly reduce the volume of water flowing therein, and to materially reduce or diminish the grinding power of the plaintiff’s mill. It was held, in consequence thereof, that he had sustained damages to a substantial amount, and that an injunction should issue, restraining the defendant from diverting the water “to the injury of the plaintiff.” Danfohth, J., in writing the opinion of the court, quotes approvingly from the cases of Elliott v. The Fitchburg Railroad Company and the Earl of Sandwich v. The Great Northern Railroad Company (supra).

It thus appears to me that the rule is that as to upper and lower riparian owners, each has a right to the ordinary use of water flowing past his land, for domestic purposes, without regard to the ■effect that it may have upon the lower owner. That it may also be used for other purposes, if not to the injury or damage of the lower riparian owner. That in order to entitle the lower riparian owner to maintain ah action for an injunction, he must show either that he has been damaged by the improper diversion of the water or ¡that there is reason to apprehend that he may be injured by such ■diversion. The city of Buffalo pumps water for its use and that of its inhabitants from the Niagara river. There are mill owners below at Black Rock, Tonawanda and Niagara Falls. A vast body of water constantly passes through the river, forming a swift current, furnishing an ample supply for all of the lower mill owners, so that no possible damage can ever result to them in consequence ■of the water pumped out of the river by the city. To give mill ■owners the right to maintain an action for an injunction, under such circumstances, would be. unreasonable and unjust. The illustration serves to make clear the wisdom of the rule which I contend is established by the cases cited.

As to the case under consideration, it appears that the city of Rochester, by act of the legislature, was authorized to acquire, by purchase or by appraisal under the right of eminent domain, title to .any lands it may require for the purpose of procuring water from Hemlock lake. It appears from the twentieth finding of fact that the defendant has secured the control of the outlet of Oanadice and Hemlock lakes to the place of their junction, and has erected permanent structures, etc. It thus appears that the defendant has the possession and control of these outlets, and is, therefore, a riparian owner. It thus has a right to use the water "passing through these outlets, but not, however, to the damage of the plaintiffs, who are lower riparian owners.

Again, it is argued that if the use by the defendant of the water of Hemlock lake is permitted to continue, such use may grow into a right by prescription. This right can be obtained only by continuing the use in the same manner for a period of twenty years. If, at any time, the use by the defendant of the water is increased so as to cause damage to the plaintiffs, the twenty years would only commence to run from the time of such increased use, and the plaintiffs would then have the right to maintain their action. (Kensit v. The Great Eastern Railway Company, 27 Chy. Div. Cases, 122-129.)

Judgment should be reversed and a new trial ordered, with costs to abide the event.

Smith, P. J., Barker and Bradley, JJ., for affirmance on opinion of Rumsey, J., at Special Term.

Judgment affirmed, with costs, on the opinion of Rumsey, J., at Special Term.


author: Rumsey, J.:

text:
       CELIA A. BRESLIN, Appellant, v. CHARLES F. PECK and WILLIAM H. GREENHOW, Respondents.

      Judgment against two or more tort feasors —• a payment by one satisfies the judgment against the others.

    In an action of libel brought against Peck & Greenhow, the publishers of a newspaper, the plaintiff recovered a verdict against Peck for $1,100, and one against Greenhow for $400. Upon an execution issued upon the judgment, entered upon the verdict, directing him to levy of Peck $1,678.39 and of Greenhow $578.39, the sheriff levied upon the property of the firm. The defendant Greenhow having paid to the sheriff the amount of the judgment recovered against him with the interest thereon, Peck moved to have the judgment against him satisfied of record:

      Meld, that the motion should be granted, upon condition that Peck should pay to the sheriff the amount of any fees and poundage upon the execution to which he might be entitled.
    Motion by the defendant Peck to compel the plaintiff to satisfy a judgment recovered against him in this action. The action was for the publication of a libel by the defendants Peck & Greenhow, in a newspaper of which the defendants were the publishers and proprietors. The General Term affirmed the order made below* upon an opinion there delivered by Judge Rumsey, of which the following is a copy.

      Forsyth da Baker, for the appellant.

      Be MerviUe Page, for the respondents.

       Decided October, 1885.

   Rumsey, J.:

The action was against Peck & Greenhow for a libel. The verdict was for the plaintiff for $1,100 against Peck and for $400 against Greenhow. Judgment was entered upon the verdict. Execution was issued directing the sheriff to levy of Peck $1,678.39 and of Greenhow $578.39. The sheriff levied upon the property of the firm. Greenhow paid to the sheriff the amount of the judgment against him and interest.

Peck now moves that the judgment against him be satisfied of record.

He insists that the plaintiff, having satisfied the judgment against one of the joint tart feasors, has received all that she is entitled to and that such satisfaction, by operation of law, discharges the other defendant. There is no doubt that the plaintiff can have but one satisfaction for the tort against her. She may sue the joint tort feasors jointly or separately. In the latter case no matter how many judgments she might recover, she could have but one satisfaction, and one judgment being paid, she cannot collect the damages awarded by another one. (Livingston v. Bishop, 1 Johns., 290; Thomas v. Rumsey, 6 Johns., 26.) The reason is that, however numerous may be the doers of the tortious act, the tort itself, as-well as the damage caused by it, is but one single thing for which one single payment, by whomsoever of the trespassers made, is a perfect satisfaction. For the same reason it is that, if in an action against several joint trespassers, the plaintiff release one, all are discharged. (Baker v. Frick, 45 Md., 337; 24 Am. R., 506.) And this is so, although the party giving the release stipulates that it should not discharge the other. (Ellis v. Bitzer, 2 Ohio, 89; Mitchell v. Allen, 25 Hun., 545.) In the case at bar the action was against the two trespassers jointly, but the verdict and judgment were several. The payment by Greenhow of the judgment against him released him and satisfied that judgment. I am unable to resist the conclusion that within the cases cited above, the release of Greenhow by the satisfaction of the judgment against him operated to release Peck. The case of Luce v. Alexander (4 Browne Civil Pro. R., 428) is not in point. The liability in that case arose upon contract.

The motion to satisfy the judgment as against Peck must be granted. But the plaintiff was regular in issuing execution and in causing a levy to be made upon that judgment. If the action against Peck had been a separate one she would be entitled to her costs of the action, although she had collected her damages of the other trespasser. (Livingston v. Bishop, 1 Johns., 290.) He must, therefore, pay whatever charges the plaintiff may rightfully have made against him in her effort to collect the judgment. It appears that the sheriff made a levy upon both judgments. It may be doubtful whether the levy itself is sufficient to entitle the sheriff to fees and poundage upon the judgment against Peck when it has been discharged by an order. (Flack v. The People, 95 N. Y., 461.) But if he is so entitled, Peck and not the plaintiff should pay him. The order will be therefore upon condition that Peck pay to the sheriff of Steuben county his fees and poundage upon the execution, if he is entitled to any.

Neither party should have costs of this motion.

Present — Smith, P. J., Barker and Haight, JJ.; Bradley, J., not sitting.

Order affirmed, on opinion of Rumsey, J., at Special Term.