text:
    Margaret M. Wendt, Resp’t, v. Patrick Craig, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Slander—Damages.
    A verdict for $2,500 in an action for slander imputing unchastity to a female, and that she kept a disorderly house, is not excessive.
    ■S. Same—Evidence—Credibility op witness.
    A witness had made a charge of assault against defendant, but had withdrawn the charge on the ground that it had been made through fear. The withdrawal having been produced to impeach her testimony, she testified that the withdrawal was made through fear. Reid, that the court properly called the jury’s attention to the fact that the withdrawal contained no denial of the charge made, especially as defendant’s counsel had stated that the facts stated in the complaint were entirely contradicted by the withdrawal.
    3. Same—Comments op counsel.
    Where there was proof that defendant turned his mother-in-law out of his house, which he denied, but left it an open question whether she had left his house on the night in question, and it appears that she was at plaintiff’s house after midnight on that night, it is not reversible error that plaintiff's counsel in summing up stated that he had turned his mother-in-law out of doors.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      Van Wych Hewlett (A. H. Weller and Daniel Brown, of counsel), for app’lt; J. M. & T. B. Seaman, for resp’t.
   Barnard, P. J.

This action is brought to recover damages for a verbal slander. The words alleged to have been uttered by the ■defendant impute unchastity to the plaintiff, and also include a charge of keeping a disorderly house. The jury rendered a verdict for $2,500. The verdict is not so excessive as to call for a reversal on that account, if the cause of action be proven. The plaintiff is a woman conducting two separate businesses. One was .a hotel at Far Rockaway, called The Star of the Sea,” and the other was a restaurant at Far Rockaway beach. Between eleven .and twelve o’clock at night defendant forced open the door of a room in the restaurant where the plaintiff, her daughter and hired .girl were sleeping. He charged the plaintiff with being morally bad and with keeping a bad place there and at the hotel.

There is no justification of the charge and no attempt to prove the same in mitigation of damages. Assuming a deliberate, wanton, false charge against the plaintiff which affected her personally :and her business as well, an appellate court cannot characterize the verdict as excessive.

It appeared on the trial that the hired girl, Lizzie Flynn, had made a charge of a personal assault upon her on the night in question, before a justice of the peace. She subsequently withdrew the charge and testified in the written withdrawal that she had made the charge through fear. On the trial she testified that she made the withdrawal of the charge through fear. The court called the attention of the jury to "the fact that the withdrawal was-put in evidence before them to impeach the testimony of Miss-Flynn. That there was no denial of the assault contained in it, but only that she had made the complaint through fear and wished to withdraw it. There is no fact sworn to on the trial or in the complaint before the justice which is withdrawn by the withdrawal paper.

The court was justified in calling the attention of the jury to this fact, especially as the defendant’s counsel stated to the court and jury that the facts stated in the complaint were entirely and absolutely contradicted by the withdrawal. The fact was not so.

There was proof on the trial tending to show that defendant had turned his mother-in-law out of his house, and upon cross-examination of the defendant he was questioned as to the fact. The examination was not objected to, and the defendant denied the fact, but so as to leave the fact whether or not she had left his, defendant’s, house, on the night in question," an open one.

It was subsequently proven that on the night in question the defendant’s mother-in-law was at plaintiff’s house after midnight. Under this state of the evidence it is not proper to reverse this-judgment because, in the summing up, plaintiff’s counsel stated that defendant turned his mother-in-law out of doors. Defendant’s credibility as a witness was on issue before the jury.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Effa Brown, Pl’ff, v. Elizabeth King et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Referee—Failure to pay over moneys—Proceeding against his executor.
    "Where a referee in partition has failed to pay over moneys to the county treasurer as directed, but has deposited and used them in his business so that their identity has been lost, and then died, Held, that the proper practice is to proceed by action against his executor, and not by motion to summarily order him to pay over ; but an objection to the regularity of the proceeding cannot be first taken on appeal.
    3. Same—Judgment.
    The judgment in such case should not direct payment of the sum in question, but only its recovery, leaving the executor to pay it in the ordinary course of administration.
    S. Same—Costs.
    In the absence of any charge of wrong on the part of the executor he should not be charged with the costs of the proceeding.
    Appeal by William H. Clark, as executor of John Gr. Wilkin, from order directing him to pay to the county treasurer a certain sum of money, with costs.

      William Vanamee, for ex’r, app’lt; Daniel Finn, for resp’t.
   Pratt, J.

This is an application by parties interested in the proceeds of land sold under judgment in partition in this action to compel the executor of the referee appointed by the judgment to pay over $1,230.15 to the county treasurer as required by the judgment, besides interest. The receipt of this sum by the referee prior to July 1, 1876, has been proven. The final order or judgment requires the payment of $2,665.66 to the county treasurer, besides $245.40 to the petitioners for their costs and disbursements.

Independently of the question of practice the liability of the «estate of the referee in the hands of his executor seems plainly established by the facts found by the referee and recited in the order. But the question of practice will, I think, be found to depend on the nature of this liability. If the executor had found the specific fund on the death of his testator, or any other fund of which it formed part, so that it could be ear-marked, then it did not pass to him as a part of the decedent’s estate at all In that view it formed a part of a fund in this court which ought to have been in the county treasurer’s hands. The executor became its possessor by mere accident and a trust arose ex aequo et bona, for the benefit of lawful owners of the money. I am inclined to think that, on this hypothesis, and to this extent at least, it would have been proper practice to have required the executor by summary application in this action to have turned over the money to the county treasurer.

But this is not the case made by the petitioners. It may be that the findings of the referee will bear that construction, but I do not think that view is sustained by the evidence. The petitioners were not content with proving simply the receipt of the money and the failure to pay it over as required by the judgment. If they had stopped there perhaps they might have justified their practice on the theory that the presumption was that the money remained in the referee’s hands at his death as a separate fund or in some fund which came to the executor’s custody. They proved by the referee’s son that his father said that he had deposited this money in a savings bank; and the same line of proof showed that the deposit was made with the approval of the petitioners’ counsel. This proof was not controverted. They then proved farther that the referee had declared to his son'that he had withdrawn this money, to the extent, at least, of $1,000, and in-vested it as a private business venture. Thus it was an easy matter for petitioners to have proven that the deposit was not made .at all, if that was the fact, and how much, if any, of the fund remained on deposit, if it was true that the deposit was made., At all events it was the duty of the petitioners to -have shown by some proof that the executor received this fund so that it could be ear-marked, and a finding that the money had gone into his •estate was not enough.

They, by their own proof, created the presumption that the referee has misapplied the fund in his own business, and they then failed to ear-mark any particular fund. The proof, therefore, as it seems to me, brought the case within the rule stated in Hooley v. Gieve, 9 Abb. N. C., 8, that the death of the referee threw the liability into his estate and remitted the owners thereof to the position simply of creditors; so that it was the duty of the executor to-administer it. He was not a simple custodian of money which he did not own, and hence a simple motion to reach this supposed fund was not a proper remedy.

I have thus far spoken only of the original fund of $1,230.15, Undoubtedly, if the petitioners had proceeded against the referee-in his lifetime they could have obtained an order, on a mere motion in the original partition action, to compel the payment of this money to the county treasurer and the interest as well by some form of summary proceeding, charging him with annual rests in the computation. The liability for interest comes in place-of damage for the failure to perform the duties of the referee's-trust, but it by no means follows that the same remedy ■would apply for this interest by way of damages against, the executor of the referee thus in default, especially when it appears that he used the principal fund in his business and its-identity was thus lost.

The question then arises, can this order or judgment be sustained as made in a proper proceeding against the executor ? His-testator died January 9, 1889. He received letters testamentary March, 1889. This proceeding was commenced December 18r 1890, twenty-one months after the qualification of the executor. It did not appear that any claim had ever been exhibited to the executor against the estate of his decedent, and, hence, the case cannot be technically classed as a proceeding on the reference of a, disputed claim under the statute.

But, for all that, it was competent for the owners of this fund to commence an action against the executor. So, too, it matters not. .how the litigants got into court to litigate this matter so long as-they got there in some proper proceeding. The court had jurisdiction of the subject matter, and these parties appear to have subjected themselves to its jurisdiction.' The question of jurisdiction or regularity seems to have been raised or suggested forth e first time on this appeal. I am, therefore, inclined to think that it is too late to raise any question of jurisdiction or regularity.

Coming, then, to the merits, we find proof that the estate of the-referee is solvent and able to pay this claim in full.

The executor seems to have raised no point before the referee-about notice of the claim. The amount directed to be paid is $2,665.66, which is $1,435.51 by way of interest. This sum is clearly within the amount for which the referee would have been liable if he had lived, charging him only with simple interest, but .making annual rests in the computation. That rule doubtless applies to his executors. Hence, the sum awarded is not beyond,, but is within the liability of the decedent’s estate.

But the order or judgment directs payment of this sum and not, simply its recovery, leaving the executor to pay the claim in the ordinary course of administration. I cannot see why this should have been done. Again, the order or judgment requires payment-of costs and disbursements. There was no charge of wrong by the executor, and I cannot see how any case was made for the recovery of costs in any view.

It would, therefore, seem that this final decretal order, whether we call it a final order in a special proceeding or a judgment, must be modified in both these respects; i. e., it must be reduced to a mere recovery, and there should be no costs except after regular .application under the appropriate sections of the Code.

We come then to the final question : Gan this proceeding and order be justified on any technical ground ? I do not think it can be sustained as a mere order or a mere motion in the old partition action. The executor was not a party, and the whole subject-matter of the inquiry was not appropriate to a simple motion. There are difficulties also in the way of treating the application as an action. It is not in any form appropriate to an action. The petitioners are not the owners of the money or claim. The title to it would seem to be in the county treasurer as a trustee for the unknown owners for whose benefit it was to be paid to him. The -defendants doubtless have an interest in it in default of such unknown owners. But the rule is that before they can maintain an .action for its recovery in their own names, they must show that there has been something equivalent to a demand upon, and refusal by, their trustee to sue to enforce their rights.

But the fact still appears that these parties have voluntarily -come into this court, taken these proceedings up to the making of this final order, without objection. They have made this record for themselves, and with the modifications above suggested substantial justice will be accomplished. If there is any irregularity -or informality it is their own fault, and I do not see why the ■court should do more than simply to make such determination as would have been appropriate in an action or proceeding formally •commenced.

Order, modified as above stated, affirmed, without costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    George W. Hoagland, App’lt, v. Martin D. Graham, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    -Streets—Obstruction—Dedication.
    The owner of land had the same mapped and designated thereon a street, and sold two lots to defendant’s grantor, describing them as running to and along said street. Subsequently the city laid out a street in the street so designated, but which crossed its lines and took a part of defendant’s lot. The then owner of the remaining frontage received the damages, and with defendant removed the fences. Held, that the original street was thereby revoked, and that a subsequent grantee of lots bounded on the new street could not maintain an action to compel the removal of a barn built by defendant on the rear of his lot which projected beyond the line of the original street but not beyond the new street line.
    Appeal from judgment in favor of defendant.
    Action to compel the removal by defendant of an alleged obstruction from the street, which consisted of a barn and fence. -Defendant denied that the barn or fence was in the street.

      C. M CuddebacJc, for app’lt; Lewis M Carr, for resp’t.
   Barnard, P. J.

In 1853 one Gardner Forgerson made and .filed a map of some sixteen acres of his land in Tort Jervis. This map set apart streets and numbered lots upon them. One of these streets was designated Seward avenue. One lot was sold on this avenue by Forgerson in 1854 to, one Hoagland, who is defendant’s grantor, by deed made in 1869.

The street (Seward avenue) never became a public street of the village of Port Jervis. The village authorities m 1871 laid out a public street nearly parallel to Seward avenue, but so far from being actually parallel that the public street went diagonally across Seward avenue and took part of the defendant’s lot. The entire front of the Seward avenue upon the map was then owned by a Mrs. Fish, who is the grantor of the plaintiff. When the public street was laid out, defendant and Mrs. Fish removed the old fence along Seward avenue and built one along the new street. Mrs. Fish recovered damages for the taking of her land for the public highway. The defendant also built a barn, which is upon the old Seward avenue of the map but is not upon the public street. This was the condition of things when the plaintiff took his deed in 1883. His lot is bounded along the side, of said Prospect avenue,” which was the name then . given to the public street. The plaintiff has no right of action in respect to-the bam. He is bounded on the new street, which had then been fenced for many years. The deed from Forgerson to Hoagland conveyed to and along Seward avenue, and thus the defendant obtained half of Seward avenue. Matter of Ladue, 118 N.Y., 213 28 St. Rep., 821.

The original Seward avenue was revoked by the act of the only owner of the land when the new public avenue was laid out. Bridges v. Wychoff, 67 N. Y., 130.

The plaintiff-has access to the new street, and such access was-all that was designed by the map making Seward avenue the-means of access in front of plaintiff’s land.

An entirely insufficient case is made for a court of equity to-open Seward avenue in addition to the new street, which will thereby become an open space (not a public street) alongside of.' the new street, which is public.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Frank F. Wood, Pl’ff, v. Michael O’Brien and William F. Croft, Ex’r, Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)
    1. Mortgage—Consideration.
    The husband of the equitable owner of land and who was a speculator in stocks, applied to the attorney of his brokers for a loan. The attorney took a mortgage in the name of plaintiff, his stenographer, and gave an order on the brokers, with whom he had no account, and the brokers simply gave the husband credit on their books, no money passing. Held, that no consideration for the mortgage was shown.
    2. Foreclosure—Parties.
    The mortgage was given by defendant O’Brien, who held the record title, but liad executed a declaration of trust in favor of Mrs. C., which declaration had not been recorded. In an action to foreclose the mortgage, llekl, that the executor of Mrs. C. was properly made a party.
    Appeal by defendant O’Brien from judgment of foreclosure and sale; also by defendant Croft as executor from said judgment ; also by the executor from order denying motion to vacate said judgment as to his testatrix; also by plaintiff from order-adding said executor 'as a party defendant.

      Edward W. 8. Johnston, for def’ts; J. Henry Work and Á. L. Pincoffs, for pl’ff.
   Barnard, P. J.

On the 15th of January, 1889, one Schneider conveyed certain lands to Michael O’Brien, one of the defendants. The deed was put upon record the same day it was delivered.. Simultaneously with the delivery of the deed to O’Brien he executed a paper evidencing the fact that the title was held for Mrs. Frances Croft. This declaration of trust was not recorded. On the 23rd of March, 1889, O’Brien gave the bond and mortgage-described in the complaint to the plaintiff for an expressed consideration of $7,000. The history of the alleged consideration is. as follows. William F. Croft was the husband of Frances A. Croft. He was buying and selling stocks in her name through Ward, O’Keefe & Company, brokers. James H. Work was an attorney at law, and the brother of Work, one of the partners, a legal adviser of the firm itself. Wm. F. Croft applied to James H. Work for the loan. He was accompanied by O’Keefe. Croft stated that the title was in the name of O’Brien. James H. Work gave Croft an order on the firm of brokers, for $7,000, and took the mortgage in the name of the plaintiff, who was his stenographer. Ueither the plaintiff or the attorney, his employer, had any bank account with the firm, nor does it appear that the attorney had any credit which authorized him to draw upon-the firm.

The evidence does not show any payment of the $7,000. The testimony of the attorney from the books that $7,000 was credited to Croft’s account was improperly received, and without further proof was inconclusive and. unsatisfactory. It established at best but an imaginary consideration, having no basis but a formal entry resting on no debt, and never having been made good by an actual payment. There is no proof that Wm. F. Croft ever received anything from the firm on the order. He testifies that he did not. The judgment should therefore be reversed, and a new trial granted, upon the facts as well as the exceptions. The appeal from the order denying motion to vacate judgment becomes unimportant, but to finally make the record right it should be reversed, without costs. The order making Mrs. Croft’s executor a party should stand. She owns the land, and the mortgage is an apparent lien on her land. Her declaration of trust is not on record, but the plaintiff has no right to prevent her from making such defense as she has now that her trust title is known.

The judgment should be reversed, and a new trial granted, costs to abide event; and the order making Croft, executor, a party should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


text:
    Peter Schmerenbeck, Resp’t, v. Hugo Funke, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Contract—Statute of frauds.
    Plaintiff _ was employed by defendant to work as a ribbon weaver. Being afraid of being discharged at the close of a strike which was then in progress, he inquired if defendant would keep him at least a year, to which defendant assented. The work commenced on that day. Held, that the contract was for a year, and was not void under the statute of frauds.
    S. Master and servant—Wrongful discharge—Damages.
    In an action for wrongful discharge, it appeared that plaintiff was paid by the piece; he had worked for five days, and amount of his earnings shown, and proof was given as to the amount a weaver could earn, and no lack of work was shown. Held, that a basis for damages was proven.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    Action for breach of contract of employment as a silk weaver.

      Lamed & Warren {J. J. Gleason and W. P. Knapp, of counsel), for app’lt; John J. Trapp, for resp’t.
   Barnard, P. J.

The plaintiff seeks to recover damages for a breach of an entire contract, by which the plaintiff was engaged to work for a year' from the 5th of June, 1888, as a silk ribbon weaver. The compensation for the plaintiff’s labor was to be paid for by the piece.

The plaintiff left the employment after working for five days. The contract itself and the discharge of the plaintiff by the' defendant are put in issue by the pleadings and proof. The contract for a year is proven by the then superintendent, Adolph Oberstelehn, and by the plaintiff. Any entire contract is denied by the defendant. ■ The discharge is proven by the plaintiff after four and one-half days’ work by Mr. Grerberg, defendant’s second superintendent. Grerberg denies the discharge. Upon this evidence the verdict of the jury in favor of the plaintiff’s claim must be accepted by an appellate court. The jury was the tribunal to settle the dispute as to the fact. The • receipt, if proven, is not decisive of anything but the payment of . the four and one-half days’ work, ana that the plaintiff admits. The contract was for a year only. The declaration that it might continue longer was no part of it. “ I says, then you would keep me at least a year ; so he said, yes.” The work commenced on the day the contract was made, so that it was not a contract for a year to commence in the future. The basis for damages was proven. The plaintiff earned $22.70 for the four days and a half during which he worked for the defendant. Proof was given tending to show that a weaver of silk similar to the plaintiff could earn upwards of twenty dollars a week and as high as five dollars per day. The jury found an amount of damages not much less than the lowest of their, rates of compensation. The evidence did not show any lack of work to do.

The question put to the witness calling for an estimate of the yearly value of the plaintiff’s work at the rate he was being paid by plaintiff, was proper. The rate for weaving was known and the plaintiff’s rate was known. The estimate was less than he did earn, as shown by the admitted testimony of both parties.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Charles Sperry, Resp’t, v. Samuel L. Fox et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)
    Attachment—Patents.
    In an action for royalty on a patent, the affidavit claimed $1,250 to be due. The contract provided that a royalty of twenty per cent was to be paid, and at least $1,000 per annum; that quarterly accounts were to be rendered and the amount due to be paid within a month thereafter. The complaint did not allege the rendering of any account for the last quarter. Held, that the right of plaintiff to royalty did not depend on any account, but could be sustained by proof of sales, and that he was entitled to claim the minimum amount until defendants show that such amount was not earned during any quarter.
    Appeal from order denying motion to vacate attachment.

      Arthur R. Robertson, for app’lts; Albert G. McDonald, for resp’t.
   Barnard, P. J.

The defendants are non-residents. An attachment was granted against their property. The cause of action is upon a breach of a contract, and the sum demanded in the complaint is $1,250. By § 636 of the Code it is necessary to show by affidavit that the plaintiff is entitled to recover that sum over and above all counterclaims known to him. The sole question presented by this appeal is whether the plaintiff sought to recover $1,250, as shown by the affidavit on which the attachment was granted. The complaint is verified and forms part of the papers on which the attachment was granted. Annexed to it is the contract on which the action is based. By this contract the defendants were authorized to manufacture a drawing board and ruler under a patent granted to the plaintiff as the inventor thereof. A royalty of twenty per cent was to be paid the plaintiff upon articles manufactured and sold by the defendants. A minimum sum of $1,000 a year was to be paid the plaintiff each and every year beginning 5th of February, 1890, to the end of the term, which was the term of the letters patent, and any extension thereof. The letters patent as issued run to 1906.

The contract provided that on the 5th of February, May, August and ¡November in each year the defendants would furnish an account for the royalty due for the preceding quarter and pay it within the month. The complaint and the affidavit of plaintiff states the $1,000 minimum royalty was due and payable and unpaid on the 5th of March, 1891. ¡No question can be raised as to the $1,000 portion of the $1,250 demanded. The complaint does not aver a delivery of an account in the month preceding the 5th of May, 1891, showing the royalties due. The averment simply is that under the terms of the contract which plaintiff had fully performed, there was due on the 5th of June, 1891, the sum of $250. The right of the plaintiff to the royalty does not depend upon the account rendered but may be recovered by proof of articles sold. The complaint and affidavit do not state facts from which $250, is due for royalties between February and May, 1891, and it is doubtful whether the $250 minimum royalty can be sued for every quarter. The yearly sum must amount to the $1,000. The minimum amount may be claimed by plaintiff until proof is adduced by defendants that such minimum was not earned during any quarter.

The order should therefore be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


text:
    John Scott et al., Ex’rs, App’lts, v. Daniel S. Havens, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Bills and notes—Defense.
    In an action on promissory notes made by defendant or endorsed by him for his son, the defense was that defendant had placed the moneys in the hands of plaintiff's testator to be loaned to defendant’s son. The only evidence of such transaction was a receipt for that amount of money dated some six months before the loan, and it appeared that a mortgage held by testator against defendant for a similar amount was satisfied about the date of the receipt. Meld, that the defense was not proven.
    Appeal from judgment in favor of defendant, entered upon verdict.
    Action upon three promissory notes.

      Ilarri M. Howell {Timothy M. Griffing, of counsel), for app’lts; Wilmot M. Smith {Thomas Young, of counsel), for resp’t.
   Barnard, P. J.

The defendant gave to Lewis Scott two ifotes, one dated 10th of June, 1887, for $200 payable on demand, with six per cent interest. The other note was given August 6,1887, for $500, also bearing six per cent interest. The defendant’s son, Edward S. Havens, gave a note to Scott for $1,100 on the 27th of May, 1887, bearing the same rate of interest, and this note was endorsed by the defendant. Scott died in August, 1888, and his executors bring this action to collect, the three notes with interest. The answer of the defendant sets up as a defense that on the 27th of May, 1887, he deposited with Scott $1,658.08 ; that this sum was to be loaned apparently by Scott, but really by defendant to defendant’s son. That the $1,100 note was given by Edward S. Havens and endorsed by the defendant for $1,100 of this money, and that the loan was one of defendant’s and represented his money. That the. •defendant subsequently got from Scott the $500 and the $200, .and gave his notes, and that after Scott’s death he paid his executors the amount which Scott advanced to him over-.and above the amount of the deposit, $1,658.08. The evidence fails to show that the $1,658.08 was deposited with Scott for the purpose of loaning to defendant’s son. The evidence does show that on the 3d of November, 1886, Scott gave a receipt to defendant for $1,658.08. The receipt explains nothing as to the purpose of the payment. The deceased held a mortgage against defendant for $1,600. This mortgage was cancelled on the 5th of November, 1886. The amount then due upon the mortgage was probably the amount stated in the receipt. The satisfaction piece of this mortgage is dated and acknowledged the 30th of September, 1886, and the defendant produces a receipt from Scott, September 22d, 1886, for $1,645. The defendant’s wife gives evidence tending to show that the $1,645 receipt was given for the satisfaction piece. The receipts substantially fit the mortgage at the several dates of the receipts. There is no visible connection between either of them and the notes in suit. They were given some months afterwards. There was no defense proven to the notes. A receipt given in November, 1886, and another one in September, 1886, have no relevancy as to these notes given months afterwards. The payment of the $155 and its receipt was no defense further than it operated as a payment to the extent of the $155.

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

Dyioian and Pratt, JJ., concur.


author: Dykmast, J.

text:
    Harriet S. Rumsey et al., Resp’ts, v. The New York & New England Railroad Co., App’lt.

      Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Appeal—Charge oe court.
    Where the case contains neither the charge nor any exceptions thereto, it will be assumed on appeal that the proper directions were given to the jury, and that the appellant acquiesced in the charge.
    S. Trial—Harmless error.
    The admission of evidence as to an interview which resulted in nothing is harmless, and an exception thereto presents no error.
    3. Trespass—Proof of damage.
    In action for damages to plaintiff’s premises by the construction of defendant’s railroad between it and the river, proof of the rental value of the premises for a brick yard is admissible, although the premises were not so used when the road was built, and have not been since that time.
    4. Same—Bar.
    A judgment in an action for such damages is not a bar to an action for damages subsequently sustained.
    5. Same—Condemnation proceedings.
    Proceedings to condemn land have no force as a bar to an action for damages by the land owner until they are carried to completion and the damages assessed.
    6. Same—Constitutional law.
    The ri,ght of the land owner to recover in such a case is not affected by the provision of the federal constitution giving congress power to regulate commerce, nor by the provisions of §§ 3964, 5264, U. S. R. S. Congress has no control of the land under the waters of the Hudson river and cannot appropriate them to any use.
    Appeal from judgment in favor of plaintiffs, entered upon. verdict, and from order denying motion to set aside said verdict.

      Walter G. Anthony, for app’lt; H. II. Hustis, for resp’ts.
   Dykmast, J.

This is an action for the recovery of damages resulting from the construction of the railroad of the defendant in the Hudson river at FishMll Landing in front of the upland, of the plaintiffs and thus intercepting their access to the river and depriving them of the beneficial enjoyment of their property.

The-action was commenced on the 25th day of March, 1891, to-recover the damages sustained between the 1st day of January, 1888, and the 1st day of January, 1891.

The cause was tried at the circuit on the 7th day of October, 1891, and a verdict was rendered in favor of the plaintiffs for $12,000, and from the judgment entered upon that verdict, and from an order subsequently made at special term denying a motion to set aside the verdict, the defendant has appealed.

There was a former action by the same plaintiffs against the-same defendant for the recovery of damages resulting from the same obstruction between January, 1881, and January, 1888. That action was tried before a judge without a jury, and judgment, was rendered in favor of the plaintiffs for $10,500 besides the costs.

That action has been to the court of appeals, where the right of the plaintiffs to recover damages against the defendant for the obstruction has been established. 34 St. Rep., 454.

In the month of March, 1888, proceedings were instituted by the defendant for the condemnation of the lands occupied by the company in front of the uplands of these plaintiffs. There was one hearing before the judge, and nothing further has been dona

The evidence of those facts, however, was stricken out by the court upon the trial of this action as immatérial, and the defendant’s counsel excepted.

In this action that former suit and proceeding were set up by the defendant as a bar.

The defendant has printed such testimony and proceedings upon the trial as it deemed necessary to present three questions, which alone are urged upon this appeal.

First. Respecting the measure of damages.

Second. Respecting the effect of the former action and proceeding.

Third. Certain constitutional questions.

The first question so attempted to be raised cannot be determined because it is not presented by this appeal.

The case does not comprehend all the evidence, and it does not purport to contain all the testimony on the subject of damages.

When the plaintiffs rested their case upon the trial, the counsel for the defendant moved for a nonsuit on the ground that the-plaintiffs had not shown any damages or given any proper measure of damages for the jury to act upon. That motion was denied, and the defendant excepted.

The motion to nonsuit was properly refused because the plaintiffs had then introduced some proof of damages, and it was for the court to give the jury their measure.

At the close- of the case, and before it was submitted to tho jury, the defendant’s counsel moved to dismiss the complaint upon the ground that the plaintiffs had prosecuted an action against the defendant in which the damages sued for in this action could and should have been recovered, and consequently such former action is a bar to this.

That motion was denied, and the defendant’s counsel excepted.

The jury rendered a verdict for the plaintiffs for $12,000.

The defendant’s counsel moved for a new trial upon the minutes on the exceptions taken by him, and because the verdict was for excessive damages.

The motion was denied, and the defendant’s counsel excepted.

There is no order denying the motion for a new trial, and no appeal from such order.

The case does not contain the charge of the trial judge to the jury, or any exception to such charge, neither does it embrace any order denying the motion at special term to set aside the verdict.

And so it is that it nowhere appears in the case what measure of damages was adopted by the court or jury, or that there was any objection or exception to any rule of damages prescribed.

On the contrary, as it was the duty of the trial judge to give proper instructions to the jury upon all legal questions and as the ■charge is not given or any exceptions thereto, we must now assume that the proper directions were given to the jury upon the question of damages, and all other questions of law, and that the defendant acquiesced in the charge.

Ho other legitimate inference can be drawn from the silence of the defendant, and its failure to manifest any objection or exception to the directions of the judge to the jury.

The exception, to the denial of the motion for a new trial upon the minutes presents no'question for review upon this appeal from the judgment, and in the absence of an appeal from an order denying such motion we can review only the questions of law raised by the exceptions taken upon the trial. Matthews v. Meyberg, 63 N. Y., 656; Dresser v. Ins. Co., 47 Hun, 153.

We have already seen that the refusal to non-suit was not erroneous.

The attorney for the plaintiffs testified to an effort he made with one Pratt to make some arrangement by which the plaintiffs could reach the water beyond the railroad so as to operate their brick yard. The objection to that testimony was overruled and the defendant excepted.

The interview resulted in nothing, and so the exception presents no error.

Three practical brick makers were called as witnesses for the plaintiffs and each one was asked substantially what would be the fair rental value of the plaintiffs’ property, and the question to two of them was confined to the rental value of the property from January, 1888, to January, 1891.

The counsel for the defendant objected to each of these questions as not tending to prove damages by any proper measure, as not calling for any proper measure of damages, and because it appeared affirmatively that when the defendant constructed its railway at the place complained of these premises were not used, have' never been used since, and are not now in a condition to be used for brick making purposes.

Each of these objections were overruled, the defendant excepted to such rulings and these seem to be the exceptions upon which the appellant relies to raise the question respecting the measure of ■ damages.

The contention is erroneous and untenable. It ascribes to testimony the force of law.

It was essential to the plaintiffs’ case to lay before the jury some proof of their loss and damage. They claimed that the wrongful act of the defendant had deprived them of the use of their property, and it became necessary for them to prove the-value of such use as an element of their damage. It was in line with their claim, and legitimate evidence for the consideration of the jury, and therefore admissible. But it was not given to prescribe the measure of damages. That was the province of the court and could not be done by the plaintiff." It was a question of law to be determined by the court, and as we have seen the , presumption is it was so fixed to the satisfaction of both parties, and received the acquiscence of both.

The evidence was received for the enlightenment, and not for the control of the jury.

The property has been rendered useless by the destruction of access to the river. The court of appeals had decided that the plaintiffs could maintain the 'action for damages, and what their damage was and of what it consisted became the subject of proof upon the trial.

What the law would permit them to recover as the measure of their damage was quite another question, to be determined by the court and not by the parties or the jury.

In every view therefore the evidence was legal and proper, but in no view did it establish the damages or their size.

In relation to the legal effect of the former action and judgment, it is settled in this state that the plaintiffs could not recover, upon the theory that the obstruction of which they complained would be permanent, but simply for the damages sustained down to the time of the commencement of the action. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98; Mahon v. N. Y. C. R. R. Co., 24 id., 658.

The underlying principle seems to be that the law .will indulge in no presumption of the continuance of a. wrong in the future, or that the unlawful act of to-day will be repeated on the morrow.

Another reason for limiting the recovery of damages to the time of commencing the suit -is that the plaintiff may in the-same action have judgment for the abatement of the nuisance.

The plaintiffs could not have recovered damages for the permanent diminution of the value of their property, and in all similar actions reported in this state the courts have only permitted recoveries for the damages sustained from time to time. Such was the doctrine laid down in respect to the damages sustained from the construction and operation the elevated railroad in the case of Tallman v. M. E. R. R. Co., 121 N. Y., 119; 30 St. Rep., 491.

In the celebrated case of Story v. The Railroad Company a resort to equity was permitted to obviate the necessity of prosecuting successive actions at law for the recovery of damages.

The proceeding instituted by the defendant for the condemnation of the'property of the plaintiffs under the right of eminent domain constituted no bar to this action, and the testimony introduced upon that subject was properly expunged from the record.

Such proceedings could have no operation as a bar until they were carried to completion and the damages assessed. Their mere commencement had no efficacy without further prosecution. The defendant cannot avail itself of its own inaction to the prejudice of the plaintiffs.

The constitutional question presented is stated by the appellant as follows : “ The United States government has the final and absolute control of these lands under the waters of a navigable stream open to the sea, and can appropriate them to any use for the promotion of interstate or foreign commerce. Congress has so appropriated them by making defendant’s interstate railway a post road. Section 3964 U. S. E. S., and by authorizing telegraph companies to use these lands. Section 5264, U. S. E. S.

“ The plaintiffs can acquire no rights in said lands which can conflict with the rights so given by congress. This action is based upon claims which do conflict with such rights.”

No authority is furnished in support of this contention, and it is plainly antagonistic to well recognized principles and doctrines.

Upon the declaration of Independence in 1776 the People of the state of - New York, as the successor of its former sovereign, were invested with all the prerogative rights of the king of England, and so became the owner of the soil under the waters of the Hudson river below high water mark as far up as the tide ebbs and flows. Gould v. Hudson River R. R. Co., 2 Selden, 522; People v. Tibbetts, 19 N. Y., 528; Lansing v. Smith, 8 Cow., 146; 4 Wend., 9.

The first constitution adopted by the state in April, 1777, vested the supreme legislative power within the state in the senate and assembly, which together form the legislature. Thus the people established a government and invested it with sovereign power and it became the state, representing the collected will of the people.

Hence it is sometimes said that the title to the soil under tidal waters is in the state, and at others that it is in the people, and both signify the same thing. But in strictness of speech the people are the ultimate owners.

Not only did the people thus become the owner of the soil under the water of the river, but they became vested with the absolute control over the river, and through the medium of the legislature might exercise all the power which could have been exerted by the king previous to the American Revolution. Lansing v. Smith, supra.

That power remained in the people until the 26th day of July, 1778, when they adopted and ratified the Constitution of the United States, which contained the following provision: “ Congress shall have power * * * to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Cons, of the U. S., art. 1, § 8, subd. 3.

The power to regulate commerce extended to the regulation of navigation. Gibbons v. Ogden, 9 Wheat., 189.

Thus the state yielded and granted to congress the-po,wer to ■regulate commerce and navigation upon the waters of the Hudson river, but it surrendered nothing more. It conferred no proprietary or property rights, and while the power granted is plenary as to the objects specified and implied, yet the grant contains neither expressly, nor by implication, any cession of territory or property. 1 Kent Com., 439; Corfield v. Coryell, 4 Wash. Cir. Rep., 371.

The power bestowed upon congress comprehends only the use of the water, and in no way diminishes the right of the state as the owner of the soil. It is a right to regulate, but grants no property interest and impairs no rights of the state, because the powers not delegated to the United States by the Constitution nor prohibited by it to -the states are reserved to the states respectively or to the people. Amendments to the Cons., art. 10.

So long as the state permits no impediment to the navigation of the river, the rights of congress are not infringed and the constitutional right to regulate commerce is not invaded.

It is thus made manifest that congress has no control of the lands under the waters of the Hudson river, and cannot appropriate them to any use, and that the constitutional objection of the defendant is not valid.

Section 3964 of the Revised Statutes.of the United States, to which the defendant refers, has no influence upon the question under discussion. It merely establishes as post roads all the waters of .the United States during the time the mail is carried thereon, all railroads or parts of railroads which are now or hereafter may be in operation, also the canals and plank roads, and some other roads under circumstances. Section 5264, to which reference is also made, has no application and requires no attention.

This extended examination seemed to be required by the case, and leads us to the conclusion that the judgment and-order should be affirmed, with costs.

After the foregoing opinion was prepared we received a copy of an order made at special term amending the case by the insertion therein of a copy of the order denying the motion for a new trial of the action upon the ground that the verdict was contrary to lay and the evidence.

1 his amendment of the case necessitates no new examination on our part. We examined the testimony and found it sufficient to justify the verdict, and we can do no more now.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Walter M. Wheeler et al., Resp’ts, v. Elizabeth A. Britton, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Sale—Failure to accept.
    Plaintiffs offered to sell 3,500 or 4,000 tons of ice to defendant if the houses held that much, which offer was accepted. One of the houses having burned and defendant holding them to the contract, plaintiffs fur nished other ice, part of which was accepted, but finally defendant refused to take any more. In an action for breach of the contract the evidence as to whether the ice tendered was good, merchantable ice was conflicting. Held, That the contract was complete under the letters, and did not specify any particularly located ice, and that a verdict for plaintiffs would not he disturbed.
    3. Same—Evidence.
    . Declarations of other ice consumers as to the quality of the ice are inadmissible as hearsay; the consumer should himself be produced.
    Appeal from judgment in favor of plaintiffs, entered on verdict, and from order denying motionuor new trial. Action for breach of contract for the sale of ice. The contract was made by letters, of which the following are copies:
    “Mrs. E. A. Britton: “New York, July 24, 1889.
    “ I will deliver you not less than three thousand and five hundred tons of ice, and four thousand if it holds out that much, alongside of dock at Staten Island, beginning August 15th, or when notified one week in advance of time wanted, at three dollars per ton, weighed out. I to furnish weigher; you to pay him his wages. Boats not to be detained over three days. Payment, cash on delivery. W. M. Wheeler & Sons.”
    “ West New. Brighton, S. I, July 24, 1889. ' “Mr. Y^alter M. Wheeler & Sons:
    “ Dear Sirs—Am in receipt of your letter of this date offering to deliver 3,500 to 4,000 tons of good ice, if the houses hold that amount, alongside of docks at Staten Island, beginning August 15th, or when notified one week in advance of the time wanted, at three dollars per ton, weighed out. You to furnish weigher; I to pay him his wages.
    “ Boat, not to be detained over three days. Cash on delivery. “I would hereby accept your offer and agree to the same.
    “Very respectfully yours,
    “E. A. Britton.”

      Walter R. Beach, for app’lt; Merritt & Ryan, for resp’ts.
   Barnard, P. J.

The plaintiffs aver in their complaint for a cause of action against the defendant that she agreed with the plaintiffs in July, 1889, to buy of them from 8,500 to 4,000 tons of ice at three dollars per ton on the dock at Staten Island. That the plaintiffs agreed to sell and deliver that amount at said price. That after about 1,500 tons were delivered the defendant refused further to carry out the contract. That the breach of contract on her part occasioned a loss to the plaintiffs of $3,000. The defendant by ¿her answer put in issue the contract as stated. That the ice was to be taken from an ice house which was consumed by fire before the first delivery. That the ice was to be good, pure ice from ten to thirteen inches thick. That when the ice house burned down the plaintiffs put an end to the contract. That a new contract was made for one boat load at $2.50 a ton, and subsequently to its delivery still another contract was made at $3.00 per ton similar in quality to that called for by the first contract. That the ice delivered under this contract was pure, and that the defendant finally refused to receive the ice which the plaintiffs offered to deliver. Upon the trial before the jury of this issue proof was given tending to show a contract as claimed by plaintiffs; that one ice house did burn down, but that defendant required the plaintiffs to buy other ice to carry out the contract. That the plaintiffs 'did buy other ice and that it was good ice. That two boat loads of this purchased ice was delivered at $2.50 a ton so that the defendant could see what it was in quality. That the ice was deemed good by defendant and the second boat load taken'" on, but that was paid for at the original rate of three dollars per ton and the plaintiffs agreed to fulfil the contract.

In October, 1889, the defendant refused to receive ice under the contract. A loss of over $2,000 was shown. The defendant gave evidence tending to show that the ice was not good. The witnesses were numerous and the evidence very conflicting on this issue as to the condition of the ice delivered and tendered. The issue sent to the jury was whether “good merchantable ice” was sent under the contract. The jury have found that the ice was such as the contract called for; was as good as that in the burned ice house. The letters which formed the contract did not specify any particularly located ice and under it the plaintiff was bound to deliver not less than 3,500 tons. The ice was in certain houses when the contract was made and part of the houses were burned. The defendant was right in claiming the minimum amount called for at all hazards. Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y., 487.

It is not-necessary to examine in detail the exceptions taken. A class of such exceptions rests upon the claim that the ice sold was in certain houses. Another class of exceptions rests upon rejection of oral proof of conversations before the contract was made, ffhe contract was complete under the letters. Doughty v. Manhattan Brass Co., 101 N. Y., 644; 1 St. Rep., 53.

; Another class of exceptions is based upon exclusion of declarations of ice consumers who obtained the ice in question. Such evidence was hearsay. The consume;1 should himself have been produced. Another class of exceptions refers to rulings which could do no harm and no judgment can properly be reversed for exceptions taken when the subject of them was not injurious to the case.

The judgment and order denying new trial should therefore be affirmed, with costs.

Dykmar" and Pratt, JJ., concur.


author: Dtkman, J.

text:
    Elizabeth D. De Lancey, Resp’t, v. Henry Piepgras, App’lt, and John Hunter, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Ejectment—Land patents—Forfeiture.
    A grant of lands from the crown reserved a yearly rent, but contained no provision for a forfeiture or for re-entry for non-payment. Held, that payment of rent was an implied condition subsequent on. which the land was held; that the crown had a right of forfeiture for non-payment which passed to the people of the state, and that the state had a right to enforce such forfeiture by sale under the acts of 1819 and 1828.
    2. Same—Sale.
    The comptroller will be presumed to have followed his instructions in making the sale under such acts, but an omission to do so is immaterial so far as a purchaser at such sale is concerned.
    3. Deed—Boundary.
    A grant of land bounded by navigable tide waters carries the title to high water mark only.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      James R. Steers, for app’lt; Walter D. Edmonds, for pl’ff, resp’t; John Hunter, Jr., for-resp’t Hunter.
   Dtkman, J.

This is an action of ejectment for the recovery of the possession of land under the waters of Long Island Sound outside of Mineford’s Island, now called City Island, in the county of Westchester.

The plaintiff and the defendant John Hunter are children of Elias D. Hunter, deceased, and they claim the premises through him, and they have succeeded to his rights, which were derived in this way:

The lands in question were included in a grant from the crown of Great Britain to Benjamin Palmer, his heirs and assigns, bearing date May 27, 1763, reserving a yearly rent of five shillings sterling to be paid to the collector at the custom house in the city of Hew York yearly on Lady Day.

Ho rent was ever paid, and after the people succeeded to the rights of the crown, the legislature of the state of Hew York passed a number of acts directing the grantees of lands chargeable with unpaid quit rents to come in and redeem the same, and declaring in case of failure to do so that such land should be sold as lands forfeited to the people of the state by reason of the nonpayment of such rents. Laws of 1775, ch. 41; 1786, ch. 23; 1801, ch. 187, and Laws of 1813.

Finally, in the year 1819, a law was passed by the legislature of the state of Hew York which directed all the lands so forfeited to be sold by the comptroller of the state, after advertising such sales in the manner prescribed by the act. Laws 1819, chap. 222.

The sale thus directed was postponed from time to time by acts of the legislature (Laws 1821, chap. 241; 1823, chap. 104; 1824, chap. 225; 1825, chap. 251) until March 26, 1826, when the land was sold by the comptroller at public auction to James Van Vechten.

Two years were allowed for redemption, and the original purchaser, Van Vechten, having transferred his interest to Elias D. Hunter, a deed was executed and delivered to him by the comptroller for the premises, dated April 5, 1836.

Hunter assumed possession by renting these premises to a tenant, who continued to occupy them until about the year 1865, and built a dock upon them to facilitate his occupation.

The defendant Piepgras claims title to the premises by three grants from the commissioners of the land office, bearing date December 3, 1863; October 21, 1875, and. January 15, 1891, respectively.

' In passing the acts which led up to the sale .of these premises the legislature proceeded upon the assumption of a forfeiture of the title for the non-payment of the rent reserved in the grant to Palmer, and the validity of the Hunter title depends upon the accuracy of that theory.

There is no clause in the Palmer patent creating a forfeiture or reserving a right of re-entry for non-payment of rent, the language being: Yielding, rendering and paying therefor yearly and every year forever * * * the yearly rent of five shillings sterling.” But we think the payment of such rent was an implied condition upon which the land was held.

The grant to Palmer was a conveyance in fee reserving a perpetual rent, or, as it is sometimes expressed, it was the letting of lands to farm in fee simple. But the grant reserves no right of distress or re-entry, and, therefore, the rent is called a rent seek because at the common law the lord could not distrain for the rent

In such grants the rents were always considered as conditions annexed to the grant by implication of law, and if the tenant was in default for the non-payment of rent, the lord might resume the fee. 4 Kent Com., 122; 2 Washb. Real Prop., 5th ed., 6; Gerard’s Titles, 3d ed., 118.

“Estates which men have upon condition in law are such estates which have a condition by the law to them annexed, albeit that it be not specifiéd in writing, * * * and such condition as is intended by the law to be annexed to anything is as strong as if the condition were put in writing, * * * also estates of lands and tenements may be made upon condition in law, albeit upon the estate made there w.as not any mention or rehearsal made of this condition.” Littleton, §§ 378, 380.

A reservation of a right to re-enter for non-payment of rent was not an essential requisite to the right to maintain ejectment in the event of a breach. 4 Kent. Com., 123.

The condition implied in this case was a condition subsequent and followed the vesting of the estate, and the rent reserved furnished the grantqr with a vested interest and a right to enforce the forfeiture.

The act of 1826, which directed a sale of these lands by the comptroller of the state, directed him to give notice of such sale in certain ways, and the appellant now contends that proof of compliance with such direction was necessary to establish the validity of the comptroller’s deed of conveyance given in pursuance of such sale, but the contention is erroneous.

Under our conclusion ¿he land had been forfeited to the crown before our revolution of 1776, and that forfeiture had enured to the people of this state, who thus and then became the owner of the premises.

Being such owner the state, through its legislature, appointed the comptroller its agent to sell the land, and gave him certain directions respecting liis mode of procedure in making such sale.

We may presume that he followed his instructions, because it was his official duty to do so, but whether he did or not is quite immaterial so far as a purchaser at his sale is concerned.

The sale of the land in question bears no analogy to sales for unpaid taxes. Such sales are in derogation of private right, designed to divest the owner of his title, and a strict observance of the requirements of the statute is essential to their validity.

Under our system of jurisprudence the right to life, liberty and property is protected with great jealousy and cannot be invaded without the observance of all the safeguards provided for its protection. 2To such principles or rights are involved in this sale, which, reduced to simplicity, is a sale of land by an agent appointed by the owner writh certain instructions respecting the formalities of the sale which do not affect the power. The power to sell was ample and it was fully executed and no one can complain of the disobedience of instructions by the agent, if any there was, except the owner.

The deed of conveyance is in pursuance of the power, and is conclusive evidence of the regularity of the sale.

In relation to the requirement of notice of the sale to a person in “ actual possession and occupancy” of the land sold, it is sufficient to say, first, that no such possession or occupancy was shown, and second, if there was any omission in that respect, the defect was cured by the long possession of Hunter under his deed of conveyance, which was open and adverse to all.

As the appellant endeavors to bring the Pell Patent to his assistance, it will be necessary to make some examination of that instrument. It was a grant of land situated on the main land, bounded and described as follows: “ All that certaine tract of land upon the moine lyeing and being to the Eastward of Westchester bounds, bounded to the Westward with a river called by the Indians Aqueconounck, commonly known to the English by the name of Hutchinson’s Biver, which runneth into the bay lying betweene Throgmorton’s neck and Annehooke's neck, commonly called Hutchinson’s Bay, bounded on the East by a brooke called Cedar Tree Brooke or Gravelly Brooke, on the South by the Sound which lyeth between Long Island and the maine land. With all the islands on the sound not before that time granted or disposed of lyeing before that tract of land so bounded.” This description is taken from the Dongan charter of confirmation to John Bell, dated October 20, 1687.

The grant is bounded by the • sound, which was- navigable tide water, and carried the title to high water mark only. 3 Kent Com., 432; Gould v. R. R. Co., 6 N. Y., 522; Brookhaven v. Strong, 60 id., 65.

As the land granted to Palmer was below high water mark there was no repugnance or incompatibility between the two grants and the appellant can derive no benefit irom the patent to Pell.

• The cases of Rogers v. Jones, 1 Wend., 237; Broohhaven v. Strong and Robins v. Ackerly, 91 N. Y., 98, are cited by the appellant to show that the grant to Pell must be construed to' include the land under the waters of the sound, but those cases only decide that land under water will pass if it lies within the bounds- of the grant, and they are therefore unavailing as we have already "seen that the lands in question were not included within the boundaries of the grant to Pell.

Neither is there any force in the insistence of the appellant that Palmer received his grant in trust for others, because it plainly invested him with the absolute title.

It is to be said in relation to the claim of the appellant that if our position on this question is correct then the grants under which he claims conveyed no title, as the state had before that parted with all its interest and had nothing to grant.

Our conclusion is in favor of the plaintiff, not only upon a careful and critical examination, but upon a broad and comprehensive view in the light of reason and justice.

The crown made an absolute grant to Palmer in fee, reserving rent payable at a specified time, and a designated place. The rent was unpaid and the lands were forfeited to the crown for such non-payment Then the revolution intervened and the people became vested with the rights of the crown and the legislature declared the forfeiture and sold the lands and conveyed them to Hunter, who used and occupied them for thirty years. His title came to the plaintiff and the defendant John Hunter.

The appellant has three water grants from the commissioners of the land office, all of which are void because the state had parted with its title long years before their date.

We find no ground for hesitation and the judgment and order denying the motion for a new trial should be affirmed, with costs. Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    William H. Martin, Trustee, Resp’t, v. Bertrand Clover, Impl’d, Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Mortgage—Payment ob interest—Tender.
    On the day prior to the last one on which interest could he paid under the option clause in a mortgage, the mortgagor sent a check which stated that it was in payment of interest to date. Held, that the mortgagee was justified in returning it, not only because of such statement, hut also because it was a check and not legal tender, and also in returning another check sent after he had made his election to regard the whole sum as due.

      3. Same-Taxes.
    The mortgage provided that in default of payment of taxes for ninety days, the mortgagee might pay such taxes, and tire amount thereof should forthwith be due and payable and be deemed secured by the mortgage and collectible in the same manner, at the same time and upon the same conditions as the interest on the principal sum, “and in default of such payment * * the whole of the principal sum and interest accrued” should, at the option of the mortgagee, “ immediately become due and payable.” Held, that on default in payment of taxes for ninety days the mortgagee had an absolute right to declare the principal sum due.
    Appeal from judgment in favor of plaintiff.
    Action to foreclose a mortgage given by defendant Clover to plaintiff, as executor of the will of Francis W. Hutchins. The mortgage contained the usual interest clause, giving twenty days in which to pay, and giving the mortgagee the option at the expiration of that time to declare the entire sum secured by the mortgage due and payable. It also contained the following clause:
    “ And it is further agreed by and between the parties to these presents that the said party of the first part, his heirs, executors, administrators or assigns, will pay and discharge all taxes, assessments or other charges that now are a lien or hereafter shall be levied, assessed or imposed and become a lien upon the premises above described, or any part thereof, and in default .thereof for the space of ninety days after the same shall have become due and payable by law, the said party of the second part, his successors or assigns, may pay such taxes, assessments or ■other charges and expenses, and the amount so paid and interest thereon from the time of such payment shall forthwith be due and payable from the said party of the first part, his heirs, executors, administrators or assigns, to the said party of the second part, his successors or assigns, and shall be deemed to be secured by these presents, and shall he collectible in the same manner, at ■the same time, and upon the same conditions as the interest upon the principal sum hereinbefore mentioned. And in default of ■such payment by the said party of the first part, his heirs, administrators or assigns, the whole of the principal sum and interest accrued by this mortgage shall, at .the option of the said party of the second part, his successors or assigns, immediately become due and payable."
    The plaintiff proved that taxes were duly levied, and became a lien on the mortgaged premises in 1889, that they remained unpaid for more than a year, were sent to the arrears department in December, 1890, and were finally paid by the defendant on March 3, 1891, some three months after defendant’s answer was served.
    The facts as to payment of interest were these: The defendant waited till November 19, and then sent through the mail a check dated November 19 for the interest due November 1. The check specified on its face that it was for interest on mortgage to date. The check was returned for this reason. Another check dated November 20, inclosed in a letter post-marked November 22, 1890, 11 A. M., was received on November 22d, and returned, the plaintiff having before its receipt given the defendant notice of his election to call in the mortgage. No further tender or attempt to pay has ever been made.
    In deciding the case, the court remarked: “I do not see that, the authorities cited are in point at all. This bond contains this-special covenant, thát in case of default of ninety days in payment, of taxes, then the principal sum becomes due. This is to enforce-payment of the principal sum the same as if it had been written in the bond. It seems to the court that the plaintiff had the absolute right to declare the principal of this bond due. I do not see that there is any question of it. Take your judgment of foreclosure. I think the defendant should have thirty days stay after entry of judgment before you advertise or put him to further-expense.”

      jBertrand Glover, app’lt in person ; Josiah T. Marean, for resp’t.
   Pratt, J.

This case is too plain to require much discussion. The plaintiff was justified in returning the check first sent, not. only because the check contained a statement that it was given in. payment for interest in full up to a date twenty days more than was true in fact, but also because it was a check, and not legal, tender.

The interest not being paid, the holder of the mortgage before-the receipt of another check had elected to regard the whole sum secured by the mortgage was due and, therefore, he had a right to return the second check as being tendered too late.

This case at first view seems hard, but it is evident, I think, that the defendant did not intend in good faith to pay the interest, as he seems to have either dated the second check back two days or negligently failed to post it until two days 'after the default in payment of the interest.

The defendant also made no effort to tender the interest after the second check was returned or to be relieved from his default, by application to the court.

The case was, therefore, properly decided below upon the ground of the interest not being paid, or tendered in time to prevent an election.

We also think that the court at special term construed the tax clause correctly.

It may be further said that the facts found clearly warrant the-judgment and inasmuch as it does not appear that all the evidence is reported we are precluded from reviewing the findings of fact. Adridge v. Aldridge, 120 N. Y., 616; 31 St. Rep., 948.

Judgment affirmed, with costs.

Barnard, P. J., and Dykhan, J., concur.


author: Per Curiam.

text:
    The People, Pl’ffs, v. Luther Lasher and John A. Carnie, Def’ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Bail—Forfeiture—Deceit.
    Where counsel upon application to vacate a judgment entered upon. forfeiture of a recognizance fail to disclose the fact that a prior application, for the same relief has been denied, the judgment entered upon such application will be set aside and the judgment of forfeiture restored.
    Motion by the district attorney that the order hereinbefore granted remitting the forfeiture of a recognizance and vacating the judgment entered thereon be vacated and set aside, and that the motion to remit such forfeiture and to vacate said judgment be denied.

      Delaney Nicoll, dish att’y, for the motion; Ambrose H. Purdy, opposed.
   Per Curiam.

An application to the general term of this court was made in November, 1890, on behalf of John A. Carnie, to remit the forfeiture of a recognizance entered into by him for the appearance of Luther Lasher for trial in the court of general sessions upon an indictment then pending against him, and to vacate the judgment entered upon such forfeiture. That application was not opposed by the then district attorney, and upon his consent and certificate that the people had lost ho rights in the matter, and proof that all expenses incurred in the recapture or apprehension of the principal, and the costs and expenses of the proceedings to enforce the forfeiture had been paid, an order was duly entered on the third day of February, A. IX, 1891, granting the relief asked.

Subsequently, the present district attorney moved to have the last mentioned order vacated and set aside, and the forfeiture and judgment entered thereon reinstated, assigning as grounds therefor that prior to the application to this court application for the same relief had been made to Hon. Randolph B. Martine, one of the judges of the court of general sessions, and by him denied upon the merits, which facts were not disclosed to this court upon the motion which resulted in the order sought to be vacated and set aside.

This court had held in a similar case, People v. Street, 38 St. Rep., 801, that it will not entertain an application to remit a forfeited recognizance and to vacate the judgment entered upon such forfeiture when it appears that a former application for the same relief has been made to another judge or court of concurrent jurisdiction, and been there disposed of on the merits adversely to the applicants, and, upon the hearing of this motion, the facts respecting the former application and its denial by Judge Martine upon the merits and the non-disclosure thereof to this court on the motion resulting in the order of February 3d, A. D., 1891, are conceded; it follows that that order should be vacated and set aside, and that the forfeited recognizance and the judgment therein referred to should be reinstated, and that the motion to remit the forfeiture and vacate the judgment entered thereon should be denied.

Motion to vacate and set aside order entered February 3d, 1891, and to reinstate the forfeited recognizance and judgment therein referred to, granted, and motion to remit the forfeiture and vacate ¡the judgment thereon is denied.

Daly, Gh. J., and Bisohoff, J., concur.


author: Bookstaver, J.

text:
    The V. Loewer’s Gambrinus Brewery Co., Resp’t, v. Conrad W. Bachman, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Bills and notes—Divebsion—Evidence.
    In an action against the accommodation endorser of a note, evidence to" show a diversion of the proceeds from the purpose intended is inadmissible where such defense is not pleaded.
    2. Witness—Impeachment.
    It is improper to ask a witness whether he has ever been arrested, as the mere fact of an arrest does not reflect on his credibility.
    Appeal from a -judgment of the district court in the city of New York for the eleventh judicial district

      ■Phelps & Avery, for app’lt; G. J. G. Hall, for resp’t
   Bookstaver, J.

Plaintiff sued appellant Bachman as an endorser on a promissory note for $200. The maker, Leonard, was-not served. The appellant answered in writing and alleged as a defense “ that he endorsed the note and delivered it to Leonard without consideration and for the sole purpose that Leonard should discount the same and receive therefor in cash from the plaintiff the amount, less the discount,” and denied that plaintiff discounted the note. The issues so joined were tried by a jury, which found in favor of the plaintiff. The only question to be decided by the jury was whether or not the plaintiff did discount, the nóte, and the jury determined that in favor of the plaintiff and upon abundant evidence. Indeed if they had not we think we would have been compelled to set aside the judgment as being contraiy to the evidence.

On the trial the appellant attempted to show a diversion of the funds from the purpose intended by the endorser, but he had not. alleged any such defense in his answer and did not ask to amend, his pleading on the trial; nor did he offer to connect plaintiff with , knowledge of the conditions on which he endorsed the note. Such evidence, therefore, was properly excluded.

Exception was taken to the ruling of the court sustaining an objection to the following question: “ Did you ever cancel the-chattel mortgage which was on the fixtures, $200 ?" This question referred to a chattel mortgage given by Leonard to another party and which was paid by the plaintiff. Whether or not that mortgage was cancelled we think was of no materiality in this case, but the question was evidently meant to be whether or not plaintiff had paid that mortgage, and was immediately repeated in that form and answered in the affirmative.

The exception taken to the ruling of the court sustaining the-objection to the question, “ Were you ever, arrested ?” we' think was not well taken, as the mere fact of an arrest does not reflect.' upon a witness’ credibility. It has been held that an indictment, does not do this.

We do not think the court erred in excluding evidence as to-conversations between Leonard and Stutt. The latter- was not. shown to have been the agent of the plaintiff for the purpose_ of negotiating this loan, or that he acted for it in any other capacity than that of collector. ' Besides, the substance of this conversation, was admitted in evidence subsequently.

The exclusion of the conversation between appellant and Leonard was proper, for the reasons before given, and also because it was not in any way proposed to connect this with any of the plaintiff’s officers competent to make an agreement in regard to the loaning of money.

We have examined the other exceptions taken, but do not think there was error in any of them.

The judgment should, therefore, be affirmed, with costs.

Bischofe, J., concurs.


text:
    The People ex rel. John Ward, App’lt, v. Henry D. Purroy et al., Fire Com’rs, Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Reargument.
    To entitle a party to a reargument of an appeal it must be made to appear that some question decisive of the case, and which was presented by counsel on the argument, has been overlooked by the court; or that the decision is inconsistent with some statute or with a controlling decision to which the attention of the court was not called through the neglect or inadvertence of counsel.
    Appellants motion for reargument of the appeal.

      L. J. Grant, for motion; W. L. Findley, opposed.
   Per Curiam.

To entitle appellant to reargument of the appeal herein it must be made to appear that some question decisive of the case, and which was presented by counsel upon the argument, has been overlooked by the court; or, that the decision is inconsistent with some statute, or with a controlling decision, to which the attention of the court was not drawn through the neglect or inadvertence of counsel (Rule 16 of the general term of this court), and as there is not even a pretense that either of the foregoing grounds exists, this motion must be denied.

Motion for reargument denied, with ten dollars costs.

Bookstaver, Bischoff and Pryor, JJ., concur.


text:
    Mary J. Kelly, Resp’t, v. Elliott C. Smith, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Summary proceedings—Assignee op landlord.
    The right to re-enter for breach of a condition subsequent is not assignable to or enforceable by one not vested with the reversionary estate.

      (Kelly v. Smith, 41 St. Rep., 630, reaffirmed.)
    Respondent’s motion for re-argument of the appeal.

      A. Hamilton Beavey, for motion; Thos. G. Fvans, opposed.
   Per Curiam.

Counsel for respondent is in error in -assuming that the decision of the general term on the argument of the a,p-peal herein, (see opinion in Kelly v. Smith, 41 St. Rep., 620), was predicated upon a denial of the existence of the relation of landlord and tenant between the respondent’s assignor and the appellant Smith, and the case, Stewart v. The Long Island R. R. Co., 102 N.Y., 601, 2 St. Rep., 557, referred to on this motion as having been overlooked and in conflict with the decision made, is irrelevant to the question involved in the appeal. Careful perusal of the opinion will not fail to convince counsel that what the court decided was that the right to re-enter for breach of a condition subsequent was not assignable to or enforceable by one not vested with the reversionary estate, and that as in contemplation of law the alleged sublease by respondent’s assignor to Smith for a period covering his entire term operated as a prior conveyance of all the estate .granted by Clark, the original lessor, no estate whatever in the leasehold premises passed to the respondent by the subsequent .assignment to her. We adhere to the validity of the principle governing the decision. See, in addition to the authorities referred to in the opinion, those collated in Sexton v. Chicago Storage Co., 16 Am. St., 274, 280.

Motion for r¿-argument denied, with ten dollars costs.

Bookstaver,' Bischofe and Pryor, JJ., concur.


text:
    The Lamson Consolidated Store Service Co., App’lt, v. George C. Hartung, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Evidence—Written contract.
    A written contract which contains all of the terms of an executory contract for the sale of specific machines is complete in itself, and paroi evidence is inadmissible to show a contemporaneous warranty.
    .3. Judgment—Warranty.
    A judgment rendered principally on the ground that there was a breach of warranty or guaranty cannot be sustained where no such breach was pleaded nor any attempt made to amend the pleadings in that respect.
    Appeal from a judgment in favor of the defendant on a counterclaim, in the district court of -the city of New York for the .sixth judicial district.

      Theodore H. Friend, for app’lt; Doyle & Stiles, for resp’t.
   Bookstaver, J.

This action was brought • to recover seventy-five dollars, being the amount claimed due from the defendant to the plaintiff on the second monthly instalment upon a contract for the purchase by the defendant from the plaintiff of two machines known as the Bamson Gash Eegister. The defendant pleaded a rescission of the contract and an offer to return the ■goods, and demanded the return of seventy-five dollars already paid plaintiff as a first payment when the machines were -contracted for.

The chief question in this case is whether the contract signed by the defendant was complete in itself and contained the entire •contract between the. parties, or whether a part of the contract rested in paroi so as to admit evidence to establish the oral part of the agreement.

The contract seems to us to be complete in itself, as it contains all of the terms of an executory contract for specific machines, and became binding upon both parties when accepted by the plaintiff. In Routledge v. Worthington Co., 119 N. Y., 592; 30 St. Rep., 195, it was said that whether the writing was regarded as an order merely or as an agreement was immaterial in determining this question. And the case of Seitz v. Brewers' Refrigerating Machine Co., U. S. Supreme Ct., Nov., 1891 (reported in N. Y. Law Jour, of Dec. 14, 1891), we think is conclusive of the controversy in this case. It seems to be nearly on all fours with the one under consideration. In that case the defendant, a purchaser of a machine described in the contract as a No. 2 Size Refrigerating Machine, set up false paroi representations as a ground for rescission and also a counterclaim for damages for breach of a paroi warranty made prior to or at the time of the sala In delivering the opinion, Fuller, 0. J., said, “ Undoubtedly the existence of a separate oral agreement as to any matter on which the written contract is silent, and which is not inconsistent with its terms, may be proven by paroi if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it, and when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole ‘ engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. Green! Ev., § 275. * The written contract was in all respects unambiguous and definite. The machine which the company sold and which Seitz bought was a ‘ No. 2 Size Refrigerating Machine ’ as constructed by the company, and such was the machina which was delivered, put up and operated in the brewery. A warranty or guaranty that the machine should reduce the temperature of the brewery to forty degrees Fahrenheit, while in itself collateral to the sale, which would be complete without it, would be part of the description and essential to the identity of the thing sold; and to admit of proof of such an engagement by paroi would be to add another term to the written contract, contrary to the settled salutary rule upon that subject”

But there is another reason why this judgment must be reversed. It was rendered, as we judge from the return, principally because there was a breach of warranty or guaranty. No such breach was pleaded, nor was there any attempt made to amend the pleadings as was done and allowed in the case last cited. But even on the evidence of the representations made before or at the time of the sale to Seitz, the court held that such-representations did not warrant the defendant in rescinding the contract. Seitz v. Brewers, etc., Co., supra, differs from Routledge v. Worthington Co., supra, in that in the-latter case the evidence was held admissible only for the purpose of proving a distinct collateral .agreement of the plaintiffs that they should not reduce the trade price of the same kind of goods they sold to defendant, and which agreement related to a subject separate and distinct from that to which the written order applied.

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

Bischoff, J., concurs.


text:
    Henry Nordlinger, Resp’t, v. Morris Levine, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Reabgtjment.
    A motion for reargument of an appeal in the common pleas will not be entertained unless presented, at farthest, to the term next succeeding that at which the appeal was decided.
    Motion for reargument.

      Goodhart & Phillips, for the motion; Guggenheimer & TJntermyer, opposed.
   Per Curiam.

application is too late. By the settled practice of the court a motion for a reargument will not be entertained unless presented, at farthest, to the term next succeeding that at which the appeal was decided. Independently, however, •of this formal objection, the motion is without merit.

Eeargument denied, with costs.

Bookstaver, Bischoff and Pryor, JJ., concur.