author: O’Brien, J.

text:
    The People ex rel. Duane S. Everson, Resp’t, v. Jacob Lorillard et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Constitutional law—Laws 1890, chap. 249, § 2.
    Chapter 249, Laws 1890, providing for taking land for the Washington bridge, in the manner “ provided for the acquisition of real estate by chap. 490, Laws 1883, etc.,” is not unconstitutional.
    2. Same.
    When a statute in itself and by its own language grants some power, confers some right, imposes some duty or creates some burden or obligation, it is not in conflict with § 17 of article 3 of the constitution because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty or the discharge of the burden or obligation.

      Appeal from judgment of supreme court, general term, first department, affirming order granting peremptory writ of mandamus.

      D. J. Dean, for app’lts; H. D. Hotchkiss, for resp’t.

       Affirming 46 St. Rep., 653.

   O’Brien, J.

—The order in this case which has been brought here for review directed a peremptory writ of mandamus to issue to the corporation counsel of the city of New York, requiring him to take charge of and conduct with all practicable speed any and all proceedings, authorized by law, for the appointment of commissioners of appraisal to ascertain the compensation to be paid to the owners or persons interested in certain. real estate, designated upon a triplicate map made and filed in pursuance of chap. 249 of the Laws of 1890, and to fix the time and place for the first meeting of the commissioners so appointed. The general term having affirmed the order, the corporation counsel has appealed to this court and the sole ground of the appeal is that the second section of the act above mentioned is in conflict with § 17 of article'8 of the constitution of this state which declares that: “ No act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said .act, or which shall enact that any existing law or any part thereof shall be applicable, except by inserting it in such act.”

The act, chapter 249 of the Laws of 1890, provided for the acquisition and improvement, by the city of New York, of certain lands in connection with Washington bridge, over the Harlem river, and the second section, or that part of it which requires action to that end to be taken by the authorities of the city of New York, is as follows: “ The said commissioners, on behalf of the mayor, aldermen and commonalty of the city of New York, shall thereupon apply forthwith to the supreme court, at any special term thereof held in the first judicial district, for the appointment of three disinterested persons, residents of the city of New York, as commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate shown on said profile maps, which shall not have been theretofore acquired by the city of New York, for the fee of the same. Such proceeding shall he had upon the said application, except that the same shall he in the first judicial'district, as are provided for the acquisition of real estate hy chapter I¡90 of the Laws of 1883, and with the like effect; and all payments for the real estate so acquired, and for the charges and expenses of acquiring the same, shall he made in the manner in which such payments are to he made, and out of the moneys therefor to he raised, as provided in said last mentioned act.”

Section 3 then provides that the property acquired, with the improvements thereon, “ shall be kept and maintained by the department of public parks as public parks and highways, and for no-other purpose except the Croton aqueduct; and the expenses thereby incurred shall be paid in the manner provided by law for' the payment of the other expenses of the said department;”

The difficulty suggested with respect to this statute is that while-it authorizes the city to acquire lands, it does not in extenso prescribe the procedure under which they were to be obtained, but for that purpose refers to another statute, namely, chapter 490 of the Laws of 1883. The latter act is the one which confers power upon the city of New York to construct a new aqueduct, and to acquire lands for that purpose. The provisions conferring the power to construct, the procedure under which the lands were to. be acquired, and the manner in which the money was to be raised to pay for them, are all set forth in that act.

It is somewhat difficult to give to that provision of the constitution, invoked in this case to condemn the legislation in question, a reasonable construction that would be applicable in every case. A provision of the fundamental law_ which attempts to regulate the form in which the legislative will is to be expressed in the enactment of laws is difficult of a just and reasonable application in all cases, and is at best of very doubtful utility. When the organic law has fixed the limits of legislative power and has placed some general and suitable restraints upon its methods of procedure, its proper office is generally fulfilled, but an attempt to prescribe the language or the forms to be used or observed by the legislature in the enactment of statutes must inevitably result, either in the condemnation of numerous legislative acts, perfectly wholesome and just, or in the liberal exercise by the courts of their undoubted powers to give to all laws a just and rational .construction and meaning. A constitutional provision intended to operate as a restraint upon the legislature, with respect to the language and forms of expression to be used in framing acts of legislation, is not to be so construed as to embrace cases not fairly within its general purpose or policy, or the evils which it was intended to correct, though they may be within its letter. • Since the incorporation of this section in the constitution of 1875, hundreds of statutes have been passed that must be held to be in conflict with it if we adopt that construction contended for by the learned counsel who argued in support of this appeal. There are many general acts conferring very important powers or imposing important duties to be exercised or performed according to some provision of the Code or some statute, general or local, which contains the appropriate procedure for such a case. There are also many local acts applicable to cities and other public corporations authorizing the issue of bonds or the raising of money according to the general provisions of the charter. Still others may be found, both general and local, conferring powers upon private corporations to contract debts in the manner provided in some other law. To hold that all these acts are void, as in conflict with this provision of the constitution, would be to' disturb titles, promote litigation and inflict wide spread injury. The worst evils that the framers of the provision could have had in view would be multiplied a hundred fold by such a construction. A constitutional provision, like a statute, should not be so construed as to ■work a public mischief unless the language used is of such explicit and unequivocal import as to leave no other course open to> the court, and when the intent of the law makers is ascertained that must prevail over the letter of the law. Smith v. The People, 47 N. Y., 330; People ex rel. Jackson v. Potter, id., 375; People ex rel. Killeen v. Angle, 109 id., 564; 16 St. Rep., 647. This court in the case of The People ex rel. Commissioners v. Banks, 67 N. Y., 572, stated the purpose of this constitutionál provision in this-language“ The evil in view, in adopting this provision of the constitution, was the incorporating into acts of the legislature, by reference to other statutes, of clauses and provisions of which the legislators might be ignorant, and which affecting public or private interests in a manner and to an extent not disclosed upon the-face of the act, a bill might become a law which would not receive the sanction of the legislator if fully understood.”

Can it be affirmed with any reason or probability that the legislature was not, when it passed the act of 1890, familiar with the act of 1883 for the. construction of the aqueduct- and acquiring-lands therefor ? Is there any reason to believe that when the legislature' enacted that lands in connection with Washington bridge might be acquired and paid for by the city of New York for use as a park in the same way as was specifically provided in the aqueduct act, it was imposed upon by some of the devices against which the constitutional provision was intended to guard ? There is nqthing on the face of the bill and nothing suggested in the manner of its enactment that would justify such a conclusion. In the Banks case, supra, this court further said, with reference to the proper construction of this provision of the constitution : “It is not necessary, in order to avoid a conflict with this article of the constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared or burden imposed by the special statute, but the enforcement of the right or duty,, and the final imposition of the burden are directed to be in the form, and by the procedure given by the other and general laws; of the state. Reference is made to such laws, not to affect or-qualify the substance of the legislation, but merely for the formal: execution of the law.”

The learned counsel for the corporation, conceding the propriety of the rule here laid down, insists that it goes no further than-to permit a reference in the enactment of a statute to some other-general law for the purpose of pointing out the proper procedure; It is true that the reference in that case was to a general law, and the language of the court conformed to the nature of the case under consideration. But there is no reason to believe that if the-reference in that case had been to a local statute that the decision would have been otherwise, as such a distinction would have no-support in reason or authority. This appeal cannot be sustained without holding in effect that every statute, general or local, must contain within itself every detail necessary to its complete ex ecu-Ron, and that when the lawmakers desire to adopt the procedure, or some other matter of detail contained in a local statute, that cannot be done by a suitable reference, but the same must be cast out of the other statute, and actually inserted in the new one mutalis mutandis. Such a construction of this section of the fundamental law, besides producing all the mischief already pointed out, would, as was said in People, etc., v. Squire, 107 N. Y., 602; 12 St. Rep., 832, lead to innumerable repetitions of laws in the statute books, and render them not only bulky and cumbersome, but confused and unintelligible almost beyond conception. The framers of this provision could never have intended to introduce into our statute law such elements of confusion and uncertainty. Their purpose was to require bills introduced in the legislature to be presented in such form, and their essential provisions expressed in such language, that the effect of the proposed enactment might be understood by legislators of reasonable intelligence. To carry out this intention it is not necessary to give to the amendment a literal construction. The general object will be satisfied by giving it an interpretation more reasonable and less stringent than that contended for in support of the appeal. Union Ferry Co. Case, 98 N. Y., 158.

When a statute in itself, and by its own language, grants some power, confers some right, imposes some duty, or creates some burden or obligation, it is not in conflict with this constitutional provision, because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure, or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation.

In this case the main object of the statute was to confer power upon the city to acquire lands for a certain purpose and that power is expressed in appropriate language, but the procedure, by means of which the lands were to be condemned, and the administrative acts on the part of the city authorities, necessary in order to procure the money for the payment of the awards, are designated by reference to another statute. Granting that the ■aqueduct law was local, as urged by the counsel for the corporation, still it was an act of such great public importance that the members of the legislature might be supposed to have been even more familiar with all of its provisions than with many general laws. The statute in question did not provide literally that the aqueduct law should be made or deemed a part of it, nor that any part thereof should be applicable, but that the proceedings for condemning the lands and raising the money to pay for them should be the same and, hence, the statute cannot well be held to be repugnant to the letter and much less to the spirit and object ■of the constitutional provision. Whether the city authorities, and ■especially the corporation counsel, were vested with discretion with respect to the execution of this statute, in the sense that they could not be compelled to move by mandamus, is a question not argued and which all the parties have evidently intended to waive.

The order appealed from should therefore be affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    John Brown et al., Resp’ts, v. Ann E. Chubb et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Fraudulent conveyance—Grantee free from fraud entitled to PROTECTION FOR ADVANCES.
    A judgment debtor procured ¿conveyance to his daughter in contemplation of insolvency with intent to defraud ci editors, and furnished the consideration, for the purpose of avoiding the payment of his just debts, but Ms daughter was free from all fraud in the transaction. Nearly a year before plaintiffs recovered their judgment she advanced her money to take-, up an existing judgment against her father. Held, that junior judgment creditors could not disturb her title to or possession of the property without first paying or offering to pay her judgment.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment setting aside a conveyance-as fraudulent as to creditors.

      H. C. M. Ingraham, for app'lts; Josiah T. Marean, for resp’ts.

       Reversing 28 St. Rep, 734.

   O’Brien, J.

—The plaintiffs were judgment creditors of one Joseph H. Townsend, and brought this action to reach and appropriate to the payment of their judgments certain real estate in Bergen street in the city of Brooklyn, which was conveyed on December 1, 1883, by one Beals to the defendant Ann E. Chubb, who is the daughter of the judgment debtor, who paid to Bealsthe consideration of the conveyance. It has been found that the-judgment debtor procured this conveyance to be made to his; daughter in contemplation of insolvency and with intent to de fraud creditors, and that he furnished the consideration for the purpose of avoiding the payment of his just debts, but that the daughter and grantee of the property was free from all fraud in, the transaction. The latter fact is a most significant one and raises the only question which we think is open to us on this appeal. It has also been found that on January 26, 1884, one Merton recovered a judgment against Townsend for $6,117.83, which was docketed in Kings county on that day, and on the same day an execution was issued on this judgment and subsequently returned unsatisfied, and that on March 13, 1884, Merton, for a. valuable consideration, assigned the judgment to the defendant, Mrs. Chubb. This judgment was recovered and execution issued thereon nearly a year before the recovery of the judgments which the plaintiffs seek to enforce in this action. It appears, therefore, that the judgment debtor never had the title to the real^ estate in question, but that before the plaintiffs recovered any judgment, or were entitled to proceed against this real estate, the title had. become vested in his daughter, who had also become clothed with all the rights of a judgment creditor of her father, without participation in any fraud. Neither the plaintiffs’ judgment nor that, recovered by Merton ever became a lien on the real estate conveyed to Mrs. Chubb in the sense that it could be sold upon execution. Garfield v. Hatmaker, 15 N. Y., 475.

The remedy of Townsend’s creditors as to this land was in equity, under the provisions of the statute that the title in such cases shall vest in the grantee named in the conveyance, subject, to a resulting trust in favor of the creditors of the person paying the consideration. 1 R. S., 728, §§ 51, 52.

The trial court held that by virtue of the commencement of this action the plaintiffs acquired a lien upon the property and. the rents thereof in the hands of Mrs. Chubb, and that the same were equitable assets of the debtor. The judgment directed her to convey the property to a receiver appointed by the court, and the receiver to sell the same and apply the proceeds to the payment of the liens thereon, in the order of their priority, that the defendant Mrs. Chubb account to and pay over to the receiver the rents received by her, to be applied to the same purpose. The judgment does not indicate very clearly what is meant by the priority of liens, but it necessarily postpones the Merton judgment in the hands of the person who has the legal title to the. property till after the satisfaction of the plaintiffs’ judgments, which, as we have seen, are subsequent in point of time. The-legal effect of the decision is made clearer by reference to certain requests made by the defendant, Mrs. Chubb, as follows:

1. That if the real estate was subject to be applied to the payment of Townsend’s debts, then it should be first used for the-payment of the Merton judgment.

2. That if the rents were subject to be so applied, they should-fir- >o used to satisfy the .same judgment.

Tim trial court refused to, so hold, and counsel for the defendant, firs. Chubb, excepted. The general term affirmed the judgm - it, with a modification to the effect that she should be credited in the accounting with such sums as she had paid since she went, inr > possession of the property for taxes, interest on incumbrances, repurs and any other necessary expenses for the preservation and. m i -.-iLiiice of the same.

i’li * question is whether, according to the course and practice-of oquitv, the title to this property can be transferred to a receiver-in iinvganl of the rights of Mrs. Chubb as a creditor, for that is, practically, what the judgment does. The defendant’ holds the legal title subject to a resulting trust in favor of the creditors of her father. But she is herself one of them, and the oldest in poi'it of time. There is united in her the legal title to the property m i the ownership of the first of thé judgments for the pavme i- of which the statute declares the trust. She is both trustee an l witiu que trust. Her position as a creditor is not recognized bv i« judgment in this case, for the receiver is directed, from the pr-ie.i -ds. of the sale of the property, to pay to plaintiffs their costs of this action, then the entire amount of their claims with in'- >r >st, and to deposit the balance, if nnv. with the county treasurer, -nbjeet to the o-ler of t.he eon it, Th° nrin^nle nt the bottom of this decision -ust be eith-r th- • M- ■ Chubb, for sorpR reason, is not. entit' -1 : share at all in tim proceeds of the snH or that the plaintiffs, by reason of the commencement of this action, have acquired, in equity, a right to the proceeds prior and superior to that of the person holding both the title to the property and the older judgment. The learned counsel for the plaintiffs, on the argument, concedes certain rights to the defendant which are not expressed in the findings or judgment under review. He says that the innocence of the trustee personally of fraud simply avoids a disability as creditor to acquire a preference and enables her as holder of the Merton judgment to enter the race on equal terms with other creditors, but that her innocence constitutes no affirmative merit for any purpose. This is a concession that, before this action was commenced, the Merton judgment occupied, at least, as favorable a position, with respect to the equitable assets represented by this property, as any other judgment. While admitting this, he argues that these plaintiffs, by the exercise of that superior diligence in bringing this action, which is sometimes recognized in equity as a ground of prefer ence in the absence of other controlling circumstances, have ac quired the prior right to the assets.

We think that this contention cannot be sustained. The cotv-m have apparently determined the priority of lien in this class cases in accordance with the rule that prevails in analogous casas where the title and conveyance of the property sought to be reached in the action comes directly from the fraudulent d.eHor himself. Wood v. Robinson, 22 N. Y., 564; Murphy v. Briggs, 89 id., 452. In the case last cited the court, in explaining ike judgment in Wood v. Robinson, said: “It appears that the plaintiff was a prior judgment creditor, and hence he had a prior equity which entitled him to a preference at the time of the conveyance to the wife of real estate paid for by the husband. Iu tbe case of The Ocean National Bank v. Olcott, 46 N. Y., 12, a judgment creditor sought to reach equitable assets of the debtor of this character, and Church, Ch. J., said: “A trust results, not of the Whole property, but only to satisfy the just claims of creditors; not of one creditor only, but of all creditors. * * * Hence the fifty-second section was adopted which placed the property in the same relation to creditors as it would have; been if the debtor himself had fraudulently transferred it.”

On a bill filed to reach real property fraudulently transferred by the debtor the claims of several creditors are satisfied ;n the order of the priority of the judgments. Chautauqua Co. Bank, v. Risley, 19 N. Y., 369. But if the qeeetmn was to be determined irrespective of authority and upon the general principles of equity which secure to a vigilant creditor the fruits of his diligence bv recognizing the priority of his lien, that rule was satisfied and such priority secured by the union in Mrs. Chubb of both the title to the assets and the prior judgment with-all legal remedies for its collection exhausted. The argument ior the plaintiffs admits that had she- then brought an action to appropriate the property to the payment oí the judgment she would have obtained the prior lien. Hat as she had the title to the property .$,nd was in possession ami enjoyment of it, and at the same time the owner of the judgment, such an action, which would be substantially a suit against herself, would seem to be an idle ceremony. On this state of facts she might well have assumed that a court of equity would refuse to disturb her title or possession until all of her just claims were paid, the title having come to her through the act of the person who was bound to pay her judgment, without any fraud on her part.

She had, nearly a year before the plaintiffs recovered their judgments, advanced her money to take up an' existing .judgment against her father and, at least to the extent of the sum advanced, she replaced the money diverted by him from his creditors when he paid the consideration of the conveyance to her. She was at that moment in receipt of the rents and profits as owner, and I am unable to see why every right that she could ever assert as a creditor did not then attach to the land and the rents in her hands, as. completely as if, without any of these advantages, she had brought an action. This court has recognized the principle decided in Lobstein v. Lehn, 120 Ill., 549, that the grantee of lands under a conveyance constructively but not actually fraudulent, may hold the land as security for a debt honestly due him, Loos v. Wilkinson, 113 N. Y., 491; 23 St. Rep., 282.

We are not aware of any rule that would justify junior judgment creditors in disturbing the title or possession of the defendant, as. to this property, without first paying or offering to pay her judgment. The filing of a bill by her to reach the property could not, in equity, place her in any stronger position. If the property in question had been conveyed by Beals to Merton, by direction of the debtor, under the same circumstances, and with like intent on the part of the debtor, before the assignment of the judgment to Mrs. Chubb, equity would treat his lien as paramount, and his assignee, without fraud, has succeeded to all of his rights at law or in equity.

For these reasons the judgment of the general and special terms should be reversed and a new trial granted, costs to abide event..

All concur.


author: Andrews, J.

text:
    David A. Lamming, App’lt, v. Norman H. Galusha et al., Resp’ts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Nuisance—Jcinder of causes of Action—Code Civ. Pro., § 484.
    In an action for maintaining a nuisance in constructing and operating astéam railroad in a public highway without authority, brought by the-owner of lands injuriously affected by the road, and whose property rights, are invaded thereby, in which the plaintiff demands relief by way of injunction and special damages to his real property, occasioned by the nuisance, he may claim in the same action damages for a personal injury sustained from the operation of the road, without negligence on his part, from being thrown from a wagon while driving along the h:ghway on which the railroad was constructed, in consequence of his horses being frightened by the noise of a pass ng engine and train, and escaping from his control.

      Appeal from a judgment of the supreme, court, general term, fifth department, reversing the judgment of the special term.

      Henry W. Conklin, for app’lt; Cassius C. Davy, for resp’ts.
   Andrews, J.

—The question presented by the demurrer is whether in an action for maintaining a nuisance in constructing .and operating a steam railroad in a public highway without authority, brought by the owner of lands injuriously affected by the road, and whose property rights are invaded thereby, in which the plaintiff demands relief by way of injunction and special damages to his real property occasioned by the nuisance, he may claim in the same action damages for a personal injury sustained'from the operation of the road, without negligence on his part, from being thrown from a wagon while driving along the highway on which the railroad was constructed, in consequence of his horses being frightened by the noise of a passing engine and train and ■escaping from his control.

The demurrer is for an alleged misjoinder of these causes of .action. The allegations in the complaint relating to the personal injury are not separated from the other allegations therein relating to the injury to the real property so as in form to constitute a separate cause of action, but are blended with them. But a defendant is not deprived of the right to demur to a complaint for misjoinder of causes of action distinct in themselves and which cannot be united because they are not separately stated or numbered. Goldberg v. Utley, 60 N. Y., 427.

It is well settled that any unauthorized and continuous obstruction to a public highway constitutes a public nuisance, Denio, J., Davis v. Mayor, etc., 14 N. Y., 524, and an action for damages lies in favor of any person sustaining a special injury in his person or property therefrom, against the party who erected or maintained it.

There can be no doubt that the plaintiff could have brought an •ordinary legal action for damages for personal injury based upon the allegations in the complaint. The complaint contains no allegation of negligence on the part of the defendants in the operation or management of the train at the time of the alleged injury. ¡Nor was this necessary. ¡¡Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason of a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant, unless in exceptional cases, is not material. Congreve v. Smith, 18 N. Y., 82; Clifford v. Dam, 81 id., 56.

The general term seems to have been under a misapprehension in supposing that the complaint set out a cause of action for the physical injury of the plaintiff based on negligence. This was not the gravamen of the complaint. The complaint alleges the unlawful obstruction of the highway and then follows an enumeration of the injuries sustained by the plaintiff to his real property by reason of the nuisance, and of the physical injury, stating time, place and circumstances.

If the sole cause of action was the personal injury the plaintiff would, be confined to the ordinary action for damages and could not maintain a claim for equitable relief by injunction. In that case the legal remedy for the wrong suffered by the plaintiff would be complete and adequate. An action by a private person to restrain the continuance of a public nuisance will only lie when the nuisance and the injury suffered are continuous, affecting the value of his property or the exercise of his personal rights, or impairing his health and comfort in connection with the enjoyment of property. In such case, to prevent multiplicity of action and to give final relief, he may invoice the equitable power of the court.

But the possibility that a traveller injured on the highway by a railroad train unlawfully thereon may on some future occasion be subjected to a similar injury does not entitle him to maintain an action for an injunction.

But the question here is whether a plaintiff having a cause of action which entitles him to an injunction restraining the maintenance and operation of the railroad by reason of its continuous interference with his rights of property, may unite with the demand for equitable relief by injunction and for damages for such interference a claim for damages for a personal injury suffered on a particular occasion from the same wrongful appropriation and use of the highway ; or in other words, whether he may unite in a single action all his claims, legal and equitable, which arise in consequence of the same general cause, viz.: the nuisance maintained by the defendant.

This is a question of procedure governed by the course and practice of the court, or by the statute, if made the subject of statute regulation.

We are of opinion that the causes of action were properly united under § 484 of the Code of Civil Procedure, which authorizes the plaintiff to unite in his complaint two or more causes of action, whether such as were formerly denominated legal or equitable, or both, in the cases specified, and among others: “ Subd. 9. Upon claims arising out of the same transaction or transactions connected with the same subject of action, and not included within one of the foregoing sub-divisions.” The subject of the action in this case was the injury committed by the defendant in maintaining a public nuisance which subjected the plaintiff to injuries specified, viz.: injury to real property and personal injury. The injuries were distinct in character and while the injury to the real property was continuous, the physical injury was consummated when first inflicted. But they both proceeded in a general sense from the same wrong, the unlawful obstruction of the highway by the defendant, and they were all, we think, “ transactions connected with the same subject of action ” within the meaning of § 484, and may properly be redressed in a single action.

This conclusion is in harmony with the general principle of equity jurisprudence, which aims at complete and final relief in a single action in respect of all matters between the same parties growing out of the same general transaction. It is supported by the significant language of the court in Chapman v. City of Rochester, 110 N. Y., 276; 18 St. Rep., 133, which was an action to restrain the pollution of a stream and for damages. Danforth, J., said: “Moreover the plaintiff is found to have sustained a special injury to his health and property from the same cause, and we find no reason to doubt that he is entitled not only to compensation for damages thereby occasioned, but also to such judgment as will prevent the further perpetration óf the wrong complained ■of.” See also Shepard v. Man. R'y Co., 117 N. Y., 442; 27 St. Rep., 705.

These views lead to a reversal of the judgment of the general term and an affirmance of the judgment of the special term, with 'costs.

■ All concur.
      Reversing 48 St. Rep., 592.


text:
    The People ex rel. Horace M. Lower, Resp’t, v. Timothy J. Donovan, Inspector, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    Mandamus—Cannot be issued by judge at chambees—Elections.
    A judge at chambers in the city of New York, or elsewhere within the state, has no jurisdiction to issue a writ of mandamus, and as no court can be opened on the day of general election, no such writ can he issued on that day to compel an inspector of election to accept a vote.
    (Geay, J., dissents.)
    Appeal from a judgment of the supreme court, general term, first department, affirming an order of special term convicting appellant Donovan,, an inspector of election, of contempt.

      Henry Grasse, for app’lt; David Leventritt and Chas. H. Knox, for resp’t.

       Reversing 45 St. Rep., 141.

   Andrews, J.

—On the 3d day of November, 1891, the day of the general election in this state, the Hon. A. R. Lawrence, one of the justices of the supreme court, upon application made to him at his chambers in the city of New York, in behalf of the relator a duly qualified elector of the seventh election district of the second assembly district of that city, made an order requiring the inspectors in that election district to show cause before him at the court house in said city at 3 o’clock, p. M., of that day, why a writ of peremptory mandamus should not be issued commanding and requiring them to permit the relator to take the disability oath provided in the election law, and upon taking the oath to permit him to retire with a person of his selection to one of the booths and compartments provided in said election district, for the purpose of preparing his ballot, and to accept, receive, and deposit the ballot when prepared, etc. The affidavit upon which the application was made set out certain facts which, in the opinion of the learned justice, entitled the relator to this relief. The order to show cause was served on Donovan and the other inspectors within the time limited by the order, but they did not appear- on its return, and thereupon, due proof of the service^ of the order having been made, and of other facts, the justice issued a peremptory writ following the order to show cause and commanding the inspectors to do and permit the things therein stated.

The peremptory writ was served on the inspectors before the closing of the polls, and there is evidence tending to show that they refused to obey it. Subsequently application was. made to the court at special term to punish the inspectors for contempt in disobeying the writ, and the proceedings resulted in an order adjudging the defendant Donovan guilty of contempt and imposing upon him a fine of $250 and ten days imprisonment as a punishment for his misconduct. The order was affirmed on appeal to the general term, and the present appeal is from the order of affirmance.

The order made by the special term is challenged on the ground that Mr.' Justice Lawrence, sitting at chambers, and not as a court, had no jurisdiction to issue the mandamus, for the disobedience of which the order punishing the defendant for contempt was made. If this point is well taken it disposes of the case, and the orders of the special and general terms must be reversed; for it is a clear proposition that an order made by a court or judge in a proceeding of which the tribunal or officer had no jurisdiction, and which is not merely irregular or erroneous, is not-a lawful mandate and disobedience thereto cannot be punished as a contempt. Code Civ. Pro., § 8; Eng. & Am. Ency. of Law, Vol. 3, p. 788, and cases cited.

The power to issue the writ of mandamus was at common law lodged exclusively in the court of king’s bench, because of the general superintendence it exercised over all inferior jurisdictions, and unless conferred by statute could be exercised by no other court in the realm. It was one of the prerogative writs, and if any trace is to be found of an attempt by any other court to exercise the jurisdiction in the absence of a special statute conferring the authority, it was in the nature of a usurpation. Awdeley v. Joye, Poph., 176; 2 Blk. Com., 110; Moses on Mand., 16; People ex rel. Ryan v. Green, 58 N. Y., 296. The jurisdiction resided in the court and not in the individual judges, and the writ was issued in term and not in vacation.

In colonial times the supreme court of the colony of New York, by the ordinances of 1699 and 1704, was invested with all the powers of the courts of King’s Bench, common pleas and exchequer in England, and by the Revised Statutes, 2 R. S., 3d ed., 259, § 1, the supreme court of the state was declared to be vested with all the powers and jurisdiction which belonged to the supreme court of the colony of New York, with certain exceptions not now material to be noticed. The same statutes regulated proceedings by mandamus, and while they do riot expressly limit the power to issue the writ to the supreme court, or prohibit its being issued by a judge out of court, they assume that the power inheres alone in this supreme jurisdiction and is to be exercised by the court as such. 2 Rev. St., 680, Tit. Writs of Mandamus and Prohibition.

The statute of 1873, chap. 239, has been construed as conferring upon certain other courts the power to issue the writ, People ex rel. v. Green, supra, and it may be conceded that the legislature could authorize the writ to be issued by a judge in vacation, although it is difficult to see how such a jurisdiction could be conveniently exercised in view of the fact that the proceeding by mandamus is substantially an action which may involve pleadings, issues, trial and final judgment upon the right, unless the power of the judge acting in chambers and not as a court should be restricted to issuing the writ returnable before the court, as is the procedure in some of the states. The power of the judge to issue the writ involved in the present appeal is placed on § 770 of the Code of Civ. Pro., which declares that “in the first judicial district a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits.” The argument is that an application for a writ of mandamus is under the Code a motion and that the writ when issued is an order, and that although elsewhere it can only be issued on application to the court, and not by a judge out of court, nevertheless in the first district, under the section quoted, the motion may be made before, and the writ may be issued by a judge at chambers. It is to be observed that § 770 of the Code of Civ. Pro. is substantially a re-enactment of § 401 of the Code of Procedure. But the former Code expressly excepted mandamus proceedings from its operation (§ 471), and under that Code a judge out of court in the first district had no power in mandamus proceedings other or greater than was possessed by any other judge in any other part of the state. It seems to be clear that under the former Code a judge out of court could not have issued a mandamus, as that power, by practice and the general understanding, could be exercised only by a court, and could not be exercised by a judge out of court.

It remains to consider whether the Code of Civ. Pro. has enlarged the power of a judge in the first district so as to enable him to issue a mandamus out of term, or when not sitting as a court. Prior to the enactment of the Code of Civ. Pro., the writs of habeas corpus, mandamus, prohibition, etc., were regulated by statutes and the practice of the courts. In the Code of Civ. Pro. these statutes and the practice thereunder were brought together and codified under the title “ special proceedings instituted by state writ,” and the writs above enumerated were denominated state writs. The several writs are treated of in separate articles, and the procedure is regulated with great detail. The respective-articles define how and when and by what authority writs to which they severally relate may be issued. The power to issue writs of habeas corpus was, for obvious reasons, conferred upon both the supreme court at special or general term, and upon judges out of court, and judicial officers authorized to perform the duties of a judge. Sec. 2017. But the article relating to-writs of mandamus expressly confines the power to issue the writ to a court at special or general term. Section 2068 is as follows “Except where special provision is made therefor in this article, a writ of mandamus can be granted only at a special term of the-court. In the supreme court, the special term must be one held within the judicial district embracing the county wherein an issue of fact founded upon an alternative writ is triable as prescribed in this article.” The following section (2069) prescribes in what cases the writ may or shall be granted at general term.

Section 2069 contains the only provision in the article which permits any tribunal other than the special term to grant the-writ

The right of a judge out of court to grant the writ seems to-be necessarily excluded by the language of § 2068, since there is. “ no other provision in the article ” conferring upon a judge out, of court the authority. Even if an application for a writ of mandamus is a motion within § 768 of the Code of Civil Procedure, it is taken out of the operation of § 770 by the peremptory and unequivocal language of § 2068. In the article relating to> writs of prohibition are sections limiting the power to issue those writs to the court at special or general term, substantially as in. the case of mandamus.

It is difficult to suppose that the power to issue the extraordinary writ of prohibition was intended to be vested in a judge out, of court, under the language of § 770, and yet this result would follow if the construction placed by the courts below upon the: power of a judge to issue a mandamus is correct; the language; of the statute in both cases being substantially the same.

We find it impossible to avoid the conclusion that a judge at chambers in the city of New York, or elsewhere within the state, has no jurisdiction to issue a writ of mandamus.

The right of a voter to vote may be lost unless this power shall be conferred. Under the statute no court can be opened within the state on the day of any general election to transact any business except for the purpose of receiving a verdict or discharging a-, jury, and for the exercise by a single magistrate of certain jurisdiction in criminal cases. Section 5, title 1, chap. 130, Laws of 1842, as amended by § 2, chap. 240, Laws of 1847.

The voter who is refused the right to vote can resort to no-court for relief until after his right is lost, as no court can entertain his application on election day.

If an enlarged jurisdiction in these cases is expedient, the remedy is with the legislature.

Voters outside of New York can have no relief by mandamus; issued on the day of election, and we think the voters of that city-under the arrangement of the statutes are in the same situation.

Our conclusion requires a reversal of the orders of the special and general terms.

All concur, except GrBAY, J., dissenting.


author: Earl, Ch. J.

text:
    Guiseppe Miele, App’lt, v. Joseph Deperino et al., Resp’ts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Appeal.
    Plaintiff on May 14, 1891, entered into a contract with defendants to-purchase certain real estate in Brooklyn, paying $200 on account. On the day set for delivering the deed plaintiff refused to accept, claiming-that defendants did not have good title, and brought this action demanding repayment of the $200, and as much more for expenses, etc. Held, that as these sums did not amount to $500, and as the action did not affect the title to real property, or an interest therein, this court has no jurisdiction to entertain the appeal.
    Appeal from order of the supreme court, general term, second department, affirming judgment in favor of defendants.

      D. W. Northup, for app'lt; Wm. Doll and Robert H. Racey, for resp’ts.
   Earl, Ch. J.

—On the 14th day of May, 1891, the plaintiff entered into a contract with the defendants to purchase from them ■certain real estate situated in Brooklyn; and at the time of the ■execution of the contract he paid them $200 to apply upon the* purchase price. The deed of the real estate was by the terms of the contract to be delivered to the plaintiff by the defendants on the 1st or the 15th of J une at the election of the plaintiff. Subsequently the time for the delivery of the deed was postponed to July 3d, and on that day the defendants tendered a deed of the real estate to the plaintiff, but he refused to accept it, claiming that the defendants did not have good title to the real, estate. He then demanded repayment of the sum of $200, and the farther sum of $203.51 for his expenses and disbursements in examining the title to the real estate, and these sums, not being paid, about the 17th day of July, 1891, he commenced this action to recover the amount of them.

These sums do not amount to $500, and as the action does not affect the title to real property, or an interest therein, this court has no jurisdiction to entertain this appeal. Code, § 191.

By the terms of the contract the plaintiff was to have the rent of the real estate from the 1st to the 15th day of June, and in his prayer for relief he also asks to recover such sum as may be found due for the rent during that time. He does not allege the amount or the value of the rent, and he sets forth no facts entitling him to recover the rent. He cannot repudiate or rescind the contract which gave him the rent, and at the same time have all the benefits of the contract to which he would be entitled if it were performed. Ho fact is alleged in the complaint showing that the plaintiff is entitled to recover more than the two items mentioned.

The appeal should therefore be dismissed, with costs.

All concur.


text:
    John Hartshorn, Resp’t, v. Ransom M. Chaddook, Appl’t.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Riparian owners—Wrongful obstruction of stream.
    Irrespective of any question of negligence or malice, a riparian owner who by his willful act diverts the waters of a natural stream from its accustomed channel and causes them to flow upon the lands of his neighbor, is liable for the resulting damages.
    3. Same.
    The lots of plaintiff and defendant on the opposite sides of a non-navigable stream were-subject to some overflow during freshets, and they both protected their lots by piles. Defendant in 1888 extended the piling, thirty feet into the channel and beyond his neighbors, and tilled in behind It with earth and rubbish, forming a solid dam and narrowing the stream. In 1889 an unusual Ireshet but at the usual time caused by heavy rain was dammed by defendant’s piling and the water forced upon the lands of plaintiff, washing out his piling and soil and doing great damage. The referee found that this was caused by defendant’s obstruction of the creek, and that plaintiff was entitled to damages. Held, no error.
    3. Same—Evidence.
    A witness for plaintiff was asked “ What is the value per cubic yard" of' filling in that washout? ” Defendant objected that the testimony was incompetent and that the measure of damages sought to be proved thereby . was improper. The referee overruled the objection. Held, no error; that, under the circumstances, the cost of restoring the land to its former condition and proof of the diminution in the market value of the lot was: alike admissible.
    4. Same—Measure of damages.
    When the reasonable cost of repairing the injury or of restoring the land to its former condition is less than what is shown to be the diminution in the market value of the whole property byreason of the injury, such cost of restoration is the proper measure of damages, but if the cost of restoring is more than such diminution, the .latter is generally the true measure, of damages.
    Appeal from judgment of the supreme court, general term, fifth department, affirming a judgment for plaintiff, entered upon, a report of a referee.

      De Melville Page, for app’lt; Daniel L. Benton, for resp’t.

         Affirming 40 St. Rep., 953.

   O’Brien, J.

—The recovery in this case is based upon the wrongful obstruction by the defendant of a stream or water-course, in consequence of which the plaintiff’s land was flooded and the-soil washed away and personal property thereon destroyed. The trial was had before a referee, and as the evidence was conflicting upon the essential issues of fact, we must be governed by the findings in reviewing the case.

The Oanacedea creek is a non-navigable stream, originally over 100 feet in width, passing through the city of Hornellsville in an easterly direction. The lots of the plaintiff are on the southerly bank of this stream, and those of the defendant on the northerly, and nearly opposite each other. The lands in the vicinity have been from time immemorial subject to some overflow from the creek during freshets and in time of very high water, though it does not appear what, if any, damage resulted therefrom. In order to protect the lots abutting on this creek, at the point iu question, from the overflow, the owners on both sides had raised the banks by driving piles into the soil along the shore and covering them with plank, and filling in behind with dirt and rubbish. On the northerly side, and in front of the defendant’s, lands, the stream had been encroached upon in this way prior to the year 1888, and narrowed so as to cause the water to flow upon the lands of the plaintiff on the southerly side, though it does-not appear that up to that time any very serious damage resulted! During the summer of 1888, the defendant extended the piling in front of his lands some twenty-five or thirty feet farther into-the bed of the stream. This new line of piles was covered with. plank and filled in behind with earth and rubbish, and constructed in such a way that the water would not flow through it. The referee finds that this formed a solid dam or obstruction extending into the channel of the stream as it then flowed, obstructing the flow of water for nearly one-third of its width, as it existed before. The channel of the stream in front of the plaintiff’s lands was thereby narrowed and obstructed to the extent of at least twenty feet.

It is also found that the act of the defendant in thus obstructing the flow of water in the stream was illegal and dangerous to the lands of the plaintiff on the opposite shore in time of freshets ■or high water. That on June 1, 1889, after a long and heavy ( rain, the water in the stream raised several feet and increased in volume and velocity, and the flow of the water was dammed and obstructed by the defendant’s piling, and the water was' thereby displaced and forced upon the lands of the plaintiff. That this flow of the water upon the plaintiff’s land washed out his piling and the soil along the shore and destroyed or carried away lumber, shingles, wood and other personal property of the plaintiff on his land. It is found that though the freshet was unusual, with respect to the volume of water, yet that similar ones but of less power have occurred in the past and are liable to occur in the future from heavy rains or melting snow, and in such cases the obstruction in the stream, created by the defendant, must force the water from its natural channel in which it was originally accustomed to flow upon the lands of the plaintiff. The referee reported that the plaintiff was entitled to judgment for the damages caused by the diversion of the water from the channel of the stream by the defendant’s act to the plaintiff’s lands, and he' assessed the damages at $886.25. The general term has affirmed the judgment.

Irrespective of any question of negligence, or malice, a riparian owner who by his willful act diverts the waters of a natural stream from its accustomed channel and causes them to flow upon the lands of his neighbor, is liable for the resulting damages. McKee v. D. & H. C. Co., 125 N. Y., 353; 35 St. Rep., 12.

All the facts necessary to the application of that principle have been found by the referee, and none of them are so destitute of evidence for their support as to warrant us in disturbing the judgment.

There is, however, a question of law in the case of some importance. The referee allowed the plaintiff $320, the cost of sixteen hundred cubic yards of soil washed away by the flood. On the trial a witness for the plaintiff was asked the following question : “ What is the value per cubic yard of filling in that washout ?”

The defendant objected that the testimony was incompetent and that the measure of damages sought to be proved thereby was improper. The referee overruled the objection and the defendant excepted. This exception raises the question whether this evidence was competent and admissible to prove the damages which the plaintiff had sustained. There is no doubt that the diminutian. in. the value of the land is.the general rule for measuring the damages in an action for an injury to real property of a permanent ■character. But this rule is subject to some exceptions, as it would in some cases be incapable of application. If my neighbor remove from my land, by means of a trespass, a load of sand or gravel, the act might have no appreciable effect upon the value of tile property as a whole, and yet I would be entitled to damages, Out in that case they would be measured by the value of the sand or gravel removed and the expense of repairing any injury caused by its removal. If buildings are injured, fences or other fixtures removed, the cost of restoring the buildings and the value of the fixtures would generally constitute complete indemnity. In this case the defendant is chargeable with removing a portion of the soil from the plaintiff’s land. Had the quantity removed been one yard, instead of sixteen hundred, no one, it is believed, would then contend that the plaintiff would be restricted to such damages as he could show by the diminution in value of the land. In this respect the present is a border case. It is difficult to formulate a general rule that would apply to all cases of injury such as this to real property. Had the defendant broken a window in the plaintiff’s house there is no doubt that the cost of completely repairing it would be the proper measure of damages. There are many cases of injury to real estate where the cost of repairing the injury may be the proper measure of damages. The owner is not in every case of injury to the soil, the trees or the fixtures, driven to proof of the diminution in value of the estate, by reason of the injuiy, in order to establish his damages. The rule seems to be that when the reasonable cost of repairing the injury, or, in this case, the cost of restoring the land to its former condition, is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages.

On the other hand, when the cost of restoring is more than such diminution, the latter is generally the true measure of damages, the rule of avoidable consequences requiring that in such a case the plaintiff shall diminish the loss as far as possible. Sedgwick on Damages, 8th ed., §§ 932, 939, 947; Graessle v. Carpenter, 70 Iowa, 166; Walters v. Chamberlin, 65 Mich., 333; Lentz v. Carnegie, 145 Penn., 612; Duffield v. Rosenzweig, 144 id., 539; Seely v. Alden, 61 id., 302. The loss of the use of the property in the meantime, in consequence of the injury, has sometimes been allowed and would seem to be reasonable and just. Therefore, proof of the cost of restoring the land to its former condition, and proof of the diminution in the market value of the lot was in this case alike admissible. There were two methods of measuring the damages depending upon circumstances, and all competent evidence offered should have been received by the referee, and hence it was not error to admit proof of the cost of restoring the soil to the condition it was in before the overflow. Seely v. Alden, supra.

But there was no evidence offered by either party in regard to the effect of the injury upon the market value of the lot and we cannot know from the record whether the diminution in value was more or less than the cost of restoration. The evidence offered being competent furnished some proof as a basis for the award of damages, and it cannot be said that the referee’s finding as to the amount of damages sustained is wholly unsupported by proof. When things attached to the soil, and therefore part of the realty, are injured or destroyed, or some part of the soil itself carried away, the value of the thing inj cured or destroyed and the cost of replacing or restoring it, or the expense of restoring the soil to its condition prior to the injury or trespass, may be proved in An'action by the owner to recover his damages. When all the evidence is in, it may turn out that the diminution in value of the freehold is the legal measure of damages, but the value of the thing taken or the cost of reparation is none the less evidence ■upon the question. Barrick v. Schifferdecker, 128 N. Y., 52; 33 St. Rep., 485; Argotsinger v. Vines, 82 N. Y., 308.

'The defendant’s exception was aimed at the question of the admissibility of the evidence, and on that point the appeal must stand or fall. He did not raise the question that the testimony, though admissible, was not complete or sufficient to warrant the assessment of damages by the referee. The defendant could have proved the diminution in value of the lot either on cross-examination of the plaintiff’s witnesses or upon his defense, but as he omitted to do this, or to raise any question except the admissibility of the testimony, he must be deemed to have waived the necessity of further and more complete proof on the part of the plaintiff. When, as in this case, damages are to be assessed upon one of two methods, according to circumstances, and the plaintiff’s proof is by one of these methods only, and the defendant fails to supply the other mode of proof, which may be more favorable to him, or to raise any question as to the failure of the plaintiff to supply it at the trial, an appellate court ought not to revérse the judgment, especially in a case like this where there is nothing to show, and no claim even made, that the other theory of damages would beynore favorable to the defendant.

As the ruling of the referee, which is challenged by the exception, was strictly correct, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    The Rochester Lantern Co., Resp’t, v. The Stiles & Parker Press Co., App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Appeal — Where brought on judgment-roll alone — Code Civ. Pro., §§ 994, 997.
    Where an appeal is taken without a case having been made containing any of the evidence, and appellant relies solely upon exceptions in the judgment-roll, the court can know nothing about the evidence except as it is embodied in the findings of fact.

      8. Contract—Measure oe damages.
    Defendant contracted on March 19, 1887, with one K. to furnish him dies, within a reasonable time, to be used in manufacturing lanterns. From time to time samples were sent to K., the last one on July 29th. On plaintiff's incorporation, August 27th, K. assigned the contract to it, but the first notification to defendant of the incorporation was in March, 1888. In an action for damages for breach of the contract, the referee allowed rent of a room paid by plaintiff tor October, 1887, wages paid employees, and damages for being unable to begin the manufacture of lanterns prior to March, 1888. Held, error; that the measure of damages was the difference between the contract price of these dies and the value or cost of the dies if furnished according to the contract.
    3. Same.
    Even if K. could have recovered special damages, his assignee, of whose connection with the contract defendant had no notice, could not recover special damages not contemplated when the contract was made.
    Appeal from judgment of the supreme court, general-term, fifth department, affirming judgment entered upon report of referee.

      Theodore Bacon, for app’lt; Wm. Nathaniel Cogswell, for resp’t.

       Reversing 40 St. Rep., 851.

   Earl, Ch. J.

—The defendant brings this appeal without having made a case containing any of the evidence, and relies solely upon exceptions contained in or annexed to the judgment roll as provided in §§ 994 and 997 of the Code. We do not know what the evidence upon the-trial was, except as we are informed by the findings of fact. The defendant does not complain of the findings of facts made by the referee; but it finds fault with his rulings upon matters of law, and the sole question before us is whether the rulings are justified by the facts found. In other words, do* the facts found justify the judgment ? The learned counsel for the plaintiff, however, contends that if the findings of facts contained in the record are insufficient to uphold the judgment, then we may assume that there was evidence upon the trial sufficient to justify other findings of facts which would support the conclusions of law. Such, undoubtedly, is the rule when upon an appeal a case has . been made containing the evidence. Then the appellate court may look beyond the findings of facts into the evidence and see if there is any evidence to support the conclusions of law, and it may affirm the judgment even if the findings of facts actually made do not support it if it finds sufficient evidence to justify it. But'there is no foundation for this rule where the appeal is upon the>judgment roll alone and the evidence is not before the court. Then the appellate court can know nothing about the evidence except as it is embodied in the findings of facts; it cannot know that there was any other evidence and there is no room or ground for presuming that there was any. In the former case there is no presumption that there was any other evidence than that contained in the record. But finding the evidence there the court may presume for the purpose of upholding the judgment tliat the judge or referee found the facts which the ev> dence justified. But in the latter case the rule contended for on behalf of the plaintiff would require the court to presume, not only the evidence, but the findings of facts based upon it Eor this there is no reason.

The party succeeding upon a trial before a judge or referee must see to it that he has findings of facts sufficient to uphold his judgment, and if he does not, he • is exposed to the peril of a reversal of his judgment by an appeal based solely upon the exceptions of .the defeated party to the conclusions of law. If the rule contended for by the plaintiff is sustained, then very rarely, if ever, would it be safe for a defeated party to appeal without a case, as it would nearly always be possible to presume facts were proved, although not actually found, which would support the judgment.

The law upon this matter of practice by some inadvertence has fallen -into some confusion and conflict, and it is time that the practice -should be finally settled.

In Chubbuck v. Vernam, 42 N. Y., 432, the statement in the head note that “ Where the case contains none of the evidence and ■only the findings of fact and conclusion of law of the referee, an exception to the conclusion of law, as not authorized by the facts found, is not good,” went beyond the actual decision. In that •case there was a general finding of the facts against the plaintiff, and with that finding in the record it could not be said that the conclusion of law was without support; and besides the judgment was affirmed without any resort to presumptions upon the facts actually found. There were, however, some unguarded expressions in the opinion of the chief judge which were disapproved in Stoddard v. Whiting, 46 N. Y., 627, where Judge Grover said: “The counsel for the respondent insists that as the case does not contain any of the evidence given upon the trial before the referee, but only the facts found by him, and his legal conclusions thereon, and the exceptions taken by the appellant to such legal conclusions, no question is presented which can be reviewed by this court, and cites in support of this position, Chubbuck v. Vernam, 42 N. Y., 432. In the syllabus of the reporter it is stated that when the case contains none of the evidence and only the findings of fact and conclusions of law of the referee, an exception to the conclusions of law as not authorized by the facts found is not good. One of the opinions delivered sustains this idea.

“ The learned judge says: 1 The party seeking to uphold the report of the referee is entitled to the benefit, not only of the facts actually found by the referee, but also, if necessary to sustain the conclusions of law by the referee, to all such facts as the evidence tended to prove, and as the referee might have found in his favor. Hence, without examining the case further, there would be abundant reason for affirming the judgment.’ This entirely overlooks the obvious fact, that in the absence of all the evidence, it can never appear that there was any evidence tending to prove any additional facts, and .therefore authorizing an assumption of the finding of any such facts. The judge did'not base his opinion upon this ground alone, but proceeded to show that from the facts the conclusions of law were correct. In the other opinion published, no allusion is made to any such reason for the affirmance of the judgment This shows that no such question was determined in the case. The true rule, where the case does not contain any of the evidence but the findings of facts only, is to assume that there was no evidence, from which any other facts could be found, and where the conclusions of law in such a case have been excepted to, the question to be determined is, whether such conclusions are warranted by the facts found,” and the judgment was reversed. In Kellogg v. Thompson, 66 N. Y., 88, Chief Judge Church said: “ The evidence given on the trial is not contained in the case. We must assume, therefore, that the facts proved were sufficient to sustain the findings, and also any additional findings necessary to sustain the conclusions of law not in conflict with the affirmative facts found.” He made no reference to the case of Stoddard v. Whiting, nor does it appear that his attention was called to it by counsel. The remark was purely obiter, as the judgment was affirmed without indulging in any presumptions upon the facts actually found. In Murray v. Marshall, 94 N. Y., 617, Judge Finch adopted the obiter dictum contained in Kellogg v. Thompson, without referring to the case of Stoddard v. Whiting, and apparently without having his attention called to it, but his conclusion was finally reached by taking the facts as they had been actually found at the trial térm. In Gardiner v. Schwab, 110 N. Y., 650; 17 St. Rep., 174, Judge Gray said: “As the case presented here does not contain the evidence given upon the trial, the correctness of the conclusions of law made by the referee is alone the subject for review. If they are sustained by the findings, the judgment must be sustained. We are only concerned with the legal effect of the facts as found.

“ Those findings of fact we must assume to be true, and we must also assume that the facts proved on the trial were sufficient to sustain these findings. Indeed,, if necessary, we must assume that they were sufficient to sustain any additional findings required to support the conclusions of law not in conflict with the affirmative facts found,” and he cited Kellogg v. Thompson and Murray v. Marshall, but did not refer to Stoddard v. Whiting. But he did not assume any facts not found, as he concluded his opinion as follows: “We think his findings of fact-justified his conclusions of law, and for that reason the judgment of the general term should be affirmed.”

This brief review of the cases in this court shows that the inconsiderate dictum in Kellogg v. Thompson has born a small progeny of dicta, all in conflict with what was actually and deliberately decided in Stoddard v. Whiting, and we must now reaffirm the doctrine of that case. Therefore, in disposing of this case, we must take the facts as found by the referee, and they are as follows: On the 19th day of March, 1887, James H. Kelly entered into a contract with the defendant, whereby it was to make and deliver to him certain dies to be used by him in the manufacture of lanterns ; that it agreed to make and deliver the dies within a reasonable time, that is, within five weeks from the time of the order to manufacture and deliver the same; that the plaintiff was incorporated shortly prior to the 27th day of August, 1887, and on the 29th da'y of that month Kelly duly assigned to the plaintiff his contract with the defendant, and all his rights and claims thereunder; that the plaintiff failed to establish by evidence that at or prior to the time of making the contract the defendant was informed that any corporation was intended to be organized, or that the contract was made for the use or benefit of any other person or corporation than Kelly; that the first notification received by the defendant that the plaintiff had any interest in the contract, or that such a corporation as the plaintiff existed, so far as was proven 'upon the trial, was given to it by a'letter dated March 22, 1888, and signed “Rochester Lantern Company, by James H. Kelly, President; ” that from time to time after making the contract samples were sent by Kelly to the defendant and dies were shipped to him by the defendant; that the last sample for the last die to be made was sent by Kelly to the defendant on the 29th day of July, 1887 ; that by the conduct of Kelly and the defendant the performance of the contract within the time originally stipulated was waived, and the contract except as to time of performance was regarded as still in force at the date of the assignment thereof; that a reasonable time in which the defendant could have carried out and performed the contract after August 29,1889, was five weeks, which expired October 3rd; that Kelly was a manufacturer of lanterns in Rochester and required the dies for the manufacture of lanterns which he designed to put upon the market, as the defendant was informed and well knew, and that the plaintiff after its.incorporation succeeded him in the business of manufacturing lanterns; that the defendant failed to carry out thé contract and to furnish dies as thereby required; that the plaintiff for the sole purpose of carrying on the business of manufacturing the lanterns which it was intended that these dies should make, entered into certain obligations and incurred certain liabilities, as follows: It paid one Butts for rent of room from October 3rd to November 1, 1887, the sum of $31.86 ; it paid one Broad, an employee, for his wages from October 3, 1887, to March 24, 1888, the sum of $250, and one Bristow, an employee, for his wages during the same time the same sum; it paid to Crouch & Sons for the rent of premises from November 1, 1887, to March 24, 1888, $278,46; that by reason of defendant’s failure to perform the contract as agreed by it, the plaintiff was unable to manufacture any lanterns for the market until after the commencement of this action on the 24th day of March, 1888, and that the plaintiff by reason of such failure sustained loss in the sums above mentioned which it actually paid, and the referee awarded judgment for the amount of the items above specified.

We do not think these facts sufficient to justify the recovery of the items of damages specified. There had been no breach of the contract at the time of the assignment thereof to the plaintiff, and at that time Kelly had no claim against the defendant for damages. After the assignment Kelly had no interest in the contract and the defendant owed him no duty and could come under no obligation to him for damages on account of a breach of the contract by it. There is no doubt that Kelly could assign this contract as he could have assigned any other chose in action, and by the assignment the assignee became entitled to all the benefits of the contract. Devlin v. The Mayor, etc., 63 N. Y., 8. The contract was not purely personal in the sense that Kelly was bound, to perform in person, as his only obligation was to pay for the dies when delivered, and that obligation could be discharged by anyone. He could not, however, by the assignment, absolve himself from all obligations under the contract. The obligations of the contract still rested upon him and resort could still be made to him for the payment of the dies in case the assignee did not pay for them when tendered to it. After the assignment of the contract to the plaintiff the defendant’s obligation to perform still remained, and that obligation was due to the plaintiff, and for a breach of the obligation it became entitled to some damages, and so we are brought to the measure of damages in such a case as this.

It is frequently difficult in the administration of the law to apply the proper rule of damages, and the decisions upon the subject are not harmonious. The cardinal rule undoubtedly is that the one party shall recover all the damage which has been occasioned by the breach of the contract by the other party. But this rule is modified in its application by two others; the damages must flow directly and naturally from the breach of the contract and they must be certain, both in their nature and in respect of the cause from which they proceeded. Under this latter rule, speculative, contingent and remote damages, which cannot be directly traced to the breach complained of, are excluded. Under the former rule, such damages only are allowed as the parties may fairly be supposed, when they made the contract, to have contemplated as naturally following its violation. Hadley v. Baxendale, 9 Excheq., 341; Griffin v. Colver, 16 N. Y., 489; Leonard v. The N. Y., etc., Tel. Co., 41 id., 544, 566; Cassidy v. Le Fevre, 45 id., 562.

The natural and obvious consequence of a breach of this contract on the part of the defendant would be to compel Kelly or his assignee to procure the dies from some other manufacturer, and the increased cost of the dies, if any, would be the natural and ordinary measure of the damages, and such would be the damages which it could be fairly supposed the parties expected when they made the contract would flow from a breach thereof. It does not appear that Kelly was engaged in the manufacture of lanterns when the contract was made, or that he contemplated engaging in the business until dies were furnished. Ho fact is found showing that the defendant had any reason to suppose that he would hire any workmen or persons before the dies were furnished, and it cannot be said that it was a natural and proximate, consequence of a breach of the contract that he would have idle men or unused real estate causing him the expenses now claimed. Much less can it be supposed that the defendant could when the contract was made anticipate that the contract would be assigned and that the assignee would employ men and premises to remain idle after the defendant had failed to perform the contract and in consequence of such failure. Such damages to the assignee could not have been contemplated as the natural and proximate consequence of a breach of the contract. If we should adopt the rule of damages contended for by the plaintiff, what would be the limits of its application ? Suppose instead of employing two men the plaintiff had projected an extensive business in which the dies were to be used, and had employed one hundred men, and had hired or even constructed a large and costly building in which to carry on the business, and had kept the men and the building unemployed for months and perhaps years, could the whole expense of the men and building be visited on the defendant as a consequence of its breach of contract ? If i.t could we should have a rule of damages which might cause ruin to parties unable from unforeseen events to perform their contracts.

The damages allowed by the referee in this case are special damages not flowing naturally from the breach of the contract, and we think the only damages such an assignee in a case like this can recover is the difference between the contract price of these dies and the value or cost of the dies if furnished according to the contract. Even if Kelly could have recovered special damages, we see no ground for holding that his assignee, of whose connection with the contract the defendant had no notice, could recover special damages not contemplated when the contract was made.

"We are, therefore, of opinion that the award of damages made by this judgment was not justified by the facts found and that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.