author: Daniels, J.: Brady, P. J.:

text:
    ISRAEL BOWEN, Individually and as Executor, etc., of ISAAC W. POTTER, Deceased, and Others, Respondents, v. JULIUS BECHT, MARY A. COULTER, Individually and as Executrix, etc., of HENRY COULTER, Deceased, and THOMAS BAILEY, Appellants.

      Practice — ti'ial of a specific question by a ju/ry in an equitable action — when an order granting or refusing'a new trial in,-is a/ppealable — Oode of Oml Procedure, sea. 1347, sub. 3; sea. 1003.
    Subdivision 2 of section 1347 of thb Code of Civil Procedure, provides that appeals may be taken to the General Term of the Supreme Court from an order granting or refusing a new trial, “except that where specific questions of fact, arising upon the issues in an action triable by the court, have been tried by a jury, pursuant to an order for that purpose as prescribed in section 971 of this act, an appeal cannot be taken from an order granting or refusing a new trial upon the merits."

      Held, that the prohibition against appealing from an order “upon the merits ” was intended to limit and restrict the consideration of the effect of the evidence to the jury and to the court before which an application, to set aside the verdict and for a new trial might be made under the provisions of section 1003 of the said Code.
    That it was not designed to extend beyond a review of the effect of the evidence bearing upon the issue tried.
    That the exception was not intended to prevent the review, by appeal, of rulings ' made by the justice presiding at the trial before the jury, by which proper evidence was rejected, or improper evidence received, or unsound rules applied to the consideration of the evidence in the submission of the case to the jury.
    That where such erroneous rulings have been made, and the verdict in part influenced by them has been, made the basis of the final recovery, a new trial should be ordered, despite the provisions of section 1003 .of the said Code, declaring that “an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted.”

      Matter of Smith (95 N. Y., 516) followed.
    Where such erroneous rulings have been made by the justice presiding at the’ trial before the jury of the specific questions referred to them, and it appears from the decision of the justice before whom the issues in the action were tried at Special Term, and from the judgment entered thereon, that the findings of the jury upon the questions submitted to them were considered by him in arriving at his decision, the judgment will be reversed.
    Appeal from a judgment in favor of the plaintiffs, recovered on a trial at the Special Term, and from orders denying motions for a new trial.

      Luther It. Marsh, George W. Stevens and Wheeler H. Peekham, for tlie appellants.

      Pdward M. Shepard, for the respondents.
   Daniels, J.:

This action was commenced in May, 1878, by Isaac W. Potter, the testator, to set aside and annul a confirmatory deed made and executed hy him on or about the ,11th of March, 1876, and other instruments which he executed during the spring of that year. The deed by its terms confirmed the title of the defendant Mary A. Coulter to five lots of land situated on the corner of One Hundred and Sixty-first street and Tenth avenue and Kingsbridge road in the city of New York. He had acquired the title to these lots by conveyances directly to himself in the years 1858 and 1859, 'and held it until the 7th of June, 1860, when a deed conveying it to the . defendant Mary A. Coulter was executed by him. He also at the same time executed and delivered to Henry Coulter, the husband of Mary A. Coulter, a mortgage upon the same property to secure the sum of $5,450. It was afterwards alleged by him that he had been induced to execute this deed and mortgage by. false and fraudulent representations made to him by Henry Coulter, who was the husband of Mary A. Coulter, his sister, and an action was commenced in the year 1871 to avoid this deed and secure the re-conveyance of the property to himself. After issue was joined in that action it was brought to trial in the year 1874 and a judgment was recovered by him adjudging the deed to be fraudulent and void and canceling and setting it aside, and requiring Mary A. Coulter to reconvey the property to the plaintiff Isaac W. Potter. He also recovered the sum of $1,899.43 for costs in the action. The defendant Coulter appealed from the judgment to the Greneral Term of this court, and that appeal was pending in the spring of 1876. By the papers which were then executed by Potter he also-discharged this judgment and agreed to its reversal and the dismissal of the complaint. And he in like manner released to Mary A. Coulter an award made in his favor for a portion of the premises taken to widen the Kingsbridge road. He likewise consented to-the discontinuance of an action which- he was also prosecuting to set aside and annul the mortgage given to Henry Coulter-Under the authority of these instruments a formal order of reversal of the judgment recovered against Mary A. Coulter was entered and the complaint was dismissed ; and it was to restore the judgment itself, so far it established his rights to the property, and to- set aside and annul the second deed to Mary A. Coulter, that this action was commenced and prosecuted by him. To sustain it, he alleged that he entered into an agreement with the defendants, Mary A. and Henry Coulter, to release her from the costs recovered against her by the judgment in his favor; and for that release it was agreed that he should remain the owner of the five lots of land, and that these defendants should have no further interest therein. The effect of the agreement alleged to have been made, if it had been carried out, would have been to discharge or release the mortgage executed to Henry Coulter, and to restore the title to the lots to the plaintiff Potter, and discharge the defendant Mary A. Coulter from the costs recovered against her by the judgment in his favor. This was not done by the papers which were executed, but her title to the property was in form confirmed, and the right of the plaintiff Potter to the residue of the judgment, as well as to the award, was released. This he alleged he had been induced to do by fraudulent misrepresentations of the papers presented to him to carry his agreement into effect; that his health had then become impaired and his mind was weak, and he did not understand the nature of the instrument's. presented to him for his signature, and subscribed them upon the representation of Henry Coulter that they were the papers or instruments required to perform and carry out the agreement which had been made. And it ' was upon the allegation that he had been deceived and defrauded in this manner that his action was brought to annul and set aside these instruments. These defendants denied all allegations ^ of fraudulent misconduct, and alleged the instruments which were executed to have been understandingly and intentionally given by the plaintiff Potter to perform an agreement to that effect entered into by him.

When the action was brought before the court for trial the judge presiding directed certain specific questions to be first tried by a jury. These presented the issues as to the nature and effect of the agreement made; the knowledge of Potter of the contents and effect of the deed and other papers executed by him between the 11th of March and 20th of May, 1876; and the truth of the allegations that he had been induced to execute the deed and these papers by false and fraudulent representations and through the exercise of undue influence on the part of these defendants. The jury answered each of the four inquiries favorably to the plaintiff, and in that manner determined the important facts upon which the action was founded, as they had been alleged to be by him. But during the trial evidence was- admitted and rejected, and rulings were made, which the defendants relied upon as erroneous, in support of their motion for another trial of these issues. Their application to set aside the verdict, and for an order directing'a further trial, was made upon two occasions preceding the final trial of the action. The motions were denied, and from the orders denying them the defendants have appealed.

It has also been insisted, in support of these appeals, that so much of the case as was submitted to the jury was improperly determined upon the merits in favor of Potter. But this point cannot be considered on this appeal, for by subdivision 2 of section 1347 of the Code an appeal upon the merits has been prohibited from an order granting or refusing a new trial, after the trial of issues in an action, where neither party is entitled as a matter of right to a trial by jury. This was an action of that description. It was equitable in its form and to be tried by the court, unless an order for the trial of one or more questions of fact arising upon the issues, by jury, should be made by the court under the authority of section 971 of the Code. It is such an order that was made, and after the trial had taken place under it, the only manner in which the merits of the part of the controversy submitted to the jury could be re-examined or reconsidered, was by a motion for a new trial under the authority of section 1003 of the Code, required to be made before the recovery of the judgment. (Chapin v. Thompson, 80 N. Y., 275.)

That part of subdivision 2 of section 1347 which has prohibited an appeal from the order upon the merits, has not undertaken to define precisely what is to be understood as the merits referred to. But as the language has been there employed, it probably was not designed to extend beyond the effect of the evidence appearing upon the trial of the issues. Its language does not require that a more extended signification than that should be given to it, and that is probably all that was designed by it in the enactment. It was to limit and restrict the consideration of the effect of the evidence to the jury and the court before which the application to set aside the verdict, and for another trial, should be made. By this restriction of the authority no very great risk of injustice should ordinarily arise, inasmuch as it has been held that the previous equity practice is still applicable to the determination of such issues, empowering the court to determine their effect by modifying or disregarding them altogether. (Carroll v. Deimel, 95 N. Y., 252.)

By subdivision 2 of section 349 of the preceding Code, unrestricted power of review over all orders granting or refusing a new trial was secured to the court, and the exception of the consideration of the merits in verdicts of this description was first made by the enactment of the Code of Civil Procedure. This exception, as already suggested, should not be so broadly construed, however, as to exclude the power to consider rulings made, by which proper evidence may have been rejected or improper evidence received, or unsound rules applied to the consideration of the evidence in the submission of the case to the jury. For these rulings would have the effect of preventing the merits of the controversy, as it should be made to appear, from being considered by the jury in arriving at their verdict. The exception contained in the Code of Civil Procedure requires no more extended construction from its language, and it could not have been its design to exclude the re-consideration of' these important subjects upon an appeal from the order. To construe it otherwise would be the source of very great injustice, affecting the disposition of important rights brought before and to be determined by the courts, for it might very well result in sanctioning the exclusion of important as well as controlling evidence pertinent to the consideration of the issues, from the knowledge of the jury, and in that manner resulting in radical as well as disastrous injustice. The same consequence might likewise follow from the introduction and application of improper evidence, or from the application of unsound rules for the consideration and effect of the evidence, and it should require more clear and explicit language than that creating this exception to sanction and maintain a toleration of radical errors ■of this description, by placing them beyond the power of an appellate tribunal to review. The language employed requires no such construction, and it should not be given to it. But the exception made to the right of appeal should be limited to that class of cases where alone the effect of the evidence might be intended to be drawn into consideration. And by that construction the legal points may still be presented as they should be, and as that was allowed by the practice preceding the enactment of the present Code (Vermilyea v. Palmer, 52 N. Y., 471, 477), and it has since been followed in Browne v. Murdock (12 Abb. N. C.. 360). The point, therefore, is before the court whether improper rulings in either of the respects alluded to were made to the prejudice of the defendants upon the trial. For if they were, and the verdict in part produced by them was made the basis of the final recovery against the defendants, then another trial should be ordered, notwithstanding the very broad language of section 1003 of the Code of Civil Procedure, declaring that an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded, if that conrt is of opinion that substantial justice does not require that a new trial should be granted. ” A point somewhat similar to this arose under another section of .the Code in Matter of Smith (95 N. Y., 516), where it was still held that if “the evidence erroneously admitted, or rejected, was important and material, and the court cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt upon the subject, then we conceive a case is presented where the party excepting was necessarily prejudiced within this section. He was deprived of the opportunity of having his case decided upon the competent and material facts, and it is not a just answer to say that on. a retrial the same conclusion may possibly be reached.” (Id., 527.)

As has been already mentioned, the foundation of Potter’s right to maintain the action was his ability to prove that the deed and papers in controversy in this action had been fraudulently obtained from him. And it-was a pertinent subsidiary inquiry in the investigation of the charge whether he had been, in fact, the owner of these lots of land, or whether, as it was claimed by the defendants Coulter, they had been paid for by Henry Coulter, and he had defrayed the expenses of their improvement, and placed the title in Potter as a temporary matter of convenience. If the defendants were right in the assertion made by them, that Henry Coulter, in fact, paid for the property, then the probability of Potter being deprived of its title by fraudulent representations, charged to have been made by Coulter, would be materially diminished. And it was, accordingly, an important circumstance for the defendants to make proof of this fact, if they had the ability to do so. For that purpose they made the following offer: "We offer to show that all the purchase-money for these premises was paid by this witness and his wife, and not a cent by Isaac "W. Potter; and thac all of the money for the buildings, and the improvements on those premises since, have been paid by this witness and his wife, and not a cent by Potter; which was objected to by the plaintiffs, excluded by the court, and the defendants excepted to the ruling excluding it. This was manifestly an erroneous ruling, rendered still more evident by the circumstance that the judgment in the preceding action recovered by Potter against Mary A. Coulter had been read in evidence, containing the finding of fact that the purchase-money for the premises had been paid by Potter. This judgment had been reversed by an order complained of in this action, but still the judgment, together with the findings of the court and the pleadings in the action, were allowed to be read in evidence. And by their production they placed before the jury this conclusion of fact, as well as the additional one that Henry Coulter had obtained the original deed from Potter by means of fraudulent representations made to him and inducing its execution.

In the submission of the case to the jury the court was requested to charge as follows : “Although, by the judgment of 1874, it was adjudged that Mr. Potter was the owner of the premises, and that the deed from him to Mrs. Coulter of 1860 was fraudulent and void, that judgment has been reversed, and now furnishes no evidence to this jury that such was in fact the case. The presumption of law is that the judgment of reversal of 1876, by which Mr. Potter’s complaint was dismissed, was the correct one.”

But the learned judge failed to do so, but charged the proposition as it was presented, unless the reversal of the judgment had been obtained by fraud. And to that an exception was taken, as well as to the refusal to charge the proposition itself. This constructively left the jury at liberty to consider the effect of the judgment in the preceding action with the qualification suggested by the court, and which may very well have misled them in determining the use that might properly be made of the judgment-roll. Certainly until they should find the fact that the judgment had been reversed through the instrumentality of a fraudulent device, they could have no legal liberty to refer to or make use of it. For its reversal deprived it of all its .force and effect as legal evidence between the parties. And that continued to be its nature until it was determined that the agreement for its reversal had been obtained by fraud, and after that the evidence supplied by the judgment would be of no particular practical effect. The proposition which was presented was legally correct, and it should have been submitted to the jury as it was presented, with such further observations as might have been deemed necessary to prevent any possible misconception on the part of the jury as to the use they might make of the judgment.

The defendants objected to proof being given of the collection of the awards for portions of the property which were taken for widening Kingsbridge road, for the reason that no allusion, either to these awards, or to the fact of any of the property having been so taken, or the moneys awarded, was made in the complaint. The property was taken and the awards made in 1874, before the commencement of the action by Potter. And if it had been intended to claim the recovery of so much of. these moneys, being the balance of $4,057.07 received and retained by the defendant Mary A. Coulter, some reference to the facts should have been made in the complaint. It was a different subject matter from that relied upon for the support of the action, and the defendants were entitled to-be apprised by a statement of the facts that Potter designed to claim, as he very well might if the deed had been fraudulently obtained from him, the recovery of these moneys with the interest upon them. (Southwick v. First Nat. Bank, 84 N. Y., 420, 429.) The objection to the proof offered was specifically placed upon this omission in the complaint, but it was overruled and the evidence-was received, to which the defendants in due time excepted. A proposal was made on the trial to obviate the effect of this objection by an amendment of the complaint, but that was not permitted, and the proof, because of the deficiency of the complaint in this respect, should not have been received. But it was both received and afterwards acted upon by the court, for, in the judgment which was recovered, Potter was permitted to recover this sum of money, reduced by a payment made in' his behalf to his attorney. This was an erroneous disposition of so much of the case upon the weight and effect of evidence not legally admissible. It might, it is true, be measurably corrected by reversing this portion of the judgment, and if the case was otherwise unobjectionable, that course could very-well be followed. But as important evidence for the defendants was excluded, and the jury were allowed to consider and dispose of the inquiries presented to them without it, this disposition would be neither just nor equitable. A large number of other objections were taken to rulings upon evidence during the progress of the trial before the jury, and they have been relied upon in support of the appeal, but they do not seem to rest upon so substantial a foundation as to be made the basis of a determination for setting aside the verdict aqd the judgment. In several instances the objections were taken in the most general form, without indicating the grounds now assigned for their support. And they, therefore, can be of no profitable advantage to the defendants. In other instances, the rulings drawn in question were not improperly made, and for that reason are incapable of affording the least assistance to the defendants.

It has been urged in behalf of the present plaintiffs, who were substituted in the place of Potter after his decease, that upon the final trial before the court, the evidence considered to have, been improperly rejected was received and acted upon by the same learned judge who presided at the trial of the issues, and that1 the error in rejecting it upon the trial before the jury, has, in this' manner, been corrected, and that would undoubtedly be the effect if the verdict of the jury had been laid out of consideration as a ■circumstance tending to determine the final disposition which •should be made of the action. But it was not, for upon the final trial it was received by the court under its decision that it could pass upon the whole case and decide it upon the merits, “ giving due consideration to the verdict and such evidence as might be submitted.” And that the verdict was made to some extent the foundation of the judgment appears by the decision of the court, as well as by the judgment itself, for in the former the statement has been made that the facts were found after hearing the proofs and allegations of the parties and the verdict of the jury herein.” The judgment proceeds still further and contains a statement of the findings of the jury upon the issues sent to them, and that the final trial took place “ upon the said verdict and upon the evidence produced before the -said jury, and upon further evidence produced in the first instance upon such further trial at the said Special Term.” It has been made entirely evident by these statements that the judgment finally rendered in the action proceeded upon the verdict rendered by the jury as well as the additional evidence produced before the court. The plaintiffs, therefore, were secured the advantage which the verdict could supply that had been obtained by an erroneous trial of the issues. The weight and effect of the errors it was impossible to determine or apportion. How far the verdict may have proceeded upon them can by no intelligible process of reasoning or examination be ascertained. Neither can it be determined how far its effect may have been qualified or restricted by the reception of the evidence on the trial before the court which had been offered and rejected on the hearing before the jury. But so far as the jury may have been influenced in their consideration óf the case, by the absence of evidence offered to prove that Coulter had paid the purchase-price for the property, or the omission of the court to give the direction concerning the effect of the judgment which seems to have been correctly requested, their action must have had some weight and effect in the final disposition of the case. The verdict was relied upon to a certain extent at least, how far it cannot be determined, and its effect, and it may have been a vital part of its effect, was allowed to influence the final determination of the action. The errors accordingly arising upon the trial before the jury, were in no manner corrected by what finally took place before the court. But they were perpetuated through the entire proceeding, and an advantage was given to the plaintiffs over the defendants in that manner which they were not entitled to claim. It may very well be that, in this manner, injustice has been done to the defendants and that injustice can only be corrected by the reversal of the judgment and the orders from which the appeals have been taken, and directing another trial of the action, and such a direction should be given with costs, to abide the event.

Brady, P. J.:

I concur. I entertain no doubt that a new trial is the right of the appellants. In the trial of issues ordered to be disposed of by a jury, the rules of evidence must be observed as they exist, and cannot be dispensed with, although in some instances a reversal need not follow because harmless evidence was received.

Present — Brady, P. J., and Daniels, J.

Judgment and order reversed and new trial granted, with costs to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    GUSTAVUS SHEPARD, Appellant, v. REUBEN G. WRIGHT, Respondent.

      Foreign judgment — service of a summons upon a non-resident in a foreign State, void.

    This action was brought upon a decree rendered against the defendant, in an action to foreclose a mortgage brought in chancery, in the Province of Ontario, Canada. The bill of complaint and notice were served upon the defendant at the village of Westfield, in this State, at which place he resided.

      Held, that the court did not acquire by such service jurisdiction over the defendant’s person.
    Appeal from a judgment, recovered on a trial before the court dismissing the plaintiff’s complaint in an action brought upon a decree rendered against the defendant in an action brought in chancery, in the Province of Ontario, Canada; the bill of complaint and notice in which action were served upon the defendant at his residence, in the village of Westfield, in the State of New York.

      G. W. Ootterill, for the appellant.

      Luther JR. Ma/rsh, for the respondent.
   Daniels, J.:

The action was upon a decree entered against the defendant in an action in chancery in the Province of Ontario. Canada. The •defendant was served with, a copy of the bill of complaint and notice in the village of Westfield, in this State. He did not appear in the action in Canada, and it was held by the court at the trial that jurisdiction over his person had not been acquired by the court upon whose decree this action was prosecuted, and the complaint was therepon dismissed. The action in the Court of Chancery was primarily for the collection or foreclosure of mortgages and the sale of the property affected by them. And as the defendant was the owner of the equity of redemption, it has been claimed that he was amenable to the jurisdiction of the court pronouncing the decree ; and Huntley v. Baker (33 Hun, 578), is relied upon as sustaining this proposition. But neither that decision nor the authorities 2'eferred to in the course of the argument go to that extent. For in that case the defendant had his residence and domicile in the State of Wisconsin, where the judgment was recovered, and the summons was served upon him, as it was provided by the Jaws of that State it might be, by leaving a copy of it at his usual place of abode. That was done, the summons being left with his daughter at the place of the family residence. And, although he himself was at the time out of the State, this was held to be a legal service of the summons upon him, as his domicile still remained there at the time when the service was made. In the present case the defendant does not appear to have been at ■ any time domiciled or a resident of the Province of Ontario, but, by one of the affidavits authenticating the service made upon him, it is stated that he then resided at the village of Westfield. This fact materially distinguished this case from that of Huntley v. Baker (supra), and from the other authorities relied upon in support of the appeal. In Orcutt v. Ranney (10 Cush., 183), the defendant was similarly situated, for he had a place of abode in the State where the service was made, and the summons was served by leaving it there. And Morrison v. Underwood (5 Cush., 52) was very much the same in its leading circumstances. In Stockwell v. McCracken (109 Mass., 84), the court assumed the defendant to have been a citizen of the State of California at the time when the service of the process was made. And as that service was conformable to the laws of that State, it vis considered to have secured to the court jurisdiction over his person when the judgment itself was rendered. . hese cases, and others following the same principle, proceed upon the ground that while the party is subject to the laws of the State in which the proceedings are instituted, service may regularly be made as those laws provide; and even though it may not be personal, still it will be obligatory upon the party subject and owing allegiance to those laws.

That was not the condition of the defendant, for he resided, as the affidavit shows, in the State of New York. If he had previously resided in the Province of Ontario, that residence had been terminated and changed to a residence actually acquired in this State. And that fact deprived the Court of Chancery in the Province of Ontario of its power to .acquire jurisdiction over the person, by the service of process upon him while he was beyond the limits of its territorial jurisdiction. The rule upon this subject has been stated to be “that no sovereignty can extend its process beyond its territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals. If a State were to pass an act declaring that upon personal notice of a suit brought against a foreigner, resident in a foreign country, proceedings might be had against him and a judgment obtained in invitum for aught I know the local tribunals might give a binding efficacy to such judgments. But elsewhere they would be utterly void, as an usurpation of general sovereignty over independent nations and their subjects,” * * * “ nor would it in such a case vary the legal result that the party had actual notice of the suit, for he is not bound to appear to it. No sovereign has a just right to issue such a notice, and thereby to acquire a jurisdiction to draw the party from his own proper forum ad aUum examen, Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if on account of his supposed or actual property being within the territory, process by the local laws may by attachment go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must upon general principles, be deemed only to bind him to the extent of such property, and cannot have the eifect of a conclusive judgment in. personam for^the plain reason that except so far as the property is concerned, it is a judgment coram non judicel (Picquet v. Swan, 5 Mason, 35, 42, 43.) The same principle was-sanctioned in Flower v. Parker (3 id, 247, 251); Dunn v. Dunn (4 Paige, 425); Fenton v. Gurlock (8 Johns., 194), and Gibbs v. Queen Insurance Company (63 N. Y., 114, 124, 125). And where-the record may recite the fact that service of process was personally made, or that the party proceeded against appeared, it may be contradicted in an action in another country brought upon and to enforce the judgment. (Starbuck v. Murray, 5 Wend., 148.)

The decree pronounced against the defendant in the. Province of Ontario was, so far as it adjudged a personal liability against the defendant, without authority and void for want of jurisdiction over his person. And the answer sufficiently presented the objection to secure its benefit to the defendant. Por this reason, and also upon the opinion delivered by the court at the trial, the judgment was right, and it should be affirmed.

Brady, P. J., concurred.

Present — Brady, P. J., and Daniels J.

Judgment affirmed.


text:
    In the Matter of the Application for Probate of the Last Will and Testament of ELIZA B. BECKETT, Deceased.

      Will — publication of— no pa/rUcular form of words is necessa/ry.

    Upon an application for the probate of a will, it appeared that the testatrix had been greatly attached to a niece, and had always cared for and supported her. She went to visit her in Connecticut, in August. 1881, and remained there for over a month. Just before leaving New York she told her maid that she was going to leave all her property to her niece; that she was going to make a will, but she did not know when, and she asked the maicj if she would sign it; she stated that the case might come into court, but that the 'witness need not be frightened. On October 5, 1881, when the will was executed, the maid came into the room where the testatrix and the other witness were, and the testatrix said: “ There is the paper I spoke to you about signing; ” and then said: “ It may make you come into court, but you need not be afraid.”

      Held, that this was a sufficient publication of the will as to the maid.

      The other witness had been a witness to the execution of three other wills made by the testatrix, the last of which had been duly declared by the testatrix, in the witnesses’ presence, to be her last will. She was sent for at the time the will in question was executed, and was asked on her arrival by the testatrix to sign the paper, and told that the testatrix wanted to make alterations in her previous one on account of the sickness of her niece, and that she was sorry to trouble the witness again to sign the paper. The witness testified that although the testatrix did not then declare to her that the instrument she then signed was a last will, or a codicil thereto, yet from the knowledge of what had gone before she knew it to be a will.

      Held, that there was a sufficient publication of the will as to this witness.
    Appeal from a decree of the surrogate of the county of New York, refusing to admit a will to probate.

      Charles W. Bangs and John L. Qadwalader, for Alice McJBlair, legatee, appellant.

      E. Ellery Anderson, Joseph S. Auerbaoh and Ridha/rd W. Stevenson, for Isabella Walsh and others, respondents.
   Daniels, J.:

The instrument presented as the will of the deceased was written by herself. It was dated on the 5th of October, 1881, subscribed by her and by two witnesses, who were present at the time of its execution. It was written substantially in form as it has been set forth in the case, and was partially upon two sides of the same paper, the second side including all that was written after the word “ in,” as it has been set out in the case and the points. It was as follows:

Oeto. 5th, ’81.

“My last will and testament. I leave and bequeath to my niece, Alice McBlair, all the money 1 die possessed of in several banks and bonds, besides all I bequeathed to her in my former will.

I leave $200 to my niece Ellen Laffan, to use for a purpose I have explained to her in writing, and which she has promised to attend to faithfully.

“ In case of the death of Alice, I desire all I have left to her to be divided equally between my nieces, excepting $1,000 for the suffering poor, to the care of Father Doherty, Holy Innocents Church.

“ Signed in the presence of two witnesses.

“ELIZA B. BECKETT.

“Marie Deen,

“ 104 East 54th st.

“ Louise de Cassini.”

And it was proved by uncontested evidence that decedent intended, prior to the time when this instrument was executed, to make a testaméntary disposition of her property in favor of Alice McBlair, the principal legatee, who was her niece. The decedent had no children. Alice McBlair was the daughter of her deceased sister, who died when Alice was of about the age of two years. From that time she became a member of the family of the decendent, and continually resided with her until she was taken to Litchfield, in the State of Connecticut, and placed there in an institution for medical treatment. The intervening period was nearly, if not quite, twenty-six years, and during that time the relations between the decedent and Alice were those of mother and daughter. The intimacy and affection of that-relation is shown to have existed between them, the decedent having educated Alice and guarded and cared for her with the solicitude and tenderness of a mother, and the latter fully reciprocating the ardent affection of a daughter. Nearly a year before the execution of this controverted instrument, Alice became impaired in her health, and appears from that time to have been a person of unsound mind ; and she was placed in the institution at Litchfield to receive medical attention for her disease. The decedent appears to have regarded the dependence of Alice upon her bounty as increased by this circumstance, and on that account concluded to make such a disposition of her property as surely to secure the protection of her adopted daughter during her life. Her deceased husband had previously, in his will, provided an -annuity of $500 a year for this adopted daughter, and the decedent intended to enlarge the provisions made in her behalf, as far as that could be done within the limits of her own property and resources. And she was actuated with that intention in drawing and subscribing this instrument.' Before doing so she proceeded to Litchfield for the purpose of being near this adopted daughter and understanding her condition and ascertaining the probabilities of her recovery. She remained there upwards of a month after the 13th of August, 1881. Before her departure upon the journey she was during the preceding night at the Grand Union Hotel in the city of New York. She had with her there Louise He' Cassini, one of the witnesses, who was in her service, and a conversation took place between them concerning the future purpose of the decedent in the execution of a will. Her statement, as it was related by the witness, was, that she was going to make a preparation for her daughter. I knew whom she meant. ■ She asked me if I would be • willing to sign a paper for her any time that she would ask it of me, and I told her I would. * * * Sfie said in the hotel she was about to make a will, but she did not have me to sign that will.” In her cross-examination, referring to the same conversation, the same witness stated: “ She told me that she thought a great deal of her daughter, and she said all she had she was going to give to her daughter. She said her daughter was her favorite, and she thought a great deal of her, and nothing was too good for her. She told me she was a very handsome girl. She was sorry and very much grieved that she had to be where she was.” At Litchfield this subject was again recurred to, when the witness was told by the decedent that “ the case may come into court some day, but that I need not be afraid, that nothing would happen to me about it.” She further testified: “ She said to me she was about going to make a will, but she did not know when.” * * * And added: “ She said, ‘ would you be willing to sign that paper for me,’ but she did not say the paper or refer to it as a will; ’ but she said ‘ would you be willing to sign a paper for me some day.’ ” The latter statement rendered her evidence somewhat confused as to the character of the paper referred to in the conversation; but, both in her direct and cross-exaihination, she stated the fact that the instrument which was to be made and witnessed was mentioned by the decedent as a will. And as that statement was in no manner withdrawn during the course of her examination, it is probable that the-last answer referred to was confused in taking down the evidence, and that it should not be regarded as reducing, in any respect, the-force of the preceding statements mentioned to have been made by tlie decedent, that the paper she referred to was to be a will. The other part of the conversation, relating to her affection for her adopted daughter and her design in her behalf, also indicates her purpose to be, to make a testamentary disposition of her property in favor of this niece. These are circumstances to be considered with the other evidence relating to what transpired at the time when the paper was subscribed and witnessed. That it was subscribed by the decedent in the presence of the two witnesses, admits of no reasonable ground for doubt, although the other witness was not able to testify that she saw the decedent sign her name. She was present before the preceding witness De Cassini was called in, and from the order in which the witnesses subscribed their names, probably subscribed before the other witness. And she testified that she was quite sure that she saw the signature of the decedent to the paper before her own name was added to it as a witness, and that her recollection was that the decedent signed the paper before the witness De Cassini came into the room. But as to this fact she was evidently mistaken, for the witness De Cassini was clear and positive in her testimony that the decedent subscribed her name to the paper after she herself entered the room, and that it was done before she i^as permitted to sign it as a witness. She also thought that Deen subscribed the instrument as a witness after she herself had witnessed it. It is not important, however, to determine the accuracy or inaccuracy of this statement, for the witness Deen did state that “ she must have signed it at the time I did,” and that she' thought she saw the signature when she herself signed as a witness. And the evidence' of the other witness is that the decedent signed after she herself went into the room, and she went there while the witness Deen was there. The fact of the subscription of the instrument by the decedent, in the presence of the two witnesses, was established by this proof. These three persons were the only individuals who were present,, and Cassini testified that the decedent stated that she must sign the paper first, and sat down and then subscribed it. And after both the witnesses had signed, the decedent folded it up and put it away as a completed instrument.

• The important point to be determined is not as to the subscription of the paper by the decedent in the presence of the witnesses, but as to the fact of her declaring it to be her last will and testament. The statute has required that at the time of making the subscription, or at the time of acknowledging it, the person subscribing the instrument shall declare it to be a last will and testament. No formal declaration of that fact was made by the decedent in the presence of these witnesses, but when the witness Cassini entered the room then occupied by the decedent and the witness Dean, the former said: There is the paper I spoke to you about signing. I was going to sit down, and she said wait a moment, that she had to write first. She said, are you willing to sign ? I said, yes; she said, well it may make you come to court, but you need not be afraid there will be no trouble upon you for it. Miss Dean was there at that time, she stood up in the room in the middle of the floor.” And that statement in its allusion to the paper was again repeated by the witness in the course of her cross-examination. But while it was not then - mentioned or referred to as a will, the allusion to what she had said to the witness before about signing was sufficient to intelligently inform her that this paper was designed to be her will. She .had, in the conversation near the middle of September, stated to the witness that she was about to, and intended to, make a will, and inquired of her whether she would sign it, and that the witness had promised to do. When her presence was procured on this occasion, and the testatrix remarked to her that there is the paper I spoke to you about signing,” she clearly intended to refer, to the preceding conversation had between herself and this witness. ' And as she had mentioned in that conversation that the paper was to be a will, when she said, “ there is the paper I spoke .to you about signing,” the statement was equivalent to saying to her “ there is the will which I rpentioned to you I intended to make.” That would be the ordinary understanding resulting from this statement and the reference to what had been said before about signing. And it was equivalent to a declaration by the decedent that this paper had been drawn and subscribed by her as her will.

To make the declaration required by the statute no form of words are essential, but what is required is that the witnesses shall be given to understand by words or acts by the decedent that the proposed instrument is intended as a will. Upon this subject it was said in Remsen v. Brinckerhoff (26 Wend., 325, 332), by the chief justice, “ I agree that no form of words will be necessary, that the legislature only meant there should be some communication to the witnesses indicating that the testator intended to give effect to the paper as his will. Any communication of this idea or to this effect will meet the object of the statute.” And that was approved in Gilbert v. Knox (52 N. Y., 125). By the conversation which took place, and the reference in it to what had before been said, the fact was indicated and brought to the knowledge of the witness that this paper, which was present and made the subject of the final conversation, was the will which the decedent had previously expressed it to be her design to make in her conversation with this witness at the Grand Union Hotel. And that complied with all that the statute has required for the observance of this ceremonial in the execution of a testamentary instrument.

The evidence of the other witness was still more explicit. She had witnessed preceding wills made by the decedent in 1876, 1877 and 1880. The will of 1880 was subscribed by this witness and still another person, and as the other, who was the decedent’s maid, was turning from the table to leave the room, the decedent inquired of her if she knew what the instrument was, and when she replied that she did not the decedent said, “it is my last will and testament.” That was a formal declaration as to that instrument establishing a complete compliance with this requirement of the statute. And as the witness Deen was also a witness to that instrument, and was present when this declaration was made, she clearly understood the instrument subscribed in 1880 to have been designed as the will of the decedent. She was sent for to witness the instrument now in controversy. Upon her arrival she was asked by the decedent to sign this paper, “that she wanted to make alterations in her previous one on account of Miss McBlair’s sickness. That was the last one in 1881.” * * * “ When I came there she wanted me to sign a paper again, that she wanted to make alterations of a previous one on account of Miss McBlair’s sickness.” * * * She just simply asked if I would sign that paper on account of Alice’s sickness, that she wanted to alter it.” ¿he said she was sorry to trouble me again to sign the paper.” This paper was lying upon the table at the time and the witness did subscribe it as has already been stated. She testified further that the decedent did not declare to her, or in her presence, that this was her last will and testament, or that it was a codicil to her last will and testament. But from her knowledge of the fact that it was made to effect alterations in a preceding will, which she understood and knew to have been a testamentary instrument, and was requested to witness it for that purpose, she had good reason for believing and understanding that this last instrument also was a will, although no formal announcement of that fact was then made in her presence. The declaration of the object to be accomplished by it, and of the instrument to be affected, which she knew to be a will, were sufficient to inform her that this was such an instrument, and that she was requested to sign it to add to its formal validity. And that she did so' understand it was finally stated by herself in her evidence. This statement was contained in her answers, by which she related the fact that she knew what this paper was and knew it from the manner in which the decedent spoke and the way in which she acted. Her final answer was: “ She spoke of that paper as her will, and she spoke of this being alterations of the other paper, and of course I knew it was her will.” To each one of these witnesses, therefore, the decedent communicated the fact, in these requests and allusions, that the paper they were requested to witness was designed by her to be her will. And that complied with all that the statute required to create a valid publication of it as such.

It is true that in and by it, the decedent did not propose to make a complete disposition of her estate, but that has not been required to render it legally effective as her will. She did, by means of it, design to dispose of a portion of her estate. The expression of that design is entirely clear, and the fact that neither the preceding will referred to by her, nor a later one she may have made, has ever been found, will not prevent this one from being carried into effect. So far as this instrument was designed to make an independent disposition of her estate, it was lawfully made and required to be carried into execution. It has been contested on behalf of her two surviving sisters and the children of her deceased brothers and sisters. The resistance to its probate was placed chiefly upon the uncertain character of the evidence tending to establish the declaration by the decedent that the instrument subscribed was her last' will and testament. The proof certainly was close and critical, but, at the game time, as it evidently was designed to and did bring the minds of these witnesses to the knowledge of the fact that the decedent intended this instrument to be her will, that was all which the law required to comply with this provision of the statute. ■ The policy of the disposition proposed to be made of the estate, is not a subject to be considered by the court. All that can be required is that the statutory formalities shall be proven- to have been observed, and that they were is the reasonable import of the evidence given upon the hearing before the surrogate. What the statute had directed was conformed- to. The instrument was proved in such a manner as to entitle it to be admitted to probate. This was the legal effect of the evidence produced upon the hearing. It presented no question of fact but one purely of law, and no further trial of the contest between these parties can therefore be necessary. But the decree of the surrogate should be reversed and a decree should be. entered establishing the instrument proposed as the will of the decedent, and directing it to be admitted to probate, with costs' to the several parties to be paid out of the estate. ' •

Davis, P. J., and Brady, J., concuried.

Decree reversed and decree directed as stated in opinion, with costs to the several parties out of the fund.


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    ISAAC HAMBURGER and Others, Respondents, v. ORLANDO B. BAKER, Appellant.

      Action against a non-resident — when a defendant answering generally does not subject himself to the jurisdiction of the court — pleas in abatement and pleas in bar may now be joined.

    The summons in this action was served upon the defendant in the State of Virginia. An answer, verified hy himself, was served by It. L. Harrison, who subscribed it as “attorney for defendant.” The first defense in the answer alleged that the defendant was not at the time of the commencement of the action or the service of the answer a resident of the State of New York, and that he had no property therein, and had not been served with a summons therein.

      Held, that as the facts showing that the court had no jurisdiction over the defendant did not appear from the face of tire complaint the defendant properly set them up in his answer, and that the service of such answer so subscribed by his attorney could not be regarded as a general appearance rendering him amenable to the jurisdiction of the court.
    The answer contained other separate defenses to the action.

      .Held, that the old rule preventing a defendant from joining a plea in abatement with one m bar .was no longer in force, and that the addition of the other defenses to the first did not prevent the defendant from insisting upon the latter.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury directed by the court.

      Robert L. Ra/rrison, for the appellant.

      Ferdincmd Kurzmcm, for the respondents.
   Daniels, J.:

The summons for the commencement of this action was served upon the defendant at Portsmouth in the State of Virginia. An answer verified by himself, was served by Robert L. Harrison, who subscribed it as attorney for defendant.” This answer was regarded by the court as a general appearance in the action rendering the defendant amenable to its jurisdiction. And that ordinarily would be the effect of the service of an answer under section 421 of the Code of Civil Procedure. Rut it was not in this instance, for by this answer the defendant alleged that he was not at tlie-time of the commencement of the suit, or at the time of serving his answer, a resident of the State of New 'Y ork, and that he had no property and had not been served with a summons in this State. This answer he had the right to make, for if the facts were as they were alleged, then the court had no jurisdiction over his person and acquired none by the service of the summons upon him. (Shepard v. Wright, decided by this General Term.) And where that may be the fact, and it does not appear from the complaint itself, it may be relied upon as a defense by way of answer. (Code Civil Pro., § 488, sub. 1; § 498.) And the answer could only be made and served by the defendant appearing and making it in person, or by the employment, and through the intervention of an attorney. Subscribing such an answer therefore, as this was subscribed, was not such an appearance in the action as gave the court jurisdiction over the person of the defendant. And as he had no property within the State he could not be proceeded against by way of process of attachment. The proof established the fact that he previously had a demand against the Imperial Fire Insurance Company of London, but the insurance was obtained by him at Norfolk in Virginia, and the loss was payable there, and before this attempt was made to commence a suit the demand itself was assigned by him to another person. And this latter circumstance would have rendered an attachment unavailable as' to him even if the demand had been payable by an agency existing in this State. For after the assignment of a chose in action by the debtor, it cannot be seized through the instrumentality of an attachment issued against him. (Greentree v. Rosenstock, 61 N. Y., 593; Smith v. Longmire, 24 Hun, 257; Plympton v. Bigelow, 13 Abb. N. C., 173.)

But after objecting to the jurisdiction of the court as the defendant did upon these statements contained in the answer, he proceeded to add other defenses to the causes of action set forth in the complaint, and that is urged as a waiver of his right to insist upon the defense in the first subdivision of his answer. In this position the-plaintiff’s counsel might be right if the rules of the preceding practice should be applied to the disposition of the appeal, for under that practice the defendant was not permitted at the same time to plead in abatement, and in bar to the action. (1 Chitty on Plead. [6th Am. ed.], 491.) That practice wholly restricted the defendant to his plea in abatement, and where it was determined against him the plaintiff was entitled to final judgment in the action. (Haight v. Holley, 3 Wend., 258; McCartee v. Chambers, 6. id., 649.) But it was one of the designs of the Code to materially change the rules of pleading as they had previously existed, and for that purpose it provided for but one answer and authorized the defendant to set forth in it as many defenses or counter-claims, or both, as he should have (Code Civil Pro., § 507.) And as the matters alleged, in the first subdivision of his answer were fully authorized by way of defense, by the preceding sections which have been referred to, this section-permitted him to add to that defense as many others as he deemed himself to be entitled to insist upon. And in presenting them by way of answer he was in no manner either expressly, or by any implication, required to abandon the effect of the facts relied upon to show that the court had no jurisdiction over him. The rule of tile preceding practice in this manner was changed, for it no longer restricted the defendant to a defense which might be presented by way of abatement, but allowed him in conjunction with that defense to present any others which might be regarded as appropriate defenses to the action. And such was considered the effect of the change in Sweet v. Tuttle (4 Kernan, 465), where this point was presented and disposed of in this manner by the court.

The learned judge therefore was in error in holding, as seems to have been done at the trial, that the defendant had waived or lost his right to insist upon the want of jurisdiction of the court over him, by these additions made to his answer, first alleging the facts requisite to present that defense. And the judgment should be reversed, and a new trial ordered, with costs to abide the event.

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

Judgment reversed, new trial ordered, costs to abide event.

       Reported ante, page 444-


text:
    WILLIAM M. KINGSLAND, as Sole Surviving Trustee, etc., of DANIEL C. KINGSLAND, Deceased, and Others, Plaintiffs, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

      Grant of water lots by the city of New 7orle — right of the city to construct new bulkhead lines — the rights of owner's of lots to whmfage must be considered, and the damages sustained by them paid.

    By chapter 763 of 1857, the legislature adopted the report of the commissioners appointed by chapter 121 of 1855, establishing a permanent bulk-head line for the city of New York, in the Hudson river, and enacted that it should not be lawful to fill in with earth, stone or other solid materials in the waters beyond the said bulk-head line, or to erect any structure exterior thereto. In 1858 and 1866 the city of New York conveyed the area between the center of West Twenty-fourth street and West Twenty-fifth street, in the said city, and the said bulk-head line, to certain persons, to whose title the plaintiffs have succeeded. The deeds were each accompanied with maps, upon which the bulkhead line was designated, and the premises were conveyed as extending “ to the exterior or bulk-head line of^the city of New York, on the Hudson or North river,” “with all and singular the premises and advantages, hereditaments and appurtenances to the same belonging, or in anywise appertaining.”
    The grants were made for a valuable consideration, and obligated the grantees to fill in the land under water, to build and construct good and sufficient bulk-heads, wharves and streets, and keep the same in good repair at their own expense; and to pay all taxes and assessments that might, from time to time, be imposed upon the property. The grantees, their heirs and assigns, were authorized to use and collect the wharfage, emoluments and advantages arising out of the maintenance of the wharves and bulkheads. The deeds further provided .that the provisions thereof should not be construed or taken to be covenants of warranty, or of seizin, on the part of the grantors, or to operate further than to pass their title to the premises conveyed.
    At the time these grants were made the city óf New York had no title to the land lying under water outside of the said bulk-head. The title thereto being then vested in the People of the State of New York. Thereafter, the city, under the provisions of section 6 of chapter 574 of 1871, acquired title, from the commissioners of the land office, to a strip of land about eighty-five feet wide, lying between the old bulk-head and a new line established under the authority of the legislature, and filled in the area so conveyed to it, so as to obstruct and cut off all access by water to the lands owned by the plaintiffs, lying inside of the old bulk-head. It claimed to be entitled to do this without making any compensation to the plaintiffs for the damages they had sustained.

      Held, that even if the city did not own the title to the land under water which it attempted to convey by the deeds under which, the plaintiffs claim, yet, as it was clearly its intention to grant the title thereto, with the rights and privileges appertaining to or accompanying it, it would not be allowed to defeat this intent by the exercise of any rights acquired by it under the conveyance made to it by the Slate under the act of 1871.
    That while no covenant could be implied from anything contained in the grant, yet section 2 of 2 Revised Statutes (6th ed.), page 1130, requiring every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest<in lands, to be so construed as to carry into effect the intent of the parties, so far as it can be collected from the whole instrument, and section 164 of 2 Revised Statutes (6th ed.), page 1119, providing, “that every grant shall be conclusive as against the grantor, and his heirs claiming from him by descent,” prevented the city from disaffirming its act and defeating the grants it had previously made.
    Case submitted upon an agreed statement of facts-for the determination of a controversy, without action, pursuant to section 1279 of the Code of Civil Procedure. ■

      Stewart c& Boa/rdma/n, for the plaintiffs.

      James C. Ga/rter and E. Henry lac-ombe, for the defendant.
   Daniels, J.:

This controversy has arisen out of the filling’ in by the dock department of the city of New York of the space between the center of West Twenty-fourth and West Twenty-fifth streets and what has been called the bulk-head line, established under chapter 763 of the Laws of 1857, and the construction of a bulk-head or wharf .about eighty-five feet westerly therefrom. The area filled in, and on the outward bounds of which the wharf or bulk-head was finally constructed, was of the width of about eighty-five feet. Intermediate this bulk-head and that established in 1857 the space was filled in, thereby cutting off ’ and destroying all access by the water to so much of the bulk-head line of 1857 as was situated between these streets.

The plaintiffs claim to have acquired title to the bulk-head line of 1857, and to the perpetual right to maintain a wharf upon that line, and to demand, collect and enjoy the wharfage and charges which might lawfully be exacted for the.use of it by other parties in the course of the commercial business carried on and transacted at this part of the harbor. This claim was made under two deeds, the first of which was executed on the 4th of December, 1858, by the mayor, etc., of the city of New York to Bezaleel F. Smith, and the second of which was executed on the 26th of November, 1866, by the same grantors to William H. Guión. These deeds, so far as the descriptions are important to be considered, in form at least, conveyed to the respective grantees named therein the title to the land bounded by the centers of West'Twenty-fourth and West Twenty-fifth streets, and the westerly line of Thirteenth avenue and the bulk-head line of 1857, which was thé outmost limit of land then claimed to be owned by the mayor, etc., of the city of New York. On the 28th of September, 1871, the city acquired from the commissioners of the land office of the State of New York, under the authority of subdivion 10, section 6 of chapter 574 of the Laws of 1871, the title to the land westerly of the bulk-head line of 1857, extending to and beyond the line of the bulk-head or wharf afterwards erected under the authority of the dock department, and also the intermediate space filled in between these two bulkhead lines. It has been claimed on behalf of the city that this act of 1871 authorized the filling in of this intermediate space, and the erection of the wharf on the newly located bulk-head line, notwithstanding the grants to which reference has already been made. The plaintiffs in .this case derived their title from the grantees in the deeds mentioned, by means of intermediate conveyances, and by virtue of their asserted title claimed the perpetual right to have the bulk-head line, established as the westerly bounds of the premises conveyed by the deeds of the city, maintained for their benefit.. While it has been insisted on behalf of the city, as it claimed no title whatever to the bed of the river beyond the bulk-head line of 1857, when these deeds were made, but the title was then in the State, that no such easement has been acquired under the deeds from the city to the use, maintenance and enjoyment of the bulkhead line of 1857, as prevented the legislative authorities of the State from changing it and placing it further to the westward in the river, and thereby terminating the use, as a wharf, of the bulk-head line of 1857, without reference to any rights claimed under the grants made by the city, and as the State possessed that right, that the city succeeded to its enjoyment by the conveyance of 1871, under the authority of chapter 574 of the Laws of that year. It has also been urged that the city, at the time when these deeds were executed and delivered, had no title to the land under the waters of the river westerly of the westerly line of the Thirteenth avenue, and that the plaintiffs, therefore, acquired no perpetual right to the maintenance of a wharf upon the westerly line of the land described in the deeds executed by the mayor, etc., of the city. These facts distinguish this case from that of Langdon v. Mayor, etc. (28 Hun, 158 ; affirmed, 93 N. Y., 129), for in that case the city owned the soil under the water which had been conveyed and that immediately beyond the extremity of the wharf or hulk-head line, and by its deed it was determined that the grantee in it and those deriving title through it, had acquired the right as against the city, perpetually to maintain the wharf erected upon the premises for their own emoluments, advantage, use and benefit. And the controlling point required to be determined in the disposition of this case, is whether the plaintiffs liave derived a like right to the bulkhead or wharf erected upon the line of 1857, or whether the defendant secured'the right without compensating the plaintiffs for their loss, to render this bulk-head or wharf useless and profitless by filling in the space between it and the newly adopted bulk-head line, under the authority of the act of 1871. While the case already referred to does not determine this point, it still has determined that the deeds of the city upon which the present determination must depend, by their language secured to the grantees and their assigns a right or easement to the free and unobstructed use of the waters of the river in front of the wharves erected on the land conveyed by them. This right was appurtenant to the conveyance of the land itself, and the fact of its extreme line being bounded by the waters of a navigable river. And that it was intended the grantees in the deeds, and their assigns, should enjoy this right, and the benefits to be derived from it, has been clearly expressed in the deeds themselves. If the State, as the owner of the land westerly of the line of 1357, had, by its own act and upon its own title, filled in this intermediate space, then it may be that the plaintiffs would have had no right or claim for indemnity against the city as the grantor in the deeds through which their title has been derived. For those <jeeds were not so drawn as to render the city liable for the consequences of such an act performed on its own laud, under the superior authority and right of the State. But whether the city could acquire this land and then by its act deprive the plaintiffs of the benefits intended to be secured by its own deeds, through which they have derived their title, is a very different question from that which .would have arisen if the same work had been done directly by the State upon its own property. Whether the city could acquire the title to this land and use it as it has, to the destruction of the plaintiffs’ wharf and bulk-head, must depend upon the construction which is to be given to its deeds under the laws of the State in force at the time when they were executed and delivered, and the particular law under which this work has been done.

Before either of these deeds was executed and delivered, the legislature, by chapter 121 of the Laws of 1855, provided for the selection and appointment of commissioners to locate and recommend to the legislature the position of wharves and bulk-heads “ beyond which no erection or permanent obstruction of any bind should be permitted to be made,” and to prepare and submit with their report maps of said harbor exhibiting the exterior lines recommended by them, and the lines of the existing piers, wharves and bulk-heads. (Subs. 3 and 5, § 1, chap. 121, Laws 1855.) This edmmission lqcated and reported their line as the permanent bulkhead line of the city, and it was described and mentioned as being the westerly line of the lands conveyed by the city. And that location was sanctioned and adopted by chapter 763 of the Laws of 1857, which provided, as to the westerly side of the city, that it should “ not be lawful to fill in with earth, stone or other solid material in the waters of said port beyond the bulk-head line or line of solid filling hereby established, nor shall it be lawful to erect any structure exterior to the said bulk-head line. ” (Id., § 2.) The object of the two deeds made by the city was to convey the property up to this line, and they contained descriptions extended to it. And that this was intended and understood to be the final and permanent bulk-head line is clearly disclosed by the provisions contained in the acts as they have already been cited, and also by the descriptions in the two deeds. For in extending their lines westerly they are extended, in the descriptions, “ to the exterior or bulk-head line of the city of New York, on the Hudson or North river,” the later deed containing the additional phrase, “ as now established by law.” It was intended to convey the title to this line as a permanent and durable line; and in that respect the case is substantially the same as that of Langdon v. Mayor, etc. (supra), although arising under later acts of the legislature of the State.

These deeds were each accompanied with a map, to which they referred, upon which this westerly line was exhibited, and on the map annexed to the first deed the line was designated as the “ bulkhead line or line of solid filling established by act of legislature passed April 17, 1857.” And on the other map the location of the line was designated as the “ bulk-head established April 17, 1857.” And the deeds in positive terms granted these lands “ with all and singular the prenlises and advantages hereditaments and appurtenances to the same belonging, or in any wise appertaining, to have and to hold,” to the grantee, his heirs and assigns forever. These grants were each made for a valuable consideration and each also obligated the grantees, their heirs and assigns to fill in and make land out of the intermediate spaces, where the land at the time was covered by the waters of the river. And also at their own cost and charges “ to build and erect make and finish or cause to be built, erected, made and finished, according to any resolution or ordinance of the said parties of the first part, their common council or their successors already passed or adopted, or that may hereafter be passed or adopted, good and sufficient bulk-heads, wharves, streets or avenues, which shall form so much of such parts of any street or streets, avenue or avenues, that may now, or hereafter, be designated or laid out through said premises according to law as fall within the limits of the premises first above described ” and which streets and avenues were excepted and reserved for the use and benefit of the public as streets and avenues of the city. The grantees, their, heirs and assigns were also required at their own cost aud expense to uphold and keep In good order and repair all parts of such streets and avenues as should be designated or laid through the premises conveyed. And in case of their default in doing so, then the work could be done at their expense, which if they failed to pay, or the city was unable to collect, subjected the property itself to sale for the payment of that expense. And they were also obligated to pay all taxes and assessments from time to time to be imposed upon the same property. These were the considerations upon which the grants were made and, in addition to the amount required to be paid, imposed important obligations upon the grantees, their heirs and assigns, for the benefit of the public which were deemed to be a full and fair equivalent for the property, rights and privileges described in the grants. And that it was intended and expected that the grantees, their heirs and assigns should at all times thereafter, for their own use collect the wharfage, emoluments and advantages arising out of the maintenance of the wharf or bulk-head and its use in the commercial business of the harbor excepting only the street piers, was rendered very clear by the paragraph in the deeds declaring that the said parties of the first part for themselves their successors and assigns do covenant and agree, to and with the said party of the second part, his heirs and assigns, that he aud they observing, fulfilling and keeping all and singular the articles, covenants and agreements hei'ein mentioned on his and their part, to be kept and performed according to the true intent and meaning of these presents, shall, and lawfully may, from time to time, and at all times hereafter, fully have and enjoy, take and receive and hold to his or their own proper use, all manner of wharfage, cranage, advantages or emoluments growing or accruing by or from that part of the exterior line of the said city lying on the westerly side of the hereby granted premises fronting on the North or Hudson river, with full power to collect and receive the same for his or their own proper use and benefit forever. Excepting such wharfage, cranage, advantages and emoluments to grow or accrue from the westerly end of the bulk-head in front of the entire width of the northerly half part of West Twenty-fourth street, which shall be and are hereby reserved for the said parties of the first part, their successors and assigns, with full power to collect and receive the same for their own proper use and benefit forever.”

And it was further declared that, it is hereby further agreed, by and between the parties to these presents, and the true intent and meaning hereof is, that the present grant and every word and thing in the same contained, shall not be construed or taken to be covenants of warranty, or of seisin of said parties of the first part, or their successors, or to operate further than to pass the estate, right, title or interests they may have or may lawfully claim in the premises hereby conveyed by virtue of their several charters and the various acts of the legislature of the State of New York.” And upon this clause it is insisted that the language of the deeds shall not be so construed as to create a covenant for the quiet enjoyment on the part of the city through which it would be prevented from defeating the rights or privileges intended to be conveyed by the deeds under the succeeding grant finally made to it from the State. That this clause could not be held to have wholly superseded or abrogated the preceding general covenant, was held in Langdon v. Mayor, etc. (93 N. Y., 150), but to what extent it should be abridged in the construction of the deed was neither expressed nor intimated. But if it should be held to deprive the preceding general language of its effect as a covenant, it would still remain with the residue of the deed to be construed as a grant, indicating the intention of the grantor to have been, that the rights, advantages and privileges mentioned should be secured to the grantees, their heirs and assigns by means of the grants. And they could be no otherwise secured and obtained than by maintaining the right of the grantees, their heirs and assigns to the bulk-head line of 1857, as the final and permanent exterior line of solid filling for this part of the harbor. That the conveyances were made in this view and with this intent is abundantly sustained by their language, the reference to the line itself, its designation on the maps annexed to the deeds and the language of the. acts of 1855 and 1857, under which this line was located and established as the exterior line of the harbor.

When these deeds were executed it was the understanding certainly that the city could lawfully convey the land under the waters of the river to this exterior bulk-head line. And the deeds were-made upon the basis of that understanding. And there is no good reason for' holding that this was an incorrect view to be taken of the right of the city, although its title had not by express language of the legislature been extended beyond the westerly line of Thirteenth avenue. (Laws 1826, p. 43, chap. 58, §§ 1, 2; Laws 1837, pp. 166, 167, chap. 182, §§ 1 to 3.)

For by section 2 of chapter 121 of the Laws of 1855, it was declared that no grants of land under the waters in respect to which the said commissioners are herein required to report, shall be made by the commissioners of the land office, or of the common council of the city of New York, or by any board, officer or corporation until the further direction of the legislature in the premises.” This further direction was given by the location of the exterior line of solid filling recommended by the commissioners in the enactment of chapter 763 of the Laws of 1857. And as the negative or restraint created by the act of 1855, extended only until the further direction of the legislature in the premises, and that was terminated by the act of 1857, it may be constructively implied that it was the intention of the legislature to permit the prohibited conveyances to be made after the establishment of the new line to that line, and within the limits or restrictions, imposed by it. The law of 1855 carried with it such an implication, and it was no more than was conformable to the authority which had in general terms been conferred upon the city by preceding legislation, not at that time superseded or repealed. This was supplied by chapter 86 of Revised Laws of 1813, which was enacted to reduce the laws relating to the city of New York into one act. This act rendered it lawful for the mayor etc., of the city to lay out wharves and slips in the city whenever and wherever they should deem it expedient, and to acquire the title to land owned by private individuals for that purpose. It also empowered the mayor, etc., of the city to lay out, as far as that had not already been done, and according to the plan agreed upon for that purpose, regular streets or wharves on the East river and also upon the North or Hudson river, to such an extent along those rivers as they might think proper; and as the buildings of the city extended further along the rivers, the streets and wharves themselves were authorized to be in like manner lengthened and extended: The wharves to be constructed under this authority were to be made at the expense of the owners of the adjacent lands, as those now in suit were, who were declared entitled to become the owners of the intermediate spaces of ground in fee simple. If such owners themselves failed to do the work as it might be directed, then, provision was made for its performance at their expense, and the collection of that expense from them or their property. And it was further provided that it should “be lawful for the said mayor, aldermen and commonalty to grant the right of making such piers and bridges, and the right of receiving the profits thereof, to any person or persons, in fee or otherwise, hpon such terms as they shall think proper.” (Id., §§ 219 to 224.)

It was, from a very early date, the policy of the legislature to authorize the construction of wharves and the filling in of the spaces between them and the land above the level of the river, by the city itself, for the benefit and advantage of its commercial business, but at the expense of the owners of the adjacent lands, who were first entitled to the conveyance of the land so filled in and made. The State at no time undertook the performance of this work or the making of these improvements, but remitted it wholly to the city and its authorities, intending at all times that the title to the bulk-heads and wharves and the land filled in should be acquired and owned by the private riparian owners. This policy was at no time abrogated or discountenanced by any act of the legislature, but the laws enacted included these purposes, and, that continued to be their form to the time when the deeds in controversy were made and executed by the mayor, etc., of the city. And it may very well be held, therefore, as the intimation has been previously given, that by the Laws of 1855 and 1857 it was intended to perpetuate this policy and to confer authority upon the city to authorize the changes and improvements provided for, and to convey the title to the property immediately to the persons owning the adjacent uplands. And that this was the understanding carried into these deeds is manifested by the further declaration and provision that if it should appear “ that the said party of the second part is not, on the day of the date hereof, seized of a good, sure, absolute and indefeasible estate of inheritance, in fee simple, of, in and to the lands and premises on the easterly side of the premises hereby granted and adjoining the same;” * * * in every such case these presents, and every article, clause or thing herein contained, shall be and become absolutely null and void; and the said parties of the first part, their successors and assigns, shall and may forthwith thereupon enter into and upon the said premises hereby granted, and shall thereafter be seized of the same, with the appurtenances, free, clear and discharged of and from all claim or right of the party of the second part, his heirs and assigns, anything herein contained to the contrary notwithstanding.” And that it was not intended by chapter 574 of the Laws of 1871 to interfere with rights acquired in this maimer may be inferred from the provision contained in subdivision 5 of section 6, declaring that “the said board of the department of docks shall proceed, according to said plan or plans, to lay out, establish and construct wharves, piers, bulk-heads, basins, docks or slips in the territory or district embraced in such plan or plans, and in and upon or about the property owned by the mayor, aider-men and commonalty of the city of New York, without interfering with the property or rights of any other person, except so far as may be necessary to insure the safety and stability of the wharves, piers, bulk-heads, basins or slips so to be constructed.”

But even if the city did not at the time when the deeds were executed own the title they were designed to convey, as it was clearly its intention to grant this title with the rights and privileges appertaining to or accompanying it, and the improvements to be made upon the property, and if no covenant of title is to be held to have been inserted in the deeds by reason of the restriction and limitation imposed upon the language apparently used for the purpose of creating a covenant, still the city should not be held entitled to defeat this intent under the conveyance made to it by the State pursuant to the act of ‘1871; for while it is true that no implied covenant can be derived from anything contained in the grants, as

. that has been prohibited, by the statute (2 R. S. [6th ed.], 1119, § 161), it has still been declared by the like authority that “in the construction of every instrument creating or conveying, or authorizing the creation or conveyance, of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.” (Id., 1130, § 2.) And as it is entirely clear that it was intended by these deeds to convey not only the title to the land described in them to the respective grantees, but to secure them all the benefits and advantages of bulk-heads and wharves on the westerly line' mentioned in the descriptions aS the permanent exterior line of the city, this section requires that the intent shall be maintained and carried into effect against the city, the party alone now claiming the right to defeat it. It has also been precluded from availing itself of this right by still another provision of the statute which, while it declares that no greater interest or estate shall be construed to pass by any grant or conveyance than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, has still provided “ that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent.” (Id., 1119, § 16é.) This section seems to have been intended to preclude the grantor from gainsaying or defeating the grant made by him, notwithstanding the prohibition that an implied covenant of title cannot be inferred from the conveyance against him or it, for it has declared the grant to be conclusive against the grantor; and it could not be made so if the grantor could afterwards by his own act and of his own volition disaffirm and defeat the grant previously made. Under these sections of the statute requiring this effect to be given to the grant as against the grantor, and the grant itself to be so construed as to carry into effect the intention of the parties to it, the city could hot lawfully defeat the right of its grantees and of the plaintiffs deriving title from them, by reason of the fact that it first acquired the formal title to the land beyond the westerly line of Thirteenth avenue, under the1 authority of the act of 1871. For as its own grants were made upon the basis of the existence of that title at the time, those grants were afterwards conclusive against it under the language made use of in the statute. And it stood precisely in the relation to this property with these conveyances where it would have stood if a formal title had. been previously acquired by it to the bulk-head line of 1857. That was, as has already been said, designed and extended as the permanent exterior bulk-head line of the city, upon which bulk-heads and wharves might lawfully be erected and forever afterwards maintained, and it was the right so to erect and maintain them that it was one of the purposes of these deeds to convey. That right was -accompanied with the additional right to enjoy the advantages, emoluments and benefits of the wharves afterwards erected under the authority of these conveyances. It was as to the city absolute and indefeasible, and it could not supersede or destroy this right without compensating the plaintiffs for its loss, by acquiring title to the land beyond it, from the State, or 'by any proceeding authorized to be taken by the Laws of 1871 or chapter 738 of the Laws of 1872. The right in terms conveyed to the benefits and advantages of the water front was property vested in the plaintiffs. That was not only sustained in Langdon v. Mayor, etc., but it has also, in like manner, been held in Buccleuch v. Metropolitan Board of Works (L. R., 5 English and Irish App., 418). And when such property might become necessary for making the improvements provided for by chapter 574 of the Laws of 1871, the means were specially enacted for obtaining it either by purchase from the owner or by .the right of eminent domain through which adequate compensation would be made to him for it. (2 Laws 1871, p. 1237, chap. 574, § 99, subd. 4.)

As the case has been presented, the plaintiffs were the owners of this property and of the right to enjoy the uninterrupted and unobstructed use and advantages of the bulk-head or wharf as against the defendant, under its own conveyances and' the statutes authorizing them to be made, and sustaining their validity against the grantor. It could not, therefore, lawfully deprive them of these" rights and privileges in the manner in which it has endeavored to do that. If it had become necessary to extend the exterior line of the city farther to the westward, that could only be done, as it deprived ,the plaintiffs of these rights and privileges, by making compensation to them. That was not done, but it has been provided in the submission of the ease, if the right of the plaintiffs shall be maintained, that their damages shall be ascertained by a reference, and in that manner full and complete redress will be secured to them for the injury which they have sustained.

Judgment should be directed for the plaintiffs sustaining their right to recover their damages, and directing a reference pursuant to the submission to ’.ascertain the amount.

J3rady, P. J., concurred.

Present — Beady, P. J., and Daniels, J.

Judgment ordered for the plaintiffs.