text:
    CYRUS CLEVELAND, Respondent, v. MARGARET CRAWFORD and others, Appellants.

      Claims to real property — determination of under 2 It. 8., 312, sees. 1-4 — Code, 449 — Becitals in a deed, not evidence of title of another in adjoining property — Adverse possession — Statute of limitations — Marided woman — Chap. 200, Laws of 1848 — chap. 375, Laws of 1849 — chap. 90, sec. 7, of 1860 — chap. 741; Laws of 1870 — Code, see. 73. '
    In proceedings under the statute (2 R. S., 312, § 1), to compel the determination of claims to real property, the “ actual ” possession means an actual occupation or possession, in fact, as contradistinguished from that constructive one which the legal title draws after it. The word ‘ ‘ actual ” in the statute is used in opposition to “virtual” or “constructive” and means an open, visible occupancy.

      Churchill v. Onderdorik (59 ST. Y., 134) followed.
    The rule that a party once being in possession is presumed to continue in possession, cannot be applied where a statute requires proof of actual possession at the commencement of the action and for three years immediately preceding thereto. The proceeding being a strictly statutory one, those who resort to it must bring themselves within all its requirements. This statute and that relating to ejectment being intended to give correlative rights, the possession which entitles a party to institute a proceeding of this kind, must be such as would enable an adverse party to bring ejectment founded on that fact alone, namely, on an actual occupation.
    Where it was attempted to be shown by a recital in a deed of adjoining property, from K.’s wife and others, that K. had acquired title to the lands in question, so that a deed by the sheriff on a sale under a judgment against K. conveying all the right, title and interest of K. in such land passed a fee and not a life estate, held, that the mere recital, referring to the land in controversy as the “portion” of K. afforded no ground for presuming a grant to him; that K. having a freehold estate in the share allotted to his wife, as tenant by the curtesy, it was not, on that account, improperly denominated by a stranger “ his portion.”
    Where a sheriff’s deed in effect conveyed only the life estate of the judgment debtor, on the death of the debtor, at common law, the sheriff’s grantee would become tenant by sufferance to the reversioner ; but in this State, under 1 Revised Statutes, 749, section 7, he would be a trespasser, the statute having changed the common-law rule on this subject; no adverse possession could be predicated on his holding over, however, without proof of notice thereof to the reversioners; but where the sheriff’s grantee conveys the fee of such land, the entry thereunder of the second grantee is sufficient to lay the foundation of an adverse possession.
    Although a period of twenty-four years elapsed between the conveyance to such second grantee and the commencement of this action, yet as it was in evidence that during, at least six years of that period, the land was not used for any purpose contemplated by the statute of limitations, lying in common and to all appearances vacant, held, that during that time the statute did not run to bar the true owner. To bar the true owner the adverse possessioh must be kept up during the requisite period prescribed by the statute by the usual cultivation or improvement, or by protecting the land by a substantial inclosure, or by using it for the supply of fuel or of fencing timber for the purposes of husbandry or the ordinary use of the occupant.
    Tiie defendant Margaret Crawford being a daughter and heir of Mrs. Kniffen, the wife of the judgment debtor, and married before the termination of the life estate vested by the sheriff’s deed, and her husband still living, held, that although coverture is no longer a disability which prevents the running of the statute of limitations, the statute having been amended in that respect to confonn to the changes made in the law for the protection of married women, yet such amendment did not affect her (Laws of 1860, chap. 90, § 7; Laws of 1870, chap. 741); the act of 1860 being limited, in respect to property acquired by a married woman by descent, to such as descended to her after the passage of the act; and the Code to causes of action which have accrued since its passage. (Sec. 73.)
    As regarded the statute of limitations, it appeared that the defendant Margaret. Crawford was married before the death of her father, which occurred in February, 1848 or 1849; if in 1848, then Mrs. C. was married before the passage of the earliest act for the protection of married women, the act of April 7, 1848, and the right of entry, in that case, belonged to her husband. If subsequent to April 7, 1848, yet as the act of 1848 did not include property which a married woman took by descent till amended by the act of April 11, 1849, at which date she was married; although she had a right of entry when the adverse possession of the second grantee commenced, yet the disability of her coverture had continued ever since.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of a justice at the Circuit, a jury trial having been waived.
    This action, commenced in May, 1873, was brought, under section 449 of the Code, to compel the determination of conflicting claims to real property, pursuant to provisions of the Revised Statutes. (3 R. S. [5tli ed.], 599, el seq.)

    Plaintiff claims he is the owner in fee as purchaser of some fourteen acres of land in the city of Yonkers, described in Ins complaint; that he was, at the time of tbe commencement of this action, and for three years preceding had been, in the actual possession thereof, and that defendants unjustly claim title in fee to some portion of it, but bow much or what part he is unable to state. Defendants, in answer, set up: 1st. A general denial. 2d. That they are owners in fee of about six acres of the premises mentioned in the complaint. And, 8d. As a bar to all farther proceedings, that plaintiff, and those whose estate he has, was not at the time of the commencement of the action, and for the three years preceding had not been, in the actual possession of said premises.
    Plaintiff, by an amended reply, made a general denial to defendants’ answer; claimed title by adverse possession, and plead the statute of limitations.
    Evidence was offered to show that the premises in question were formerly part of a farm owned by one Peter Nodine, and of which he died seized and possessed in 1815. That said Peter Nodine died intestate, leaving him surviving several children, one of whom was Ann Kniffen, the wife of Wm. Kniffen, who, upon the decease of her father, became and was seized in fee of an undivide4 share of the said farm by descent cast.

    That after the decease of Peter Nodine, in 1816 his children made voluntary partition of said farm. In this partition the premises in question were allotted to said Ann Kniffen.
    That Ann Kniffen died intestate in 1832, leaving her surviving several children by said Wm. Kniffen; and Wm. Kniffen died in February, 18IS. The defendants, who claim title to the premises in question, are the children, and heirs of children, of said Ann Kniffen, and claim title as her heirs. The defendant Margaret Crawford was married before the decease of her father, Wm. Kniffen, and her husband is still living, and she has all the time since her said marriage been under coverture.

    In 1821 one Halsey recovered a judgment in the Supreme Court of this State against said Wm. Kniffen, and in 1825 John Townsend, sheriff of Westchester county, on a writ of fi.fa. issued to him on said judgment, sold, as such sheriff, all the interest of said Wm. Kniffen, in and to the premises in question, to one Rapelye for $100, and gave him a certificate of sale thereof as such sheriff.
    On the 7th of December, 1837, said Rapelye sold and assigned said certificate for $100 to Amos W. Gates; and on the 9th day of December, 1837, the said John Townsend made his deed, as late sheriff of said county, to said Gates, reciting therein the aforesaid facts as to the recovery of said judgment, writ, levy, sale, certificate and transfer thereof, and thereby conveyed to said Gates all the estate and interest which said Wrn. Kniffen had in and to said premises on the 4th day of September, 1821, or afterward. Gates took possession of said premises under said sheriff’s deed, and occupied them until 1849, when he conveyed them, with other lands, to John Davidson. Said Davidson, in 1863, conveyed the said premises to Leonard W. Jerome, and Jerome conveyed the same to Jane E. Cornell in 1869, and, on the same day, she conveyed them to plaintiff.
    There was evidence that Davidson, after the conveyance from Gates to him, made -some use of this land by procuring from it fence-posts and shad-poles ; but after the conveyance to Jerome in 1863, to the time of the conveyance to the plaintiff in 1869, the land appears to have been unoccupied. After the conveyance to the plaintiff, in the fall of 1869 and spring of 1870, the wood was cut off and the land laid out in lots, and streets were made through it.
    A deed from James Nodine and others, including the said Ann Kniffen,. to Moses Craft, of a parcel of land next adjoining the premises in question on the north, bearing date June 13, 1816, was offered in evidence, in which the premises in question were referred to as “ the portion of William Kniffen.”
    Defendants moved for dismissal on the ground that plaintiff had not proved title nor actual possession at the commencement of the action, and for three years preceding, nor that defendants unjustly claimed title to the premises in question. This motion was denied by the court, and defendants excepted.

      John Flanders, for the appellant.

      Duncan Smith, for the respondent.
   Gilbert, J. :

This case is within the rule laid down in Churchill v. Onderdonk, (59 N. Y., 134). That was a proceeding pursuant to the Revised Statutes (2 R. S., 312, § 1), to compel the determination of claims to vacant lots in Brooklyn. This is a proceeding under the same statute prosecuted in the form of an action conformably to section 449 of the Code, to compel the determination iff claims to vacant lots in Yonkers. To entitle a party to the remedy here pursued, he must have been for three years in the actual possession of the property. In the case cited, that was interpreted to mean an actual occupation of the same, in other words a possession in fact, as contradistinguished from that constructive one which the legal title draws after it. The. correctness of that construction is apparent. The word actual ” in the statute is specially significant. It is plainly used in opposition to virtual ” or “ constructive,” and means an open visible occupancy. We think that was not shown in this case. It may be conceded that the plaintiff had made an entry upon the land, for the purpose of laying out and constructing streets upon it, and had exercised other occasional acts of ownership over it. But he never occupied it, and was'not, therefore, in actual possession of it. The defendants might have entered during the years 1871, 1872 and 1873, without disturbing his possession, and they could not have maintained ejectment against him upon the allegation that he actually occupied the land. The statute under consideration, and that relating to ejectment are intended to give correlative rights. The possession which entitles a party to institute a proceeding of this kind must be such as would enable the adverse party to bring ejectment founded on that fact alone, namely, an actual occupation. (2 R. S., 312, § 4.) If the premises are not actually occupied, then either party may maintain ejectment against the other, on proving that the defendant was exercising acts of ownership on the premises claimed, or claimed title thereto, or some interest therein at the commencement of the action. (Id.; Banyer v. Empie, 5 Hill, 48; Abeel v. Van Gelder, 36 N. Y., 513.) But neither can prosecute this proceeding without first taking possession of the land, and actually occupying it for three years, the sole object thereof being to quiet the title of a person in possession. (Gra. Pr., 849.) It is strictly a statutory proceeding, and those who resort to it must bring themselves within all the requirements of the statute. (Bailey v. Southwick, 6 Lans., 356-366; Austin v. Goodrich, 49 N. Y., 266.) The rule that a party once being in possession is presumed to continue in possession, cannot be applied where a statute requires proof of actual possession at the commencement of the action, and for three years immediately preceding that act. Such a presumption might suffice to establish a constructive possession, but cannot be received as a substitute for evidence of a fact so palpable and capable of direct proof, as that of an actual possession of land. In every point of view, therefore, we think there was a failure of proof on this point. It is possible that this objection may be overcome on a new trial. We will, therefore, call attention to other rulings of the court below, which we think are erroneous. That there was a valid'partition of the lands of Peter Nodine, the common source of title, was satisfactorily shown. Indeed the claims of all parties rest' upon the fact, that such partition was made. It is not often that better proof is produced of so remote a transaction resting in parol. Nor is there any reasonable ground for a presumption that William Kniffen had acquired the title to the share which his wife inherited in said lauds, divided or undivided, before or after said partition was made. The mere recital in a conveyance of adjoining land, made after the par-, tition, referring to the land in controversy as the portion of William Kniffen, affords no ground for presuming a grant to him. He had a freehold estate in the share allotted to his wife as tenant by the curtesy, and such share was not on that account improperly denominated, by a stranger, his portion.

The conveyance of the sheriff to Gates transferred only the life estate of William Kniffen in the parcel allotted to his wife. (2 R. S., 373, §§ 61, 62; 1 R. S., 739, § 143.) At common law, Gates would upon the death of Kniffen have become tenant by sufferance to the reversioners (1 Wash. R. P., cap. 12, § 1); but in this State it has been provided by statute that, “ every person having an estate of determinable upon any life or lives, who, after the determination such particular estate without the express consent of the party immediately entitled after such determination shall hold over and continue in possession of any lands, etc., shall be adjudged to be a trespasser, etc. (1 R. S., 749, § 7.) This statute has changed the rule of the common law on this subject. (Livingston v. Tanner, 14 N. Y., 64; Torrey v. Torrey, id 430 ; Reckhow v. Schanck, 43 id., 451.) No adverse possession, however, could be predicated of his holding over without proof of notice thereof to the reversioners. (Grout v. Townsend, 2 Hill, 554; 1 Wash. R. P. chap. 5, § 1.)

The conveyance by Gates to Davidson of the fee of the land and the entry by Davidson thereunder, was sufficient to lay the foundation of an adverse possession, but we think the evidence' failed to show a continuation of such adverse possession for the requisite period of twenty years. A period of twenty-four years, it is true, elapsed between the conveyance to Davidson and the commence ment of this action, yet during at least six years of that .period the land was not used for any purpose contemplated by the statute of limitations. It lay in common, and was to all appearance vacant. During that time the statute did not run. To bar the true owner the adverse possession must be kept up during the requisite period prescribed by the statute, by the usual cultivation or improvement, or by protecting the land by a substantial inclosure, or by using it for the supply of fuel or.of fencing timber for the purposes of husbandry, or tlie ordinary use of the occupant. (Code, § 83; Wash. R. P., bk. 3, chap. 2, § 7, sub. 21.) The evidence we think shows that neither of these conditions was complied with after the conveyance to Jerome in 1863.

Margaret Crawford is a daughter and heir of Mrs. Kniffen. She was married before the termination of the life estate vested in Gates, and her husband is still living. Although coverture is no longer a disability which prevents the running of the statute of limitations, the statute having been amended in that respect to conform to the changes made in the law by the acts for the protection of married women, yet that amendment does not affect Mrs. Crawford. (Laws 1860, chap. 90, § 7 ; Laws 1870, chap. 741.) The act of 1860 conferred upon married women the right to sue and be sued in all matters having relation to their separate property, and by that of 1870, section 88 of the Code, was amended by dropping coverture from the enumeration of disabilities therein. But neither of these provisions affect Mrs. Crawford. The act of 1860 is in terms limited in respect to property acquired by a married woman by descent to such as descended to her after the passage of the act, and the Code is also in terms limited to causes of action which have accrued since its passage. (Sec. 73.)

It is not necessary to decide whether Mrs. Crawford has had a right of entry since the adverse possession of Davidson began. It does not distinctly appear when she was married, except that her i-marriage occurred before the death of her father. He died in February, 1848 or 1849 ; and if it was in 1848, then Mrs. Crawford was married before the passage of the earliest act -for the protection of married women, namely, the act of April 7,1848. Consequently the right of entry belonged to her husband. The act of April 7, 1848, did not include property which a married woman took by descent, but, by an amendatory act passed April 11th, 1849, this defect was remedied. According to all the testimony, however, Mrs. Crawford was married before that act was passed. Whatever marital rights in the property in question her husband had acquired remained unaffected by the act of 1849. We need not define those rights, because, if Mrs. Crawford had a right of entry when the adverse possession of Davidson commenced, the disability of her coverture has continued ever since that time, and has not yet been removed. Even if the title of her co-tenants has been barred by the statute of limitations, her’s has not.

All the questions to which we have adverted were distinctly presented to the judge at the 'trial by the defendant’s requests for additional findings in respect to them. We think the judge erred in refusing to grant those requests.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    THE NATIONAL BANK OF NORWALK, Respondent v. CHARLES LANIER, WILLIAM FULLERTON and JOHN GREEN, Impleaded with ROBERT W. MILBANK and others, Appellants.

      Defective mortgage — lien of in equity — good for antecedent debt — not affected by talcing subsequently another, and not relinquishing the first.

    A court of equity looks upon things agreed to be done as actually performed. A defective mortgage given to secure an antecedent debt can be sustained in equity so as to make it a prior lien to subsequent judgments.
    The subsequent taking of another bond with an additional obligor and a mort gage on the same premises, for the purpose of obtaining additional security, without relinquishing the security first given, does not alter the equitable rights of the parties.
    Appeal from a judgment of foreclosure and sale, made in the above action and entered in the Dutchess county clerk’s office, August 19, 1875, on the report of a referee.

      Tbe referee, among other things, found that the defendant Robert W. Milbank, on the 28th of March, 1873, executed and delivered to the plaintiff a bond in the penalty of $20,000, and as collateral security for the payment of the said indebtedness, the defendant Robert W. Milbank and Antoinette L. Milbank, his wife, on the same day executed and delivered to the plaintiff, an indenture of mortgage (foreclosed in this action), whereby they granted, bargained and sold to the plaintiff certain real estate. That the said mortgage was, together with the said bond, delivered by the said R. W. Milbank to the plaintiff as early as the 2d or 3d of April, 1873, but the said mortgage has not been recorded. (This finding, so far as it related to the time of delivery, was excepted to by the defendant, who claimed that the delivery did not take place till April sixteenth or seventeenth.)
    That the said defendants, Robeit W. Milbank and Antoinette L. Milbank his wife, have-failed to comply with the condition of the said bond and mortgage, and have not paid the said principal sum of $10,000, which became due and payable on the 28th day of March, 1874.
    That at the time of the delivery of the said bond and mortgage to the plaintiff, as aforesaid, the said Robert W. Milbank and his brother, Isaac M. Milbank, were indebted to the plaintiff in the sum of $10,000 and upwards, on promissory notes made by the said R. W. Milbank, drawn payable to the order of, and indorsed by, said Isaac M. Milbank, which were past due and had been duly protested for non-payment.
    The plaintiff applied to said R. W. Milbank for security for the payment of $10,000 of the said indebtedness; and thereafter, and on the 24th of March, 1873, the said R. W. Milbank, by letter addressed by him to the plaintiff’s cashier, R. B. Crawford, made an offer to furnish such security in the words following, namely : “ I have talked with my brother on the subject and now offer you a mortgage at one year, upon my farm at Rhinebeek, as security for any indebtedness to the bank. I paid $25,000 in cash for this farm, apart from the $100,000 for the mining rights, and it remains intact, with the exception of 500 lineal feet on a quartz vien, and two acres of land deeded to the Empire State Mining Company. There is a mortgage of $3,500 only upon it, and there are no taxes or assessments due from me.”
    This offer was received by the plaintiff on the day of its date, or e tidy on the next day, and was accepted by the plaintiff, and liie defendant R. W. Milbank was duly and promptly notified thereof.
    The said R. W. Milbank, with a view to comply with the said offer on his part, sent to the said plaintiff the said bond and mortgage, and with them also sent to the plaintiff, in a letter addressed by him to plaintiff’s said cashier, three promissory notes, each signed by said R. W. Milbank. The plaintiff, immediately on the receipt of the said bond and mortgage and the said three promissory notes, discounted the said three notes, and applied the proceeds thereof to pay the said overdue notes made by said R. W. Milbank, and indorsed by Isaac M. Milbank, then held and owned by the plaintiff as aforesaid, and canceled the last said notes.
    The plaintiff' wishing to secure the continuing liability of said Isaac M. Milbank for the payment of the said debt, subsequently notified said R. W. Milbank that another bond must be made with Isaac M. Milbank’s name on it, and that Judge Lawrence had the papers and referred said R. W. Milbank to him. The first bond and mortgage were left by the plaintiff with Judge Lawrence, on the 20th of April, 1873, for the purpose of having him see to it, that whatever was necessary and proper to be done to effect the object, so as aforesaid communicated by the bank to R. W. Mil-bank, was done. Judge Lawrence caused a new bond and mortgage to be drawn to the plaintiff of the same date each as the first bond and mortgage and substantially like them in all respects, except, that in the new bond the said Isaac M. Milbank and R. W. Milbank were named as the obligors therein, and the new mortgage was to be void and of no effect when the condition of the new bond was complied with and performed. There was some delay in executing the new bond and mortgage owing to the difficulty of then communicating with said R. W. Milbank.
    The new bond was executed by the said Isaac M. Milbank and Robert W. Milbank, and the new mortgage was executed by said R. W. Milbank and his said wife; and the execution thereof was duly acknowledged by them on the 17th of May, 1873, and were on tlie same day delivered to Judge Lawrence as the attorney of and for the plaintiffs.
    Both mortgages conveyed, by way of mortgage, the same property, and by the same descriptions, and the new mortgage was recorded in the office of the clerk of Dutchess county, on the 20th of May, 1873, at nine o’clock a. m., in liber 145 of mortgages, at page 108, etc.
    The said second bond and mortgage were not executed and delivered as a substitute for or in lieu of, nor were they accepted by the plaintiff'as a substitute for or in lieu of, the said first bond and mortgage. The first bond and mortgage were not surrendered by the plaintiff, but, on the contrary, they continued to remain in the possession and custody of Judge Lawrence, as the attorney of the plaintiff, until about the time of, and just prior to, the commencement of this action, when the plaintiff took possession of •them and delivered them to the attorneys herein with a view to the commencement of this action.
    That the defendant Brookman, in an action in which he was plaintiff, recovered a judgment in this court in Kings county on the 27th of November, 1869, against said R. W. Milbank and others, for the sum of $4,619.63 damages and costs Appeals were taken to the General Term and to the Court of Appeals, in each of which the judgment was affirmed.
    On the 11th of April, 1873, transcripts of said judgments were filed in the office of the clerk of Dutchess county, and each of said judgments'was docketed in his said office.
    Said Brookman, on the 21st of June, 1873, assigned the said three judgments to the defendant William Fullerton. The said William Fullerton, on the 30th of October, 1873, transferred to the defendant John Green an undivided one-half interest in the said three judgments.
    The referee found, as conclusion of law, that the mortgage described in the complaint was a valid subsisting security, and that the lien thereof on the property mortgaged thereby was prior, in point of time and right, to that of either of the said three judgments.

      Julien T. Davies, for the appellants, Lanier, Fullerton and Green.

      Everett P. Wheeler, for the respondent.
   Gilbert, J.:

The general principle, that an agreement in writing to give a mortgage, or a mortgage defectively executed, or an imperfect attempt to create a mortgage, or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity which will have preference over subsequent judgment creditors, seems to be firmly established in England and in this country. It is founded on the maxim that a court of equity looks upon things agreed to be done as actually performed. (See note to Russell v. Russell, 1 L. C. E , 666 ; Taylor v. Wheeler, 2 Vern., 564; Burn v. Burn, 3 Ves., 582.) In Morse v. Faulkner (1 Anst., 14), it was held to be clear that where there is an agreement to convey or a defective conveyance by a person then actually having title, that would be such an equity as would bind the lands in the hands of the heir. This principle was applied by Chancellor Kent in Wadsworth v. Wendell (5 J. Ch., 230). A judgment creditor stands in no better position in such a case than an heir. He is in no sense a bona fide purchaser, but stands in the shoes of his debtor in respect to such a transaction, and can claim only the rights of the latter against one whose right accrued by virtue of an agreement made before the recovery of the judgment. (White v. Carpenter, 2 Paige, 217; Arnold v. Patrick, 6 id., 310; Siemon v. Schurck, 29 N. Y., 598.)

It is urged that this case is not- within the principle stated, for the reason that the plaintiff parted with no present consideration at the time and on the faith of the agreement to give the mortgage. The referee has, in substance, found the fact to be otherwise, and we agree with him that such is the proper conclusion to be drawn from the evidence. The previous indebtedness of Milbank was extinguished, and that was not only a sufficient but a valuable consideration. In most cases, it is true, equitable mortgages which have been upheld, have been created to secure an advance of money or of credit made at the time, or of advances to be made in future and actually made, and not as security for an-antecedent indebtedness. In the case of Burn v. Burn (supra), however, an agreement to give a mortgage for an antecedent indebtedness was held to- create a specific lien, and was preferred to the assignees of the equitable mortgagor and his general creditors. This doctrine was evidently approved by the chancellor in The Matter of Howe (1 Paige, 125). (See, also, Chase v. Peck, 21 N. Y., 581; Lanning v. Tompkins, 45 Barb., 309.) These cases, we think, are decisive of this question, and we agree in the principle on which they rest. A debtor has the right to appropriate his property to the payment of one debt in preference to another ; and where he has made an agreement to secure a particular creditor by mortgage, on the faith of which the creditor lias acted to his prejudice, unless the agreement be sustained, but before a formal mortgage has been executed another creditor has recovered a judgment, we do not perceive any equitable reason for preferring the legal lien of the latter to the prior equitable claim of the former. The agreement to give the mortgage being fair and bona fide, the right of the party claiming the benefit of it is equal to that of a judgment creditor, and, being prior in time, should have precedence over the latter.

That Milbank agreed to give a mortgage we think is clear. His offer, and the acceptance of it by the plaintiff, constituted a valid agreement upon mutual considerations.

Independently of the foregoing views, we think the referee correctly decided that there was a valid delivery of the bond and mortgage first executed by Milbank as early as April 3, 1873. That was several days before the judgment creditors acquired their liens, and was an attempt made in good faith by Milbank to perform his previous agreement to make a mortgage. The plaintiff received the bond and mortgage, and its acceptance thereof will be presumed from the beneficial nature of the security, in the absence of proof that it rejected them. (Spencer v. Carr, 45 N. Y., 406.)

The efforts made by the bank to get the additional security which the name of Milbank’s brother afforded, and the subsequent taking of another bond and mortgage for that purpose, and having the latter mortgage recorded, without relinquishing the securities first given, in our opinion, did not alter the equitable rights of the parties.

The judgment must be affirmed with costs.

Present — Gilbert and Dykman, JJ. Barnard, P. J., not sitting.

Jüdsrment affirmed with costs.


text:
    ANNA DUNN, Appellant, v. JACOB HORNBECK, Respondent.

      Note — executed to wife on sale of husband's property — no presumption that it was intended as a gift to her — payment of note to husband — good.
    Tlie plaintiff had ño separate estate, and her husband, an alien, purchased real estate and had it conveyed to her, not by way of gift, but solely because as such alien he .could not hold real estate, and on a sale of the premises by the husband as his own property, the wife, at his request conveyed the property, and the purchaser gave to the husband in part payment a note made payable to the order of the wife at his request for the reason, as the husband testified, that the title to the premises being in her, he wished to make both parts of the transaction correspond. The note was paid to the husband, although not surrendered.
    In an action on the note in the name of the wife, held, that as she had no separate estate, and as husband and wife are still one person in law except where she has a separate estate, the husband might sell his property, and a note taken therefor payable to his wife was his property.
    That the wife never owned the note, and payment thereof to the husband was good, and the wife was not entitled to recover.
    Appeal from a judgment in favor of the plaintiff for $143 costs, and from an order denying a motion for a new trial upon the minutes of the court, in an action on a promissory note.

      Lewis E. Carr, for the appellant.

      Sharpe <& Nanny, for the respondent.
   Gilbert, J.:

All the exceptions in the case depend on the legal propositions contained in the judge’s charge. If they are correct, no error was committed on the trial. It appears that the plaintiff’s husband made several purchases of real estate, but he being* an alien, had the title conveyed to his wife ; and when he sold the real estate so purchased, the wife executed conveyances to complete such sales. The note in suit originated in a transaction of that ldnd. The wife held the title to a lot of land in Port Jervis, which the husband had purchased. This lot was sold by the husband as his own property, and the wife conveyed it, at his request, to the defendant. The latter, in part payment of the purchase money of the lot, gave to the husband the note in suit, and paid the note to the husband several years before the commencement of this action. The note was made payable to the order of the wife, because, as the husband testified, the title to the lot was in her name, and he wished to make both-parts of the transaction correspond. The wife had no separate estate, and the evidence clearly demonstrates that all the business referred to was conducted by the husband with his- own means and for his exclusive benefit, but in his wife’s name, solely on- account of his alienage. The husband and wife were both witnesses on the trial, and in respect to these facts there was no material contradiction. The wife testified that her husband gave her the note on the day it was made, and she laid it in a drawer which was the common receptacle of the papers of herself and her husband. No claim, however, w'as made on behalf of the plaintiff that her husband had made a gift to her of the note, or of. the lot in part payment for which it was made, nor did her counsel ask to have that question submitted to the jury. The evidence,, we think, precludes all inference of such a gift.

The judge charged the jury, in substance, that if the title to the lot in question was taken in the wife’s name because the husband was an alien, and in pursuance of an arrangement between them, that the husband should deal in real estate and the deeds thereof be taken in the- wife’s name-,, and was sold to the defendant by the husband for his own benefit under the same arrangement, then the proceeds of the sale, including the note in suit, belonged to the husband, and the plaintiff never owned the note. We think that proposition is correct.

Husband and wife being but one person- in the law (Co. Lit., 3 a, 112 a), it is, to say the least, doubtful whether, irrespective of the husband’s disability to hold real estate as against the State, the fifty-first section of the statute of uses- and trusts (1 R. S., 728) was intended to apply to a ease of this kind. But assuming that it was, the only consequence would be, that no means would exist for enforcing the trust, upon which the- title was vested in the wife. The law, however, did not incapacitate the wife from performing the conscientious duty resting upon her, of conveying the property at the husband’s request, and for his-benefit; and when she executed the conveyance to the defendant in this case, she merely completed a sale which her husband had made of property which was regarded by both of them as his property — not hers. (Siemon v. Schurck, 29 N. Y., 598.) It was an act which she was bound by the strongest obligation of duty to perform. The husband, therefore, was entitled to receive to his own use all that was paid for the land. He did receive the note in that way, and although it was made payable to the order of the wife, the jury must have found that it was not delivered to her as a gift, but was kept by the husband. The money payable upon it belonged to him. The note did not become her separate estate. The statutes for the protection of married women were not intended to furnish means whereby a wife could violate the confidence which her husband had reposed in her, and appropriate his property. A husband does not, by permitting his wife to manage and deal with his estate as her own, divest himself of his ownership thereof. (Ryder v. Hulse, 24 N. Y., 380; Savage v. O’Neil, 44 id., 298.) At common law, a note payable to the wife belonged to the husband. An effectual indorsement thereof could be made only in the husband’s name, and it might be declared on as payable to the husband. (Com. Dig., Baron and Feme, D., 1; Barlow v. Bishop, 3 Esp., 266; Arnould v. Revoult, 1 Brod. & Bing., 443.) That rule has not been changed except as to the separate property of the wife. (Wil. Eq., 640-644 [Potter’s ed.].)

The charge of the judge did not contradict the note-, but merely declared that a husband may have the entire beneficial interest in a note, although it is, by its terms, payable to his wife. As the husband and wife are still one person in law, except where the latter happens to have a separate estate, the husband may sell his property, and take a note therefor payable to his wife, without excluding the ownership of the note, vested in him by the common law.

Upon the question of agency the charge was unquestionably correct.

The judgment and order denying a new trial must be affirmed.

Present — Gilbert and Dykman, JJ. Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Gilbert, J. : Dykman, J.

text:
    DANIEL H. GRAY, Respondent, v. THE CITY OF BROOKLYN and others, Appellants.

      Brooklyn charter — construction of— exercise of powers, as incident to authority given under one section of a charter, is legal, although such powers are expressly given in another section, only provided a condition therein specified is complied with — not subject to injunction, on ground that condition is not complied with.

    By the charter of the city of Brooklyn (§ 36, tit. 3), headed “Legislative department,” the common council are empowered “to establish markets, make parks, build bridges and to make other improvements for the use of said city. By 'title 18, entitled ‘ ‘ Of assessments for local improvements and of street openings,” they are authorized to grade, regrade and pave streets, etc., upon the petition of a majority of the property owners, or of the owners of a majority of the property affected, or by a tliree-fourths vote of the board of aldermen and the consent of the mayor.
    The common council passed a resolution for, and were proceeding to rebuild, a bridge spanning the Gowanus canal, raising the bridge four feet, and also the bulk-heads and streets to conform thereto, thus raising- the grade of Ninth street, in front of the premises of the plaintiff, at the intersection of such canal, when they were restrained by the order appealed from.

      Held, that the improvement was not an exercise of the power granted by title 18 of the charter. If it.was, it would be illegal, as none of the conditions on which that power depends had been performed. But that it was made under section 30, title 3, wherein the power to build bridges is granted in general terms, and included, of necessity, the power to make such approaches to it as are necessary; and, although it would require an elevation of the grade of the street, it was not, therefore, an exercise of the power to regrade a street conferred by title 18. Power to build a bridge cannot be annulled or impaired because one of its incidents involves an act which is also an ingredient of another and distinct power, which latter can ordy be exercised on certain conditions.
    Appeal from an order made by the Special Term of the City Court of Brooklyn, enjoining the defendants from raising the grade of Ninth street, in front of plaintiff’s premises, at the intersection of the Gowanus canal in Brooklyn.
    The plaintiff is the owner of the fee of the street, subject to the public easement in the same as a street. Tbis street bad been opened, graded, paved, and used as a street for some fifteen years, and for the same time a bridge had spanned the canal at this point on the same grade as the street. The common council of the city passed a resolution directing the rebuilding of the bridge. Subsequently a modified resolution was passed directing the raising of the bridge four feet, and also the bulk-heads and streets, to conform to the additional height of the pier.

      William, C. De Witt, for the appellants.

      Edgar M. Cullen, for the respondent.
   Gilbert, J. :

By section 26 of title 2 of the charter of the city of Brooklyn, the common council are empowered “ to establish markets, make parks, build bridges, and to make other improvements for the use of said city, and to make loans and issue bonds therefor as provided by law.” The heading of this title is “ Legislative department,” and its only office is to define and enumerate the legislative powers of the common council, and to specify the restrictions imposed on the exercise thereof. By title 18 of the charter, which is “ entitled ” of assessments for local improvements and of street openings, “ the common council are empowered” to open, close, extend, widen, regulate, grade, pave, regrade and repave roads, streets, lanes and avenues, and cause public squares and parks to be opened, regulated, ornamented and perfected in the manner thereinafter provided, and generally to make such other improvements in and about such streets, avenues and squares as the public wants and convenience shall require, upon a petition of a majority of the property owners, or of the owners of a majority of the property to be affected, or b_y a three-fourths vote of the board of aldermen, and the consent of the mayor.” This title provides that the expense of all such improvements shall be assessed on the property benefited thereby in proportion to the amount of such benefit, and prescribes the proceedings for laying out a district of assessment, and for the levying and collecting of the sums assessed. It also provides that in case a remonstrance against the proposed improvement signed by a majority of the property owners, or of the owners of a majority of the property to -be affected, within the district of assessment, shall be presented to the common council on or before a day designated, they shall not allow the said improvement to be made or proceed further therein.

The common council were proceeding to build a bridge across the Gowanus canal, where it intersects Ninth street, when the work was arrested by the injunction order granted in this case.. The plaintiff’s property fronts on Ninth street, and'is also bounded by the canal. The construction of the bridge requires, as an incident, the raising of the grade of Ninth street about four feet, in order tc form a suitable approach to the same, and this it is alleged will injuriously affect the plaintiff’s property.

The question is, whether the improvement under consideration is an exercise of the power granted by title 18 of the charter. If it is, it is illegal for the reason that none of the conditions on which that power depends have been performed; and as the plaintiff is the owner of the fee of one-half of the street, any unauthorized alteration of the grade thereof which w’ould injuriously affect the residue of his property would amount to a private nuisance which a court of equity may properly restrain. Municipal corporations are created for public purposes only, and are in fact mere agencies of government. While therefore they are, like other agencies, confined within the limits of the powers expressly granted, and such as are necessary to the exercise of their express powers, yet in construing the language in which the various powers are granted regard must be had to the public purpose involved in each. For example, title 2, subdivision 4 of the charter grants the police power of regulating all matters connected with all parks, places and streets of the city. That is very different fr.um the power granted, in similar language, in section 1 of title 18 of the charter, and is not affected by any of the conditions annexed to the exercise of the latter power. Many similar illustrations might be given of the rule of construction alluded to, but one is as good as any greater number would be.

The power to build bridges is granted in general terms. It includes, of necessity, the power to make such approaches to them as are necessary to the convenient use of the same, for it must be presumed that the legislature did not intend that a bridge should be constructed which could not be used for lack of such approaches. They imposed no restriction upon thegrant of the power to build this bridge, but left the whole subject to the discreiion of the common council, a body chosen for that and other like purposes and clothed with the responsibility of performing the duty for the best interests of the public. It is required to be performed at the expense of the entire city. Although it will require an elevation of the g’rade of a part of Ninth street in order to form the requisite approaches to the bridge, yet, we think, it is not an exercise of the power to regrade a street conferred by title 18. The change made in the approaches to the bridge is a mere incident to the power to build a bridge, which is essentially a different one from the power to regrade a street, and the power to build a bridge cannot be annulled or impaired because one of its incidents involves an act which is also an ingredient of another and distinct power and can be done under the latter power only after certain conditions have been complied with. In the exercise of the latter power the common council acts as the quasi agent of the persons assessed for the improvement— hence the conditions. In the former they act for the public at large — hence such conditions would be incompatible with the object of the power. In other words the conditions apply only to a local improvement, the expense of which is to be defrayed by the persons benefited, and the building of the bridge is not such an improvement.

We are of opinion, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements. •

Dykman, J.

(dissenting):

Without passing upon the merits, the injunction should be continued until the final hearing and determination of the action. The order must, therefore, be affirmed without costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order continuing injunction reversed, with costs and disbursements.


author: Barnard, J.:

text:
    JOHN PICKERSGILL, as Committee, etc., of CHARLES F. PICKERSGILL, a Lunatic, and another, Plaintiffs, v. CASSIUS H. READ, Impleaded with THE SOCIETY OF THE NEW YORK HOSPITAL, Defendants.

      Practice — adverse pa/rty, under § 237 of the Oode — Ptypers to limit right of appeal — strictly construed — Notice of appeal — service of not in time, when waived.

    An assignee of a portion of a mortgage who is made a party defendant in an action for the foreclosure thereof, who serves no answer on and makes no claim against a co-defendant, is not an adverse party within the meaning of section 237 of the Code, as to such defendant, so as to require a notice of appeal to be served on him. In order to become adverse, the party should have been made a co-plaintiff, or a refusal to allow himself to be joined as such should be alleged.
    Papers which are to have the effect of limiting the right to appeal, should he strictly construed. Accordingly, notice of the entry of judgment, purporting to he the act of two parties (the plaintiff and one of the defendants) who have a joint interest, not signed by the attorney of the plaintiff, and having a blank space for his signature, and signed by one only of the attorneys of the defendant, who claims a substitution in place of both, but who did not serve notice of it, held, insufficient to limit the time to appeal.
    An appearance at General Term and submitting points on the merits, although including a protest against the exercise of jurisdiction of the court, waives the right to object to the notice of appeal not having been sent in time.
    Motion to modify order of General Term denied at Special Term, aiid renewed at General Term on leave granted.
    This action was brought to foreclose a mortgage in the sum of §40,000, dated June 1st, 1860, and executed by John Alfred Pickersgill to John Pickersgill, as committee of Charles F. Pickersgill, a lunatic.
    John Pickersgill is the father of John Alfred Pickersgill and of Charles F. Pickersgill. John Alfred was the owner in fee of the mortgaged premises, and executed a power of attorney to his father to sell the property. By virtue of this power, the father conveyed the premises to Samuel A. Nolan, on the 23d day of February, 1864, and on the same day, as committee, he executed a release of the mortgage to the purchaser. The defendant Read subsequently became grantee of the premises in question, and this action was brought against him for a foreclosure of the mortgage and a sale of the premises.

      The issues were referred to Henry Nicoll, Esq., who decided that the release of the mortgage was invalid for want of an order of court.
    The judgment upon his report was reversed as to the defendant Read, at General Term, in May, 1875, the court holding that no order was necessary. (5 Hun, 170.)
    It appeared by the affidavits and printed case, submitted on this motion:
    1. That the hospital was made a party defendant in the action 'or foreclosure; that the answer iu its behalf claimed the sum of $6,000 for the support of the lunatic; that an assignment of so much of the mortgage had been made as would satiety the claim. It prayed judgment for the amount due, out of the proceeds of the sale of the mortgaged premises; and a decree was entered accordingly.
    2. The attorney for the defendant Read then moved the court, at Special Term, that security be dispensed with on appeal from the decree. The hearing of the motion was postponed on several occasions, on the instance of counsel for the hospital, on account of illness, who had in the mean time returned the notice of appeal as having been served upon him too late. A further postponement was asked for by a messenger sent by him, for the same cause, and it was granted on written stipulation that it should be without prejudice to the appeal already served.
    The counsel for the hospital claimed on this motion that the messenger had no authority to sign the stipulation for him, but only for the plaintiff, and that he argued the motion for leave to dispense with security, as counsel for the plaintiff merely.
    3. It appeared that notice of the entry of the decree served'on behalf of the hospital, purported to be a joint notice in behalf of the plaintiff' and the hospital; that there was no signature of the plaintiff’s attorney and of only one of the attorneys for the hospital.
    The attorney for the hospital claimed that the firm had dissolved, and that he was substituted as attorney, but no notice of substitution was served on the attorney for the defendant Read.
    4. It also appeared that the answer in behalf of the hospital' made no claim as against the defendant Read, and no copy was served on his attorney.

      5. It also appeared that the cause was argued at General Term by counsel for the plaintiff and of the defendant Read; and printed points were submitted in behalf of the hospital by its counsel, in which protest was made as against the exercise of jurisdiction by the court, on the ground that the notice of appeal was not served in time; and the points contained an elaborate argument for reversal on the questions of law.
    The counsel for The Society of the New York Hospital, after the decision at General Term, moved the court, at Special Term, for leave to enforce so much of the judgment as was rendered in favor of the hospital, through a receiver who theretofore had been appointed, claiming that the notice' of appeal was not served in time on the attorneys for the society.
    This motion was denied on the ground that the hospital was not an adverse party in such a sense as rendered service of notice necessary, and on the further ground, that the judgment was wholly reversed as to the defendant Read. Leaye was granted to renew the motion at General Term. The counsel for the hospital accordingly moved to modify the order of reversal so as to execute the decree in its behalf.

      James Emott and Albert Matthews, for the New York Hospital, for the motion.

      George W. Gotterill, for defendant Read, in opposition.
   Barnard, J.:

The plaintiff in this action sought to foreclose a mortgage given to him as committee, by his so.i J >1 n A. Piekersgill. In his complaint he made the New York hospital a party, averring the hospital had a claim subsequent to the mortgage. The mortgage covered certain lands owned by the defendant Read, which he claimed had been released from the operations of the same. The hospital by its answer claimed an assignment of so much of the proceeds of the sale, as would be sufficient to pay its claim against the plaintiff’ as committee. No copy of the answer of the' hospital was served on Read’s attorney. The issue was tried and the plaintiff obtained a decree enforcing the mortgage against the property of Read. The referee was directed, out of the proceeds of the sale, to pay the hospital its claim. The defendant Read appealed to the General Term of this court, and served his notice of appeal on the plaintiff’s attorney, and after argument the judgment was reversed upon the ground that Read’s property was released from the lien of the mortgage, and a new trial was granted.

The hospital was not an adverse party under section 237 of the Code.

The plaintiff retained the legal title to the mortgage. (Poor v. Guilford, 10 N. Y., 273.) It is too late for the hospital to question this fact. If the hospital had an interest in the claim, it should have been made a co-plaintiff If it refused to be a joint plaintiff, then on an averment of that fact it could have been made a defendant. In such case the joint interest should have been stated and the refusal to join also.

There are no such averments. The hospital permits the plaintiff to assert his title to the whole mortgage, and only asks that such a portion of the proceeds of the sale be paid to it, as will pay its claim. If the plaintiff fails to establish his right to a sale, the defendant’s, the New York hospital’s, claim to the proceeds of the sale, is inoperative and impossible of execution.

As to the validity of the mortgage, the only adverse parties under this issue were the plaintiff and Read. The New York hospital would have been bound by an adjudication that the mortgage was of no effect, made in an action between the plaintiff and Read, in which the hospital was not a party. It took nothing by its assignment, if plaintiff had no interest to convey, and a decree against the plaintiff would bind all who claim under the plaintiff.

The notice of the entry of the judgment given by one of the attorneys for the New York hospital, is insufficient to limit Read’s right to appeal. It purports to have been prepared to be signed ’ by the plaintiff’s attorney and by the attorney for the New York hospital. It recites a judgment entered in favor of the plaintiff and the New York hospital. It is not signed by the plaintiff’s attorney, and by only one of the defendant’s attorneys. If he had been substituted, no notice was given either plaintiff or Read. Papers which are to have the effect to limit the right of appeal must be strictly construed. The hospital waived the defect, if there was any. The case shows that the plaintiff’s attorneys and the attorneys for the hospital acted together. Notice of appeal was duly served on plaintiff’s attorney in due time. Notice of appeal served on the hospital had been returned. After this return the defendant Reed applied to the court at Special Term to fix the amount of security on appeal.

The plaintiff’s attorney, by a Mr. Jackson, wished Mr. Mathews, one of defendant’s (hospital’s) attorneys to be present, and lie was sick. Read consented to the postponement, upon the condition and stipulation in writing, that the hearing should stand over “without prejudice, and shall not be prejudiced by the fact that the notice of appeal was served prior to the hearing and determination thereof.” To this stipulation Jackson signed the name of A. Mathews, attorney for New York hospital, and the names of the plaintiff’s attorney. Mathews availed himself of the benefit of the stipulation, appeared and argued the motion. I think that Mathews’ name was signed by his authority, as against the defendant Reed ; thé case shows that Mathews and the plaintiff’s attorneys acted for each other. Mathews argued for plaintiff’s attorneys, and they postponed for Mathews.

Finally, the defect, if any, was waived by the appearance and argument by the attorney for the New York hospital on the merits at the General Term. The New York hospital submitted an elaborate argument on the merits. This waiver was not weakened by an insertion of a clause in the argument by the counsel for the New York hospital, that he denied the service of the notice of appeal on the hospital. Read knew nothing of this; it was not mentioned on the argument. The court knew nothing of it until the argument was subsequently examined. No motion was made by the hospital to dismiss the appeal.

Motion denied, with ten dollars costs.

Dtkman, J., concurred.

Present — Barnard, P. J., Gilbert and Dtkman, JJ.

Motion to modify order of General Term denied, with costs and disbursements.


author:
Barnard, J.:
      Dykman, J.

text:
    JAMES LAWRENCE and SEABURY LAWRENCE, Executors, etc., of HENRY LAWRENCE, Deceased, Appellants, v. ELIZA LINDSAY, ANNIE M. KNAPP, SAMUEL LAWRENCE and FRANK LAWRENCE, Respondents.

      Will — advancements — construction of the term “My books of account.”

    A will contained this clause: “It is my will, and I hereby direct that any advancements hereafter made by me to, or for account of my said children, or either of them, and evidenced either by entries in my books of account or by any written memorandum of acknowledgement, signed by such child or children, shall be deducted from the amount, or be charged upon the share or portion (as the case may be) to which such child or children respectively would be entitled under the provisions of this, my will, if no such advancement had been made.”
    The will was executed March 4, 1869. The testator and his sons were partners in business under the name of Henry Lawrence & Sons. After the date of the will Samuel L. Lawrence and Frank Lawrence, two of testator’s sons, had individual accounts with the firm. The balance due from Frank Lawrence to the firm December 30, 1871, was $10,551.57, and on that day testator charged that amount to himself, and credited his son therewith on the books of the firm. On the same day the individual account of Samuel L. Lawrence showed a balance due from him to the firm of $3,287. The testator also charged this amount to himself on the books of the firm. On the 2d of May, 1870, the testator charged himself “ Check for Samuel L., $10,500,” in the cash book of the firm; and, on the 31st May, 1870, this amount, with other small sums, were charged to his account on the ledger of the firm; no charge of the same amount is made against Samuel L. Lawrence. The surrogate allowed all these items as advancements under the will.

      Held, that, as the testator was shown to have kept no individual book account, the books of the firm of which testator and his sons were members, were testator’s books within the meaning of the will, and the items were properly allowed by the surrogate.

      Held, further, that, as to the last item of $10,500, that from the books .alone there was a legal demand, in the absence of all explanations, established in favor of the testator against his son Samuel for such amount. Without the will it would be a debt —with the will, and in the absence of all explanations, it was an advancement.
    Appeal from a decree of the surrogate on a final accounting.

      Charles H. Woodruff, for the appellants.

      Philip 8. Orool&e, for tlie respondent Lindsay.

      Matthew Daly, for the respondents Samuel and Frank Lawrence.
   Barnard, J.:

The question presented arises under the last will and testament of Henry Lawrence, deceased. The testator died in March, 1872, and the following is the tenth clause of his will:

“ It is my will, and I hereby direct that any advancements hereafter made by ine to or for account of my said children or either of them, and evidenced either by entries in my books of account or by any written memorandum of acknowledgment, signed by such child or children, shall be deducted from the amount or be charged upon the share or portion (as the case may be), to which such child •or children respectively would be entitled under the provisions of this my will, if no such advancement had been made.”

The will was executed on the 4th of March, 1869. The testator and his sons were partners in business under the name of Henry Lawrence & Sons. After the date of the will Samuel L. Lawrence .and Frank Lawrence, two of testator’s sons, had individual accounts with the firm of Henry Lawrence & Sons. The balance due from Frank Lawrence to the firm on the 30th of December, 1871, was $10,551.57. On that day the testator charged that amount to him self and credited the same amount to the account of Frank Lawrence, thus balancing the account.

On the same day the individual account of Samuel L. Lawrence showed a balance due from him to the firm of $2,287. The testator also charged this amount to himself on the books of the partnership and credited the same amount to the account of Samuel L. Lawrence, thus balancing his account.

The credit in each case was “by Henry Lawrence.” On the 2d of May, 1870, the testator charged himself “Check for Samuel .L.” $10,500, in the cash-book of the firm, and on the 31st of May, 1870, this amount with other small sums was charged to his account on the ledger of the firm ; no charge of the same amount is made .against Samuel L. Lawrence. He does not appear to have had an. open account with the firm at this date, but whether he did or not, no charge was made in any way, further than as above stated, against Samuel L. Lawrence for the item of $10,500. The surrogate allowed all the items as advancements, and this appeal presents for review this decision.

It was proven that the testator kept no individual books of account. I think the books of the firm, of which testator and his sons were members, testator’s books, within the meaning of the will. He kept none individually; to what books could he have referred other than his partnership books with his sons? In a certain sense they were testator’s books and might be properly called so. It would be a harsh and narrow construction to hold that an advancement, evidenced in partnership books, was invalid because the will called for such evidence in “ my ” (testator’s) books. If the partnership books are sufficient books under the will to make the entry therein, I see no reason to doubt the accuracy of the surrogate’s conclusion as to the first two items. The father paid the sons’ debts to the firm,.doubtless with the sons’ knowledge and assent, as the books were before them in which the entry was made. It was a payment “for account” of the children, and was made by testator, as evidenced by the entry in the books.

As to the item of $10,500 to Samuel L. Lawrence, in view of the circumstances of this case, I think it was properly held to be an advancement. It was charged to testator as a “check for Samuel L.he was a partner. The entry was made in the usual course of business in the partnership books. The executors were also partners. No evidence was given to explain the entry or the transaction. The book-keeper was not called. I take it to be clearly established that Samuel L. Lawrence received from his father this large sum of $10,500 in May, 1870, and that there is evidence of this payment to him by the father in the books of account. That from the books alone there is a legal demand, in the absence of all explanations, established in favor of the testator against his son Samuel for this amount. Without the will it would be a debt. With the will, and in the absence of all explanations, it is an advancement.

The clause in question does not prevent the establishment of a legal advancement by other evidence than entry in testator’s books, or by written acknowledgment of the parties receiving the advancement.

Judgment affirmed, with costs.

Dykman, J.

(dissenting):

Henry Lawrence, the plaintiff’s testator, departed this life on the 7th day of March, 1872, leaving a last will and testament, which was made March 14, 1869, and which has been duly proved and admitted to probate by the surrogate of Kings county. This will contains the following provision :

“ Tenth. It is my will, and I hereby direct that any advancements hereafter made by me to or for account of my said children, or either of them, and evidenced either by entries in my boobs of account, or by any written memorandum of acknowledgment, signed by such child or children, shall be deducted from the amount, or’ be charged upon the share or portion (as the case may be), to which such child or children, respectively, would be entitled under the provisions of this, my will, if no such advancement had been made.”

James Lawrence and Seabury Lawrence were the executors of this will, and when they presented their final account to the surrogate of Kings county, Eliza Lindsay, a daughter of the testator, objected to the accounts filed, because the executors had not charged the legatees with advancements made to them by the testator.

This objection presented a question which arose out of the following facts: Henry Lawrence, the testator, was carrying on business with his sons under the firm name of Henry Lawrence & Sons. After the will was made, the testator and his two sons, Samuel L. Lawrence and Frank Lawrence, each had individual accounts on the books of the said firm. On the 13th day of December, 1871, there was a balance due from Frank Lawrence to the firm of $10,551.57; on the same day there was a balance due from Samuel L. Lawrence to the said firm of $2,287. On that day the testator charged the amount so due from Frank and Samuel L. to his own account on the books, and, at the same time, credited the same amounts respectively to their accounts on -the said books, and thus balanced the accounts of both of them. The entry of the credits-in each of the accounts of the sons is by “ Henry Lawrence.”

On the 2d day of May, 1870, Henry Lawrence, the testator, charged himself in the same book, “ Check for Samuel L., $10,500.” This amount is not charged to Samuel L. Lawrence on the books at all, although on the same day there was a charge made against him on the books of fifty dollars. These facts, it is claimed, show advancements of these sums to these two sons of the testator. The surrogate has allowed this claim, and the appeal in this case is from his decision on that point.

The word advancement is an old word in the law, and has a well known legal signification. It signifies a provision made by a parent for his child, of money or property; a giving, by anticipation, the whole or a part of what it is supposed a child will become entitled to.

The testator has used this word, and must be held to have used it in its usual sense. He has declared it to be his will that any advancements made by him to either of his children, and evidenced either by entries in his books of account or by any written memorandum signed by either of his children, should be deducted from the amount that such child would be entitled to under the will, if no advancements had been made.

This provision qualified all the legacies with a condition that if the testator should in his lifetime make advancements to the legatees, and should leave evidence of his intention that such advancements were on account of such legacies, either by entries in his books of account, or by written memorandums signed by his children, then such advancements should be deducted from the legacies.

It would have been perfectly competent and proper, if the testator had declared that any advancement to a legatee should go in satisfaction of the legacy, and if he had done so, then any simple gift made by him might have that efiect, even though intended as an additional gratuity. The proper construction of this clause of this will, is that, the testator intended to leave himself at liberty to make such subsequent gifts to his children as he might desire, and to put a particular mark upon such gifts as ho intended as advancements, by book entries or written memorandums. It is as if'he had said : I intend hereafter to make advancements to my children, some of which I intend as additional gifts, and some anticipated payments of their legacies; the latter will be evidenced either by entries in my books of account, or by written memorandums signed by my children. (Langdon v. Astor's Executors, 16 N. Y., 29.)

Tin’s being so, there is no pretense of any written memorandums, and the question is: Are the entries in the books of account any evidence of advancements? It must be conceded that the books of the firm were the testator’s books for all the purposes of this consideration. Let it be borne in mind that neither of the three sums in question are anywhere charged on these books to Frank or Samuel L. Lawrence. On the contrary, the two first sums are credited to them respectively, and the only charge made of these sums are charges against the testator. The sum of $10,551.57, credited to Frank Lawrence, and the sum of $2,287, credited to the account of Samuel L. Lawrence, were evidently so credited to balance their accounts, for they are the precise amounts necessary to do it. The natural signification of this act is that the testator intended to make them a donation of these amounts, and, as he has not made any charge against them on his books of account, nor left any evidence on his books of account that he intended this gift as an advancement, the natural presumption is, that he intended these sums as an additional gratuity.

The testator knew that he had made this will, and knew its provisions in relation to advancements, and it is but natural to suppose that if he had intended these two sums as advancements he would have made some unmistakable entry in his books of account that would have evidenced such intention.

This last remark applies wi th equal force to the sum of $10,500 which he let Samuel have on the 2d day of May, 1870. No charge is made of that against Samuel anywhere, and the conclusion seems irresistible that it was intended as a gratuity. Let it be admitted that these several sums were advancements by the testata'tor, yet it does not follow that they are to be deducted from their legacies. The testator has said what advances were to be so deducted — they were to be advances made by him to his children, and evidenced in one of the two ways provided.

If they were not so evidenced they were not to be deducted. No other evidence could be received. The will prevents the establishment of a legal advancement in any other way.

The decision of the surrogate in allowing the objection to the account was wrong, and his decree must be reversed.

Present' — Barnard, P. J., Gilbert and Dykman, JJ.

Decree of surrogate affirmed with costs.


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    THE TOWN OF WESTCHESTER and THE TRUSTEES OF THE TOWN OF WESTCHESTER, Appellants, v. JOHN H. DAVIS, JOHN TIGHE and WILLIAM COOPER, Respondents.

      Conveyance — by two of three trustees of a town — void — chap. 150, Laws of 1844— chap. 279, Laws of 1848 — § 6, art. 3, title 8, chap. 18, part 1, B. 8. — § 27, title 17, chap. 8, part 3, B. 8.

      The real estate of the town of Westchester, N. Y., was vested, by chapter 150, Laws of 1844, in a corporation created by that act, with six trustees, and entitled “the trustees of the town of Westchester.” Section 5 of such act invested them with the general powers and made them subject to the liabilities and restrictions imposed by chapter 18, part 1 of the Kevised Statutes. Section 6 of article 3, title 3 of such chapter 18, directs that, “where the corporate powers of any corporation are directed by its charter to be exercised by any particular body, or number of persons, a majority of such body or persons if it be not otherwise provided in the charter, shall be a sufficient number to form a board for the transaction of business; and every decision of a majority of the persons duly assembled as a board, shall be valid as a corporate act.”
    By chapter 279, Laws of 1846, the town was divided into two, one retaining the name “Westchester” and the other to be named the “ town of West Farms.!’ Section 5 of this act provides that “ the provisions of the act entitled ‘An act to incorporate the trustees of Westchester,’ passed April 12, 1844, shall apply to each of the towns hereby erected, except there shall only be three trustees elected in each of said new towns hereafter, in place of six, a's heretofore, who shall possess all the powers now delegated to the present board.”

      Held, that as regards each of the new towns created by the act of 1846, the provisions of the Revised Statutes, (§ 6, art. 3, title 3, chap. 18, part 1 of the Kevised Statutes), were repealed, and their corporate acts were governed by section 27, title 17 of chapter 8, part 3 of the Revised Statutes, requiring that “ whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done, and such power, authority or duty may be exercised and performed, by a majority of such persons or officers, upon a meeting of all the persons or officers so intrusted or empowered, unless special provision is otherwise made.” And that a deed by two of such trustees, when the third did not meet and confer with the two who did sign, was not requested to meet, and, in fact, had resigned his office as trustee before the other trustees determined to make the conveyance, was-void.

      Held, further, that under the act of 1844 a deed would have been executed' in-the name of the corporation, but under the law of 1846 the trustees could .execute a deed in their own names, as trustee.

      Appeal from an order made at Special Term, denying a motion for judgment by tbe plaintiffs upon tbe pleadings in the action.

      Edmond Blanhman and Wilson Brovm, Jr., for the appellants.

      Silas D. Gifford, Wm. E. Pemberton and Geo. W. Hunt, for the respondents.
   Barnard, J.:

Under the provisions of 2 Revised Laws, 136, the town of W esuchester was authorized to'elect six trustees; and such trustees, or a majority of them, were clothed with power to dispose of the undivided town lands as fully as trustees before the passage of that law had been used to do under any patent or charter of said town. This statute was re-enacted in the Revised Statutes. (1 R. S., 360, § 3.) In 1844, the legislature authorized the election by the town of six trustees, who were created a corporation under the name of the trustees of the town of Westchester. (Chap. 150, Laws of 1844.) This corporation was authorized to sell these lands ; full provision was made for the working of the corporation; one of its members was to be president, and another was to keep its records; and it was given the general powers and was made subject to the limitations and restrictions of chapter 18, part 1, Revised Statutes. All property theretofore held by the trustees was vested in the corporation so created, and all former inconsistent enactments were repealed. Section 6 of chapter 18, title 3 of part 1 of the Revised Statutes provides that: “ When the corporate powers of any corporation are directed by its charter to be exercised by any particular body or number of persons, a majority of such body or persons, if it be not otherwise provided in the charter, shall be a sufficient number to form a board for the transaction of business; and every decision of a majority of the persons duly assembled as a board shall be valid as a corporate act.” There was no provision in the charter as to the number necessary to do a corporate act; and, according to the section of the statute above stated, at least four must meet, and three might do a lawful act.

The provisions of the Revised Statutes requiring a majority of the trustees was necessarily repealed. In 1846 (chap. 279, Laws of 1846), the legislature divided Westchester into two towns — Westchester and West Farms; authorized a division of the town lands between the two towns, and provided, by section 5 of said act, as follows :

“ The provisions of the act entitled an act to incorporate tint trustees of the towm of Westchester, passed April 12, 1844, shall apply to each of the towns hereby erected, except there shall only be three trustees elected in each of the said new towns hereafter, in place of six as heretofore, who shall possess all the powers now delegated to the present board.”

Under the act of 1844 a deed would have been executed in thi. name of the corporation. Under the law of 1846, I am of the opinion that the trustees would execute a deed in their own name as trustees. (De Zeng v. Beekman, 2 Hill, 489.)

By section 27 of chapter 8, part 3, title 17 of the Revised Statutes, it is provided : “ Whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done and such power, authority or duty may be exercised or performed by a majority of such persons or officers upon a meeting of all the persons or officers so intrusted or empowered, unless special provision is otherwise made.”

The pleadings show that only two of the trustees have executed the deed in question. That the other trustee did not meet aud confer with the two who executed the deed; was not requested to meet, and, in fact, had resigned his office as trustee before the other trustees determined to make the conveyance. I think the deed is void, and that the plaintiffs are entitled to judgment on the pleadings. There must be a full board, and all must meet and confer as to the act to be done. Full provision is made to fill vacancies, indeed it is made the imperative duty of any three justices of the town to fill the vacancy; and if there be not more than one justice, he may associate with himself two more from an adjoining town to fill the vacancy. (1 R. S., 348, §§ 34-46.) Statute powers are to be strictly followed. (Powell v. Tuttle, 3 Comst., 400; Sharp v. Speir, 4 Hill, 80 ; Striker v. Kelly, 2 Den., 330; Sherwood v. Reade, 7 Hill, 431; Keeler v. Frost, 22 Barb., 400.)

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

Present — Barnard, P. J., and Gilbert, J.; Dykhan, J., not sitting, having been counsel.

Order reversed, and new trial granted, costs to abide event.


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    THOMAS MURPHY, Respondent, v. DAVID ALLERTON, DAVID ALLERTON, Jr., and WILLIAM WATTS, Appellants.

      Answer — several defenses — where a demurrer to one is sustained —proper judgment thereupon

    Where there are several grounds of defense set up in an answer, to one of which a demurrer is put in — which demurrer is sustained — and the court at Special Term thereupon decided “ that plaintiff have judgment for the relief demanded in his complaint against the said William Watts, unless he file and servo an amended answer, and pay the plaintiff costs of this demurrer within twenty days after service of a copy of this order : ”

      Held, that as the defendant had remaining one issue, to he tried by a jury, he did not need an amended answer for that, and assuming the demurrer to have been good, the judgment should have been, that the plaintiff have judgment unless the defendant succeeded on the issue, with leave to the defendant to amend the defense demurred to on payment of costs.
    Appeal from an order made at Special Term, sustaining a demurrer to one defense set up by an answer.

      P. L. McClellan, for the appellant.

      P. K. McOrmsby, for the respondent.
   Barnard, J.:

The complaint asks for the delivery to the plaintiff of “ one cow,” which the defendant has become possessed of and-wrongfully detains from the plaintiff.

The defendant William Watts makes three defenses:

1st. That he has no knowledge that plaintiff was the owner of one cow.

2d. A general denial.

3d. That defendant, under chapter 811 of the Laws of New York, passed May 9, 1867, took into his possession “a certain red cow,” which was ordered sold under that statute.

The plaintiff demurs to this last defense for the reason that it does not state facts sufficient to make a defense.

The defense demurred to is technically defective, in not averring that the “ one cow ” of the complaint and a certain red cow ” of the answer were one and the same cow. The court at Special Term went too far in ordering judgment for relief demanded in the complaint unless the defendant file and serve an amended answer, and pay costs.

The defendant had remaining one issue to be tried by a jury, and he did not need an amended answer for that. The judgment should' have been, assuming the demurrer to have been good, that plaintiff have judgment unless the defendant succeeded on the issues. (Belknap v. McIntyre, 2 Abb. Pr., 366; Sutherland v. Tyler, 11 How. Pr., 251.)

Leave should have been given to defendant to amend the defense demurred to if he elected so to do, on payment of costs.

The order appealed from should be reversed, and leave given to defendant to insert an allegation that the cow of the third defense is the cow in question, without costs to either party, either of demurrer or of appeal.

Dykman, J., concurred. Gilbert, J., not sitting.

Order sustaining demurrer reversed, and leave to amend third defense given without costs; order to be settled by Justice Barnard.


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    THE NEW YORK AND HARLEM RAILROAD COMPANY, Respondent, v. THE BOARD OF TRUSTEES OF THE TOWN OF MORRISANIA, Appellant.

      Bailroad — cannot be benefited by laying a street across its track — Assessment for, on road-bed, void — Bemedy — Demurrer— Cloud upon title — action will lie to prevent, as well as remove — § 59, chap. 277 of 1864.
    A street was laid out across the track of a railroad, and the commissioners of assessments assessed the strip of land used for operating such railroad, for benefit in opening the street, the assessment was confirmed, and such land advertised for sale for non-payment of the assessment. In an action brought by plaintiffs to set aside such assessment as a cloud upon their title, an injunction was granted and the sale stayed. The complaint alleged that the land so assessed was already devoted entirely to public use, and that the road-bed and track of plaintiffs’ road is upon said land, as appears from the map made by said commissioners; that said assessment is illegal and void, and that proof outside of the proceedings was necessary to prove its invalidity. On a demurrer thereto, on the ground that the complaint did not state sufficient facts to constitute a cause of action:

      Held, 1. That property, which cannot be used except for the specific public purpose of a railroad, cannot be benefited by laying a street across it.
    2. That, if the alleged illegality in the assessment consisted only in the above objection, it might be doubted whether such objection should not have been taken by appeal or by writ of certiorari; but, as the defendants, by the demurrer, admitted the entire illegality of the assessment, some fatal defect to its validity must be assumed, not disclosed by the pleadings, but which would be evidenced by proof.
    3. That this action could be sustained, on the ground that an action will lie as well to prevent, as to remove a cloud upon plaintiff’s title.
    4. That the defendant had no power to sell the entire road-bed of the plaintiff, nor any lands necessarily used by it for the purposes of its franchise; its general powers being limited by the provisions of section 59, chapter 277 of 1864.
    Appeal from an order, made at Special Term, overruling a demurrer to a complaint.

      Ernest Hall, for the appellant.

      Glose & Robertson, for the respondents.
   Barnard, J.:

The defendants were incorporated for the purposes of municipal government, under chapter 277, Laws of 186L Under the powers granted them by the legislative act, they opened One Hundred and Fifty-sixth street, in the town Morrisania, from Third avenue, to St. Ann avenue. This street was seventy feet wide, and crosses the plaintiff’s railroad at right angles or nearly so. Commissioners of estimate and assessment were appointed, as required by the act of incorporation, and they assessed the plaintiff $800 for benefits received, on account of two pieces of land belonging to plaintiffs and marked E and F, on the commissioners’ map; one of these pieces is north of the new street, and the other is south of it.

Each piece takes in the entire railroad bed fronting on the new street, and each piece is 100 feet deep. The report of the commissioners was duly confirmed by the County Court. The assessment not having- been paid, as required by the act under which the street was opened, the defendants proceeded to sell, and for that purpose advertised lots E and F for sale to the person who would take the shortest lease thereof, for the assessment in question. The plaintiffs thereupon commenced this action to vacate the assessment averring that it is wholly illegal and void, and that proof outside and beyond and in addition to the assessment proceedings was necessary to show such invalidity and m;llity. The complaint avers that E and F are parts of the road-bed of plaintiff’s railroad and that the same has been used as such for many years, and that the same is devoted forever hereafter to be so used.

The complaint does not aver what constitutes the alleged illegality of the assessment further than this. The complaint asks that the assessment may be amended and that the sale of lots E and F may be restrained by injunction. The defendant demurred to the complaint and the demurrer was overruled at Special Term, and this appeal is brought to review this decision. Property which cannot be used, except for the specific public purpose of a railroad,, cannot be benefited by laying a street across it. (Owners of Lands v. The Mayor, 15 Wend., 374.)

This rule was followed in this court in the case of The Village of Sing Sing v. The Mayor of New York, where a road was laid out over the Croton aqueduct.

If the alleged illegality consists only of this objection, it may well be doubted whether such objection should not have been taken by appeal or by writ of certiorari. The defendants, however, by the demurrer, admit the entire illegality of the assessment; and so far as this appeal is concerned we must assume some fatal defect to its validity, not disclosed by the pleadings, but which would be evidenced by proof.

Assessments are liens on the land assessed. (Laws of 1864, chap. 277, § 46.)

The lease given on the sale is made presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, were regular. (Section 60 same act.) By the same section the purchaser is declared entitled to hold and enjoy the said lands against all persons whatsoever until the end of the term. There is a marked difference in this lease and that described in Marsh v. The City of Brooklyn (59 N. Y., 280). In that case it was held that the purchaser would be compelled to show the irregularity and nullity of the proceedings in his effort to enforce his claim. That the certificate being made by the charter of the city of Brooklyn “ evidence that such sale and other proceedings were regularly made,” did not create a presumption as to the validity of the assessment. The decision at Special Term seems, therefore, to lie in accordance with adjudged cases as to a void assessment, which may terminate in a lease like the one called for in defendant’s charter.

I think this action may be sustained on other grounds. An action will as well lie to prevent, as to remove a cloud upon plaintiff’s title. (Crook v. Andrews, 40 N. Y., 551.)

The defendant has no power to sell the entire road-bed of the plaintiff, nor any lands, necessarily used by it for the purpose of its franchise. By section 59 of chapter 277, Laws of 1864, all assessments were to be collected in the manner provided by the laws of the State for the collection of taxes by town collectors ; 'and all laws regulating the collection of taxes shall, so far as applicable, and not inconsistent with defendant’s charter, apply to the collection of assessments under it.

The general power subsequently given, to sell the lands assessed through defendant’s treasurer, gave no power to sell a piece out of a railroad track situate in the town. In the case of a State tax no such power is given, but the comptroller to whom return is made that a railroad company has failed to pay its tax, is required to notify the attorney-general, who is directed to proceed by petition against the delinquent company, to compel discovery of its property and payment of the tax. (1 R. S., 417, §§ 19, 20, 21.)

The legislature have not authorized the sale of lands constituting the track of a railroad in the several counties in which the same is situate, or in the towns in which it is assessed for real estate. If'the assessment were valid, the defendant could not establish this lease, which presumptively proved itself and established an apparent right to occupy and hold the entire track of plaintiff’s road in two parcels of 100 feet each.

I think the order should be affirmed, with ten dollars costs besides disbursements.

Present — Barnard, P. J., and Gilbert, J. Dykman, J., not sitting.

Order overruling demurrer affirmed with costs.


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    THE WASHINGTON CEMETERY, Respondent, v. THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Appellant.

      Railroads — right of way— Gravesend avenue — chap. 531, Laws of 1873, construction of — Easement, or fee taken thereunder.

    In tliis action, brought by owners of land fronting thereon, to restrain defendants from operating their road over and upon Gravesend avenue, laid out by special act of the legislature (chap. 531, Laws of 1873), running from the city line of Brooklyn through the towns of Gravesend, New Utrecht and Matbush, the only question was, whether by the proceedings taken under that act the fee of the land was taken for public use or only an easement:

      Reid, that the fee of the land was not taken, hut an easement only, for the purposes of the highway.
    That the act does not, in terms, take a fee or vest it either in the people, the city of Brooklyn or the county of Kings. The language of the act, as to the assessment, does not require a fee. The purposes of the taking did not require a fee.
    Appeal from a judgment for a perpetual restraining of the defendant from working, using and operating their railroad over and upon the premises of the plaintiff, entered upon a decision by the court.

      John H. Bergen, for the appellant.

      H. C. Place, for the respondents.
   Barnard, J.:

If the owners fronting on Gravesend avenue, in the county of Kings, own the fee of the avenue, subject only to the right of the public to use the same as an open street or highway, then this action is well brought, and a perpetual injunction against the defendant, restraining it from constructing its road thereon, is a proper remedy. (Williams v. N. Y. Central R. R. Co., 16 N. Y., 97; Broiestedt v. South Side R. R. Co., 55 id., 220; Carpenter v. Oswego and Syracuse R. R., 24 id., 655; Mahan v. N. Y. Central, 24 id., 658; Wager v. The Troy Union R. R., 25 id., 526.) Gravesend avenue was laid out by special act of the legislature (chap. 531, Laws of 1873), and the question presented is, whether, by the proceedings taken under that act, the fee of the land was taken for the public use or only an easement. It is laid out as an avenue, “One hundred feet in width; the carriageway thereof sixty feet, the sidewalks each ten feet, and courtyards, ten feet in width, on each side.”

It is provided that the commissioners of estimate and assessment shall fix a district of assessment, “ not less than 100 feet on each side of the said avenue, within which the property by them deemed to be benefited by the opening and improving of said avenue, shall be assessed to defray the expense of said opening and improving, and beyond which district said assessment shall not extend.” After the district is thus fixed, it is provided that the commissioners shall “estimate the value of the lands and premises required to be taken for said avenue, the damages to be sustained by any person interested therein by reason of such taking, and the benefits which will be derived by the owners of land within said district of assessment, from the opening of said avenue.”

The act provides for the removal by the owner of the buildings from the avenue, if the costs of removal can be agreed upon between the commissioners and the owners. If no such agreement is made; then the commissioners are to assess what they allow for the buildings. If an agreement is made with the owners, the costs of removal agreed upon is to be included in the award made for the land.” If buildings are now standing on said court-yards they shall not be required to be removed. After the confirmation of the report the commissioners are to contract for constructing the carriage-way and sidewalks of the portion of the avenue outside of the city of Brooklyn.”

By the thirteenth section of the act the Gravesend and Coney Island Railroad Company is authorized to construct and operate therein its railroad, “on a level with the grade of the said avenue.” Defendant has succeeded to the right of this company.

I think the fee was not taken. No fee is vested by the act, if taken from the owners. There is no doubt but that a fee may be taken when the lands taken are designed only to a particular use.

Under the law authorizing taking land for the State canals, payment of the price vests the fee in the people. (Brinckerhoff v. Wemple, 1 Wend., 470.) A fee may be taken for a public market when the act authorizes it, and the municipality may sell the land after the use ceases. (Heyward v. The Mayor, 3 Seld., 314.) In the act authorizing the taking the lands for Prospect park, and for the parade ground, a fee is authorized to be taken, and the title is by the act impliedly vested in the city of Brooklyn, and the lands taken were charged with the payment of the bonds, issued to raise money to pay the landowners therefor. In the act authorizing the taking of that land for the Kings county court-house, on payment of the value as appraised, the title is by law vested in the county of Kings. I find no instance where the legislature have authorized a fee of land to be taken for a public use, where the title has not by the act vested somewhere, either in express terms or by necessary implication.

The avenue is laid out as a public road or street. Under general statutes of the State lands for highways are not taken in fee, but an easement only is taken for the purpose of the highway. Adjoining lands are, in cities, assessed for benefits for opening streets for public use. There is no instance of the legislature authorizing the taking of land, in whole or in part, for the benefit of a private railroad corporation, and assessing back on adjacent lands the costs of the improvement. The railroad law expressly forbids a commission, appointed to assess the value of lands taken for railroad purposes, from making any allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the proposed road. Railroads only take an easement in lands taken by assessment of damages under the law, except that a railroad company is authorized to acquire lands for passenger and freight depots. “ Such lands shall be held by such company in fee.” (Laws of 1854, chap. 282, § 17.)

The only argument urged for holding a fee to be taken, is derived from the wording of the act directing the commissioners to assess “ the value of the lands.” In the case of highways “ damages,” by reason of laying out and opening the road, are to be assessed. In the case of railroads it is “the compensation which ought justly to be made by the company to the owners of the real estate appraised.”

In the act in question the direction is to “estimate the value of the lands and premises required to be taken for said avenue the damages to be sustained by any person interested therein, by reason of such taking, and the benefits which will be derived by the owners of land within said district from the opening of said avenue.” All that was required for the avenue was an easement, .and that is all the legislature intended to have appraised under this •clause.

This construction is in accordance with general legislation as to street openings. It is not in accordance with any previous legislation that a public avenue has been opened and built at large .expense by the adjoining property owners, by assessments for benefits, so that a private railroad corporation might lay its track thereon. The act does not, in terms, take a fee or vest it either in the people, the city of Brooklyn, or the county of Kings. The language of the act, as to the assessment, does not require a fee. The purposes of the taking did not require a fee. I think for these reasons the judgment should be affirmed, with costs.

Dykman, J,, concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.