author: Daniels, J.:

text:
    EDWARD A. GREENE, Respondent, v. THE NIAGARA FIRE INSURANCE COMPANY, Appellant. EDWARD A. GREENE, Respondent, v. THE GERMANIA FIRE INSURANCE COMPANY, Appellant. EDWARD A. GREENE, Respondent, v. THE HANOVER FIRE INSURANCE COMPANY, Appellant. EDWARD A. GREENE, Respondent, v. THE REPUBLIC FIRE INSURANCE COMPANY, Appellant.

      Action by one for use of another — statements in declaration as to pojrty for whom action is brought.

    These actions were brought upon judgments recovered in the State of Mississippi by the firm of Wm. B. Greene & Co. In the title of the actions, in which no judgments were recovered, following the firm name, were the words, “ use of Edward A. Greene,” and in the body of the declarations, after the firm name, was added,“who sue for the use of Edward A. Greene.” The declarations prayed for judgment for Wm. E. Greene & Co., and the verdict and judgments were in their favor. In these actions brought by Edward A. Greene, in this State, held, that the allegations in the former suits as to his interest in the subject-matter thereof were not traversable, and that the recovery of the judgment did not establish his interest therein.
    The provision of the Code requiring all actions to be prosecuted in the name of the real party in interest, applies to persons having the title to the instrument on which the action is brought, even though the proceeds, when recovered by him, are to be paid over to another person ultimately entitled to receive them from him.
    Appeals from judgments in favor of the plaintiff, recovered upon trials before the court, without a jury.

      G. "FPL QoMerill, for the appellants.

      E. Mathewson, for the respondent.
   Daniels, J.:

The plaintiff, in each of these actions, recovered upon judgments against the several defendants, rendered upon trials had in the Circuit Court of Warren county, in the State of Mississippi, in actions upon policies of insurance issued to William R. Greene & Co. The policies were in the usual form of fire insurance, and by their terms insured that firm against loss by fire to their stock of dry goods, groceries, plantation supplies, and goods held in trust, in the store occupied by them in Yicksburg. In the title of the actions by the firm upon the policies, following the name of the firm, were the words, “ use of Edward A. Greene,” and in the body of the declarations, after the firm name, was added the clause: “ who sue for the use of Edward A. Greene.” But it was the firm of William R. Greene & Co., who, as plaintiffs, prayed for judgment in the actions, and the verdicts were in their favor, and they recovered judgments upon them. The form followed was, that “We, the jury, find for the plaintiffs, and assess their damages,” etc., and “ it is, therefore, considered by the court that the plaintiffs do have and recover,” etc. No further notice was taken of Edward A. Greene than that contained in the title of the actions and the commencement of the declarations. Whether the firm prosecuted the actions for the use of Edward A. Greene was not a traversable fact, nor made an issue in the case, and no adjudication appears to have been had upon it. The plaintiffs simply asserted that to be the fact. The defendant, in each case, pleaded the general issue and added other special pleas, but neither required any investigation of, or adjudication upon the fact, whether the actions were, or were not prosecuted for the use of Edward A. Greene. The statement concerning the fact was descriptive merely, and not contained in the form or substance of the issue. Whether they sued for his use or not was entirely unimportant to the right to recover, or the defenses asserted. If the firm had good cause of action upon the policies, as they appear from the judgments to have had, that entitled them to recover without reference to any ultimate interest or claim which Edward A. Greene might have as against them foi the money. And the cases were so treated by the court, for it was the firm in whose favor the verdicts were rendered, and the judgments recovered. All that the records contained concerning any right of Edward A. Greene to be benefited by the money recovered, was the simple assertion of the firm, that the recovery was for his use, and the truth of it was not established by any thing contained in the records, nor in any other way whatever. And that mere assertion was not such evidence of the fact as proved its existence against the defendants in the actions afterwards brought upon the judgments by Edward A. Greene as plaintiff. As the facts upon this subject were made to appear by the evidence given in the cases, they made no stronger case in the plaintiff’s favor. They neither showed him to be the owner of the policies nor of the judgments recorded upon them. They were substantially what the defendants, in one of their special pleas, averred them to be. And that was, that the firm insured had voluntarily transferred the title to the property insured to one Henry S. Greene to secure one Edward A. Greene certain obligations paid plaintiffs, therein set forth, to wit, to pay said Edward A. Greene $80,000,” etc. And it did appear, from the proof, that the firm had executed a deed of trust to Henry S. Greene, by which the property insured was transferred to him for the purpose of securing to the said Edward A. Greene the full and faithful performance, by the said W. E. Greene & Co., of all agreements and obligations hereinbefore set forth to be done and performed by them.” And, besides stating what those agreements and obligations were, the deed provided that, in case of default in performance on the part of the firm, the said Henry S. Greene, trustee, shall immediately be authorized to take possession, or whenever he may be directed so to do by said Edward A. Greene, of all the property, effects, accounts, debts, bills receivable and securities herein conveyed, and convert the same into money by sale or by collecting,” etc. “ And the said Henry S. Greene, trustee, shall apply the said property and the proceeds thereof, in whatever manner the same may be realized, to the payment of such sum as may be due to said Edward A. Greene by "W. E. Greene & Co., for,” etc. And after such payment, it was provided in the deed that any residue which might be left, should be transferred and reconveyed to the firm. This instrument, so far as it proved effectual for any purpose, merely transferred and assigned the property, demands and effects of the firm to Henry S. Greene in trust for the benefit of Edward A. Greene, the present plaintiff. It made Henry S. Greene the trustee of an express trust, and if the policies had been assigned or transferred by means of it, he, and not the plaintiff, should have brought the actions in this court Upon the judgments recovered upon them. Where the title is vested in a trustee or assignee for the benefit of another, the latter can maintain no action for the recovery of the property or debts assigned, unless the trustee declines to bring the proper action himself, or is colluding with the party to be prosecuted (Weetjen v. Vibbard, 12 S. O. [5 Hun], 265); and neither of those facts was averred or proved in either of these cases. But the deed of trust showed, upon its face, that the policies had not been transferred or assigned. It stated that the stock, etc., was covered by insurance, in sundry offices, to the extent of $30,000, the policies on which will be transferred to said Henry S. Greene whenever he may desire it, with the consent of the underwriters;” and no evidence of any such assignment as that was given in the cases. Hnder the trust deed alone neither the trustee nor the plaintiff in these suits had any right, as owner, to the policies or to the judgments recovered upon them. It was also left very doubtful by the proof, whether any thing whatever remained unpaid on the agreements and obligations that instrument was designed to secure. No such interest in the moneys to be recovered by the judgments was shown in the present plaintiff as was sufficient to enable him to maintain these actions. The learned judge, before whom they were tried, placed the right to recover in them solely upon the fact mentioned in the suits upou the policies, that they were prosecuted for the use of the plaintiff. But as that was not within the issues joined in those actions, and found no part of the controversies between the parties to them, and the verdicts and judgments were, in express terms, demanded by and rendered for the firm, the mere statement that was made, did not sustain the conclusion drawn from it. The Code requires suits to be commenced and prosecuted in the name of the real party in interest; and that has been held to be the person having the title to the instrument on which the action is brought, even though the proceeds, when recovered by him, are to be principally paid over to another person ultimately entitled to receive them from him. ( Williams v. Brown, 2 Keyes, 486 and 488 ; Allen v. Brown, 44 N. Y., 228, 231; Fulton v. Fulton, 48 Barb., 581.) As these cases now appear, the actions should have been brought in the name of the members of the firm of William E. Greene & Go. The plaintiff cannot maintain them without some further proof of title than that given upon the trials already had. The determination of the court.upon the demurrer does not aid the present plaintiff, for the complaints averred more than the proof has established. It was alleged that the policies, at the time of bringing the actions upon them, were the property of Edward A. Greene. If that had been the fact these suits might well have been sustained in his name. But the proof failed to sustain that allegation.

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

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

Judgments reversed and new trials ordered, costs to abide event.


source: Caselaw Access Project

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

license: Public Domain

text:
    ALBERT GOETTMAN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Interpreter of Disii’ict Oourt of city of New York — officer of court and not of city government — Inspector of elections — acceptance of office of.

    The position of interpreter of a District Court of the city of New York is an office, and its incumbent is an officer.
    He is, however, an officer of the court and not of the city government, and the prohibition contained in section 114 of the charter of said city (chap. 335 of 1873) against holding two offices at the same time does not apply to him.
    As no person can refuse to accept the office of inspector of elections without thereby subjecting himself to a fine, the acceptance of such office cannot be regarded as prohibited by the said section. (Per Brady, J.)
    Appeal from a judgment recovered on a demurrer interposed to the answer of the defendants in this action.

      D. J. Dean, for the appellant.

      Bosooe H. Ohamimg, for the respondent.
   Daniels, J. :

The plaintiff’recovered judgment, on the decision of the demurrer, for his monthly salary as interpreter of the Sixth Judicial District Court; of the city of New York. By the answer the only objection presented to the recovery, was his appointment to the office of inspector of elections for the eighth election district of the sixteenth assembly district, which he accepted, and held during the month for which the salary was claimed. This was demurred to as insufficient, and the court at Special Term held that it presented no defense. The position taken by the plaintiff’s counsel in support of this conclusion, that his appointment as interpreter was not an office, cannot be sustained. For the statute providing for the appointment denominates the appointee an officer, and the employment conferred by it an office. (Laws of 1866, vol. 2, 1693, chap. 745, § 1.) And that it was an office in the judgment of the legislature, appears further from the terms of another act concerning certain courts in the city of Brooklyn containing alike designation of it. (Laws of 1871, vol. 1, 642, chap. 331.) But while the appointment was to an office, and it made the plaintiff an officer, he was not one of the municipal officers of the city, but of the court in which his services were to be rendered. And that court was not a part of the chartered government of the city, nor included in either of its departments, as they were created and defined by law at the time of the plaintiff’s appointment. (Laws of 1873, chap. 335, pp. 484, 491, § 26.) The court was one of the District Courts of the city, provided for and organized under other laws of the State enacted specially for that purpose, defining their jurisdiction and course of proceeding. (Laws of 1857, vol. 1, 707, chap. 344; Laws of 1865, 1397, chap. 688.) They were made courts of the city located within it, whose expenses were to be defrayed by it without being a part of its government, as that was at the time of the plaintiff’s appointment defined by its charter. In a general sense they became a part of the local government, but not of that created for mere municipal purposes. (1 R. S. [5th ed.], 379, 380.) That was held to be the proper construction of the laws relating to them and their officers in the cases of Quin v. Mayor, etc. (44 How., 266), and Whitmores. Mayor, eto. (12 S. C. [5 Hun], 195). And it was only offices held under the municipal government of the city which the charter provided should be vacated by the acceptance of another civil office of honor, trust or emolument. (Laws of 1873, 519, § 114.) By the acceptance of such an office it was provided that the incumbent should- be deemed thereby to have vacated every office held by him under the city government. That was the utmost limit to which the provision was extended by the act. And, as the plaintifi’s office was not held by him under the city government, as the act defined it, but was simply an office of the court, in which his duties were to be exclusively discharged, it was not, by the force of this provision, vacated by the acceptance of the office of inspector of elections.

The act providing for the consolidation of the government of the city and county of New York, did not enlarge the provision made by the charter on this subject. It was adopted for other purposes, and made no change in the section under which the defendant claimed the plaintiff’s office, as interpreter, had been vacated. (Laws of 1874, chap. 304.) What was not an office held under the city government, before its enactment, continued to be the same after that time. An extension of the provision made by the charter, which would include the officers of these courts, would be just and salutary; but, until it shall be made, such offices cannot be declared vacant by the acceptance of another, not in itself incompatible with that held in the court in which the duties of the officer are required to be performed. And no such incompatibility has been alleged or claimed to exist in the present case.

The judgment recovered by the plaintiff should, therefore, be affirmed.

Davis, P. J., concurred.

Brady, J.:

I think this judgment should be affirmed, for the reason that, under the laws relative to elections (Acts of 1872, chap. 675, §§ 13 and 18), the person appointed as inspector of elections is bound to accept the position under a penalty; and if the proposition contended for by the appellant were maintained it would, in effect, authorize the board of police to vacate the office held by the person selected as an inspector, if he were an officer within the purview of section 114 of the charter of 1873. (Laws, chap. 335.) This was not intended by the legislature. The duties of an inspector are important, but limited in duration, and can well be discharged without interference with those pertaining to many places under the city government. If it was not so, it is very clear that neither the design nor the spirit of the charter embraces the cases of persons who are, bylaw, compelled to accept the second position assigned them. The learned justice of Special Term was correct in his views on that branch of the case.

Judgment affirmed.


author: Davis, P. J.:

text:
    WILLIAM THOMPSON and WILLIAM ELLIS, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Court of General Sessions — indictment found in — removal to Oyer and Tmvniner— waives'— Title of officer — when cannot he called in question collaterally.

    Persons indicted in the Court of General Sessions for the county of New York have no vested right to be tried in that court, either before or after plea; and the indictment may, by an order of said court, be transferred to the Court of Oyer and Terminer.
    After a prisoner has been arraigned in the Court of Oyer arid Terminer, and, alter a plea of not guilty, been convicted, it is too late for him to object that the indictment was found in the Court of General Sessions, and was, without his consent, transferred to the Oyer and Terminer.
    Where a panel of jurors have been duly selected by the commissioner of jurors duly appointed by the mayor of the city of New York under an act of the legislature, a challenge to the array, on the ground that the act under which the appointment was made was unconstitutional, cannot be sustained. The validity of the acts of an officer de facto, cannot be questioned in a collateral proceeding between other parties.
    Writ of error to the Court of Oyer and Terminer to review the conviction of the plaintiffs in error of murder. The plaintiff's in error were indicted for murder in the Court of General Sessions for the city and county of New York. Subsequently, and after issue joined, indictment was, against the wishes of the prisoners, transferred to the Court of Oyer and Terminer.

      Wm. F. Kintzing, for the plaintiffs in error.
    In the ease of a conviction of a capital offense in the Court of General Sessions an appellate court has, and it is its duty, to review the whole case denovo and do substantial justice. It has the power to'reverse the judgment, in case of an erroneous ruling, without any exception. (Session Laws, 1855, chap. 33é, §§ 3 and 4.) ■ An appellate com’t has no such power in reversing a conviction obtained in the Court of Oyer and Terminer, unless there be an exception, and it has no power to reverse a judgment upon the facts, no matter how unjust may be the verdict. (People v. Thompson, 41 N. Y., 1; McKee v. People, 36 id., 113; Quimbo Appo v. People, 20 id., 531.) The prisoners have a vested right to be tried in the Court of General Sessions, issue having been joined upon the indictment, and the court had no right to transfer the indictment, thereby depriving them of certain privileges conferred by the act of 1855.

      Pcml. J. Rollins, Jr., for the defendants in error.
   Davis, P. J.:

If the power of the Court of General Sessions to send the indictment found in that court to the Oyer and Terminer for trial were questionable (which it does not seem to us to be), yet the plaintiffs in error are not in position to raise any question on that subject, because it appears by the record that on being separately arraigned on the indictment in the Court of Oyer and Terminer they each demanded a trial upon the indictment and each pleaded not guilty thereto, making no question as to the power and jurisdiction of the Oy.er and Terminer to try the indictment. They should have raised the question of the jurisdiction of the Oyer and Terminer on the ground of the informality or irregularity of the proceedings in sending the indictment to that court, or of the supposed want of power in the Sessions so to do, by plea or motion, before demanding trial in the Oyer and Terminer and taking issue in that court. The power of the Court of Oyer and Terminer to hear, try and determine all crimes and 'misdemeanors is general, and whenever an indictment regularly found by a grand jury of the county, and apparently regularly ordered from the General Sessions into the Court of Oyer and Terminer for trial, is moved and tried in the latter court, it is too late for the indicted parties to raise any question affecting the jurisdiction of the Oyer and Terminer, on the ground now suggested, after proceedings to take issue and demand trial, and ■after conviction upon such trial. We are,however, convinced that the General Sessions had power to send the indictment to the' Court of Oyer and Terminer for trial, at any stage before an actual trial had commenced in that court, for the reasons suggested by Barrett, J., in his opinion on the motion for a stay of proceedings herein.

Persons indicted in the Sessions have no vested right to be tried in that court, either before or after plea, because under section 3 of chapter 337 of the Laws of 1855, as amended by chapter 330 of the Laws of 1858, a different mode or more extensive right of review is given, after conviction. Until conviction ensues upon trial, no such rights as those given by the statute above cited exist; and it would be a singular and dangerous construction, to hold that the modes of reviewing judgments provided for different courts operate as vested rights restricting trials to the courts for which such modes are specially provided, and to prevent the exercise of any jurisdiction by other courts.

The challenge to the array of petit jurors was properly overruled. The facts stated in the challenge, from which the legal conclusions contained in it are deduced, are in substance that the panel of jurors were selected by one Thomas Dunlap, acting illegally as commissioner of jurors, under the nomination and appointment of the mayor of the city of New York, in pursuance of an act of the legislature of the State of New York, which act is alleged to be unconstitutional and void for certain reasons assigned; and that one Douglas Taylor, the alleged lawful commissioner, did not so act. This is in substance, an averment that Douglas Taylor was and is the commissioner de jure, and that Thomas Dunlap was and is commissioner de facto only acting under color of an appointment made pursuant to a statute which is unconstitutional, and that therefore Dunlap is not commissioner dejiore, and his acts are illegal. The district attorney demurred to the challenge, and the plaintiffs in error joined issue on the demurrer. The effect of the demurrer was to admit that Dunlap selected the jury while acting as commissioner of jurors under the color of right given him by the appointment of the mayor made under the statute claimed to be unconstitutional. The issue thus joined raised two questions of law : First, whether the legality of the acts of an officer de facto, exercising the functions of the office under color of appointment, can be tried and determined in the form presented by the challenge to the array; second, whether the appointment by the mayor was void because of the unconstitutionality of the act referred to. But it was not necessary to consider the latter question unless the acts of an officer de facto can be challenged by questioning their validity in a collateral proceeding between other parties, and the legality of his title to the office be thus tried. The authorities are numerous in condemnation of any such right. (People v. Collins, 7 Johns., 549 ; M’Instry v. Tanner, 9 id., 135; Wilcox v. Smith, 5 Wend., 231; People v. Stevens, 5 Hill, 616; People v. Hopson, 1 Denio, 574; People v. Cook, 8 N. Y., 67; Hall v. Luther, 13 Wend., 491; People v. Peabody, 6 Abb. Pr., 228.)

The embarrassments that would flow from permitting issues of that kind to be tried in that manner would be prejudicial to the public and to a great extent, destructive of the administration of justice. A prisoner arraigned might assert that the judge sitting to try him was not lawfully chosen or appointed, and thus make an issue which would divest the court of jurisdiction if triable in that form, because the judge could not sit to try an issue directly involving and affecting his own judicial existence. He might challenge the validity of the election of the clerk, of the sheriff and of every other officer connected with the drawing of jurors, seriatim, and thus compel the court to sit and try the validity of their several acts by determining the regularity of their elections. It is enough, in all cases where such a question is raised collaterally, that the person acting as an officer is discharging the duties of the office under color of right, evidenced by his possession of the office, and by exercising its functions under the power of an appointment or election independently of the question of legal title. Hence the court below was entirely right in holding that Dunlap’s official acts could not, in this case, be questioned by challenge on the grounds alleged.

There was of course, nothing meritorious in the challenge, because it could not make the slightest difference to the prisoners whether the panel of jurors by which they were about to be tried were selected from lists prepared by one or the other of the persons named. The qualification of the jurors could neither be increased nor diminished by the officer who selected them; and no injury, in fact, could accrue to the prisoners whether the commissioner was one acting both de faeto and de jure, or only de facto ; and courts would not be justified, in any case, in arresting a trial for the purpose of settling a question so wholly immaterial in any valuable consequence to the accused. It follows that there was no error in the rulings of the court below. The counsel for the prisoners, with commendable zeal, have brought these questions before us as probably the last hope of their unhappy clients, but while we see much to commend in the patient labor they have given, without reward, in the discharge of every duty in this case, we cannot feel that there are any questions of sufficient doubt to justify us in holding the case for longer consideration.

The conviction and judgment must be affirmed.

Daniels, J., concurred.

Judgment affirmed.

       The following is the opinion of Barrett, J.:
      Barrett, J. :
      The question with respect to the challenge to the array of petit jurors was fully discussed in the opinion filed in this court upon the twenty-sixth instant, in the case of Jacob Stauderman. It was there shown that the title of an officer de facto could not be inquired into collaterally, and that the objection to Mr. Dunlap’s official action was wholly without foundation. This is not only clear upon principle but is in accordance with the whole current of authority in this country and in England. Beference is made to that opinion for those authorities, and for the more elaborate statement of the reasons for denying the present application, so far as it proceeds upon the particular ground.
      The only other point presented on behalf of the condemned is that the Court of General Sessions had no power to transfer the indictment to this court for trial, and consequently that this court was without jurisdiction in the premises. It is conceded that the Court of General Sessions possesses the general power to transfer indictments to this court for trial, and indeed the statute upon the subject is clear and explicit: “ Every such Court of Oyer and Terminer shall have power to try all indictments found in the Court of General Sessions of the Peace of the same county, which shall have leen sent by order of such Court of General Sessions to and received by said Court of Oyer and Terminer.” (2 B. S., 204, § 30.)
      The claim is, that the power is limited to the indictment before arraignment and plea, and not to the issue. The point is truly frivolous and there would be more force in the claim that the Sessions could not remove the indictment until after arraignment and plea. For the indictment is sent to this court for trial, and there can be no trial except of an issue.
      The application for a writ of error with a stay of proceedings is therefore denied.


author: Brady, J.:

text:
    CHARLES WESTON, alias CHARLES WERND, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Oharp. 437 of 1873 — right of cowrt to decide as to qualifications of jurors.

    Chapter 4,37 of 1873 providing that all challenges of jurors, both in civil and criminal cases, shall be tried and determined by the court alone, is constitutional and valid.
    Writ of error to the Court of Oyer and Terminer, to review the convietioh of the plaintiff in error of murder in the first degree.

      John O. Mott and Wm. F. Kioitsing, for. the plaintiff in error.

      B. K. PheVps and D. J. PolUns, Jr., for the defendants in error.
   Brady, J.:

Justice Davis, by his opinion in the case of the The People v. William Thompson and William Filis (ante, 135), has disposed of two questions presented as well on their behalf as on the part of the plaintiff in error herein. They relate to the transfer of the case from the Court of Sessions to the Court of Oyer and Terminer, and to the array of petit jurors, assumed to have been improperly drawn. Both questions are decided adversely to the plaintiff in error. The remaining question arises from the refusal of the court to appoint triers upon a challenge for favor. The refusal was placed upon the provisions of the statute (Laws 1873, chap. 427, § 1), authorizing the court to act Upon and dispose of such a challenge without triers. It is claimed that that act is unconstitutional, because it is in derogation of the common-law right of trial by jury, which secured a tribunal other than the court alone for the disposition of such challenges, namely, triers appointed for that purpose. In 1872 (chap. 475, Laws 1872), an act was passed in relation to challenges. It provides that the previous formation or expression of an opinion or impression, in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoner, or a 'present opinion or impression in reference thereto, shall not be a sufficient ground of challenge for principal cause, provided the person proposed as a juror shall declare, on oath, that he verily believes that he can render an impartial verdict according to the evidence; that such opinion or impression will not bias or influence his verdict; and provided the court shall be satisfied that the proposed juror does not entertain such a present opinion, as would influence his verdict as a juror. And this court declared in Barkley v. The People (MS. op.), if any alteration of the qualifications of a juror was made by that act, it was not an unconstitutional exercise of legislative power. It was a mere regulation of the challenge for principal cause prescribing what should not be a sufficient ground to sustain such a challenge. It was also said in that case, that the legislature might change or regulate the mode of challenging, and that so long as the right of a j ury trial was preserved, and means provided by which impartial jurors could be obtained, there was no violation of the constitutional guarantee of trial by jury. The cases of Walter v. The People (32 N. Y., 147), and Stokes v. The People (53 id., 164), sustain this doctrine. The change made by the act of 1873 (supra), was in the mode of trial only. It took nothing from the prisoner which an accused had previously enjoyed, and in no way interfered with his right to an impartial, unbiased jury. It submitted his rights in that respect to the court, and not to triers chosen for the purpose, and to a tribunal therefore equally capable of determining all questions, which might be presented to them. It did not interfere with the right of trial by jury which was not in any respect invaded by any of its provisions, but only with the mode of ascertaining the fitness of the jurors to be impanneled, which it was clearly within the legislative power to regulate. Indeed the whole machinery for that purpose is statutory, and changeable at the will of the sovereign power. In the courts of the United States, the same mode of determining challenges to the favor has been the practice for many years. (See Rev. Stat. U. S., p. 152), and we are not advised that any one has questioned the act of congress by which it was established, on the score of its unconstitutionality. In reference to the juror William Barrett, it is our judgment that the decision made at the Oyer and Terminer upon the challenge to the favor was correct. The juror was able to try the plaintiff in error, without being at all influenced by the impression upon his mind, created merely by reading in a newspaper of the occurrence which formed the subject of the trial. The impression would not interfere with his verdict, which would be based upon the evidence given. Such impressions are valueless, and of no force. It is not possible, that any right minded man could yield his entire judgment and intelligence to such a vague incident.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


author: Lawrence, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOSEPH STEINERT and JOSEPH STEINERT, Appellants, v. PATRICK ANTHONY, Respondent.

      Officer defacto — right of appointee of— how established.

    While it is perfectly well settled that the acts of an officer de facto are valid as to third persons, it is equally well settled that where one claims by action am office or its incidents, he can only recover upon proof of title.
    Where one seeks to establish, by quo warranto, his title to the office of clerk of one of the District Courts of the city of New York by virtue of an appointment from the justice thereof, he must prove that the person by whom the appointment was made was lawfully entitled to the office of said justice. The fact that it was made by one who claimed to be, and was then acting as such justice, but who has subsequently been ousted therefrom, is not sufficient.
    In such an action the judgment in the action in which the person by whom the relator was appointed was ousted is admissible in evidence. It cannot be regarded as res inter alios acta.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed by the court.

      Albert Ocurdozo, for the appellants.

      Nelson J. Waterbury, for the respondent.
    A judgment in an action to determine the title to an office is evidence against others than the parties to the action. The rule is different in ordinary actions and proceedings which bind only the parties who are impleaded. But an action to determine the title to an office is of an entirely different character. It is brought by the sovereign power, under an express provision of the statute, for the specific purpose of determining, who is rightfully entitled to a particular office. It is public in its nature and in its result. (B. and G. V. R. R. v. Clark Nat. Bank, 60 Barb., 231, 219.) In no ease can a mere defacto officer claim any benefit for himself by reason of his incumbency of the office. (Biddle v. Co. of Bedford, 7 Serg. & B., 392 ; People v. Nostrand, 16 N. Y., 375, 382; People v. Tieman, 8 Abb. Pr., 359, 361.) It is even held, in cases where an officer de facto, without rightful authority, such as a minor, has rendered valid services for a private party, that he cannot recover the fees therefor. (People v. Hopson, 1 Denio, 574, 579.) A person claiming office by appointment from a usurper, can have no greater r-ight or claim than his principal. (The Mayor v. Flagg, 6 Abb. Pr., 296, 302; King v. Lisle, Andrews, 163, 173, 171; King v. Hebden, id., 388, 389, 392; Bex v. Grimes, 5 Burr., 2599, 2601; King v. Mayor, etc., of York, 5 Durnf. & E., 66, 68-72.)
   Lawrence, J.:

This is an action in the nature of a quo wcvrranto, brought to determine whether the relator, Joseph Steinert, or the defendant, Patrick Anthony, is entitled to the office of clerk of the District Court for the seventh judicial district, in the city of New York. The relator was appointed such clerk by Joseph McGuire, who claimed to be, and was at the time of the relator’s appointment acting as the justice of the District Court for the seventh judicial district. McGuire had been certified by the city canvassers to have been elected to the office of justice, at the election held on the seventh day of December, 1869. He took the oath of office, and, on the 1st day of January, 1870, entered upon the discharge of its duties, and continued to act as such justice up to and until the 21th day of November, 1873, on which day., in an action brought by the people on the relation of John A. Stemmier and the said Stemm. ler, against him, it was adjudged by this court that the said McGuire “has intruded into and usurped and unlawfully held and exercised, and still does intrude, etc., into the office of justice of the District Court for the seventh judicial district, and that he be ousted from said office; ” and it was further adjudged that the relator, Stemmier, “ was duly elected to said office for the term of six years from and including the 1st day of January,’1870;” that he was entitled to the' certificate of election from the canvassers, and was rightfully entitled to hold the office from said first day of January, etc. On the 24th of November, 1873, Stemmier took possession of the office of justice for. said district; and, on the same day, he appointed the respondent as clerk of the court. The respondent filed the proper bond, and qualified as required by law, and entered into the possession of the office. The Circuit justice, before whom the cause was tried, directed the jury to find a verdict for the defendant, to which ruling the relator’s counsel excepted. An exception also was taken to a refusal of the justice to direct the jury to find a verdict for the plaintiff, and there were exceptions to the rulings of the justice in the admission of evidence. The exceptions were directed to be heard in the first instance at the General Term.

First. The counsel of the appellants contends that, at the time when McGuire appointed the relator, he was a justice de facto, and that his acts, as respects other persons than himself, were just as valid as if he had been an officer de jure; and that, as the justice of the District Court in question had the right to appoint a clerk and an assistant clerk for the term of the justice, to wit, six years, the appointment of the relator was valid; and that, therefore, there was no vacancy in the office of clerk to be filled at the time when Stemmier, who had been declared by a judgment of this court to be the justice de jure of said court, appointed the respondent. I cannot accede to this position of the appellants’ counsel, and I do not think that it is sustained by the numerous cases which he has cited upon his brief. While it is perfectly well settled that the acts of an officer defacto a re valid as to third persons, it is equally well settled that where one claims, by action, an office, or its incidents, he can only recover upon proof of title. (People v. Hopson, 1 Denio, 579, and cases there cited ; People v. Tieman, 8 Abb., 359.) In the case of the People v. Nostrand (46 N. Y., 375, 382), Church, Ch. J., says: “ When a person sets up a title to property by virtue of an office, and comes into court to recover it, he must show an unquestionable right. It is not enough that he is an officer ■de facto, that he merely acts in the office; but he must be an officer de jure, and have a right to act.” In the case of The People ex rel. Morton v. Tieman (8 Abb. Pr., 359), Allen, J., says: “ When an individual claims by action the office or the incidents to the office, he can only recover upon proof of title ; possession under color of right may well serve as a shield for defense, but cannot, as against the public, be converted into a weapon of attach, to secure the fruits of the usurpation and the incidents of the office.” And in the case of The People v. Hopson (1 Denio, 519), Bronson, J., who most strenuously upheld the rule as to the validity of the acts of officers defacto as to third persons, and who delivered many of the opinions cited by the appellants’ counsel, says: “ If he [the officer] were suing to recover damages for the assault, it would probably be a good answer to the action that he was not a legal officer, but a wrong-doer, who might be resisted. And, clearly, he cannot recover fees, or set up any right of property on the ground that he is an officer de facto, unless he be also an officer dejureP And he cites the following cases in support of his position: Riddle v. Co. of Bedford (1 S. & R., 386); Keyser v. McKissan (2 Rawle, 139); Fowler v. Beebee (9 Mass., 231); Green v. Burke (23 Wend., 490); People v. White (24 id., 526). All these cases go to show that if McGuire had brought an action to recover the salary of the justice for the seventh judicial district, or had brought an action in the nature of a quo warranto, to establish his title to such office, he would have been obliged to prove, before he could have recovered, that he had a legal title to the office; and the fact that he claimed to be or was an officer defacto, would not have availed him. Now, as it has been judicially declared that McGuire did not have, at the time he appointed the relator, a legal title to the office, but that Stemmier had the legal title at that time, does the relator stand in any better position than McGuire would have stood in if he were plaintiff in an action for the recovery of the salary of the office? I think not. In the first place, I am of the opinion that the relator is not, within the meaning of the rule which is invoked by the appellants’ counsel, a third party or stranger.

In commenting upon the rule, Judge Cowen, in Green v. Burke (23 Wend., 502) says:-' “I know the cases have gone a great way; but they have stopped with preventing mischief to such as confide in officers, who are acting without right.” This seems to be the reason of the rule, and I do not think that the courts have designed to extend the rule. The act of McGuire in appointing the relator may well be sustained as valid, so far as to protect the relator in any act which he assumed to perform as clerk of the District Court for the seventh judicial district, prior to the judgment of ouster against McGuire ; and it was unquestionably valid so far as suitors in the court were concerned, and in respect to any acts of the relator, acting as clerk of the court, relative to process issued, papers filed, or judgment entered, or other matters in which such suitors had an interest. Carrying the rule to this extent is all that is necessary for the protection of the relator and of those persons who transacted business in the court while McGuire was in the actual physical possession of the office of justice and while the relator was acting as clerk. This construction of the rule as to the acts of defacto officers, in the language of Judge Cowen, prevents mischief to such as confide in officers acting without right.” (Green v. Burke, supra.) In all other respects I am of the opinion that the relator is not to be treated quoad McGuire as a third party, nor as a stranger. If McGuire had no title to the office of justice, it seems clear that he could not confer' a title to another office, the right to appoint to which was conferred on the justice, not upon one who simply asserted that he was such justice. The relator could defend himself for acts done as clerk, under the appointment from McGuire, in any action which might be brought against him, but he cannot convert this “ shield of defense ” into a weapon of attack to secure the fruits of the usurpation of McGuire, “ or the incidents of the office,” any more than McGuire could do so. If he can, then the anomaly is presented of an usurper, who has himsélf no title, conferring upon others the title to offices which the law'has provided can only be filled by the officer who has a legal title to the office.in to which such usurper has intruded. The relator and McGuire, in this respect, seem to me to be one. The title of the relator being derived through McGuire, who had himself no title, amounts to nothing when the relator takes affirmative action to obtain possession of the office. The fountain cannot rise higher than its source, and the defect in the title of McGuire adheres to the title of the relator.

In this connection the remarks of Sutherland, J., in the case of The Mayor, etc., v. Flagg (6 Abb. Pr., 302), are in point. In speaking of the acts of an officer defacto, he says: The rule of law which makes him an officer de facto, as to' such third persons, confers on him no rights, and absolves him from no responsibility for his affirmative claimed official acts or proceedings. As to himself, such acts and proceedings are a mere nullity. Without right himself, he cannot confer any on others. His appointment of deputies or subordinates, as to himself and them, would be as void as any other colorable official act. It might make them severally officers defacto as to third persons, but could give them no greater or better right to institute, as such, any affirmative action or proceeding than he himself had as an officer de facto. The right and title of his appointee rests on his own right and title, and neither can recover the salaries or the fees and emoluments of the office, without proof that he is an officer de jure, and duly qualified and entitled to act.” Restricted within the, bounds indicated by the cases to which I have adverted, the rule as to the acts of officers defacto being valid as to third parties, is just, wise and equitable. If it be extended to the length contended for by the appellants’ counsel it becomes an instrument by which a mere usurper can secure to himself, through his appointees, all the fruits of a legal title to an office although he has been ousted from the office itself by the judgment of a court of competent jurisdiction. The law does not countenance such an absurdity, nor do the cases referred to by the appellants’ counsel, when properly considered, sustain the appellant’s position. Those cases were all decided with reference to the rights of third parties. They were not cases where an appointee of a defacto officer, having no legal title, was seeking to establish a legal title himself t’o an office by reason of such appointment. In the case of The People v. Stevens (5 Hill, 616), there are some expressions in the opinion of Judge Bronson which would seem to favor the view taken by the appellants. I think that an examination of the opinion will show, however, that that learned judge did not intend to be understood as advancing the broad doctrine contended for by the appellants, and I am confirmed in this view by the language used by the same judge in the later case of The People v. Hopson (supra). If, however, I am wrong in this construction, then I maintain that the particular portions of Judge Bronson’s opinion which might be deemed applicable to this case, were not concurred in either by Judge Cowen or by Chief Justice Nelson, and that the real and only point decided in the case was, that as the relator in that case had another specific legal remedy for obtaining the books and papers appertaining to the office which he claimed, he was not entitled to a mandamus to enforce the delivery of such books and papers.

Second. The judgment of ouster against McGuire, in the suit brought by Stemmier, seems to me to have been properly admitted in evidence. The judgment was referred to in the complaint, and it was specifically set up in the defendant’s answer as a defense. If I am correct in the views I.have above expressed, the judgment could not have been regarded as res inter alios aeta. There was a privity between the relator and McGuire, and. McGuire’s title failing the relator’s title failed - also.

The cases cited in an elaborate brief of the defendant’s counsel certainly sustain the admissibility of the judgment as evidence in the case, and the counsel for the relator has not referred us to any case holding differently. (See Rex v. Hebden, Andrews, 388, et seq.; Rex v. Grimes, 5 Burr., 2599, 2610.)

In the case of Rex v. The Mayor of York (5 Durnf. & East., 66, et seq.), cited by appellants’ counsel, Lord Kenton said:' “If you derive title to a corporate office through A and the prosecution show judgment of ouster against A, it is conclusive against you unless you can impeach the judgment as obtained per fraudemP The exception to the admission of the certificate of the appointment of the defendant and of the copy of the oath of office, and bond executed by the defendant, rests upon the same foundation as the exception to the admission of the judgment. There was nothing in the case, when both parties had rested, to submit to the jury, and on the law, in my opinion, the justice at the Circuit was right in directing a verdict for the defendant.

The exceptions should be overruled, and judgment should be entered for the defendant on the verdict, with costs.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


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    In the Matter of the Petition of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, for the Appointment of Commissioners to Ascertain and Appraise the Compensation to be Made to the METROPOLITAN GAS-LIGHT COMPANY OF THE CITY OF NEW YORK, Appellants.

      Eminent domain — damage to what pi'operty to he considered — use to he considered.

    The appellants owned several blocks of land in the city of New York, lying between Sixty-fifth and Sixty-sixth streets, intersected by Eleventh and Twelfth avenues. The block lying between Eleventh and Twelfth avenues, a portion of which was taken by those proceedings, was further divided by a strip of land used for respondent’s railroad, no right of way over such strip being' possessed by the appellants. Held (1), that no consequential damages to the block lying between Tenth and Eleventh avenues, or to that portion of the block between Eleventh and Twelfth avenues which lay on the other side of the railroad track from the portion taken in these proceedings, could be allowed; (2), that the questions to be determined by the commissioners were: 1. The value of the ground taken, in the estimate of which they might take into account its value for any use to which it might be appropriated. 2. The consequential damage, if any, to that portion of the land in the block between Eleventh and Twelfth avenues which lay on that side of the existing railroad .track, from which the land for the new r'oute was taken by these proceedings.
    Twelfth avenue, which belonged to the city, though not actually opened, was held to constitute a boundary of a distinct parcel.
    In such proceedings, it is proper for the party whose land is taken to show the purpose for which the land had been purchased, and how far the taking of a portion of such land damages the residue for such purpose.
    This is an appeal by tbe Metropolitan Gas-ligbt Company of the city of New York, from an order of the Special Term, confirming the report of the commissioners appointed by the court to ascertain and determine the compensation to be made to the appellants, for certain real estate taken, by these proceedings.

      F. I. Fcmcher, for the appellant.
    The law is well settled that opinions of witnesses may be taken not only to the value of the land, but how the parcel taken will affect the residue of the contiguous lands of the owner. ( Wood v. Attburn and Rock. R. R., 8 N. Y., 168; Rochester and Syracuse R. R. v. Budlong, 6- How. Pr., 467; MoBurney v. Erie B. B., cited in 6 How. Pr., 467; Troy and Boston B. B. v. Lee, 13 Barb., 169; Boohester and 8. B. B. v. Budlong, 10 How. Pr., 290; Clarh v. Baird, 9 N. Y., 184; Bobertson v. Kip, 35 id., 91; Dewitts. Borly, 17 id., 342; Bondout B. B. v. Deyo, 5 Bans., 298.) When lands are taken from an owner without his consent, “just compensation” to be awarded him is not only the value of the land taken, but also the damages occasioned by the depreciation of the contiguous premises of the owner. The measure of value is not limited to the ordinary use of similar land, but is the value of the parcel for any purpose. (Trustees of College Point v. Dennett, 5 N. Y. S. C., 217.) To such value is to be added the damages for the depreciation of the contiguous premises. (8 N. Y., 168 ; 6 How. Pr., 467; 16 Barb., 273; 10 How. Pr., 290; Albany and 8usg. B. B. v. Dayton, 10 Abb. Pr. [N. S.], 182; Albany and Northern B. B. v. La/nsing, 16 Barb., 68 ; Canand. and Niag. B. B. v. Payne, 16 id., 273; Matter of Utioa, Chenango and Sus. B. B. Co., 56 id., 456.)

      Henry H. Anderson, for the respondent.
    The opinions of witnesses are properly regarded only as aids toward just conclusions, and not as proofs having a controlling weight. (Boohester and Syracuse B. B. v. Budlong, 6 How. Pr., 470; Troy and Boston B. B. v. Lee, 13 Barb., 169; Troy and Boston B. B. v. N. Turnpihe Co., 16 id., 100.) The market-value of the lands proposed to be taken is rightly the subject of inquiry by the commissioners in this class of proceedings. Whatever additional elements may enter into the determination of damages, such value must, from the nature of things, form the basis of appraisal. (Matter of Fu/rman St/reet, 17 Wend., 649; Matter of WilHa/m and Anthony Streets, 19 Wend., 678; Troy and Boston B. B. v. Lee, 13 Barb., 169; Canandaigua, eto., B. B. v. Payne, 16 id., 275 ; Dayton v. Albany and Susquehanna B. B., 10 Abb. [N. S.], 182; Matter of Utica, Chenango, etc., B. B., 56 Barb., 456; Delaware, eto., B. B. v. Burson, 61 Penn. St., 369; Fleming v. Chicago, D. and M. B. B., 34 Iowa, 353.) An estimate of compensation by commissioners, under the provisions of the general railroad act, does not include allowance for indirect and consequential damages. The effect, of the appropriation of the lands, is to be considered only with regard to the premises which are directly involved in the taking. Compensation for consequential injury to parties whose lands are condemned, growing out of their ownership and use of other separate and distinct property, is not contemplated by the statute. (Canandaigua and Niagara Falls R. R. v. Payne, 16 Barb., 275; Fleming et al. v. Chicago, D. and M. R. R., 84 Iowa, 353.) Any apparent exceptions to the rule will be found to depend upon statutory provisions which enlarge the measure of compensation beyond what is allowed under the railroad law of this State, or upon special clauses in charters providing for consequential damages. (Eng. Railway Clauses Act, 8 and 9 Yict., chap. 20, § 6; Land Clauses Act, id., chap. 18.) Only present values and uses and actual damages can be taken into account in the appraisal of compensation. No allowance is to be made for prospective damages, depending upon the uses, to which it may be proposed to devote the property in the future. Such damages are too remote and contingent to form a ground of award under the statute. (Matter of Furman Street, 17 Wend., 649; Matter of Broadway Widening, 63 Barb., 573; Fleming v. Chicago, D. and M. R. R., 34 Iowa, 353; Somerville and Easton R. R. v. Doughty, 2 Zabr. [N. J.J, 495 ; Canandaigua, etc., R. R. v. Payne, 16 Barb., 271.) The rule is that “ whenever opinions are resorted to, the facts upon which the witness bases his opinions should in all cases be given.” The testimony of experts is governed by the same conditions, for while such testimony is allowable for certain purposes, it must consist of opinions, based upon certain definite facts, and not of conclusions drawn from a general view of the case. (Rochester, etc., R. R. v. Budlong, 10 How. Pr., 289, citing cases; Greenl. on Ev., § 440.)
   Davis, P. J.:

The appellants are the owners of several blocks of land in the city of New York, lying between Sixty-fifth and Sixty-sixth streets, and extending from Tenth avenue westward to the Hudson river. These blocks are separated by the Eleventh avenue and by the Twelfth avenue; and the block lying between the Eleventh and' Twelfth avenues is divided by the railroad of the respondents, which occupies a space, running across the block, about sixty-seven feet in width.

The appellants purchased’ these several blocks in 1862, with the intention, as it appears, of using the whole of them at some future time for the purposes of the gas-light company. They were then, as they are now, however, subdivided by the avenues above men tioned, and by the land owned by the railroad company, and used for the tracks of their road. The respondents, for the purpose of facilitating the approach to lots belonging to them, lying below Sixty-fifth street, seek to acquire title to a strip of land, lying west of and adjoining their own present lands, sixty-four feet wide on Sixty-sixth street, and 10Y feet five inches wide on Sixty-fifth street, for the purpose of laying down additional tracks.

The value of this strip of land and the damages to the appellants for the taking of the same were the subject of the appraisal now under consideration.

No question was made upon either side, but that the appellants were entitled to the value of the lots actually taken. • They comprised six and two-fifths city lots, of twenty-five by 100 feet each ; and the valuation put upon them, by the various witnesses, ranged from $3,000 to $8,000 per lot.

The controversy between the parties arises, chiefly, upon the question, what damages could or ought the commissioners to allow, in addition to the value of the lots, by reason of cousequential injuries affecting the residue of the property of the appellants ?

This is by no means an easy question to determine under the authorities. On the part of the appellants, it is claimed, in substance, that they were entitled to show the value of the whole of their several blocks, for their own use for gas-light purposes, subdivided into city lots, and the extent to which that value is diminished by taking out the lots required for the purposes of the railroad. And, upon this principle, they claim to have shown damages, in addition to the value of the lots taken, ranging from three hundred thousand to half a million of dollars. We think the commissioners were clearly right in rejecting that mode of estimating damages, because, for the purpose of estimating damages, the several blocks of land, must, in our judgment, be considered as distinct parcels, and no parcel can properly be regarded as incidentally injured, except the particular parcel out of which the lots required by the railroad companj' are, in fact, taken. It would, in our judgment, therefore, be improper to have considered and allowed consequential damages to the block lying between Tenth and Eleventh avenues, and separated completely, by Eleventh avenue, from the block lying between the latter and Twelfth avenue. The rule which would allow the consideration of consequential damage to that block would extend such damages to all the blocks between Tenth avenue and the park had they chanced to be owned by the appellants ; and upon such speculative and extraordinary opinions as those given by many of the witnesses, on the part of the appellants, as to damages, would absolutely prevent all public improvements crossing such a series of blocks between the Hudson river and the park. There must be some more sensible limit within which consequential damages are to be restricted.

The block extending from Eleventh to Twelfth avenue is also, as appears by the above statement, separated into two distinct parcels by the ownership of the respondent of the strip of land, some sixty-seven feet wide, on which their present railroad exists. No part of the land east of the railroad is proposed to be taken; and no right of way, belonging to the appellants, across the respondents’ railroad, and connecting the parcels east and west of it, belonging to the appellants, was shown to exist. We think, therefore, that the ownership, by the respondents, of the intervening strip, on which the road now exists, is a complete severance of this block into two distinct parcels ; and, so far as the question of consequential damages is concerned, it operates to prevent their extension to any portion of the block lying easterly of the respondents’ road. Whatever damages to that portion of the block were caused by the construction of the railroad must be presumed to have been paid when the lots were taken for the railroad.

The question of consequential damages to lots lying east of the present railroad is to be considered precisely as though some other railroad company were seeking the strip now sought to be taken, west of and adjoining the railroad, for the purposes of a new railroad route. It seems to us very clear that, in such a case, no principle of law would allow the consequential damages of taking the new route, to overleap the present railroad company’s land and attach to the land lying east of the road, because the ownership of these lots was in the same party who owned the lots to the westward of the road.

It is our opinion, therefore', that the questions for the consideration of the commissioners were properly these: first, and principally, the value of the lots actually taken by the railroad company for the new route ; and in estimating such value the commissioners are not limited to the value of the lands as city lots, but should consider evidence of their value for any purpose for which they could be used and appropriated (Trustees of College Point v. Dennett, 5 N. Y. S. C., 211); and, second, the consequential damages, if any, to that portion of the appellant’s lots lying west of the present railroad track, from which the lots for the new route are directly taken. The effect of this rule is to limit the consideration of incidental or consequential damages to lots lying between the railroad and Twelfth avenue; that avenue belongs to the city, and not to the appellants. It must be deemed, although not actually opened, as a boundary of a distinct parcel, beyond which such damages are not to be extended.

It is not clear, from the report of the commissioners, whether or not they have given or designed to give to the appellants any thing more than the actual value of the lots taken, regarding them as city lots. The allowance of $33,000 tends quite strongly to show that the commissioners have, in fact, done nothing more than to ascertain from the testimony on both sides, a fair valuation of such lots; and yet, their report is couched in such general terms that it may well be claimed that they have allowed, in addition to the value of the lots as ascertained by them, something for consequential damages. It was proper, however, for the appellants to show before the commissioners, the purpose for which the lots had been purchased by them, and for which they were intended to be used. They had a right also to show that the taking off of the strip by the railroad company diminished the value of the residue for such purposes, and to what extent; and it was the duty of the commissioners to consider such evidence in connection with the other facts and circumstances, and their own personal view of the premises, in determining what sum was properly allowable for damages.

The appellants did give evidence tending to show the uses to which they designed to put this particular parcel of their land, the number of structures that could be erected upon it for their use as a gas company, the quantity of coal that could be stored there for their use, and the diminished value of the residue of the, land for such purposes after the six and two-fifth lots should be taken off. But they connected this evidence so far with their claim for consequential damages to the other lots, lying east of the road, that it is highly improbable that the commissioners gave it due consideration, if any, in making up their estimate. "We are of opinion, therefore, that the order of the court below should be reversed, and that the proceedings should be remanded to the same commissioners for a new appraisal and estimate, to be made upon the valuation of the lots actually taken by the railroad company, and the damages to the residue of the appellant’s land lying westerly of and between the railroad tracks and Twelfth avenue, caused by the taking of the land for the new route. The evidence already taken may be used before such commissioners by either party, as they may respectively be advised, subject to all proper objections, either party to be at liberty to give such new and further evidence as may be deemed competent and advisable.

Neither party to have costs of this appeal as against the other.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


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    THOMAS B. ODELL, Respondent, v. WILLIAM MONTROSS, Appellant.

      Once a mortgage akoays a mortgage— application of rule.

    The rule, once a mortgage always a mortgage, is founded on the determination of courts of equity, to shield and protect the borrower, and preserve to him, against his own acts, induced by his distressed condition, the equity of redemption. It is not applicable to a case in which an absolute conveyance is made of real estate, with a parol agreement that it shall be considered as a mortgage; and when, more than a year thereafter, in consideration of the payment of a sum of money equal to the value of the equity of redemption, the owner of such equity, without fraud or undue influence, gives a receipt, stating that such sum is in full satisfaction of all claims and demands, as to conveyance of property or otherwise.
    In such case the estate becomes absolute in the grantee, the grantor being estopped by his acts, from claiming that it is otherwise.
    •The statute (1 R. S., 788, § 137) is not applicable to such a case.
    Appeal from the judgment of the Special Term in favor of the plaintiff, in an action brought for an adjudication, that the title of certain property was held by defendant as collateral security for a loan made to plaintiff; foran accounting, and for a reconveyance of said property.

      John A. Mopes, for the appellant.
    The deed to defendant, being absolute upon its face, and unaccompanied by a written defeasance, vested the legal title to said premises in defendant. The rights of plaintiff therein were thereafter purely equitable, founded entirely upon parol proof, and enforceable only in a court of equity, in contravention of the strict rules of common law. Such right was merely an equitable right to redeem, unaccompanied by any legal title whatever to the property. The equitable right thus created by parol was capable of being released by parol, and the plaintiff having invoked the aid of a court of equity, and having, through that aid, been enabled to make his parol proof, defendant had the right to present the entire ease, and it then became the clear duty of the court to give effect to the full intention of the parties. It is an old maxim that, “ when equities are equal the law must prevail.” (Will. Eq. Jur., 45; Francis’ Maxims, max. 14; Fonbl. Eq., bk. 1, chap. 4, § 25.) If the defendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has to the assistance of the court to assert his right, the court will not interfere on either side. (Will. Eq. Jur., 45; Fonbl. Eq., bk. 3, chap. 3; Beelcman v. Frost, 18 Johns., 562.) To the same end it is within the powers and province of the court to decree the execution of a new deed by plaintiff to effect that intention. (Will. Eq. Jur., 285; 1 Fonbl. Eq., bk. 1, chap. 3, § 9.) Defendant had already a perfect legal title — a perfect record title — unquestioned by any written instrument or by any purely legal proof that could be produced. It was only necessary that plaintiff should make a new agreement, canceling the old one, or surrender any defeasance he might have. This would operate as an extinguishment of his equitable rights, and as an estoppel to him. “ Equity treats a thing as done which ought to be done.” (Will. Eq. Jur., 47.) The doctrine “ once a mortgage always a mortgage ” does not apply to the case at bar. (1 Wash. Real Prop., 496, §§ 23, 24; Remsen v. Hay, 2 Edw. Oh., 535; Trull v. Skinner, 17 Pick., 213; Harrison v. Trustees, ete., 12 Mass., 456; Vennum v. Babcock, 13 Iowa, 194; Gi'een v. Butler, 26 OaL, 595; Wynkoojg v. Cowing, 21 111., 570.) Where the original instrument is in form an absolute deed, no new deed is necessary to carry out the new agreement for the relinquishment of the equity. A surrender and cancellation of any written defeasance, or any competent proof showing the actual intention or agreement, will be sufficient. (Trull v. Skinner, 17 Pick., 213; Harrison■ v. Trustees, etc., 12 Mass., 456; Vennum v. Babcock, 13 Iowa, 194; Green v. Butler, 26 Cal., 595; Ralis v. Conway Ins. Co., 7 Allen, 46; Wynkoop v. Cowing, 21 111., 570.) The findings of facts being assented to, and no review thereof asked for on appeal, there can be no need of a new trial of the action, but the judgment below should be reversed, and judgment absolute ordered for defendant, with costs. (Griffin v. Margucwd, 17 N. Y., 31; Ma/rguat v. Ma/rguat, 2 Kern., 336.)

      Thomas B. Odell, for the respondent.
    “ Once a mortgage always a mortgage,” is a rule of law, to which there is no exception. (Willard’s Eq. J., 427, 428; Marks v. Pell, 1 Johns. Oh., 594; Strong v. Stewart, 4 id., 167; Clark v. Henry, 2 Cow., 324; Gilchrist v. Cunningham, 8 Wend., 641; Slee v. Manhattan Co., 1 Paige, 77; Whittick v. Kane, 1 id., 202; Van Burén v. Olmstead, 5 id., 9; McBurney v. Wellman, 42 Barb., 390; Tibbs v. Morris, 44 id., 138.) The interest of the mortgagee in the land is but an incident of the debt, and has no relation to a title or estate in the lands. (Kortmight v. Cady, 21 N. Y., 347, 364; Stoddard v. Hart, 23 id., 560; Bryan v. Butts, 27 Barb., 503; Syracuse City Bank v. Tallman, 31 id., 207 ;• Sahler v. Signer, 44 id., 614; Farmers1 F. I. cmd L. Co. v. Ednoards, 26 Wend., 554.) When the statute requires certain formalities to be observed, in order to the making of a valid deed, an instrument, though formal in all other respects, if deficient in one point, will be of no effect in passing 'an interest. “Equity may, in some cases, reform an instrument, but it cannot make one.” (Washburn on Real Prop., vol. 2, p. 59, vol. 3, 216; R. S., part 2, chap. 1, title 2, § 157.) Calling an instrument a deed, or delivering it as such, or believing or intending it to be such, will not make it a deed, without a seal actually affixed thereto. (Wash-burn on Real. Prop., vol. 3, 217, 245; Warren v. Lynch, 5 Johns., 238; Jaclcson v. Wood, 12 id., 73; Van Santwood v. Sanford, id., 197; Jackson v. Wendell, id., 355; Morss v.'Salisbury, 48 N. Y., 636.)
   Brady, J.:

The learned presiding j ustice found the following to be the facts in this case, and the findings are not disputed:

“First. That on the 12th day of July, 1865, the plaintiff, Thomas B. Odell, was indebted to the defendant in sundry sums of money theretofore loaned and advanced to him, and paid for him by the defendant, William Montross.
“ Second. That being so indebted on said 12th of July, 1865, it was agreed, by and between said plaintiff and defendant, that the plaintiff and his wife should execute and deliver to the defendant a certain deed, described and set forth in the complaint in this action, whereby the plaintiff conveyed to defendant certain lands at Fordham, Westchester county, New York, particularly described in the complaint in this action, and in said deed, which deed was absolute on its face, and purported to convey the fee-simple, absolute of said premises.
“ Third. That said deed, though absolute on its face, was, pursuant to said agreement, executed and intended as a security for the indebtedness of the plaintiff to defendant then existing, and which might thereafter accrue; and that it was agreed and intended by the parties thereto that plaintiff should have the right of redeeming the said lands and premises, and be entitled to a reconveyance thereof upon the payment of said indebtedness then existing, or thereafter accruing, and interest.
“ Fourth. That on the 17th day of September, 1866, the defendant paid to the plaintiff, at his request, the sum of fifty dollars, and plaintiff then and there signed and delivered to the. defendant a paper, of which the following is a copy, viz.:
“New York, September 17, 1866.
“ Received from William Montross fifty dollars in full satisfaction for all claims and demands whatsoever as to conveyance of property or otherwise up to this date.
“THOMAS B. ODELL.”

That such payment was made and received, and such receipt signed and delivered, with the intention of both plaintiff and defendant, that the same should be a full settlement of all claims of plaintiff to said lands and premises, and of all claims to any reconveyance thereof.

“ Fifth. That since said deed was given defendant has paid off an incumbrance by mortgage on said premises of $1,200, and interest thereon, and the expenses of discharging such mortgage; also, a judgment against the plaintiff, vjhieh was a lien on said lands, and redeemed the same from a sheriff’s sale thereunder, and also divers sums of money for taxes and assessments on said premises, and has continued in the possession of said premises.”

And the learned justice also found further:

“ First. The agreement that the deed in question should be held by defendant as a security, and that plaintiff should be entitled to a reconveyance on the payment of the indebtedness which might be due from him to defendant (which agreement is mentioned in the previous findings), was an oral one, and was not reduced to writing.
“ Second. The fifty dollars paid by defendant to the plaintiff on the 17th of September, 1866, together with the indebtedness at that time existing from plaintiff to defendant, was equal to the fair value of the property at that time, over and above the incumbrance thereon.”

The conclusions of law, founded upon these facts, led to the success of the plaintiff. It was, among other results, declared that the deed was to be considered and treated as a mortgage only, and to be held as security for all sums due at its date, and all sums subsequently advanced; and that the paper executed on the 17th of September, 1866, and the payment made on that day in connection with it, were not sufficient, and did not operate to change the nature of the deed from a security to an absolute conveyance, or to release the plaintiff's right to redeem the property. These views are evidently based on the propositions :

First. That once a mortgage always a mortgage, is a rule which applies to the deed as the supreme law of the land. (Clark v. Henry, 2 Cow., 324; Henry v. Davis, 7 Johns. Chan., 40); and —

Second. That the receipt was not a transfer of the plaintiff's title, because every grant in fee, or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent. (1 R. S., 738, § 137.) This is evident from the fact found, namely, that the receipt and payment mentioned, were made with the intention that the same should be a full settlement of all claims of the plaintiff to the premises described in the deed, and to all claims for a reconveyance thereof; and from the further fact found, that the indebtedness existing at the time, from the plaintiff to the defendant, was, with the fifty dollars paid, equal then to the fair value of the property, over and above the incumbrances thereon. The reason of the rule, once a mortgage always a mortgage, seems to be the determination of courts of equity to shield the borrower, who, being much distressed at the time, is too much inclined to submit to any terms ; and hence the preservation to him of the equity of redemption. (Clark v. Henry, supra.) It is founded in justice and humanity, and should prevail and does, even when in the mortgage there is an agreement which changes it into an absolute conveyance upon any condition or event. (Clark v. Henry, and cases cited.) It will be readily understood, however, that the solicitude of. the courts is to preserve the equity of redemption to which alone the grantor is entitled. The grantee shall not, in' good conscience, deprive his debtor of his estate, by any advantage springing from the latter’s embarrassments, and his eagerness to overcome them. The reason of the rule and its design is this and nothing more. (Remsen v. Hay, 2 Edw. Ch., 535.) It is to protect the debtor, with reference to the transaction in its original features, that the courts have exercised their power, and hence have applied the principle by transforming the absolute conveyance into its real character, namely, a transfer only as a security for a loan. The agreement, under which the defendant claims, is not within this principle. It was not made at the time of the execution of the deed, and not until more than a year after that occurrence. Not only does this appear, but further, that the sum paid for the equity of redemption was quite equal to the value of the property over and above the incumbrances upon it. The defeasance was by parol. The surrender was in writing. It was intended to remove all claim to the property, and was founded upon a full and fair consideration. The effect was to release, or transfer to the defendant, the equity of redemption. It was the only claim that the plaintiff held against the deed, and this he could barter as he might any other interest. The principle of the rule, which declared the deed a mortgage, was no longer applicable. No advantage was attempted to be taken of his financial situation, because he received full value for the thing he sold, and his right of redemption resting entirely upon a doctrine of equity jurisprudence (Horn v. Keteltas, 46 N. Y., 609) having no expressed form in the deed, but growing out of extraneous circumstances, could be waived without violating the domain of good conscience. The question is not, therefore, whether the rule, once a mortgage always a mortgage, is to prevail; hut whether the application of 'that rule may not be forfeited, or surrendered by the grantor for a valuable consideration ; and, further, whether the receipt of the seventeenth of September was not a full and valid transfer of the equity of redemption.

It is said that the mortgagee may contract, subsequently to the mortgage, for the purchase or release of the equity of redemption, upon fair terms, although no agreement for a beneficial interest out of the mortgaged premises, while the mortgage continues, is permitted to stand if impeached in a reasonable time. (4 Kent Com., 143.) In this case, the agreement has not heen impeached in any way. It has been held, also, that while the courts will not permit a mortgagee to take undue advantage of the mortgagor, there is nothing to prevent the former, by a new and subsequent agreement, from acquiring the equity of redemption in good faith, and upon a good consideration (Remsen v. Hay, supra; Trull v. Skinner, 17 Pick., 213; Harrison v. Trustees, etc., 12 Mass., 456; Vernum v. Babcock, 3 Iowa, 194; Green v. Butler, 26 Cal., 595 ; Wynkoop v. (Cowing, 21 Ill., 570); or from obtaining the surrender of a defeasance, where a deed absolute was given, but designed as a security only. (Cases, supra.)

In Trull v. Shinner, above cited, the court said: “ The court are of opinion, that where an absolute deed is given, accompanied by a simultaneous instrument operating by way of defeasance, and afterward the parties, by fair, mutual stipulations, agree that the defeasance shall be surrendered and canceled, with an intent to vest the estate unconditionally in the grantee by force of the first deed, by such surrender and cancellation, the estate becomes absolute in the mortgagee. The original conveyance stands unaffected in form and legal effect. It conveys.an estate in fee. The only party who could even claim a right to deny it that operation, by engrafting a condition upon it, has voluntarily surrendered the only legal evidence by which that claim could be supported, and is thereby estopped from setting it up. Such cancellation does not operate by way of release, working upon the estate, but rather as an estoppel arising from the voluntary surrender of the legal evidence, by which alone the claim could be supported.”

In Harrison v. Trustees, etc., the deed was absolute in form, but a written defeasance had been signed, which was afterward given up and 'canceled. No new deed was executed. Ch. J. Parker, said: Nor can we see any reason, if the mortgage is by absolute deed and defeasance, why the ■ mortgagor may not surrender the defeasance, and thus give an unconditional estate to the mortgagee, who is already seized, although of a defeasible estate. The only question in such a case would be, whether the transaction was ionafide and free from fraud. In Green v. Butler, the court said, the surrender of the defeasance to Butler to be canceled, and the retention of it by him, is, in law, a cancellation of that instrument, though it be not destroyed; and, further, a court of equity will not aid a plaintiff to obtain a conveyance, under such circumstances, in direct violation of his own agreement, and in fraud of the rights of the defendant. There can be no doubt that the plaintiff, in this case, surrendered and canceled the defeasance which converted the deed into a mortgage. Such intention was clearly within the design of the parties when the receipt of September 17, 1866, was given, and that surrender was tona fide and for a valuable consideration. The defendant, prior to the execution of that paper, was seized, although of a defeasible estate, and the surrender made his estate one of inheritance, by its legal operation. The money was paid in full satisfaction of all demands whatever, as to property or otherwise, up to date.

It operated also as a transfer of the equity of redemption. It may be said that it was not, in form, a grant, under the statute ([siopra); but the statute is not applicable. The transfer was neither of an estate In fee, nor of freehold. (Stodard v. Whiting, 16 N. Y., 633.) A seal was not necessary therefore (id.); and that it was so to operate was the intention of the parties. All the circumstances detailed in the case lead to no other conclusion than that the estate of the plaintiff, in the land described, passed a.way from him, by acts which were designed to accomplish the transfer; and that, in its consummation, he was neither imposed upon nor wronged, in any respect; that be received full value for the grant, and that he presents, in his case, no reason for the interposition of a court of equity to aid him in violating his compacts, made freely, and without improper influences of any kind. The agreement made by the receipt of the seventeenth September should be held to be a waiver of the right to equitable relief, by which the deed should be declared a mortgage; to be a surrender and.cancellation of the defeasance, and a transfer of the equity of redemption; and, as the result thereof, to confer an ■ estate of inheritance absolute upon the defendant.

The judgment should, therefore, be reversed, arid judgment ordered for the defendant, with costs.

Daniels, J., concurred.

Judgment reversed and judgment ordered for defendant, with costs.


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    PHILO T. RUGGLES, as Receiver of the Citizens’ Plate Glass Insurance Company, Respondent, v. JAMES N. BROCK, Appellant.

      Receiver of corporation — action to recover'unpaid subscriptions — defense to — effect of stockholder acting as trustee —■ estoppel.

    The plaintiff having been appointed receiver of a corporation in an action brought by the people to procure its dissolution, on the ground of its insolvency, brought this action to recover from the defendant the amount unpaid upon his subscription to the stock of the company. The defendant alleged, that his subscription was made on the faith of representations made to him, at a meeting of the incorporators, that the amount of capital stock required by the charter to be paid in in cash, had been paid in, when, in fact, it had not. Reid, that as the receiver represented the creditors as well as the persons interested in the corporation, these facts constitute no defense to the action.
    The defendant, after his subscription to the stock of the company, acted as one of its directors, held, that he was thereby estopped from denying its existence, and, as against its creditors, from denying the validity of his subscription.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

      Henry Daily, Jr., for tbe appellant.

      Barlow & Olney, for tbe respondent.
   Davis, P. J.:

This case was submitted, without argument, by the counsel for the respective parties at tbe October term, with an understanding, to which the court consented, that the points of the appellant might he handed in at a future day. No points, on the part of the appellant, have been received by the clerk or either of the judges.

Tbe respondent was appointed receiver of the Citizens’ Plate Glass Insurance Company, in an action brought by the people of tbe State 'of New York against that corporation, to declare the same dissolved, and to distribute its effects through a receiver. The complaint in that action alleged, amongst other things, that the corporation was insolvent and unable to pay its debts; that it had been engaged in tbe business of insurance under its charter for more than a year, and had issued divers policies of insurance which were then outstanding. The receiver was appointed by an order of the court, made in November, 1873, which amongst other things authorized and empowered him to bring suits at law and in equity for the collection of all money due or to become due to said corporation, or to himself as such receiver. This suit is brought against the appellant to recover upon his original subscription to the capital stock of said company. It appeared upon the trial, that the Citizens’ Plate Glass Insurance Company was incorporated by an act of the legislature (Laws of 1872, chap. 180), by the terms of which the defendant, and certain other persons named therein, were, constituted a. body corporate by that name; that certain of the persons named in the act as incorporators proceeded to organize the corporation, and to obtain subscriptions for its capital stock ; and that the appellant subscribed for sixty-nine shares, amounting to $6,900, on which he has paid but three per cent. His alleged defense is, that he made the subscription at a meeting of the incorporators ; and that before doing so, he inquired whether the $55,000 required by the charter to be paid in in cash had been so paid in, and was informed that it had, and that it was in the hands of one of the incorporators then present; that he signed the subscription relying upon such representations, and would not have done so had he known the representations were untrue, and that in fact at that time nothing had been paid in. The court, on receiving this testimony, held that the facts admitting them to be true, were no defense and directed a verdict. The receiver represents the creditors, as well as all other parties interested in the corporation. It was neither shown, nor alleged, that there are no creditors, and the allegations above referred to, in the suit in which he was appointed, indicate that there are general creditors, as well as outstanding policies of the insurance company. It is not necessary, therefore, to determine whether the facts proved upon the trial constitute a defense to an action, brought by the corporation, to enforce the subscription, or to an action by a receiver, where no creditors or outstanding obligations of any kind exist.

The appellant not only subscribed for the stock, but became an officer of the corporation, serving as one of its directors. He is thereby estopped from denying that the corporation had an existence (Methodist Episcopal Union Church v. Pickett, 19 N. Y., 182; Eaton v. Aspinwall, id., 119), and as against creditors, from assailing tbe validity of tbe subscription.

We are of opinion tbat tbe facts set up were no defense to tbis action.

Daniels, J., concurred.

Judgment affirmed.