text:
    Walter Langdon, Resp’t, v. The Mayor, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Damages—Compensation for taking of property—Elements of.
    When private property is taken hy the dock department of the city of New York, the compensation to he awarded is the value of the property taken plus the depreciation caused to other property hy reason of this taking. The allowance of damages to the owner, caused by_ reason of his being prevented from obtaining a privilege in connection with the use of the property taken, which he possibly might have obtained otherwise, is, improper.
    Motion by the plaintiff for judgment on the report of a referee, and by the defendant to set it aside on exceptions taken to his decision.

      Samuel E. Lyon. Henry H. PecMiam and JR. S. Emmet, for pl’ff; James C. Carter and F. A. Irish, for def’ts.
   Daniels, J.

This action has been brought for the recovery of damages for the extinguishment of the same bulkhead line, and the right to collect wharfage upon, as the case of King stand against the Mayor, etc., is dependent upon. But in this action no controversy arises as to the right of the plaintiff to maintain it and recover damages. The right so farjias been settled by the decision in Langdon v. Mayor, etc., 28 Hun, 158; affirmed 93 N. Y., 129.

The referee by his report has held the plaintiff entitled to compensation for the extinguishment of the probability that he might have obtained from the commissioners of the dock department the privilege of erecting a platform and placing a shed upoii it, under chapter 249 of the Laws of 1875. The locality was such as would have rendered a platform and shed exceedingly valuable in the way of increasing the wharfage or emoluments collectable for use of the property. But there was not the slightest probability that the plaintiff could ever have obtained any license or authority from the department for the erection of a platform beyond the line of West street, or placing a shed upon it.

In 1871 General George B. McClellan, who was then the engineer-in-chief of the department of docks, reported a plan for the improvement of the river front. That plan was adopted by the board of the department of docks, with the sanction of the sinking fund commissioners as it was provided for by section 6 of chapter 574 of the Laws of 1871. And on May, 1875, and July and December, 1876, and June, 1877, resolutions were adopted directing the performance of the work.

From that there was not the slightest probability therefore, that any license or authority would have been given by the department of docks, if that was provided for by chapter 249 of the Laws of 1875, for these structures in front of so much of the bulkhead on the westerly side of West street as included the plaintiff’s property. At most there was a mere possibility that he might have acquired this privilege or authority. And for that, under the considerations and authorities mentioned in the Kingsland Case, he could have no legal right to ask the city for compensation.

What it was bound to compensate him for, was so much of his property as it had taken in extending the line of solid filling into the Hudson river beyond West street, and thereby extinguishing the possibility of using the bulkhead on West street as a wharf, either in the business of commerce generally, or that which might be carried on by the plaintiff himself. And that was all that the' plaintiff was deprived of in the way of property by the act of the department of docks, and it was the utmost extent for which he could claim compensation from the defendant, unless there may be added to it something by way of remuneration for the depreciated value of other adjacent property.

Awarding compensation to include the value of this license or authority, would be to oblige the city to pay him for what he never received and which neither the city itself nor either of its officers, was obligated to concede. The possibility of obtaining the concession from the city, as it was to be wholly voluntary on the part of the board, was in no sense property vested in the plaintiff, and it was only for property taken or depreciated that he has become entitled to be compensated.

The report of the referee, as far as it has proceeded upon the theory that his right to compensation should be enhanced by the enhanced'value which such license or privilege would give to his property, is therefore, erroneous. And the report should be set aside, and a further reference ordered to ascertain and report the compensation payable to the plaintiff, excluding therefrom, the value of this possible license or privilege.

Beady and Bartlett, JJ., concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Marian Langdon and another, Resp’ts, v. The Mayor, etc., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

   Daniels, J.

This case is similar to that of Walter Langdon v. The Mayor, etc. The directions contained in the order of reference, the proof taken before the referee, and the report made by him are the same in principle. And as the report should be set aside in the other action and a further hearing directed, the same disposition should be made of this case for the reasons already assigned in the preceding case, and in the case of Kingsland v. Mayor, etc.

Brady and Bartlett, JJ., concur.


text:
    William M. Kingsland, Survivor, etc., Resp’t, v. The Mayor, etc., of the City of New York and others, Composing the Dock Department of the City, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Deeds—Defective conveyances—Construction of—Property conveyed—How determined. ,
    The acts of the parties under defective conveyances in the practical construction given to them by occupancy on the one part and consent or acquiescence on the other, are legal evidence of their intention, having weight and effect upon the construction to be given to the conveyances executed on the one part and received on the other.
    A Mew York (city or)—Dock department—Authority to locate wharfs, etc.—Liability for damages.
    Where the deeds for the city contain no qualifications, and the abutting owners have title to the water front and profits and privileges derived therefrom by the extinguishment of these rights and privileges by the action of the dock department under the laws relating to the improvement of the water-front of the city of Mew York, the city becomes liable for the discontinuance of the wharfs, etc.
    3. Same—Measure or damages.
    In an action from damages caused by reason of the dock department unlawfully interfering with water-front rights of persons in the city of Mew York, the compensation to be made should be the same as would have been made in proceedings instituted under the authority of the law That compensation is the value of the rights and interests appropriated and affected injuriously, with interest upon the amount for the time of such appropriations. The owner can recover the full value of the property taken and a fair equivalent for the diminution of the residue left.
    4. Damages—Mot recoverable when caused by the exercise or a right RESERVED.
    The privilege of using property granted with a reservation as to its termination, may he terminated without making compensation for it by the party creating the privilege and reserving the right. The right to use depends on the mere volition of the grantor. It seems, that this right cannot be exercised wantonly or capriciously. o
    Appeal from a judgment entered upon the report of a referee.

      F. A. Irish, for app’lts; Stewart & Boardman, for resp’t.
   Daniels, J.

The object of the action is the recovery of damages for discontinuing a bulkhead on the preceding westerly water line of the city of New York. It has been brought by the plaintiff as the surviving executor and trustee under the will of Daniel 0. Kingsland, deceased, and the bulkhead in controversy adjoined Carlton street on the north and extended southerly 104 feet, or thereabouts, on the westerly line of West street. The rights of the plaintiff, as they have been presented in the action, have been derived under two deeds, one of which was made by the Mayor, etc., of the city of New York, to John R. Ritter on the 21st of November, 1804, and the other by the same grantors to Cornelius Harsen on the 31st of July in the year 1815. The objection has been made, at the outset of the case, that as those deeds are declared to convey no more than “to pass the estate, right, title or interest which they (the Mayor) have or may lawfully claim by virtue of their several charters, the grantees respectively in them do not appear to have acquired any title or right to use or enjoy the bulkhead erected on the westerly bounds of West street. But this objection is conclusively answered by the facts that in the year 1686, by the Dongan charter from the crown of Great Britain to the Mayor, etc., all the waste vacant and unoccupied land between high and low water mark around the Island of Manhattan, was conveyed to and vested in the city. This was followed by the Montgomerie charter in 1730, through which, in like manner, there was vested in the Mayor, etc., land under water for 400 feet beyond low water mark, and extending on the west side of the city from near the Battery to Bestaver’s Killetye,” a rivulet or small creek which entered the Hudson above Carleton street. What the space was at the point in controversy between high and low water mark has not been made to appear definitely in the case, but it is evident from the facts that it included a substantial space of ground. And in the deed executed and delivered by the Mayor, etc., to Ritter the easterly boundary of the land'conveyed was declared to be the west side of Greenwich street, between high water mark and a certain new street of seventy feet in breadth, etc.

How far the westerly side of Greenwich street extended beyond the high water mark has not been very clearly made to appear in thencase, but it may be assumed to have been in some substantial degree beyond the high water line of the Hudson river. And that would bring the westerly line of West street within the westerly boundary of the 400-feet of land conveyed to the city through the Montgomerie charter. For by the deed the low water mark appears to have been at a point between Greenwich and Washington streets, and the land conveyed by the deed extended westerly from the point . 80 feet to Washington street. That street was intended to be, as it was afterwards made, of the width of 60 feet; the block between that and the easterly side of West street was made 190 feet, and West street of the width of 70 feet, which together would aggregate no more than 400 feet of ground. And if the block between Greenwich and Washington streets was designed to be of the same width, as the block between Washington and West street, then the low water mark would extend from the westerly bounds of Greenwich street to the distance of 110 feet into the river. It probably from the map, was not to designed to be of the same width as the westerly block, but even if they were in this respect precisely alike, it would appear that the city was the owner of the land described in the deed at the time when it was made and executed. And beyond that is the presumption, in the absence, of any proof inconsistent with it, that the city owned all the property and rights professed to be conveyed by the-deed.

The title of the city to the property conveyed to Harsen is equally as evident, for its easterly boundary _ was made centre of a certain new street hereinafter mentioned, to be made there, called Washington street,” and from that line the land extended westerly to the west line of the street, to be called West street. That the city was at the time when these deeds were made the owner of land under water beyond the westerly line of West street, clearly' evident from the fact that easterly of the 400 feet conveyed to Ritter, it was the owner of the land from the east side of Greenwich street to the high water mark of the river. And it accordingly conveyed no more by either of these deeds than it was at the time entitled to convey to the grantees therein.

These deeds together conveyed 104 feet on the river front, and by a-partition deed made between John P. Ritter, the son of the grantee, in the first of these deeds, and Joanna H. Harsen, his daughter, and Cornelius Harsen, the grantee in the second deed, the rights and interests acquired in the bulkhead by Harsen, and a portion of those acquired by Ritter, appear to have been set off to Joanna Harsen. It has been objected by the defendants that the partition should not be accorded that effect over the property in controversy, for the reason that the land partitioned was described in it as bounded on the west by West street.

It is, however, to be gleaned from so much of the deed as the case contains, that the parties intended in making this partition to include the rights and interests which had been acquired to the use and enjoyment of the westerly side of West street. For in addition to the property partitioned and mentioned in the deed and exhibited upon the map, the deed conveyed “all and singular the rights, privileges and advantages thereunto belonging or in any wise appertáining.” “ And the right to erect a bulkhead on the westerly side of West street and enjoy its emoluments and advantages, was one of the rights and privileges appertaining to the property partitioned. This partition was followed by a conveyance executed by Cornelius Harsen and Joanna Harsen, his wife, to Jonas Mapes, conveying the same and other property to the grantee. And he and his wife after-wards in like manner conveyed to Cornelius Harsen, who seems to have succeeded in tins way to the rights of the grantees in all or most of the property in controversy, and they claimed and controlled it to the period of his decease. By his will he devised his real estate to his executors, empowering them to make a sale of it, and his two surviving executors conveyed the property to the testator and Cornelius K. Sutten. It has been objected on behalf of the defendants that this effect cannot be given to that conveyance for the reason that the northerly and southerly lines of the land described in it are projected westward from the westerly line of West street, and include no land either above or below the water. But while that is the direction

fiven in these lines, there is still enough remaining in the eed to include the conveyance or transfer of the rights and privileges now in controversy. For the deed not only by express words conveys the westerly or bulkhead front of West street, but in addition to that it mentions the property as having belonged to the estate of Cornelius Harsen, deceased, which was not the fact as to any property west of West street. The further statement is also contained in the deed that the land under water intended to be conveyed extended of the width described into the Hudson or North river as far as the said Cornelius Harsen, at the time of his death, had, or could have, any right, title or interest, and as far as the parties of the first part have, or can have, any power or rights to grant and convey the same. And also all and all manner of cranage, wharfage, profits, benefits and advantages and emoluments growing, arising or accruing by or from the wharf or wharfs now or hereafter to be made on said premises as conveyed by the mayor, aldermen and common]ty of the city of New York and the original grantors thereof.”

These clauses, considered with the additional assistance of the attendant facts, justify the construction that the lines were inadvertently stated to extend westerly, when, as matter of fact, they were intended to proceed easterly arid to include not only the bulkhead fine as the deed clearly did, but the residue of the testator's property eastwardly therefrom. And the grantees, on the 10th of January, 1812, joined in a lease of it to the Liverpool, New York and Philadelphia Steamship Company, acting by John G-. Dale as its agent.

This lease was made for the term of ten years, and provided for its renewal at the option of the lessee for a still additional period of ten years. Sutten, who owned one-third of the property, sold and conveyed it to the testator, entitling the plaintiff as his surviving trustee to maintain this action for the recovery of the damages accruing from the discontinuance of the bulkhead on the westerly line of West street, by the act of the defendants. This title has been acquiesced in by the city during the entire period through which it has passed. And in 1818 it directed the proprietors of the ground to proceed with the construction of the street and bulkhead upon it and have that completed by the first of July, 1819, which was afterwards extended to the first of December of the same year. And in 1851 the common council, by resolution, gave permission to Kingsland and Sutten to pile and bridge out for a distance of thirty feet beyond the bulkhead in front of their property in West street near Carleton street. This resolution contained an express admission of the fact of their title. And their own possession and use of the property is further evidence of their right. For the acts of the parties under defective conveyances in the practical construction given to them by occupancy on the one part and consent or acquiescence on the other, are legal evidence of their intention, having weight and effect upon the construction to be given to the conveyances executed on the one part and received on the other. Reed v. Proprietors, etc., 8 How. (U. S.), 274, 280.

The objections taken to the title of the plaintiff to this controverted bulkhead are not well founded, and were correctly overruled so far as they appeared in the case, in the decision made by the referee.

In 1880, and while the lease already mentioned was in force, the dock department of the city entered upon this property westerly of West street, and filled in from the line of West street with solid filling, for a distance of about 130 feet farther into the river, placing the bulkhead fine at the extremity of this distance, instead of on the west fine of West street. That destroyed the bulkhead on the line of the street for all the purposes for which it was designed, under the original conveyances, to be created. The object of its erection on the west fine of West street was the creation of a wharf to be used in the commercial business of the city, and so far at least for the benefit and advantage of the persons creating it, under these conveyances, as to entitle them “at all times forever thereafter to fully have, use, enjoy, take and hold to his or their own proper use, all manner of wharfage, cranage, advantages and emoluments growing or accruing by or from the said wharf or street,” etc.

These rights and privileges were completely extinguished on the line of West street by this extension of the water front. It was made under the authority of chapter 383 of the Laws of 1870, as that was amended by chapter 574 of the Laws of 1871, so much of which has since been continued in force by section 119 of chapter 335 of the Laws of 1873, and section 712 of chapter 410 of the Laws of 1882, as related to the improvement of the water front of the city of New York.

It was supposed by the department that it had been authorized in this manner, subject to the approval of the commissioners of the sinking fund, to locate the line of and improve the wharfs, piers and bulkheads of the city of New York, without providing compensation from the persons who had acquired these rights under the city.

The construction acted upon was, that the deeds proceeding from the city were subject to its future authority in locating, regulating and extending the water line of the city. But as they contained no qualification whatever, entitled to that effect, it was held that the city became liable for the discontinuance of the bulkhead in damages to the persons entitled to its emoluments in the way of wharfage. Langdon v. Mayor, etc., 28 Hun, 158: affirmed 93 N. Y., 129.

These decisions completely settle the title of the plaintiff to recover such damages in this action as were sustained by the extinguishment of these rights and privileges. And the important point still to be considered in the case is the extent to which such damages may be legally allowed.

The intention, as well as the result of what was done, was the complete extinguishment of the use of the westerly side of West street as a wharf. It was permanently and finally terminated by the act of the defendants, and what they had become liable to pay is the value of the rights and privileges which were in this manner divested.

The acts of 1880 and 1881 contemplated the performance of all that had taken place. And to facilitate and carry it into effect it was provided by subdivision 10 of section 6 of the act of 1871 that the commissioners of the land office should be authorized to convey all the property, right, title and interest of the state to the land under water, requisite for the making of the improvement. And such a conveyance was in fact made on the application of the city authorities.

It was, also, assumed in the act that it might become necessary to acquire private rights of a proprietory character in the course of the improvement. And provision was made by subdivision 4 of the same section for their acquisition through the proceedings authorized for taking private property for public streets or places in the city of New York.

These were not resorted to for the discontinuance of this bulkhead as a wharf, for the reason already mentioned that it was supposed that they were subordinate to the rights of the city to project and make these' improvements. But what the city failed to do under this authority of the law was designed to be substantially accomplished through the intervention and result of this action. And for that reason the compensation to be made in the suit should be the same as would have been made in such proceedings if they had been instituted under the authority of the law. Taylor v. Metropolitan, etc., Railroad Co., 50 N. Y. Supr. Ct., 311; Ireland v. Same, 52 id., 450; Story v. New York Elevated Railroad Co., 90 N. Y., 122.

And that compensation is the value of the rights and interests in this manner appropriated and affected injuriously by the authorities of the city, together with interest upon the amount from the time of such appropriation. This subject was considered very fully in Matter of Bennett (33 Hun, 639), where the rule as it has been acted upon was repeated and many of the authorities illustrating it were cited and approved. And it was sanctioned in Henderson v. N. Y. C. and H. R. R. R. (78 N Y 423) Under that rule the practice has been followed of giving to the owner the full value of the property intended to be taken, and a fair equivalent for the diminution of the residue left to the owner, as that may be caused by taking a portion of the property owned by him. As, however, this bulkhead was entirely disconnected from the other real estate of the plaintiff in the vicinity and wholly separate from it by the width of West street, it may well be that no more can be allowed in the way of compensation than the value of the bulkhead itself and the rights and privileges connected with its use and enjoyment as a wharf. Matter of Arnott, 27 Hun, 151.

A further and important element, however, entered into the allowance of compensation made by the referee in this action. That was placed upon the fact that permission was obtained by John G. Dale, as the agent of the lessee, to extend the structure westerly of the platform made under the resolution of the common council of 1851, a further distance of about sixty or sixty-five feet, into the Hudson river, beyond the westerly line of the preceding platform, and to erect a shed over it for the convenience of the business of the lessee. This privilege was expected to be secured before the lease of the bulkhead was taken, and the amount of the rent reserved by the lease was greatly increased by that circumstance. The privilege of extending the bulkhead in this manner and placing a shed over a large portion of it capable of being thoroughly enclosed, added very greatly to the value and emoluments of the property. And this valuation, as the platform and shed were discontinued by the extension of the improvement into the river, was necessarily terminated and ended. But it by no means follows from these facts that the referee was warranted in making any allowance whatever for so much of the value, profit or emoluments, as might arise out of these extensions beyond the bulkhead line of West street. As to the first, which was provided for by the resolution of 1851, it was merely permitted by the common council. No fixed period of time during which the platform might be maintained in this manner was declared in or by the resolution, but it was in its nature wholly permissive, and as a matter of law it was made without right. People v. Mallory, 46 How., 281; Commissioner’s of Pilots v. Clark, 33 N. Y., 251.

By neither chapter 222 of the Laws of 1830, nor by section 1, chapter 261 of the Laws of 1858 was any authority created for permitting structures of this description to be placed beyond the bulkhead line. The first of these acts provided only for the designation or appropriation of public wharfs, for the exclusive use of steam boats, or other classes or description of vessels, while the latter act created the same authority for the designation of wharfs for the exclusive use and occupancy of the steamboats of the lessees thereof, so far as that might be necessary for the conducting and managing of their business. They in no manner-provided for placing structures in the water of the river beyond the bulkhead line. And such structures were forbidden by section 10 of chapter 129 of the Laws of 1801 the object of which, in part, was to provide for the construction, regulation and use of wharfs on the water line of the city.

At the time when permission was given to extend this-structure farther into the river, no more authority was vested over this subject either in the common council or the commissioners of the dock department. And by their action they did not attempt to vest any fixed or permanent rights in the tenants to whom permission was given to extend the platform sixty feet farther into the river and to erect a shed upon it. What was done, and all that was done by the resolution adopted for this purpose, which was in these words:

Resolved, That permission be granted to Mr. John G-. Dale, agent of the Liverpool, New York and Philadelphia Steamship Company to build a platform on piles in front of the bulkhead, between piers 44 and 45, North river, leased by said company from private parties, extending outward from the present line of bulkhead a distance of about sixty-five feet. Also, to erect over said platform a shed one-story high, for the protection of freight, the eastern extremity of said shed not to extend beyond the line of the shed erected by the New York and Troy Steamboat Company, on pier 44 adjoining, and in conformity with the-plans to be submitted to and approved by this board, and provided that in the erection of said shed, all requirements of the fire laws of the city are complied with, and provided also that the consent in writing of the owners of said bulkhead, and of the owners and lessees of the north side of pier 44, North river, to such extension be first obtained and filed in this department. The work to be done under the supervision of Superintendent Westervelt, and to remain during the pleasure of the board.”
Respectfully yours,
(Signed) J. GREENVILLE KANE,
Commissioner and Secretary pro tem.

Was to permit the extension to be made and to be maintained “ during the pleasure of the board.” And that this was not intended to be by any means durable, seems to follow from the facts that the board had previously been vested with the authority to extend the bulkhead line into the river by maiding the improvements provided for by the act of 1870, as that was amended by the act of 1871. The permission contained in the resolution was given after the completion of this legislative authority and must necessarily, aside from its language, have intended to be subordinate to such authority, and to have entitled the department to terpiinate it whenever that should become necessary for the purpose of going on with the improvement. Even this authority, or license, the department seems to have" had no power to give prior to the enactment of chap. 249 of the Laws of 1875. And as that provided for no more than the privilege of erecting and maintaining sheds upon the pier, or bulkhead, it is difficult to derive from it the power to concede the privilege of putting such structure beyond the bulkhead, or outside the piers, in the water, inasmuch as that would not be placing them upon the pier or bulkhead within the language employed in the statute, but adding them as outside structures to the pier or bulkhead. But even if this statute should be otherwise construed, it provided for nothing beyond a license, or authority, to erect or maintain the sheds.

It did not provide for vesting in the person to whom the privilege should be given any right to maintain the platform or" shed for any particular period of time. But what was provided for was a license, or authority, which it was declared should be “subject to the conditions and restrictions contained in such license or authority.” And it was farther added by section 4 of the same act that nothing contained in it should impair any powers conferred upon the department of docks in the city of New York by existing laws, except as provided in section 3 of the act, and that section has no relation to this controversy. It is manifest, therefore, that no property right was designed to be, or was in fact, conferred or created by this resolution. It was a privilege granted subject to the existing laws providing for this improvement of the water-front of the city, and made dependent by the resolution itself upon the pleasure of the hoard adopting it._ And the right so to terminate it was exercised when this improvement was made in the year 1880. And in ending it in that manner no more was done than had the sanction of the law as well as the condition on which the resolution was dependent. Babcock v. Utter, 1 Keyes, 397; Wood v. Leadbitter, 13 Mees. & Wels., 838.

That the privilege of using corporate property granted in this manner may be terminated without making compensation for it by the party creating the privilege and reserving the right to terminate it, clearly follows from its dependence upon this mere violation. And in other cases of similar concessions and like reservations in favor of the public, this principle has been held and adhered to by the courts. Hatch v. Cincinnati, etc., R. R. Co , 18 Ohio, 92; Hubbard v. Toledo, 21 id., 379, 398; Fishback v. Woodruff, 51 Ind., 102; Little Miami, etc., Co. v Cincinnati, 30 Ohio, 629; Com. v Penn. R. R. Co., 51 Penn., 351, 354; Fox v. Cincinnati, 104 U S., 783, Patien v. N. Y. Elevated R. R. Co., 3 Abb. N. C., 306; Matter of Reservation of Niagara, etc., 37 Hun, 537, Ex parte Miller, 2 Hill, 418; Mattoon v. Monroe, 21 Hun, 74; Burbank v. Fay, 5 Lans., 397; Dermott v State, 99 N. Y., 101.

The case of Smith v. City of Rochester (92 N. Y., 463), is in no manner inconsistent with the principle which has been mentioned, For there the plaintiffs were held to have had a right to the water of which they were deprived by the act of the city, as distinguished from a mere conditional privilege of the nature of that upon which these structures were entitled to be placed. The tenure provided for them was not property held against the authority of the city. It was no more than a concession or privilege which it had reserved to itself the right to withdraw at its own pleasure. When it was withdrawn it was not done wantonly or capriciously, but because it had become a necessity for the making of the improvement authorized by law, and provided for by the action of the board of dock commissioners. This license, or privilege, although similar licenses were from time to time granted to others and increased the value and enjoyment of the property to which they were incidental, should not have been included as an element for which compensation should be made by the defendant in this action. It did form a very material, if not the greater part, of the support for the amount which the referee found the plaintiff to be entitled to recover. And to correct this error the judgment in the case should be reversed, and a new trial ordered, with costs to abide the event.

Bartlett and Bradley, JJ., concur.


author: Daniels, J. Bartlett, J.

text:
    Walter Weston et al., Resp’ts, v. James R. Watts In re Alexander Thain, Receiver, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Receiver—Op partnership property—What due process op law.
    It is provided by the constitution of this state (art. 1, § 6) that no person shall be deprived of life, liberty or property without due process of law, and a legal process by which he may be divested of his property, which is unauthorized and afterwards set aside, is not such due process.
    3. Same.
    This provision will not sanction the forfeiture of a person’s property to pay the expenses of a proceeding taken against him which is afterwards set aside as unwarranted.
    3. Same—Commissions—Who required to pay.
    A receiver of the property of a copartnership having been appointed, and the order appointing him as such having been reversed by the general term, upon appeal by an order directing him to turn over t j the defendants all the property held by him as receiver and to render an account before a referee named therein, who should fix the receiver’s compensation, which the plaintiffs were ordered to pay and the receiver having appealed from an order of the special term enforcing that made by the general term: Held, that his appointment having been judicially declared invalid, the defendants could not be required to pay his commissions, and that proper provision was made for them by charging them upon the plaintiffs.
    Appeal by Alexander Thain, receiver, from an order directing him within five days- to assign, transfer and deliver to the defendant, all the copartnership property, stock, chattels, books, vouchers, accounts, choses in action and effects, received or held by him, or under his control, by virtue of his appointment as receiver.

      Alexander Thain, in person, and James Kearney, for app’lt; Treadwell O leveland, for def’t.
   Daniels, J.

The appellant was appointed receiver at the instance and on the application of the plaintiffs in the action, and under such appointment he obtained possession of the property now in controversy. After his appointment an appeal was taken by the defendant from the order making it, and after the hearing of the appeal the order appointing the appellant was reversed, and was directed, as he has been by the order from which he has now appealed, to transfer and deliver the property and effects in his hands to the defendant.

He was further ordered to file an account of his proceedings before a referee appointed to take and state the same, and his fees and compensation as receiver, were directed to be paid by the plaintiffs in the action.

From these facts it became evident that the appointment of the appellant as receiver was upon an application adverse to the defendant, and without the authority of the law. And having been made in that manner, there seems to be no legal ground upon which the receiver can be directed to withhold so much of the property from the defendant, as may be required to pay his commissions and expenses, but these expenses should be paid, as they have been directed to be, by the plaintiffs who obtained the appointment.

So far as the defendant is concerned, the appointment, was an unauthorized one, not made for his benefit in any manner, but through which property was taken from his possession by the receiver and withheld from him without any legal authority justifying the proceeding. It was an invasion of his rights, for which there is no law requiring him, or his property, to pay the expense; but on the contrary, so far as the law provides for the payment of legal expenses, they are to be defrayed by the unsuccessful party, in the litigation.

To take a person’s property from him by an unauthorized proceeding and place it in the hands of a receiver, and then subject him to the expenses of the proceeding, would be very transparently unjust, even if the courts had the power to do that.

Oases are not uncommon where the result would be ruinous to the injured individual. All the property a person may have in trade, may upon an unauthorized apphcation, be taken from him and placed in the hands of a receiver, and after vindicating his right to be relieved from the proceeding, if he should be obliged to bear the expenses of it, and compensate the receiver for his commission and disbursements, or m default of doing so, his property should be appropriated to securing that end, he might under the forms of law be financially ruined.

For that there seems to be, and probao.y will nor e, any authority vested in the courts, for their duty is to right the wrong when its existence may be made to appear and to protect the injured party against its consequences. And that can be no otherwise done than by restoring to him the property of which he may have been divested by the unauthorized interference of the court. As little as that, he certainly is entitled to, and the receiver who has acted under the appointment obtained upon the application of the adverse party must look to that party, for his fees and compensation.

If the court could impose upon the defendant, or the property ordered to be restored to him, the obligation first to pay the receiver, it might with the like reason apply the same principle to every case where one man may be deprived of his property through legal proceedings wrongfully instituted against him by another person.

If such a principle is applicable at all it must be a general one, charging the property with the fees of officers where it may have been replevied or taken under an attachment, and the same rule would restrain the discharge of a person in custody under an order of arrest until the fees of the officer should be paid. Such cases would be equally meritorious in the claims presented as the present case, which in principle cannot be distinguished from these others. It is sufficiently injurious for a person to have his property taken from him, or his person subjected to arrest, without right, and upon no legal principle can the wrong be aggravated in such a manner as to order him to pay the expenses of the proceeding. This was considered in the examination of a claim for costs and expenses under an attachment in Bowe v U S. Reflector Co (36 Hun, 407), where it was determined that even the legislature could not in this manner subject the property of one person to the expenses illegally created at the instance of another.

The fundamental law of the state will not permit that to be done, for it has been provided by section 6 of article 1 of the constitution of the state, that no person shall be deprived of life, liberty or property without due process of law And a legal proceeding by which he may be divested of his property which is unauthorized, and afterwards set aside, cannot be such due process. The law cannot sanction the taking of one man’s property in this manner and subjecting it to the expenses or obligations of another. Embury v Conner, 3 Com., 511, 517

Due process of law requires something more than an unauthorized legal proceeding set aside by the final action of the courts. This subject was examined, in Stuart v. Palmer (74 N. Y., 183), where it was said that “This provision is the most important guaranty of personal rights to be found in the federal or state constitutions. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. Ho citizen shall arbitrarily be deprived of his life, liberty or property, whether the proceeding be judicial, administrative or executive in its nature * * *. This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these rights.” And it requires a proceeding “which.proceeds upon inquiry and renders judgment only after trial.” Id., 190-191 It certainly will not sanction the forfeiture of a person’s property to pay the expenses of a proceeding taken against him which is afterwards set aside at his instance as unwarranted.

In Ver Planck v. Mercantile Ins. Co. (2 Paige, 438). the property of a corporation was taken from it and placed in the hands of a receiver, by an order of the vice-chancellor, reversed on appeal, and the chancellor directed the restoration of the property, without providing for subjecting it, or the party entitled to receive it, to the payment of any fees or expenses to the receiver. A demand of this nature by the receiver was evidently in that case not considered to be worthy of either examination or discussion.

In French v. Gifford (31 Iowa, 428), this subject was discussed, in the opinion of the court, where it was said: “We think it would be an unjust and inequitable rule if in all cases the receiver should be entitled to his compensation from the fund in his hands, without reference to the legality of his appointment. Under the operation of such a rule innocent persons might be made to suffer great loss.” It was further added that costs were adjudged against the unsuccessful party “unless there exists some equitable consideration to justify a different disposition, or the case is otherwise provided for by law.” Id., 431.

The claim now made in behalf of the receiver has by no law been imposed upon the defendant. Neither is there any equitable principle which should require him to pay, before he can secure a return of his property, the expenses of the unlawful preceding by which it has been taken and withheld from his possession. To require that payment from him, or his property, would be a wrong which the court had neither the power nor the disposition to inflict upon him. It may be a hardship upon the receiver himself, but it is one the risks of which he has voluntarily assumed. He could have' avoided it by declining to accept the appointment or protected himself against the loss of his commissions and expenses by first requiring security from the plaintiffs for their payment. If they cannot now be made to pay, it is more just and equitable that the receiver shall be deprived of his fees and expenses than it would be to require the defendant to defray the expenses of an unauthorized proceeding and the cost of depriving him thereby of the possesion of his property.

The order from which the appeal has been taken should be affirmed with the usual costs and disbursements.

Bartlett, J.

The appellant, Alexander Thain, was appointed receiver of the firm of Weston Brothers and Watts in this action, and the order appointing him was reversed by the general term upon an appeal to which he was not a party. The order of reversal directed him to turn over to the defendant all the co-partnership property which he held and to render an account before a referee named therein, who should fix the receiver’s compensation, which the plaintiffs in the action were ordered to pay The receiver did not comply with this order of the general term, whereupon the defendant obtained a special term order requiring him to do so; and from the latter order the receiver now appeals.

By this appeal he practically asks the general term to modify its former order in the action, made without notice to him, so far as it commands him to deliver all the partnership property to the defendant, before his compensation shall have been fixed and its payments definitely^ provided for. He claims to have incurred certain liabilities in the due discharge of his trust, more than equal to the amount he has received, and argued that he ought not to be compelled to turn his receipts over to the successful party to the litigation, and look to the other (who may be irresponsible), for his fees and expenses.

The case of Galster v. Syracuse Savings Bank (29 Hun, 594), is authority for the proposition that an order ought not to be made directing a receiver to pay over the entire fund, Avithout authorizing him to deduct his commissions, or in some way providing for their payment. In the case at bar, however, the payment of all proper commissions and expenses to which the receiver may be entitled, is provided for by charging them against the plaintiffs, who procured his appointment under circumstances which the court has held to have been insufficient to warrant a receivership, and who, so far as appears, are of sufficient pecuniary responsibility to pay the receiver’s charges. Indeed, even if the unsuccessful party were unable to pay the receiver, it may well be doubted whether any authority exists to enforce payment of his commissions out of any portion of the property or fund belonging to the party who has succeeded in vacating the receivership. It would be a pretty severe rule, even if constitutional, which would compel a litigant to pay the expense of having his own property illegally taken out of his custody for awhile. There might be cases,, where a receiver was erroneously appointed, but not under such circumstances as to make the appointment absolutely void, which would warrant an order that his disbursements be paid out of the fund; as for example, where the property consisted of a herd of cattle, for which the receiver had to buy fodder. In such a case, it would be faff and just to charge the successful party with the cost of feeding, for he would have had to incur it if the animals had had to remain in his own custody. But commissions, and all disbursements, except such as would have been necessary if the custody of the property had remained unchanged, seem to me to. stand on a different footing.

I do not deem it essential to the determination of the present appeal, however, to lay down any general rule as to the source of the compensation of a receiver whose appointment has been vacated, as erroneously or im providently made, but not absolutely void. It is enough to say that the successful party in this proceeding should not be compelled to contribute to the compensation of the receiver, inasmuch as proper provision for his fees and disbursements has been made by charging them against the plaintiffs, at whose instance he was appointed.

For this reason, I think the order appealed from should be affirmed.


text:
    Daniel Ryan et al., Resp’ts, v. The Elephant Building Company, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887)
    Tbial fbactioe — Evidence ■—■ What mat be given by the plaintiff IN EEBDTTAL OF A DEFENSE BAISED BY THE DEFENDANT’S EVIDENCE.
    In an action for a balance alleged to be due upon a contract made between the plaintiffs and defendants for tin work upon a certain building. The defense was that the work was unskillfully and defectively performed The plaintiff put in proof tending to show that the plaintiffs had performed their agreement and then rested The defendant then put in evidence tending to show that the work had been defectively performed and the material unskillfully used. To answer this evidence the plaintiffs then went into proof of the fact that the work had been well done so far as they were capable of doing it, on account of the manner in which the carpenter work was done Meld, that this evidence was properly introduced when it was. That it was appropriate as rebutting evidence.
    Appeal from a judgment on the verdict of a jury and from an order denying a motion for a new trial.

      J. Hampden Dougherty, for app’lt; William D. Page, for resp’ts.
   Daniels, J.

The action was for the balance alleged to have been unpaid upon a contract made between the plaintiffs and the defendants for tin work upon a building constructed on Coney Island in the form of an elephant. The tin work was alleged to have been unskillfully and defectively performed, and on that ground the defendant resisted the action brought by the plaintiffs to recover the contract price for the work. Evidence was given upon the trial by one of the plaintiffs which if it proved acceptable and credible to the jury, established the performance of the agreement by the plaintiffs. After this testimony was taken and "the plaintiffs rested their case, evidence was obtained from quite a large number of witnesses tending to establish the fact that the work had been defectively performed and that the material had not been skillfully used in placing it upon and covering the building.'

To answer this evidence the plaintiffs then proposed to go into proof of the fact that the work had been well done so far as they were capable of doing it, on account of the manner in which the carpenter work upon the building had been performed. The defendant objected to this proof on the ground that it should have been introduced before the case on the part of the plaintiff was rested. But while this evidence might have been generally taken in that state of the trial, it was more proper and pertinent after the alleged defects had been disclosed by the proof introduced on behalf of the defendants, for until that time it could not have been known precisely upon what the defense rested, or what defects were required to be explained or avoided by proof, on behalf of the plaintiffs. It was appropriate rebutting evidence by way of answering the proof received to establish the defense, and the direction of the evidence introduced was to meet and overcome that which had been presented in the case on behalf of the defendant to establish the non-performance of the agreement, In this respect the case was quite similar to that of Bancroft v. Sheehan (21 Hun, 550). And the course pursued was entirely in harmony with the established rule of practice upon this subject.

By way of answer to the proof given on the part of the defense evidence was offered and received upon the trial to establish the fact that the persons employed by the plaintiffs to render the services in the tinning of the building were skillful and experienced workmen. Reliance has been placed-upon exceptions taken to this character of proof by way of supporting the appeal, but while the evidence given under this ruling of the court may have been quite remote, it was not so much so as to be inadmissible on the trial, for it was a circumstance on which some dependence might be placed tending to prove that the work in all probability had been carefully and skillfully performed. And the same nature of evidence was given without objection by one of the plaintiffs who was sworn and examined as the first witness in the case. Very much reliance of course could not be placed upon it, but it was sufficient to warrant its introduction that it was appropriate evidence having some bearing upon the probability that the work had been faithfully performed.

Proof was also allowed to be given that mechanics’ liens were advised to be filed against the property for other expenditures in the construction of the building, but while this was in no sense appropriate to the controversy in the action it was harmless in its results for the reason that it was fully explained by the testimony obtained from the witness. As to the encumbrance on the property by way of mortgage, while the evidence was entirely immaterial and should not have been received, it is quite evident that it could not have prejudiced the defendant in the slightest degree. Many other objections were presented to the questions propounded to the witnesses on the trial but they are still more incapable of being legally sustained than those which have been already mentioned, and their particular consideration therefore becomes unnecessary.

Exceptions were taken to propositions disposed of in the charge. They related to the excuses presented for imperfections in any portion of the work, and were made dependent upon the manner in which the other work had been done upon the building. The object was to excuse the plaintiffs for any defects in the work, or from liability for any repairs afterwards made upon the building, by reason of defects or leakage, in case the work performed by the carpenters, or the material used by them, were found to be defective or in any other respect improper. The directions which were given to the jury upon this subject seem to have been legally correct, for the ¡plaintiffs were in no manner responsible for the work which.had been done by the carpenters or the materials which they had used. And if on that account, the tin work afterwards proved to be defective, the plaintiffs could not be chargeable with such defects. The case upon the evidence was wholly one for the jury, and no rulings appear to have been made upon the trial on which the defendant has any legal ground of complaint. And the judgment and order should be affirmed.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J.

text:
    In the Matter of Application for Probate of Codicil to the Will of John F. Delaplaine, deceased.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Surrogate’s court-^-Jurisdiction of—Probate of wills—Section 2476, Code Civil Procedure—Section 1861, Code Civil Procedure.
    Section. 2476 of Code Civil Procedure is a substantial equivalent for chap. 460, Laws 1837. The provisions of this section which require the production of a will in any case before the surrogate are complied with by the production of the will before the commissioner appointed by the surrogate to take proof in refe ence to its execution. The surrogate’s court is not deprived of any jurisdiction which it otherwise had by reason of section 1861 of the Code, but it simply confers jurisdiction upon courts to entertain an action to proem e a judgment establishing a will under certain circumstances. Distinguishing Younger v. Dvffie, 94 IT. Y., 533.
    Appeal from decree of the surrogate.

      Michael A. Cardozo, for app’lts; Luden B. Chase, for' app’lt Chase; Joseph A. Welch, for the ex’r; II. W. Taft & D. H. Chamberlain, for the petitioners.

       Affirming 8 N. Y. State R., 757.

   Van Brunt, P. J.

It may not be at all necessary to add anything to the opinion which has been rendered by the surrogate upon the disposition of this motion. It may be proper, however,- to consider, in view of the intimation of' the court of appeals in the case of Younger v Duffie (94 N. Y., 533), whether any change has been made by the Code of Civil Procedure in the practice and powers of the surrogate as they existed at the time that the question in the case of Russell v. Hartt, (87 N. Y., 19) arose.

It is admitted by the counsel for the appellants that if no-change has been made in the jurisdiction of the surrogate’s-court by the present Code, that the decision in the case of Russell v. Hartt must be deemed conclusive as to the existence of jurisdiction in the surrogate’s court to entertain the application in question.

It is to be observed that the decision in Russell v. Hart soems to be based largely upon the ground of the extension of jurisdiction in the surrogate’s court by the provisions of chapter 460 of the Laws of 1837.

The objection was taken that except in a case when a will of personal estate duly executed in this state by a person not a resident of this state shall in the first instance have been duly admitted to probate in the court of a foreign state or country, no authority has ever been given to a surrogate to act on a will the original of which could not be produced before him.

The court held that the act is broad enough to cover the case, as it expressly authorizes the surrogate of each county to take proof of the wills of all deceased persons where the testator not being an inhabitant of this state shall die out of the state leaving assets in the county of such surrogate and then restores the incidental powers of surrogates, and authorizes them to issue commissions to take testimony in foreign countries. The court further held that as the surrogate has the power to issue commissions to take testimony in foreign countries, the issuance of such a commission makes the commissioners officers of the court for the purpose for which it was- issued, and that in the execution of the authority conferred the commissioners stand in the place of and represent the court, and that the exhibition of an original will before them was substantially a production of the will before the court. In the case at bar the jurisdictional facts, although different, come under the same section of the act of 1837 as is mentioned in the case of Russell v. Hartt. Section 2476 of the Code seems to be substantially an equivalent to the section of the act of 1837, referred to in the case cited.

The decision, therefore, in the case above mentioned, is distinctly to the effect that the production .of an original will before commissioners appointed by the surrogate to take evidence, is substantially a production of the will before the surrogate’s court; and therefore the provisions of the Code which appear to require the production of a will in any case before the surrogate, are complied with by the production of the will before the commissioners appointed by the surrogate to fake proof in reference to its execution.

The case of Younger v. Duffie (supra), does not in any respect conflict with this view. The question, therefore, before the court was as to the jurisdiction of the supreme court to entertain an action to prove a will, the original of which remained on file in the archives of the notary’s office at the city of Cadiz, in Spain, from which the same could not, by reason of the laws of Spain, be taken for the purpose of being admitted to probate under the laws of the state of New York or for any other purpose whatsoever. The court simply decided that the fact that the will could not be obtained for production in the surrogate’s court of Richmond county, gave the supreme court jurisdiction to entertain an action under the provisions of section 1861 of the Code of Civil Procedure. But it was not decided and it was not intended to be decided that the surrogate’s court was deprived of jurisdiction to entertain proceedings for the probate of the will, simply because the will itself was not produced before the surrogate of that county.

There is no evidence of any intention upon the part of the legislature by the enactment of section 1861, to deprive the surrogate’s court of any jurisdiction which it otherwise had, but simply to confer jurisdiction upon courts to entertain an action "to procure a judgment establishing a will under certain circumstances.

It would be a forced application of the rule of repeal by implication to hold that because of supposed inconsistencies between the provisions of section 1861 of the Code and the jurisdiction which the surrogate’s courts had been accustomed to and which they would be undoubtedly held, to have the rights to continue to exercise were it not for these apparent inconsistencies, the jurisdiction of the surrogate’s court had been thereby abridged.

Pull force and effect can be given to section 1861, without in any respect infringing upon that jurisdiction which had been recognized by the court of appeals to exist in surrogate’s courts.

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

Daniels and Bartlett, JJ., concur.


text:
    Clementine Schnorr et al., v. Hermina Schroder.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Will—Constbuction of—Legacies—When not a chabge on heal estate.
    The testator, in 1888, published and declared his last will and testament by which he directed his executors to pay debts and funeral expenses _ He then made some specific bequests to one C. Rottier, gave three legacies of $1,000 each and then gave all" the rest residue and remainder of his estate both real and personal to his daughter. At the time of making the_ will the testator had more than $80,000 in personal property; some of this he subsequently invested in real estate, and at his death, in 1880, he had not enough personal property to pay his debts and funeral expenses. Held, that the legacies are not a charge upon the real estate of the testator. Cases distinguished.
    Submission upon an agreed case.

      Jesse K. Furlong, for pl’ff; Richard M. Bruno, for def’ts.
   Van Brunt, P. J.

The testator on the 17th day of March, 1883, made, published and declared his last will and testament by which he directed his executors to pay debts and funeral expenses. He then made some specific bequests to one Clementine Jennie itosse Rottier.

He then gave three legacies of $1,000 to three persons, two of them nephews, and then gives, devises and bequeaths all the rest, residue and remainder of his estate both real and personal to his daughter.

At the time of making this will the testator had over $30,000 in personal property, some of this he subsequently invested in real estate, and at the time of his death in March, 1885, he had not sufficient personal property to pay his debts and funeral expenses, and the question now submitted to the court is as to whether the legacies above mentioned are to be deemed a charge upon the real estate of the testator.

This question is a matter of intention, and such intention may be gathered from the will itself and also from the circumstances surrounding the testator at the time of the making of the will.

Thus it has been held that where it appeared that the testator must have known at the time of making his will that he had no personal estate, and that he had real estate, and legacies are given, it will be presumed that the testator did not intend to go through an idle ceremony in making the bequests, but that he intended them to be paid, and that as he knew that they could only be paid out of his real estate, he must have intended them to be a charge upon his real estate. McCorn v. McCorn, 100 N. Y., 511.

But where at time of making the will the testator has ample personal estate to satisfy all the legacies mentioned in the will, no intention can be inferred of making the payment of legacies a charge upon his real estate, unless the terms of the will itself require this interpretation. The mere existence of a general residuary clause is not sufficient to raise the presumption of an intent to charge real estate with the payment of legacies. There must be something more or the intention will not be rendered sufficiently apparent to make the legacies a charge upon the real estate thus devised.

The case of Hoyt v. Hoyt (85 N. Y., 142), cited by plaintiff’s counsel does not bear out the view which is sought to be derived from it.

It is true that in that case at the time the testator made his will, that he had sufficient personal property to pay the legacies mentioned in his will, but the court base their decision upon the fact that after a change in his circumstances, and when he had no longer sufficient personal property to pay the legacies named in the will, the testator republished his will and in a codicil inserted a power of sale of his real estate, in view as the court says of the lack of personal property to pay these legacies.

The decision in the case of Scott v. Stebbins (91 N. Y., 605), turned upon the fact that the legacy mentioned in the will was to .a son, and was given. him to make him equal to another son to whom he had previously made advances, and they could not be made equal except by the payment or the legacies in full.

In the case at bar there being no indication of any intention of the, testator to charge his real estate with the payment of legacies, and the rule in England that if legacies are given generally, and the residue of the real and personal estate is afterward given in one mass, the legacies are a charge on the residuary real as well as personal estate, not being recognized by the courts of this state, the legacies in question did not become a charge upon the real estate of the testator.

Judgment accordingly.

Daniels and Bartlett, JJ., concur.


text:
    Charles P. Berdell, App’lt, v. Eliza W. Parkhurst, Ex’rx, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Deed of trust—Adjustment of rights under.
    This action was brought for an accounting of the rents and profits of premises conveyed to the grantee in trust to collect the rents and profits thereof, and apply the proceeds, after deducting necessary expenses therefrom, to the use and benefit of the three children of the grantor, during their minority, and to convey the equal one-tliird part of the premises by deed in fee to each of such children as they should respectively attain the age of twenty-one years. This plaintiff was one of the children named in the deed; he became of age on April 15, 1873. At or near the time of the execut on of the deed, the grantor executed and delivered an assignment of corporate shares of stock to the grantee, to be used by him in payment of a mortgage on the property. The grantee agreed, by a covenant in the deed, to fulfill the trusts therein contained, and by covenant in the' assignment to apply the proceeds of the stock as therein directed. The stocks were afterward exchanged for bonds, but neither were used for the payment of the mortgage. The trustee died in the year 1867, during his lifetime having entrusted the care and management of the real property to the grantor, by whom the rents and profits were collected and credited in the books to the trustee. During this time and through the minority of the plaintiff, he was supported by the grantor, and in that manner probably both he and the other cestui que trustent secured the benefit designed for them by the deed through the application of the net proceeds of the property to their use. Held, that this transaction was equivalent to the adjustment of these rents and profits between the trustee and the grantor, the father and natural guardian of the children.
    2. Same—Extinguishment of rights under.
    The trust deed was not recorded by the trustee, and prior to his death and after the eldest son of the grantor had attained his majority, it went into his possession, and there remained until the plaintiff reached the age of twenty-one, when it passed into his hands, not being recorded by either of them. In 1874 the grantor conveyed the property to a purchaser without notice for value, and thereby terminated the trust defeating the power contained in the deed. For the plaintiff’s interest in the estate, other property was conveyed to him by his father. Held, that this was a satisfaction of his claim to one-third of the property conveyed in trust by the trust deed, and extinguished his right to claim any benefit under the agreement by which the corporate shares of stock were assigned as a means of satisfying the mortgage upon the trust property. That what he was entitled to was one-third of the remainder of that property when he became of age, and that such right was defeated by the conveyance of the property by his father, and the adjustment made by the conveyance to him of what was considered an equivalent property.
    3. Covenant—Breach of—Parties to action fob.

      Held, that the" covenant for the disposition of the assigned property and the payment of the proceeds upon the mortgage was made exclusive with the assignors, and in case of failure by the assignee to account for the property received in exchange therefor, the right cf action accrued to the assignor and not to this plaintiff.
    Appeal from a judgment on the report of a referee.

      Philip L. Wilson, for app’lt; S. W. Fullerton, for resp’t.
   Daniels, J.

This action like the case of Miller v. Parkhurst (ante, p. 759), has been brought for an accounting of the rents and profits of premises conveyed by Robert H. Berdell to-Sylvester C. Parkhurst in 1862 in trust to collect the rents and profits of the premises, and apply the proceeds, after deducting necessary expenses thereof, to the use and benefit of the three children of the grantor in the deed, during their minority, and to convey the equal one-third part of the premises by deed in fee to each of such children as they should respectively attain the age of twenty-one years. The plaintiff was one of the three children for whose benefit the trust was created, and to whom, according to the terms of the deed, one-third of the real estate was to be conveyed upon the attainment by him of the age of twenty-one years. He became twenty-one years of age on the 15th of April, 1873. At or near the same time as the deed was executed and delivered Robert H. Berdell executed and delivered an assignment of corporate shares of stock to Parkhurst, to be used by him in the payment of a mortgage of $13,000 upon the property described in the deed. Parkhurst by a covenant in the deed accepted the trusts and agreed faithfully and dilligently to perform them and by a covenant in the assignment he agreed to sell and dispose of the stocks and with the proceeds to pay and satisfy the mortgage. The stocks were afterwards exchanged for bonds, but neither was used for the payment of the mortgage. Parkhurst died in the year 1867, and during his lifetime it was shown by the evidence and found by the referee, that he entrusted the care and management of the real estate to Berdell, the grantor in the deed. The rents and profits were collected and credited in the books of Berdell to Parkhurst, the trustee. During this time and through the minority of the plaintiff he was supported and maintained by his father, the grantor in the deed, and in that manner the strong probabilities are that both himself, and his elder brother and his sister, who was younger than himself, secured the. benefit designed for them by the deed, by the application of the net proceeds of the property to their use. The transaction was equivalent to an adjustment between Parkhurst of these rents and profits and Robert H. Berdell, the father and natural guardian and custodian of these children. The referee in his report has proceed upon that view of the case, for he has concluded in the absence of proof to the contrary, that the trustee did during his lifetime apply the plaintiff’s share of. the rents ana profits of the trust estate to the plaintiff’s use. And under the evidence this was probably done in the manner already stated. And that sufficiently sustained the conclusion of the referee to prevent interference with it .by the action of an appellate court.

The trust deed was not recorded by the trustee in his lifetime, and prior' to his decease and after the attainment of the age of twenty-one years by him, it went into the possession of Theodore Berdell, the oldest son of the grantor, and it remained in his possession until the plaintiff became twenty-one years of age, when it in like manner passed into, his possession, and was retained by each of these persons without being recorded. The grantor in the deed in 1874 conveyed away the property to a purchaser without notice and for value, and in that manner terminated the trust, and defeated the power in trust contained in the deed. For the plaintiff’s interest in the estate itself under the deed other property was conveyed to him by his father. That satisfied him for the one-third of the property conveyed in trust by the trust deed, and consequently extinguished his right to claim any benefit under the agreement by which the_ corporate shares of stock were assigned as a means of satisfying-the mortgage upon the trust property. What he was entitled to was one-third in remainder of that property when he attained the age of twenty-one years. That right was defeated by the conveyance of the property by his father during the next year, and in the adjustment which was made what was considered to be equivalent property, was conveyed to him by his father. After that he had no legal claim against him, or the testator, under this portion of the. deed, and no further interest in the stocks assigned to pay off the mortgage upon the trust property.

A further legal obstacle is presented to the assertion of his. right to any portion of the assigned property, or of its proceeds, in the fact that the covenant for its disposition, and payment of the proceeds upon the mortgage was made directly and exclusively with Robert H. Berdell. And if the assignee failed to account with him for the bonds received for the stocks, the right of action for indemnity has been vested in the assignor and to no extent whatever in the plaintiff of this action.

The position has been taken in behalf of the plaintiff that the referee should have disposed of this action as a suit upon a Sealed instrument, as the trustee became a party-to the deed and subscribed it under seal. But such was not the form of the action instituted in behalf of the plaintiff. And even if it had been, the fact that the rents and proceeds of the trust estate were received by the father of the plaintiff as they accrued, and he supported and maintained his son as a member of his family, the presumption would still arise, as this case was proved by the evidence that he had in this manner been secured all the advantages intended to be enjoyed by him under the trust created by the deed. The judgment for these reasons seem to have been correctly recovered, and it- should be affirmed.

Van Brunt, Ch. J., and Bartlett,. J., concur.


author: Per Curiam.

text:
    Frederick Lange, Resp’t, v. Peter Kearney, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Physician—Value op services—Evidence.
    In. an action brought to recover for the value of services rendered in a, surgical operation, it appearing that the amount to be charged depended upon the pecuniary condition of the employer, and that there was no fixed standard of value. Held, it was error to exclude evidence offered by the defendant to show that he was not rich, and what his income was, etc.
    Appeal from judgment on verdict.

      E. F. O. Dwyer, for app’lt; Hathaway db Montgomery, for resp’t.
   Per Curiam.

This action was brought to recover for services rendered as assigned.

There was no dispute as to the performance of the services, but there was as to the compensation to which the plaintiff was entitled.

Upon the trial it appeared conclusively that there was no fixed standard of value for surgical operations, the amount to be charged depending upon the pecuniary condition of the employer.

There was no evidence of the pecuniary ability of the defendant either given or offered on the part of the plaintiff, and when the defendant was called his counsel sought to show that he was not a rich man, and what his income was, and what income was necessary for the support and maintenance of himself and children, all of which was. excluded.

Upon the conclusion of the charge the learned judge was requested to charge that both Dr. Lange and Dr. Bridden, who were called on behalf of plaintiff, based their estimate as to the value of the services upon the means of the person to be charged, and that there was no evidence as to the means of the defendant. This the court charged.

Inasmuch as the estimate of the value of the services rested according to the statement of the plaintiff himself, upon the pecuniary ability of the defendant to pay, and inasmuch as the- defendant was not permitted to show what his pecuniary condition was, and thus directly to affect the estimate to be made of the value of the services according to the theory of the plaintiff himself, its exclusion was error.

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


text:
    Michael J. Daly, v. Joshua C. Sanders.

      Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Taxes and assessments—Chap. 312 Laws 1874—Grounds upon which ASSESSMENT MAY BE VACATED.
    To vacate an assessment it could not have been the intention of the act that it should be done either for fraud or substantial error in the proceedings before or attending the sale itself. Such an intention cannot reasonably be attributed to the legislature in making the enactment It was designed, however, to vacate the assessment when any fraud or substantial error intervened in the proceedings leading to or in making the assessment
    3. Same—Section 1, chap. 381, Laws 1871—Statute op limitations.
    The court of appeals has decided (Fisher v. Mayor, 67 H. Y., 73) that the lien of assessments has been discharged under the presumption of payment arising after the lapse of twenty years. But by section 1, chap. 381, Laws 1871, it has been declared that all taxes and assessments which theretofore have been or should be laid for city improvements, etc., shall be and continue to be until paid, a lien upon real estate on which they may be imposed. Distinguishing Fisher v. Mayor, 67 H. Y., 73.
    Case agreed upon and submitted for the settlement of a question of legal liability on the part of the defendant for the payment of certain local assessments.

      Daniel Daly, for pl’ff; J. C. Sanders, def’t, in person.
   Daniels, J.

The assessments in controversy were made for the expenses of local improvements, and confirmed respectively on the 4th of February, 1863, the 15th of March, 1864, and the 28th of March, 1865. On the 9th of October, 1886, the defendant conveyed the property charged by the assessments to the plaintiff, and in the deed covenanted to pay off either or all these assessments appearing to be liens upon the property conveyed. For the first of these assessments - a sale was made on or about the 31st of October, 1815. On the thirtieth of November of the same year, sales were made of the same premises for the non-payment of the other two assessments. The sales for the first two assessments were set aside on or about the 11th of March, 1883. But as it is not stated in the case agreed upon that the order setting aside these sales in any manner affected the assessments themselves, it is not to be presumed that they were disturbed or invalidated by such orders. By chapter 338 of the Laws of 1858, as it was amended by chapter 312 of the Laws of 1874, authority existed at the time when the sales were set aside, to make that disposition of them whenever any fraud or substantial error should be made to appear in the proceeding.

Chapter 312 of the Laws of 1874 further provides in its second section that when it should be made to appear that fraud or substantial error had been committed, the assessment should be vacated and the hen created thereby, or by any subsequent proceeding, should cease. But to vacate the assessment it could not have been the intention of the act, that it should be done either for fraud or substantial error in the proceedings before or attending the sale itself. While that may be the literal effect of the language of section 2 of the act, such an intention cannot reasonably be attributed to the legislature in making the enactment. But what was undoubtedly designed was to direct the assessment- to be vacated and set aside when any fraud or substantial error intervened in the proceedings leading to or in making the assessment. 'And when such fraud or substantial error appeared only in the subsequent proceedings, that the proceedings affected thereby should be set aside, and not those resulting in the assessment unaffected by any illegality or irregularity. That, taking the whole act together and considering its subject matter, must have been the design of the legislature, for it would be absurd to attribute the intention to be that the assessment itself might be set aside for the reason that the proceedings taken to sell the property proved to be substantially irregular or fraudulent.

The orders vacating the sales, therefore, must be considered to extend no further than they are stated in the case to have extended, and that is setting aside those two sales, leaving the assessments themselves wholly undisturbed and unimpaired in their legal force.-

The defendant in the action has relied upon the decision made in Fisher v. Mayor (67 N. Y., 73), as a shield against the liability asserted against him for the payment of these assessments. But that case is distinguishable from the present-one by the circumstance that the assessment there was made in the year 1837, more than twenty years before the enactment of chapter 381 of the Laws of 1871. The action too in which the decision was made, was not commenced until the 22d of December, 1869. Fisher v. Mayor, 3 Hun, 648, 650.

And by the decision of the court of appeals it was held that the hen of the assessment had been discharged under the presumption of payment arising after the lapse of twenty years. That presumption, however, does not apply to either of these assessments. For by section 1 of chapter 381 of the Laws of 1871 it has been declared that all taxes and all assessments which theretofore had been, or should be, laid for city improvements, etc., shall be and continue to be until paid, a lien upon real estate on which they may be imposed. This act was applicable to each of these assessments, and had continued in force by section 915 of chapter 410 of the Laws of 1882. This enactment seems to have been made to avoid the effect of the presumption on which the case of Fisher v. Mayor, etc., proceeded, as it was designed according to its express language to continue the lien of the assessments in force until actual payment should be made of the amounts as distinguished from a mere presumption of payment.

The sale made for the assessment of 1865 has at no time been set aside; neither have the proceedings through which the assessment was made been questioned or in any manner vacated. When the sale was made by section 10 of chap. 381 of the Laws of 1871 it was made lawful for the clerk of arrears to bid in for the mayor, etc., every lot for which no person should offer to bid.

Authority was then given for the sale or assignment of, such purchases, and for proceedings requiring the redemption of the premises from the sale by the owner. And until such proceedings may be taken, the owner or occupant may voluntarily redeem the premises by payment of the amounts mentioned in the statute. As to the assessment of 1865, therefore, there appears to be no fraud, substantial error or irregularity in any respect, and by the sale the mayor, etc., acquired a right to this property which can only be divested in the manner pointed out in the statute.

Judgment should accordingly be pronounced in the action declaring the liability of the defendant under the covenant contained in the deed executed and delivered by him to the plaintiff for the payment of the assessments of 1863 and 1864, and for the redemption from the sale made for the non-payment of the assessment of 1865. And as that is the agreement of the parties, it will be without costs.

Van Brunt, P. J., and Brady, J., concur.


text:
    Thomas Roberts, App’lt, v. Caroline D. Ely, Executrix, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Estoppel—Different causes of action—Election as to one—Effect of.
    Where a party has grounds upon which to bring different actions arising out of the same state of facts against different persons, and the maintenance of one necessitates an allegation of a fact inconsistent with the maintenance of another, the party is bound by his election and cannot proceed against the others, even though the judgment obtained fails tO' afford relief.

      Appeal from judgment entered upon dismissal of complaint.

      Treadwell Cleveland, for app’lt; C. E. Tracy, for resp’ts.
   Van Brunt, P. J.

In April 1871, the plaintiff and one H Geiger purchased jointly of the Chicago and China Tea Company a quantity of tea and paid for the same. At the time of such purchase the tea was stored in the warehouse of the company in the city of Chicago. The purchasers requested the company to insure the tea for their benefit, which the. company promised to do, and subsequently informed the purchasers that such insurance had been effected, but in fact said insurance had never been effected.

At the time of the purchase and sale aforesaid, the company had in store at their warehouse a large amount of teas which had been previously insured by said company to the amount of $71,000. By the policies for such insurance, all losses, if any, were made payable to David J. Ely to secure him for advances then and there made to said company.

The teas so purchased were left in the warehouse of the company, and had been separated by said company in October, 1871. All the teas in the warehouse of the company were destroyed by fire, including also all the teas held by said company for the plaintiff and Geiger.

At the time of the fire the insurance held by the company amounted to $70,000, all of which by the terms of the policy was made payable to David J. Ely; and the actual loss of said company by the fire, as fixed by the insurance company, was $78,000. The company subsequently settled with the insurers and compromised its claim, with the consent of Ely, at a less amount than its actual loss and received from the insurers $34,525, which was paid by the insurers directly to Ely, and the amount so collected from the insurers was. less than the value of the teas held by said company, other than those so held by the company for the plaintiff and said Geiger. At the time of the receipt of said moneys Ely had no notice of the plaintiff’s claim made in this action.

In October, 1871, the company notified the plaintiff that it had not effected any insurance upon their teas for their benefit, and on the 28th of November, 1871, notified the plaintiff of the collection by it of the insurance money from the insurers to the amount of $34,525, and that that sum included the adjusted loss of said company in respect to plaintiff’s teas, and that that sum had been paid over to Ely, and offered to procure the payment to said plaintiff and said Geiger by said Ely of a sum of money which bore the same proportion to the total amount received as the value of the teas held by plaintiff and said Geiger bore to the value of all the teas destroyed by fire.

The plaintiff refused to approve or accept the settlement by said company, and refused to accept the amount so offered to them, and notified the company they would hold it as their insurers. The plaintiff and Geiger thereupon assigned their claim to one Albert P. Lewis, who thereupon brought an action against the company in the supreme court of the state of New York, alleging the purchase of the teas, the agreement to insure by the company, the representation by the company that it had insured said teas, the destruction of the teas by fire, and the allegation that the amount of the insurance had been paid over to the defendant company, but that the defendant, although payment thereof had been duly demanded, neglected and refused to pay the same. The answer of the defendant admitted the sales of the teas, and alleged that prior thereto the said teas in Chicago had already been insured against loss or damage by fire by policies then held by the defendant; that Geiger & Co. wrote to the company at Chicago, making the request that the tea be kept insured, and the defendant write to Geiger & Co. to the effect that such request had been received, and that the tea would be kept insured; that subsequently the tea was destroyed by fire, and the company wrote to Geiger & Co., informing them of the fire and the destruction of the tea, and advising them that as fast as the money could be collected from the insurance company, Geiger & Co. would be entitled to their proportion of the amount received, which was refused. The answer contained the further allegation that the company acted simply as the agent of Geiger & Co., and that they used their best judgment, care and skill, and acted in the same manner as they had acted in relation to their own property; and denied the other allegations contained in the complant.

Upon the trial of the issues thus raised, the court found as matters of fact, the incorporation of the Chicago and China Tea Company, the transaction and agreement between the company and Geiger and Roberts, as hereinbefore stated, the fire and destruction of the teas, and that Geiger’s and Robert’s loss on said teas by said fire, with interest, was $10,882.71, and that they had assigned their demand to the plaintiff, and gave judgment in favor of the plaintiff for said $10,882.71. There is no finding in support of the allegation contained in the complaint, that the amount for which the teas were insured had been paid to the tea company. The learned court must therefore have founded its conclusion in respect to damages, not because of money collected on account of insurance, but upon the ground that the defendant company became the insurers of íeiger & Co. under their contract to insure, and were liable to pay the damage caused" to them by fire.

At the time of the assignment by Geiger & Co. of their claims against the tea company and at the time of the bringing of the suit in question the plaintiff in this action was aware of the fact that the money collected upon the policies of insurance hereinbefore mentioned had been paid over to David L. Ely. On the 27th day of April, 1881, Mr. Lewis assigned to the plaintiff in this action the judgment obtained against the tea company as above-mentioned.

Mr. Ely having died in the year 1877, in April, 1881, the plaintiff .commenced this action to recover from his personal representatives, the insurance moneys received by him on account of the destruction of the teas belonging to Geiger & Co. The learned court upon the foregoing facts dismissed the complaint upon the merits.

If a recovery should be allowed in this action the plaintiff would not only be entitled to recover the whole value of his teas, because of the failure of the Chicago and China Tea Company to insure, from them, but also would recover the amount which Mr. Ely had collected on his policies of insurance upon these teas. It is apparent that such a result would enable the plaintiff in this action not only to indemnify himself, but to recover in addition thereto the amount which Mr. Ely had collected. It is no answer to this suggestion to say that the plaintiff has been unable to collect his judgment against the Chicago and China Company.

The question must be determined precisely the same as though that judgment was entirely effectual. In the case against the company the plaintiff was evidently allowed to recover, because of the breach of the contract to insure.

The court finds the agreement, the destruction of the teas and the loss, but there is no finding that the company had effected an insurance for Geiger & Co., upon these teas, nor is there any finding that any amount had been collected by the company, because of any insurance so effected; and as already suggested, the only theory of the recovery must then have been and undoubtedly was that the defendant company under their agreement to insure, had themselver become insurers and were liable for the loss.

Geiger & Co., or their assignee, thus elected to pursue the remedy against the tea company. They had already been offered their proportionate share of the insurance moneys collected by Ely, which they refused, thinking undoubtedly that they might proceed against the tea company under the contract to insure and recover damages to the whole amount of their teas destroyed, because of the breach of the contract. They brought their action against the tea company knowing that it had not insured for their benefit, and knowing .that it had not collected the amount of insurance for which they demanded payment.

•They preferred, with knowledge of the fact that Ely had collected this insurance, to hold the defendant company to its contract rather than to assume that the company had complied with its agreement and had procured the insurance and had collected some amount upon it. It is now too late after they made this election to hold the tea company as insurers, and have failed in collecting anything on that judgment, to change their position and to reverse the judgment of the court in the Case of Lewis v. The Chicago and China Tea Company, by claiming that the company were not insurers, but that they had complied with their .agreement and procured insurance which has been collected by Mr. Ely.

It may be that if Geiger & Co. had been ignorant of the facts at the time they chose the company as insurers they might not be held to their election. But it distinctly appears that they were made fully acquainted with all the facts prior to the assignment of the claim and the commencement of the action against the tea company. An adjudication having been obtained upon behalf of Geiger & Co. that the Chicago and China Tea Company were their insurers, and damages having been recovered because of the destruction of the article insured, the plaintiffs cannot now claim that Mr. Ely, a creditor of the tea company, who had procured insurance upon this property before its sale to Geiger & Co., to indemnify him for the amount due to him from the Chicago and China Tea Company should account to the plaintiff for the insurance collected, simply because the latter cannot collect his judgment against his own insurers.

The judgment should be affirmed, with costs.

Macomber and Bartlett, JJ., concur.