author: Peckham, J. Bartlett, J.

text:
    The Health Department of the City of New York, App’lt, v. The Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York, Resp’t.

      (Court of Appeals,

      Filed February 26, 1895.)

    1. Constitutional law—Police power.
    The police power of the state must be exercised subject to the provisions of both the Federal and State Constitutions, and the law passed in the exercise of such power must tend in a degree that is perceptible and clear towards the preservation of the lives, health, morals and welfare of the community.
    S. Same.
    Such act is not invalid because of the fact that it will cost money to comply with the order of the board of health,' for which the owner is to receive no compensation, or because the board is entitled to make the order under the provisions of the act without notice to, or a hearing of, the defendant.
    3. Same.
    The improvement or work must in itself be a reasonable, proper and ■ ° fair exaction, when considered with reference to the object to be attained.
    4. Same.
    The legislature, in the exercise of this power may direct that certain improvements shall be made in existing houses at the owner’s expense, so that the health and safety of the occupants and of the public through them may be guarded, and such exactions will be regarded as legal, so long as they bear equally upon all members of the same class and their cost does not exceed what m-iv be termed one of the conditions upon which individual property is held.
    •5. Same—Constitutional law.
    The provision of § 663 of the Consolidation Act is a proper exercise of the police power of the state, both as a guard to the public health and as a protection against fire, and is constitutional.
    <6. Same—Number of places.
    The provision in the law that the water shall be furnished in sufficient quantities at one or more places on each floor, cannot be so construed as to leave the number of places of supply entirely to the discretion of the board of health. ' >ne such place on each floor, fairly accessible to all the occupants of the floor, is all that can reasonably be required.
    7. Same—Domestic use.
    It was within the intent of the provision to include a sufficient supply for domestic use.
    Appeal from order of the general term of the court of common pleas for the city and county of Hew York, which sustained exceptions taken by defendant to a verdict in favor of plaintiff directed by the court and granted a new trial.
    The action was brought by the plaintiff, by virtue of several .acts of the legislature giving it power in certain cases to commence an action in its own name, for the purpose of recovering the .amount of $200, being the penalty for twenty days violation by the defendant of the act hereinafter mentioned, relative to the supply of water in several tenement houses owned by the defendant, The defendant denied some of the allegations of the complaint, and set up also, as one of the defenses to the action, that the statute upon which the complaint is founded is unconstitutional. Each party moved after the evidence was in that a verdict be directed in its favor, l'he motion on the part of the plaintiff was granted, and that on the part of the defendant was denied. The defendant excepted to these decisions, and the court directed defendant’s exceptions to be heard in the first instance at the general term and that judgment upon the verdict for the plaintiff be in the meantime suspended. The general term sustained defendant’s exceptions and made an order granting a new trial and. from that order the ¡Dlaintiff appeals here.
    The cause of action is founded upon section 663 of the Consolidation. Act relating to the city of New York, as such section was amended,by chapter 84 of the Laws of 1887. After making various provisions in prior sections for the proper construction and ventilation of tenement houses in the city of New York, the legislature, by the amendment of 1887, enacted as follows :
    “§ 663. Every snch house erected after May 14th, 1867, or converted, * * * shall have Croton or other water furnished in sufficient quantity at one or more places on each floor, occupied or intended to be occupied by one or more families ; and ail tenement houses shall be furnished with a like supply of water by the owners thereof whenever they shall be directed so to do by the board of health. But a failure in the general supply of water by the city authorities shall not be construed to be a failure on the part of the owner, provided that proper and suitable appliances to receive and distribute such water are placed in said house. Provided, that the board of health shall see to it that all tenement houses are so supplied before January first, eighteen hundred and eighty-nine.”
    The rest of the section is not material.
    It appeared upon the trial that the defendant was the owner of certain houses in the city of Ne.w York known as numbers 59, 77, 84 and 86 Charlton street, and on the 20 of March, 1891, the plaintiff caused to be served on the agent of the defendant a notice requiring the defendant in conformity with the provisions of the Sanitary Code, to alter, repair, cleanse and improve the premises above mentioned, and directing that suitable “ appliances to receive and distribute a supply of water for domestic use be provided on the top floor of No. 59, the basement, first and second floors of No. 77, the basement, first, second and third floors of No. 84, and the basement and attic of 86 and the defendant, was required to comply with the requirements within five days from the receipt of the notice, and it was also stated in the notice that any application for a necessary extention of time or for the-suspension of any part of the requirements contained in the written notice should be made to the health department at the time and place designated in the notice. This action was brought against defendant as owner of houses Nos. 77 and 84 Charlton street. The defendant claims that the houses in question were not tenement houses as that word is popularly used; that they were houses constructed many years ago as dwelling houses, and they have never been altered with reference to their internal arrangement so as to convert them into what would popularly be called tenement houses. They were old-fashioned dwelling houses, two-story, attic and basement. There were hydrants in. the back yards accessible to all tenants of the houses; but the proof in the case shows that at No. 77 Charlton street there were three families, and in Ho. 84 there were six families, and the houses came clearly and distinctly under the definition of tenement houses, as enacted by section 666 of the Consolidation Act, as amended by the Laws of 1887 (chap. 84, p. 100). It is claimed -on the part of the defendant that the buildings are in a transition neighborhood which will be shortly required for business structures; that they are not in a neighborhood where all or many of the large buildings which are known as tenement houses in the popular meaning of the word are situated, and that these houses are not really within the reason of the statute. The defendant offered on the trial to give testimony as to the necessary cost of ■complying with the order of the board of health, which was excluded, and the defendant excepted. Defendant also offered to prove that the introduction of appliances to furnish water on each .floor, and the required sinks and waste pipes to connect with the sewer, would cause great danger of injury to the property through the water in the pipes freezing and the pipes bursting in the winter season ; also that no complaints had been made to the defendant corporation by the occupants of these houses in reference to the want of water. All this evidence was excluded under the objection of the plaintiff and upon the exception of the defendant.
    The general term of the common pleas granted leave to plaintiff to appeal from its order granting a new trial on the ground that a question of law was involved which ought to be reviewed by this court.

      Roger Foster, for app’lt; S. P. Nash, for resp’t.

       Reversing 43 St. Rep. 143.

   Peckham, J.

The recovery in this case is founded upon that portion of the Consolidation Act which requires that all houses of a certain description, upon the direction of the board of health, .shall be provided with Croton or other water in sufficient quantity at one or more places on each floor, occupied, or intended to be occupied, by one or more families. The defendant, among -other things, alleges as a defense that the order of the board of health directing the defendant to furnish the water as provided by the statute was made without notice to it, and that, as it could not be complied with excepting by the expenditure of a considerable amount of money, the result would be to deprive the defendant of its property without a hearing and an opportunity to show what defense it might have, and that it in fact deprived the defendant of its property without due process of law. There was no arrangement in either of these houses in question for the supplying of the Croton or other water to the occupants of each floor at the time when the order of the board of health was made; such order could not, therefore, be complied with on the part of the defendant without the expenditure of money for that purpose. That fact must be assumed, and even upon that assumption we do not think the act is invalid on the alleged ground that it deprives the defendant, if enforced, of its property without due process of law. The act must be sustained, if at all, as an exercise of the police power of the state. It has frequently been said that it is difficult to give any exact definition which shall properly limit and describe such power. It must be exercised subject to the provisions of both the Federal and State Constitutions, and the law passed in the exercise of such power must tend in a degree that is perceptible and clear towards the preservation of the lives, the health, the morals or the welfare of the community, as those words have been used and construed in many cases heretofore decided. Numerous cases have arisen in this state where the power of the legislature was questioned, and where the exercise of that power was affirmed or denied for the reasons given therein. See People v. Marx, 99 N. Y. 377 ; Matter of Jacobs, 98 id. 98; People v. Gillson, 109 id. 389 ; 16 St. Rep. 185 ; People v. Arensberg, 105 N. Y. 123; 6 St. Rep. 789, and many cases cited in these cases. See, also, Slaughter House Cases, 16 Wall, 36, 62; Barber v. Connelly, 113 U. S. 27; Gas Co. v. Light Co., 115 id. 650; Boston Beer Co. v. Moss, 97 id. 25. The act must tend in some, appreciable and clear way towards the accomplishment of some one of the purposes which the legislature has the right to accomplish under the exercise of the police power. It must not be exercised ostensibly in favor of the promotion of some such object while really it is an evasion thereof and for a distinct and totally different purpose, and the courts will not be prevented from looking at the true character of the act as developed by its provisions by any statement in the act itself or in its title showing that it was ostensibly passed for some object within the police power. The court must be enabled to see some clear and real connection ,bet ween the assumed purpose of the law and the actual provisions thereof, and it must see that the latter do tend in some plain and appreciable manner towards the accomplishment of some of the objects for which the legislature may use this power.

First. Assuming that this act is a proper exercise of the power in its general features, we do not think that it can be regarded as invalid because of the fact that it will cost money to comply with the order of the board for which the owner is to receive no compensation or because the board is entitled to make the order under the provisions of the act without notice to and a hearing of the defendant. As to the latter objection, it may be said that in enacting what shall be done by the citizen for the purpose of promoting the- public health and safety it is not usually necessary to the validity of legislation upon that subject that he shall be heard before he is bound to comply with the direction of the legislature. People ex rel Copcutt v. Board of Health, 140 N. Y. 1, 6; 55 St. Rep. 416. The legislature has power and has exercised it in-countless instances to enact general laws upon the subject of the public health or safety without providing that the parties who are to be affected by those laws shall first be heard before they shall take effect in any particular case. So far as this objection of want of notice is concerned the case is not materially altered in principle from what it would have been if the legislature had en-" acted a general law that all owners of tenement houses should, within a certain period named in the act, furnish the water as directed. Indeed, this act does contain such a provision, but the plaintiff has not proceeded under it. If in such case the enforcement of the direct command of the legislature were not to be preceded by any hearing on the part of any owner of a tenement house, no provision of the state or federal Constitution would be-violated. The fact that the legislature has chosen to delegate a certain portion of its power to the board of health, and to enact that the owners of certain tenement houses should be compelled to furnish this water after the board of health had so directed, would not alter the principle, nor would it be necessary to provide that the board should give notice and afford a hearing to the owner before it made such order. I have never understood that it was necessary that any notice should be given under such circumstances before a provision of this nature could be carried out.

As to the other objection, no one would contend that the amount, of the expenditure which an act of this kind may cause, whether' with or without a hearing, is within the absolute discretion of the legislature. It cannot be claimed that it would have the right, even under the exercise of the police power, to command the doing of some act by the owner of property and for the purpose of carrying out some provision of law, which act could only be performed by the expenditure of a large and unreasonable amount of money on the part of the owner. If such excessive demand were made the act would without doubt violate the constitutional rights of the individual. The exaction must not alone be reasonable when compared with the amount of the work or the character of the improvement demanded. The improvement or work must in itself beA#a reasonable, proper and fair exaction when considered with reference to the object to be attained. IE the expense to the individual under such circumstances would amount to a very large and unreasonable sum, that fact would be a most material one in deciding whether the method or means adopted for the attainment, of the main object were or were not an unreasonable demand upon the individual for the benefit of the public. Of this the courts must, within proper limits, be the judges. We may own our property absolutely and yet it is subject to the proper exercise of the police power. We have surrendered to that extent our right to its unrestricted use. It must be so used as not improperly to cause harm to our neighbor, including in that description the public generally. There are sometimes necessary expenses which inevitably grow out of the use to which we may put our property and which we must incuz’, either voluntai’ily or else under the direction of the legislature, in order that the general health, safety or welfare may be conserved. The legislatui’e, in the exercise of this power, may direct that certain improvements shall be made in existing houses at the .owners’ expense, so that.the health and safety of the occupants and of the public through them may be guarded. These exactions must be regarded as legal so long as they bear equally upon all members of the same class and their cost does not exceed what may be termed one of the conditions upon which individual property is held. It must not be an unreasonable exaction either with reference to its nature or its- cost. Within this reasonable restriction the power of the state may, by police regulations, so direct the use and enjoyment of the property of the citizen that it shall not prove pernicious to his neighbors or to the public generally. The difference between what is and what is not reasonable, frequently constitutes the dividing line between a valid and void enactment by the legislature in the exercise of its police power. In cemmenting on the difference of degree in any given case which would render an act valid or otherwise, Mr. Justice Holmes, in Rideout v. Knox, speaking for the supreme court of Massachusetts, said: “ It may be said that the difference is only one of degree; most differences are when nicely analyzed. At any rate, difference of degree is only one of the distinctions by which the right of the legislature to exercise police power is determined. Some small limitations of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil; larger ones could not be except by the exercise of the right of eminent domain.” 148 Mass. 368, 372. See, also, Miller v. Horton, 152 id. 540, at 547. The case of Stuart v. Palmer, 74 N. Y. 183, is an example of the exercise of the taxing power of the state and other considerations obtain in such cases.

■ Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffer injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated secure. 1 Dillon on Mun. Gorp. [4th ed.] sec. 141 and note 2 ; Com. v. Alger, 7 Gush. 83, 84, 86 ; Baker V. City of Boston, 12 Pick. 183, 193 ; Clark v. Mayor of Syracuse, 13 Barb. 32, 36. The state, or its agent in enforcing its mandate, takes no property of the citizen when it simply directs the making of these improvements. As a result thereof the individual is put to some expense in complying with the law, by paying mechanics or other laborers to do that which the law enjoins upon the owner, but so long as the amount exacted is limited as stated, the property of the citizen has not been taken in any constitutional sense without due process of law.

Instances are numerous of the passage of laws which entail expense on the part of those who must comply with them and where such expense must be borne by them without any hearing or compensation because of the provisions of the law. Thorpe v. R. R. Co., 27 Vt. 140-152. One of the late instances of this kind of legislation is to be found in the law regulating manufacturing establishments. Laws of 1887, chap. 462. The provisions of that act could not be carried out without the expenditure of a considerable sum by the owners of a then existing factory. Hand rails to stairs, hoisting shafts to be inclosed, automatic doors to elevators, automatic shifters for throwing off belts or pulleys, and fire escapes on the outside of certain factories, all these were required by the legislature from such owner and without any direct compensation to him for such expenditure. Has the legislature no right to enact laws such as this statute regarding factories unless limited to factories to be thereafter built? Because the factory was already built when the act was passed, was it beyond the legislative power to provide such safeguards to life and health as against all owners of such property unless upon the condition that these expenditures to be incurred should ultimately come out of the public purse ? I think to so hold would be to run counter to the general course of decisions regarding the validity of laws of this character and to mistake the foundation upon which they are placed. Coates v. Mayor, etc., 7 Cowen, 584, 604; Cooley’s Const. Lim. [5th ed.] chap. 16, page 706, etc.

Any one in a crowded city who desires to erect a building is subject at every turn almost to the exactions of the law in regard to provisions for health, for safety from fire and for other purposes. He is not permitted to build of certain materials within certain districts because though the materials may be inexpensive they are inflammable, and he must build in a certain manner. Theaters and hotels are to be built in accordance with plans to be inspected and approved by the agents of the city ; other public buildings also; and private dwellings within certain districts are subject to the same supervision, and in carrying out all these various acts the owner is subjected to an expense much greater than would have been necessary to have completed his building if not compelled to complete it in the manner, of the materials and under the circumstances prescribed by various acts of the legislature. And yet he has never had a hearing in any one of these cases, nor ■does he receive any compensation for the increased expense of his building, rendered necessary in order to comply with the police regulations. I do not see that the principle is substantially altered where the case is one of an existing building and it is to be subjected to certain alterations for the purpose of rendering it either less exposed to the danger from fires or its occupants more secure from disease. In both cases the object must be within some of the acknowledged purposes of the police power and such purpose must be possible of accomplishment at some reasonable cost, regard being had to all the surrounding circumstances. There might at first seem to be some difference as to the principle which obtained in enacting conditions upon complying with which the owner might be remitted to erect a structure within the limits of a city or village or for certain purposes, and the enactment of provisions which would necessitate the alteration of structures already in existence. In the first case it might be urged that the discretion of the legislature in enacting conditions for building might be more extensive,'because the owner would be under no necessity of building ; it would be a matter of choice and not of compulsion, and in choosing to build it might be said that he accepted the condition, while in the second case he would have no choice and would be compelled to alter or improve the existing building as directed by the law. The difference, however, is, at it seems to me, really not one of principle, but only of circumstances. Although the owner in the one case is not compelled to build, yet he is limited in the use to which he may put his property by the provisions of the law. He cannot, build as he wishes to, unless upon the condition of a compliance with the law, and he may very probably be so situated as to loca- " tian of property, and in other ways, that it is really a necessity for-him to use his property in the way proposed, and which he can not do without expending considerable sums above what he otherwise would be called upon to do in order to comply with those provisions. They must, therefore, be reasonable, as already stated. When one’s use of his property is thus circumscribed and limited, what might otherwise be called his rights are plainly interfered with, and the justification therefor can only be found in this police power. So, when the owner of an existing structure is called upon to make such alterations, while the necessity may seem to be more plainly present, still it may exist in both cases, and the only justification in either is the same. Under the police power-persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort and health of the-public.

The citizen cannot; under this act, be punished in any way, nor can any penalty be recovered from him for an alleged non-compliance with any of its provisions or with any order of the board of health without a trial. The punishment or penalties provided for in section 665 cannot be enforced without a trial under due process of law, and upon such trial he has an opportunity to show whatever facts would constitute a defense to the charge; to show, in other words, that he did not violate the statute or the order of the hoard er that the statute itself or the order was unreasonable and illegal. He might show that the house in question was not a tenement house within the provision of the act, or that there was-a supply of water as provided for by the act, or any other fact which would show that he had not been guilty of an offense with regard to the act. City of Salem v. R. R. Co., 98 Mass. 431, 447.

The mere fact, however, that the law cannot be enforced without causing expense to the citizen who comes within its provisions furnishes no constitutional obstacle to such enforcement even-without previous notice to and a hearing of .the citizen. What is the proprietary of a hearing and what would be its purposé ? His. property is not taken without due process of law, within any constitutional sense when the enforced compliance with certain provisions of the statue may result in some reasonable expense to himself. Any defense which he may have is availablé upon any attempt to punish him or to enforce the provisions of the law.

An act of the legislature of Massachusetts which provided that every building in Boston used as a dwelling house, situated on a street in which there was a public sewer, should have sufficient water closets connected therewith, was held valid as to existing houses and applied in its penalties to their owners, if such houses-continued without the closets after its passage. Commonwealth v. Roberts, 155 Mass. 281, and see Train v. Disinfecting Co., 144 Id. 529. No notice or hearing was provided for in the above statute-as to water closets before the act could be enforced, and yet to enforce it would, of course, cost the owner of the building some money. The same may be said as to the disinfecting of the rags, in above case in 144 Mass. If the citizen be charged with any violation of such a statute, and any penalty or punishment is sought or attempted, then is the time for a hearing and then is the time he can make defense if any he may have. But to assert that he must be heard before the authorities assume or endeavor to act under and to enforce the law as against him, is to say, in substance, that each citizen is to be heard upon the general question whether it is right to enforce the law in his particular case. This is not to be permitted. Com. v. Alger, 7 Cush. 53, 104; City of Salem v. R. R. Co., 98 Mass. 431, 443. Everything that the individual could urge upon the hearing if given prior to the attempted enforcement of the act by the making of the order in question can be said by him when he is sued, or when the attempt is, made to punish him for the alleged violation of the law. Upon the prior hearing, if granted, it would be no defense to him if he showed that the law could not be complied with unless at some reasonable expense to himself. That would have been matter to urge upon the legislature prior to the enactment of the statute, as a question of reasonable cost and of public policy. R. R. Co. v. Com., 79 Me. 386, 393; The State v. R. R. Co., 83 Mo. 144-149 ; Thorpe v. R. R., 27 Vt. 140, 149, 156, note.

We do not think that the cost of making the improvements called for by this act exceeds the limits which have been defined, assuming the amount thereof which the defendant offered tó prove.

This is pot the case of a proceeding against an individual on the ground of the maintenance of a nuisance by him, nor is it the case of an assumed right to destroy an alleged nuisance without any other proof than the decision of the board itself (with or without a hearing) that the thing condemned was a nuisance. ' . Ror is it the case of the destruction of property which is in fact a nuisance, without.compensation. Where property of an individual is to be condemned and abated as a nuisance it must be that somewhere between the institution of the proceedings and the final result the owner shall be heard in the courts upon that question, or else that he shall have an opportunity when calling upon those persons who destroyed his property to account for the same, to show that the alleged nuisance was not one in fact. Ro decision of a board of health, even if made on a hearing, can conclude the owner upon the.question of nuisance. People ex rel. Copcutt v. Board of Health of Yonkers, 140 N. Y. 1; Board of Health, etc., v. Copcutt, Id. 12 ; 55 St. Rep. 422: Miller v. Horton, 152 Mass. 540; Hutton v. City of Camden, 39 N. J. Law, 122. We are, therefore, of the opinion that the act, if otherwise valid, is not open to the objection that it violates either the Federal or State Constitution in the way of depriving the defendant of its property without due process of law.

Second. We think the act is valid as an exercise of the police power with respect to the public health and also with respect to the public safety regarding fires and their extinguishment. We cannot say as a legal proposition that it tends only to the convenience of the tenants in regard to their use of water. We cannot say that it has no fair, and plain, and direct tendency towards the promotion of the public health or towards the more speedy ex-tinguishment of fires in crowded tenement houses. That the free use of water, especially during the summer months, tends towards the healthful condition of the body by reason of the increased cleanliness occasioned by such use, there can be no reasonable doubt. The supply of water to the general public in a city has become not only a luxury, but an absolute necessity for the maintenance of the public health and safety. The city of New York itself has spent millions upon millions of dollars for the purpose of securing this great boon for the inhabitants thereof. The right of eminent domain in the taking of land around the sources of the water supply has been granted to and exercised by that city to a very large extent, so that all sources of supply of this necessity of life should be rendered as free from contamination and danger to health and life as it possibly could be. This use of the water is not confined, so far as the necessities of the case are concerned, to the public hydrants. The water is brought into the city so that it may be used in every house and building within its limits, and, although we may, and, indeed, must admit that no health law could practically be enforced which should provide that every individual inhabitant of the tenement houses should use the water, yet we think it is perfectly clear that facilities for the use of .the water will almost necessarily be followed by its actual use in larger quantities and more frequently than would be the case without such facilities, and to the great benefit of the health of the occupants of such houses. Those occupants require it more even than their more favored brethren living in airy, larger, more spacious and luxurious apartments. Their health is matter of grave public concern. The legislature cannot in practice enforce a law so as to make, a man wash himself; but, when it provides facilities therefor, it has taken a long step towards the accomplishment of that object. That dirt, filth, nastiness, in general, are great promoters of disease, that they breed pestilence and contagion, sickness and death, cannot be successfully denied. There is scarcely a dissent from the general belief on the part of all who have studied the disease that cholera is essentially a filth disease. The so-called ship fever or jail fever arises from filth; most diseases are aggravated by it. That opportunities, conveniences for the use of ■ water in these tenement houses will unquestionably tend towards and be followed by more cleanly living on the part of the occupants of those houses cannot, it seems to me, admit of any rational doubt; and, if so, then the law which provides at a reasonable cost for the furnishing of such facilities is plainly and honestly a health law.

The learned counsel for the defendant asks where this kind of legislation is to stop. Would it be contended that the owners of such houses could be compelled to furnish each room with a bath tub and all the appliances that are to be found in a modern and well-appointed hotel? Is there to be a bath room and water closet to each room and every closet to be a model of the very latest improvement? To which I should answer, certainly not-That would be so clearly unreasonable that no court, in my be. lief, could be found which would uphold such legislation, and it 'seems to me equally clear that no legislature could be found that would enact it. The tenement house in New York is a subject of very great thought and anxiety to the residents of that city. The numbers of people that live in such houses, their size, their ventilation, their cleanliness,, their liability to fires, the exposure of their occupants to contagious diseases, and the consequent spread of the contagion through the city and the country, the tendencies to immorality and crime where there is very close packing of human beings of the lower order in intelligence and morals, all these are subjects which must arouse the attention of the legislator and which it behooves him to see to in order that such laws are enacted as shall directly tend to the -improvement of the health, safety and morals of those men and women that are to be found in such houses. Some legislation upon this subject can only be carried out at the public expense, while some may be properly enforced at the expense of the owner. We feel that we ought to inspect with very great care any law in regard to tenement houses in New York and to hesitate before declaring any such law invalid so long as it seems to tend plainly in the direction we have spoken of and to be reasonable in its provisions. If we can see that the object of this law is without doubt the promotion or the protection of the health of the inmates of these houses or the preservation of the houses themselves and consequently much other property from loss or destruction by fire, and if the act can be enforced at a reasonable cost to the owner, then in our opinion it ought to be sustained. We believe this statute fulfills these conditions. We think that in this case it is not a mere matter of convenience of the tenants as to where they shall obtain their supply of water. Simple convenience, we admit, would not authorize the passage of this kind of legislation. But where it is obvious that without the convenience of an appliance for the supply of water on the various floors of these tenement houses, there will be scarcely any but the most limited and scanty use of the water itself, which must be carried from the yards below, and when we must admit the free use of water tends directly and immediately towards the sustaining of the health of the individual and the prevention of disease arising from filth either of the person or in the surrounding habitation, then we must conclude that it is more than a mere matter of convenience in the use of water which is involved in the decision of this case. The absence of the water tends directly towards the breeding of disease, and its presence is healthful and humanizing.

Looked at in the light of a fire law and the act is also valid. The section of the Consolidation Act in question belongs to title 7, which treats of tenement and lodging houses, and various provisions are made in the preceding sections looking toward the prevention and the prompt extinguishment of fires, as well as towards the protection and promotion of the health of the occupants of such houses. And it seems to me that the facility for the extinguishment of fires which would result from the presence of a supply of water on each floor of these houses is plain, and the act must be looked upon as a means for securing such an important result. We are inclined, therefore, to the belief that the act may be upheld under both branches alike as a health law and as one calculated to prevent destruction of property from fires which might otherwise take place.

The act is somewhat vague as to what shall be regarded as a sufficient quantity of water on each floor, but it must have in this respect as in others a reasonable construction, and when an appliance for its supply is placed on a floor where it might be open and common to all those on that floor, and easy of access, and the supply sufficient in amount for general domestic purposes, then and in such cases there would be a full compliance with the pro-. visions of the act.

Some criticism is made in regard to the wording of the order of the board of health. The order directed that suitable appliances to receive and distribute a supply of water for domestic use should be provided at these various houses, and it is claimed that there is no language in the act which requires appliances for the distribution of water, nor that the water shall be furnished for domestic use. The act provides that the water shall be furnished in sufficient quantity at one or more places on each floor occupied or intended to be occupied by one or more families. This necessarily requires some appliance for that purpose. The statute must also mean that the water is to be provided for the use of the one or more families that are to be occupants of the floor, and that must include a sufficient quantity of water for domestic purposes.

The provision in the law that the water shall be furnished in sufficient quantities at one or more places on each floor cannot be so construed as to leave the number of places of supply entirely to the discretion of the board of health. As the water is to be supplied in sufficient quantity for domestic and not for manufacturing purposes, when that point is reached the law is satisfied. Looking at the purpose of the supply, it is, as I have said, reasonably apparent that one such place on each floor, fairly accessible to all the occupants of the floor, would be all that could usually and reasonably be required, and anything further would be unreasonable, and, therefore, beyond the power, of the board to order. The facilities thus given would at the same time furnish the means necessary for obtaining water to extinguish such fires as might accidentally break out and before they had obtained such headway as to render necessary the aid of the fire department. This is clearly a most important safeguard.

The question alluded to in the brief of the respondent’s counsel, whether the penalties might not be said to have commenced running immediately after the passage of the amended act of 1887, because of the provision requiring all tenement houses to be supplied with suitable appliances before January 1, 1889, and so have amounted to a confiscation of property, is not before us, as the proceeding herein was to recover only those incurred since' the order was made by the board. If such a - case arises where penalties so enormous in amount are claimed, there will probably be not much difficulty in refusing enforcement under the circumstances of that case.

Upon the whole we think the order of the general term of the court of common pleas should be reversed, and judgment directed to be entered upon the verdict ordered in the trial court, with costs.

Bartlett, J.

(dissenting). I am unable to discover the limit •of legislative power if this act is to stand.

Upon the face of the proceeding it is not an exercise of the police power to promote the safety of property by the prevention of fire. The order of the health department served upon the defendant directs that suitable appliances “ to receive and distribute n supply of water for domestic use be provided,” on certain floors in the houses named.

The act provides that tenement houses “ shall have Croton or other water furnished in sufficient quantities at one or more places on each floor,” etc.

The order undertakes to construe the act and requires the landlord to distribute a supply of water for domestic use on each floor.

The board of health is not confined to compelling one place on each floor at which water may be obtained, but the act reads, one or more places on each floor; ” so that it is left with the board of health to determine how many water faucets upon each floor shall be provided by the landlord for the use and convenience of his tenants. In other words, the legislature seeks to vest in one of the departments of the city government the power to decide the extent of the plumbing in tenement houses for Croton water purposes.

It must, of course, be admitted that water is essential to the public health, and more particularly in crowded tenement districts.

It would undoubtedly be a legitimate exercise of the police power to compel the introduction of water into tenement houses at some convenient point where all the tenants could obtain an adequate supply, and it may be that the legislature could go so far as to require a faucet upon each floor of the large tenement houses in the public hall in order to encourage the free use of water by enabling the tenants to procure it without too great exertion, but certainly it cannot be possible that the legislature may leave the number and location of faucets on each floor for the domestic use of water to be determined by the board of health. 'There is no limitation as to whether the faucets shall be in the public hall or in the room of the tenant. To my mind, such an -exercise of the police power is spoliation and confiscation under the forms of law; it deprives the landlord of the control of his property and leaves it to a stranger to decide in what manner the house shall be plumbed.

It is a direct interference with the right of the landlord to regulate the rental value of his property.

It is a matter of common knowledge that in rented apartments-in the city of New York the convenience and volume of the water-supply is regulated by the rental value of the premises, and that in the cheap tenement districts the convenience of the tenants is not and cannot be consulted to the same extent as in first-class localities.

The vice of the act we are considering lies in the fact, already pointed out, that it is too general in its terms and clothes the-health department with unlimited and undefined powers.

If it be the legislative intent to compel the introduction of a more abundant supply of water into tenement houses, either to promote the public health or to provide for the timely extinguishment of fires, I think this very proper exercise of the police power should be manifested in an act containing details and limitations, so that capitalists may understand the burdens imposed upon tenement property, and decide, with a full knowledge of the facts, whether they care to embark their money in that class of buildings.

This court has held (Matter of Jacobs, 98 N. Y. 108) that the limit of police power “ cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it.”

Bach case must be decided very largely on its own facts.

A sound public policy certainly dictates that at this time, when the rights of property and the liberty of the citizens are sought to-be invaded by every form of subtle and dangerous legislation, the courts should see to it that the benign principles of the common law which are the shield of personal liberty and private property suffer no impairment.

I think the judgment should be affimed, with costs.

All concur with Peckham, J., for reversal, except Bartlett, J., who reads for affirmance.

Judgment reversed.


source: Caselaw Access Project

author: Awdbews, Ch. J.

license: Public Domain

text:
    Gilbert Murdock et al., Resp’ts, v. Clarissa Waterman et al., Impleaded, etc., App’lts.

      (Court of Appeals,

      Filed February 26, 1895.)

    Limitations—Payment.
    A payment on a mortgage by the heirs of the mortgagor, who have inherited part of the mortgaged premises, made after the death of the ancestor to protect their title, does not arrest the running of the statute of limitations, as against the lien of the mortgage, on a part of lands embraced therein, which was conveyed by the mortgagor in his lifetime to a third person for full value, who assumed no duty and was under no obligation to pay the mortgaged debt.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, enteren upon an order which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term, after trial of certain specific facts by a jury.

      George Brooks and James W. Tucker, for app’lts ; E. M. Harris for app’lt, Waterman ; Lynn J. Arnold, for resp’ts.

       Reversing, 55 St. Rep. 1.

   Awdbews, Ch. J.

The only question arises upon the defense of the statute of limitations. The action is for the foreclosure of a mortgage executed by Alanson Lamb and Daniel Lamb to Harvey Murdock and Erastus Robinson, dated September 21, 1861, to secure the payment of $826, with interest, in instalments, the last of which became due September 11, 1865. The mortgage contains an express covenant of payment in the same terms as in the bond of the mortgagors executed concurrently therewith, and purports to bind them, “ their heirs, executors and administrators.” The mortgaged premises consisted of a village lot, on which were-two dwelling houses owned by the mortgagors as tenants in common. Alanson Lamb died intestate in 1870, and his undivided half of the mortgaged premises descended to his daughter, the defendant Mary Lamb. In 1871, Daniel Lamb and Mary Lamb by her special guardian conveyed the south half of the lot and the-dwelling house- thereon to one Palmer, under whom the defendant. Clarissa Waterman claims, for the sum of $1,650, the full value of the granted premises. _ The conveyance was by separate deeds. The deed executed by Daniel Lamb was with warranty, and the deed by the special guardian of Mary Lamb contained no covenants of title. Neither deed referred to the mortgage. The surviving mortgagor, Daniel Lamb, died intestate in 1872, and his undivided one-half interest in the north half of the mortgaged premises descended to his daughters, Harriet Robinson and Lucinda Lamb, and his granddaughter, Mary.Lamb. Lucinda Lamb died intestate November 8, 1887, and her. interest derived from Daniel Lamb descended to her sister, Harriet Robinson, and her niece, Mary Lamb. When this action was commenced the title to the-mortgaged premises was held as follows : The south one-half was owned by Clarissa Waterman under the deeds executed in 1871; the north half had descented to and was owned by the defendants Harriet Robinson and Lucinda Lamb, one-fourth part by the former and three-fourths parts by the latter.

No part of the principal sum secured by the mortgage has been-paid. The mortgagors in their lifetime paid the interest up to September 21, 1865 (the day when the whole principal sum became due), and the payments were indorsed ón the mortgage. No subsequent payment was made at any time until August 8, 1885, when, as is found by the trial judge, the sum of one dollar was. paid and applied on the bond and mortgage “ by Lucinda Lamb, on behalf of Lucinda Lamb, Harriet Robinson and Mary Lamb, in their presence and with their knowledge and approval, and in recognition of the. mortgage lien.” This is the payment relied, upon to take the case out of the statute. It was made nearly twenty years after the mortgage became due, and the same period after the last preceding payment had been made. It was held by the trial court that this payment kept the mortgage in life not only as against the part of the mortgaged premises then owned by the parties by whom the payment was made, but also as against the part of the premises owned by Clarissa Waterman, who was not a party to that transaction and who neither authorized, consented to or ratified such payment. The payment was made on an occasion when the mortgagees called at the house on the mortgaged premises, occupied by Harriet Robinson, Lucinda and Mary Lamb, and informed them that the mortgage was about to outlaw, and required that a payment be made in order to prevent a foreclosure.

It appears from the evidence that Palmer went into possession ■of the south house and premises under the deed of 1871, and that he and his grantees have remained in visible occupation since that time, and there is no ground for doubt that the mortgagees on the 8th day of August, 1885, when the payment of one dollar was made, fully understood the facts respecting that conveyance and the possession thereunder, and the history of the devolution of the title of the other half of the mortgaged premises by reason of the death of Alanson Lamb. No administrators of the estate of -either Daniel or Alanson Lamb have been appointed.

We entertain no doubt that the finding that the payment of one dollar made August 8, 1885, was made, in behalf of and with the knowledge and approval of all the three owners of this north half of the mortgaged premises, and in recognition of this mortgage lien, is supported by evidence. Nor is there any doubt that the payment operated to continue the lien of the mortgage for -twenty years thereafter (unless sooner paid) as against the part of the Premises then owned by the descendants of Alanson and Daniel Lamb. It was an unequivocal acknowledgment by them of the mortgage. The serious question arises as to the effect of this payment upon the lien of the mortgage upon the part of the premises owned by Mrs. Waterman, who confessedly was not a party to the payment. The question is whether a payment on a mortgage made by the heirs of the mortgagor, who have inherited part of the mortgaged premises, made after the death of the ancestor, to protect their title, arrests the running of the statute as against the lien of the mortgage, on a part of lands embraced therein, conveyed by the mortgagor in his lifetime to a third person for full value, who assumed no duty and who was under no obligation to pay the mortgage debt.

The statute (Code Civ. Pro. §§ 380, 381) fixes the period of twenty years after the cause of action has accrued for the' commencement of an action upon a sealed instrument, and this applies to an action for the foreclosure of a mortgage. Acker v. Acker, 81 N. Y. 143. The rule was the same under the former Code. (Sec. 90.) Under the Revised Statutes the lapse of twenty years from the accruing of a right of action on a sealed instrument for the payment of money, created a presumption of payment which might be repelled by proof of payment of some part, or by a written acknowledgment of such right within that time. 2 Rev. St. 301, § 48. Prior to the Revised Statutes an action for the foreclosure of a mortgage was not within any Statute of Limitations in this state, but courts of equity, in analogy to limitation at law, held that, in the absence of explanation, the remedy by foreclosure was barred where there had been a delay of twenty years between the accruing of the light of action and the filing of the bill, on presumption that the mortgage had been paid. Giles v. Baremore, 5 Jo. Ch. 545. The Statute 21 Jac. 1, c. 16, upon which most of the Statutes of Limitation in the „ several states prescribing the period of limitation of actions at law" have been modeled, contained no provision on the subject of the effect of acknowledgments or payments in renewing or continuing the debt, but the-courts of England, by a species of judicial legislation grafted on to the statute exceptions founded on these circumstances and they have been embodied in the subsequent English statutes. Lord Tenterden’s Acts (9 Creo. IV, ch. 14, § 1) required that where an acknowledgment was relied upon to take a case out of the statute, the acknowledgment should be in writing, signed by the person to be charged thereby, but it did not deal with the effect of a part payment, nor define by whom it might be made nor who should be bound thereby. It left the subject to be regulated by the courts. (See Chitty, J., In re Hollingshead, L. R, 37 Ch. Div. 651.) The statutes of this state have in the same way left the subject of what constitutes a part payment and its effect to judicial exposition. The provision of the present Code, which is substantially a reenactment of section 110 of the former Code, is the only statutory rule in this state on the subject. It declares that “An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest.” The section primarily relates to actions on contracts for the payment of money. But it leaves the effect of a part payment undefined. It does not declare that the payment must be made by the debtor, or by a person obligated to pay the debt, or, if made by one of several joint debtors, whether such payment shall operate against all. The effect of a part payment in any case, and against whom it shall operate, is to be determined by the principles established by the decisions of the courts applicable to the subject. The question has most frequently arisen in actions of assumpsit brought upon promises for the payment of money, against the party to the contract, in which the Statute of Limitations has been interposed as a defense, and the general principle has been asserted with great uniformity that a part payment, available to take the case out of the statute, must have been made by the debtor or his authorized agent, or if made originally without his authority, it must have been subsequently adopted by him as his act. This view is founded upon the reason upon which a part payment is held to renew or continue a debt. Part payment of a debt by a debtor constitutes an admission by the person obligated to pay of his liability for the whole debt upon which the partial paymentds made, and justifies an inference of a new promise made at that time to pay the portion remaining unpaid. The courts acting upon this admission, and inferring therefrom the new protnise, treat the contract as renewed from the time of the part payment, and the payment as giving afresh start to the running of the statute. It is obvious that a paj'ment by a stranger, or by a person not authorized to represent the debtor,, affords no ground for assuming any admission on bis part, or for inferring a new promise by him to pay the balance of the debt, and a payment not made by him or by his authority cannot, therefore, arrest the running of the statute. But in the application of the doctrine that a part payment within the statute must be made by the debtor or by his authority, there has been much diversity of judicial opinion. The effort has been frequently made to have it adjudged that whenever the person making the payment is under a liability to answer for the debt upon which the payment is made, a part payment by him will inure as a payment by all the parties bound by the same obligation,and will be treated in applying the statute as if made by all. The decision of Lord Mansfield in the leading case of Whitcomb v. Whiting (Doug. 652), that a payment made by one of four joint and several makers of a promissory note, took the case out of the statute as to all, was placed on the ground that there was a quasi agency created by the contract whereby the act of one was binding upon the others. The case of Whitcomb v. W hiting was-followed in some of the earlier cases in this state, but was finally repudiated in the case of Van Keuren v. Parmeele (2 N. Y. 523), and it has come to be the established doctrine here that a part payment of a debt by one of two or more joint contractors does not take the case out of the statute as to the others, and this whether such payment is made before or after the debt has been barred. Shoemaker v. Benedict, 11 N. Y. 177. The existence of a common liability of several for a debt does not of itself make each the agent of the others, to bind them by part payment. The court has in a great variety of cases enforced with great strictness the rule that a part payment must be made by the debtor or by his authority in order to take the case out of the statute. This has been held in respect to a payment by a surety, unless at the request of the principal (Winchell v. Hicks, 18 N. Y. 558); by the assignee of an insolvent debtor (Pickett v. Leonard, 34 N. Y. 175); by the application by the creditor of money derived from collateral securities assigned to him by the debtor (Harper v. Fairley, 53 N. Y. 442); by the maker of anote, of interest, as against the indorser. McMullen v. Rafferty, 89 N. Y. 456.

In determining the question whether the payment by the heirs of Alanson and Daniel Lamb of the sum of one dollar on the mortgage, continued the lien as against Mrs. Waterman, it is important to consider her and their relation to the debt and the property embraced in the mortgage. • Neither Mrs. Waterman nor her grantors had assumed or were under any personal liability for the mortgage debt. The mortgage remained a lien on the land conveyed to Palmer in 1871, but in-equity the north half of the lot was chargeable with the mortgage debt and was first liable to be sold on foreclosure. The fact that Palmer paid full value for the south half of the lot did not alter the rights of the mortgagees. Their mortgage remained a lien as well on the part of the lot sold to Palmer, as upon the part remaining unsold. But Palmer and his grantees, so far as appears, had never been called upon for payment. The Lamb heirs stood in a double relation to the mortgage debt. Their half of the lot was subject to the mortgage and primarily chargeable. They also as heirs of one or the other of the mortgagors, having acquired title to the mortgaged premises by descent, were liable under the statute (1 Rev. St. 749, § 4) to satisfy or discharge the mortgage out of their own property. The statute was recently construed in Hauselt v. Patterson, 124 N. Y. 349 ; 36 St. Rep. 354, and it was held in substance that the liability of heirs or devisees was limited to the property descended or devised, or its value in case of alienation. Assuming that the right to a remedy under this statute was not barred by the lapse of time, the Lamb heirs, who made the payment of August 8, 1885, may have been under a liability which could have been enforced against their property other than that embraced in the mortgage, depending upon whether they took any other than the mortgaged premises by descent. -But in no other way were they liable for the mortgage debt. The mortgagees demanded and accepted from the Lamb heirs the nominal payment made August 8, 1885, with full knowledge of the conveyance to Palmer in 1871, as a condition of forbearing a foreclosure of the mortgage, and it was paid by them for the sole purpose of protecting their title. It undoubtedly preserved the lien of the mortgage upon the part of the land owned by them. But to give it the further efficacy of continuing the lien on the part of the property in which they had no interest, implies that they were the agents of Mrs. Waterman to renew the mortgage as to her, a relation which has no support in the evidence. It could not, we apprehend, be successfully contended that the payment by the Lamb heirs would have renewed the debt as against the administrators of the mortgagors, and much less, we think, can it be claimed that it continued the lien .of the mortgage as against Mrs. Waterman. It was held by the chancellor in Mooers v. White, 6 Jo. Ch. 373, that an acknowledgment by an executor or administrator would not bind the real assets in the hands of the heir or devisee so as to affect the right of either under the Statute of Limitations. The question is not the same as it would have been if, during the running of the statute, but after their conveyance, the mortgagors had made a partial payment on the debt. It has been held that a partial payment by a mortgagor on the debt, even after he had conveyed the premises mortgaged, would continue the lien of the mortgage. N. Y. Life Ins. & Trust Co. v. Covert, 6 Abb. Pr. [N. S.] 154, Ct. Appeals ; Hughes v. Edwards, 9 Wheat, 489. The mortgage is an incident to the debt, and when payments are made by the debtor, the mortgagee is not called upon to inquire how the mortgagor has dealt with the equity of redemption. If the mortgage is recorded the purchaser has constructive notice of its existence, and a dealing with the debt between the debtor and creditor in the usual course is to be expected. The mortgagors, until at least the debt is barred, represent all persons interested in the land. If not recorded and the grantee purchased in good faith for value, without notice, then the lien of the mortgage is destroyed. But upon the death of a mortgagor personally bound to pay the debt, a new situation arises. His personal representatives become liable to the extent of the personal assets. If the mortgaged premises descend to his heirs orare devised, they are the primary resource in exoneration of the personalty, unless (in case of a will) the testator otherwise directs. (1 Rev. St. 749, § 4.) . If during his life the mortgagor had conveyed the equity of redemption, his grantee does not become personally liable for the debt unless he assumed its payment, out the land remains subject to the pledge whatever may be the form of the conveyance. But upon the death of the mortgagor, after having conveyed the land, the personal liability is separated from the ownership of the land. Where the equity of redemption has been conveyed in parcels, without any personal covenant by the grantees to pay the debt, the land alone as between them and the mortgagees is liable. The judgment below proceeds upon the doctrine that the owner of one parcel, acting separately and independently of the owner of the. other parcels, may by payment continue the lien of the mortgage beyond twenty years, not on his own parcel alone, but on all the parcels. He could not do this by a written acknowledgment, as such an acknowledgment must under the statute be made by “ a person to be charged thereby,” and a payment by the owner of one parcel ought not, we think, to be given any greater effect. It would be an admission of the debt, but an admission sub modo affecting only the party making it. The payment would create no personal liability, even against him. He could not bind the owners of the other parcels by his admission, because he would neither in law nor in fact represent them. Payment by an heir or devisee, as such, is, we think, subject to the same limitation. It would continue his liability under the statute to the extent of the real assets in his hands, but would have no effect against the owners of the equity of redemption in arresting the running of the statute. A partial payment continues the debt on the theory that it implies a new promise, but the new promise can be implied only against the person making the payment, or when made in his behalf by one who, in law or in fact, is authorized to bind him.

We have found no authorities directly upon the question presented in this case. The case of Roddam v. Morley (l DeG. & J. 1) involved the question whether a payment by a devisee for life, of interest on a specialty of his testator, in which the heirs were bound, was an acknowledgment “by the party liable by virtue of such specialty,” within the meaning of the 5th section of the Act 3 and 4 Will. IV., c. 42, and as such was sufficient to keep the right of action alive against the parties interested in remainder, and it was held that it was. The principal of this decision is very clearly set forth by Chitty, J., in the case In re Hollingshead (L. R., 37 Ch. Div. 651-659), which involved a similar question as to the liability of devisees on a simple contract of the testator. Speaking of Roddam v. Morley, he says: “The right principle to edoptis, that so far as the real estate is concerned, there is no one aise but the tenant for life to pay the interest; that in making such payment he represents the whole estate; that the payment is an admission of the liability to the debt, affecting the real estate of which he is in possession; it is sufficient evidence of the con-’ tinuance of the testator’s contract to pay the debt, or (if it be-necessary to have recourse to the somewhat subtle doctrine of a, promise to pay) it is a promise to pay "out of such real estate, which he, as the person in possession of such real estate is competent to give on behalf of the real assets generally and so as to bind them who take in remainder.” These two cases proceed distinctly on the ground of implied agency. In Coope v. Cresswell (L. R., 2 Ch. App. 110) Lord Chelmsford questioned the decision in Roddam v. Morley, although not governing the case then before him. In Coope v. Cresswell, the bill was filed in behalf of certain specialty creditors of a decedent to have the debt raised out of certain devised estates. The testator devised certain real estate to trustees in trust for E. for life, and other real estate to the same trustees for the payment of debts. All the real estate was, under the English statute, assets for the payment of debts. The owner of the equitable life estate pleaded the Statute of Limitations,, and the court sustained the defense, holding that payment within twenty years of interest on the debt by the trustees, was not sufficient to take the case out of the statute as to the equitable life tenant. In Dickenson v. Teasdale, (1 De Gr., J. & S. 52) it was held by -Lord Chancellor Westsurt that where there were separate devises of lands to two nephews of the testator, all of which were charged with the payment of his debts, that payments made on the bond in question by one of the devisees after the death of the testator, was not an answer to the plea of the statute by the other. Pears v. Laing (L. R., 12 Eq. 41) was a decision by Sir James Bacon, V. C., upon very complicated facts, involving the Statute of Limitations. Certain payments of interest had been made by Ann jHeron, a devisee and legatee, after the death of the testator, on a mortgage executed by him in his lifetime, and the question was whether the mortgage was barred by the statute.. The defense was overruled on two grounds, the payments made by Ann Heron, and, second, payments made by the trustee who held the title to the entire estate, which latter ground was regarded by the judge as controlling and decisive. Upon the facts assumed by the court in passing upon the effect of the payments by Ann Heron, the decision seems to have little bearing upon the present discussion. In Harlock v. Ashberry (L. R., 19 Ch. Div. 539) it was hold by Sir Geo. Jessel, M. R., that payment by a tenant of part of a mortgaged estate, of rent due, made to the mortgagee on his demand, but without authority of the mortgagor, was not a payment within 3 and 4 Will. IV, c. 27, § 40, or 1 Vict. ch. 28, which will take a ease out of the statute. See, also, Chinnery v. Evans, 11 H. L. Cas. 115.

The question presented in the case before us is important. It should be determined, in the absence of. express authority, in jibe light of the principles upon which partial payments are held to be an answer to the statute. The guiding and controlling consideration is that the payment must be made by a party to the obligation, or by Ms authorized agent. If payment by one is relied upon to take the contract out of the statute as to another, it must be shown that the party who made the payment was in fact or in law the agent of the -other in respect to his liability. When the person paying is bound, those in privity with him may be bound also. There is lacking in respect to the payment relied upon in this case to bind Mrs. Waterman, (1) any agency on the part of the Lamb heirs to act for her or to bind her interest in the land ; (2) any power growing out of or incident to their relations to the land or to the debt, from which the law will imply an authority, .and (3) the admission, inferable from the payment, construed in the light of the circumstances, was an admission simply that the mortgage was a subsisting lien on the part of the land then owned by them.

Our conclusion is that the judgment of the general and special terms should be reversed, with costs in all courts as to Mrs. Waterman, and that the judgment of the general term be affirmed, with costs as against the other appellants.

All concur.

Judgment accordingly.


author: Finch, J.

text:
    Henry Harbeck, App’lt, v. Sarah Katharine Pupin et al., as Executors, etc., Resp’ts.

      (Court of Appeals,

      Filed February 26, 1895.)

    1. Estoppel—Equitable.
    Where a party, hy conduct or words, falsely represents a state of facts, knowing or intending that the other party will or shall rely upon them as true and shape his conduct by them, he shall not thereafter be allowed to show their untruth or contradict the statement of facts, by which he induced the action of the other party.
    3. Release—Partnership—Dormant partner.
    The release, in this case, was so construed as not only to cover and operate upon the judgment but also the note, and to discharge all the partners other than the one excepted therein, even the dormant partner.
    The principle that, where one deals with a known member of a firm so as to discharge him, the release does not operate to set free an unknown and dormant partner, does not apply, where there is an express covenant to release the dormant partner.
    4. Same—Reformation.
    The creditor, while holding the fruits of the release, cannot have it reformed out of existence so as to annul it utterly as a contract operative between himself and the dormant partner.
    Appeal from judgment of the' general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial at circuit.
    This action was brought against the executors of the will of Frederick K. Agate, deceased, to recover a balance unpaid upon a promissory note made by the firm of W. H. Whitaker & Co. The complaint alleged that William H. Whitaker, Sanford W.

      Battershall, John E. D. Grainger and Frederick K. Agate -were the members of said firm; that on or about September 21, 1885, judgment by confession was entered upon said note against the members of said firm except Agate, and an execution issued thereon was rqjurned unsatisfied; that on March 18, 1886, said firm having been dissolved Battershall and Grainger made a separate composition with plaintiff and he executed to them a release under seal whereby he released the said Battershall and the said Grainger, and their estates and the estates of each of them, of and from all individual liability, claim, and demand whatever, for, or in respect of, the said indebtedness existing by virtue of said judgment, that being the only indebtedness or liability incurred by the said Grainger and Battershall to the plaintiff by reason of their connection with the said partnership, and in and by which release it was expressly stated and provided that the said release was made pursuant to section 1942 of the Code of Civil Procedure, and should have no greater or other effect than as by said ■act and by said release was provided. But said release contained no clause stating in terms that the said Harbeck released the -said Grainger and Battershall from all liability incurred by ^reason of their connection with the partnership.
    Defendants’ answer admitted that Battershall and Grainger made a separate composition with plaintiff, and executed a release, but denied that its contents were accurately stated in the complaint and alleged that plaintiff thereby released all the members of said firm except Whitaker and thereby released defendants’ testator. It was claimed by plaintiff that Agate was a - dormant partner in the firm at the time of the execution of the note and that at the time of the execution of the * release plaintiff was ignorant of this fact.
    The following is the release referred to : .
    “ Whereas, the late co-partnership firm of W. H. Whitaker & 'Co., of this city, county and. state of New York, are indebted to me, the undersigned, Henry Harbeck, of the city, county and state of New York, in the sum of thirty thousand seven hundred and fifty-four and thirty-three one-hundredths dollars ($30,754.-•33), with interest from the twenty-first day of September, 1885, by virtue of a judgment recovered in the Supreme Court of the state of New York, held in and for the city and county of New York, and in an action wherein said Henry Harbeck was the plaintiff and the said late firm were defendants;
    “ And whereas, such firm has been dissolved;
    “ And whereas, I have agreed with the members of the said ■ late firm of W. H. Whitaker & Co., other than said W. H. Whitaker, to compound or compromise my claim on them individually, in respect of the said indebtedness to me of the said late firm ;

      Now, therefore, this agreement witnesseth, that in consideration of the sum of one dollar and other good and valuable considerations to me, the said Henry Harbeck, paid by the said members of the said late firm of W. H. Whitaker & other than the said W. H. Whitaker, at or before the time of subscribing this release, I, the said Henry Harbeck, do hereby, according to the statute in such case made, release, acquit and forever discharge the said members of the late firm of W. H. Whitaker & Co., other than said W. H. Whitaker, and their estate or estates, and thatof each of them, of and from all individual liability, claim and demand whatsoever, for or in respect to the said indebtedness to me of the said late firm. Provided, however, that this present release is made pursuant to section 1942 of the Code of Civil Procedure, and shall have no greater or other effect than as by the said act and by this release is provided ; and shall not release or discharge said W. H. Whitaker or his estate, but shall operate to release and discharge all and every person or persons other than the said W. H. Whitaker of and from any and all liability and obligation growing out of the indebtedness aforesaid. Nothing herein contained shall affect or impair a certain agreement dated August 20, 1885, by which certain claims and demands due the firm of W. H. Whitaker & Co. were to be held in trust for the said Harbeck-; all the terms and provisions of the said agreement to remain in force notwithstanding this agreement.”

      J. Tredwell Richards, for app’lt; George C. Holt, for resp’ts.

      Affirming 56 St. Rep. 67.

   Finch, J.

The fundamental question in this case is the true construction of the release upon which the defendant relies.

We regard that release, executed by Harbeck, as broad enough to discharge Agate, assuming that the latter was a dormant partner in the debtor firm. The criticism of the appellant is very narrow and technical, and founded upon' one expression in the instrument, with an entire disregard of its manifest scope and meaning. That criticism is that the release, by its terms, only discharges the judgment and operates upon that, and does not discharge the- debt for which the judgment was confessed; and such construction is founded upon the statement in the release that the firm is indebted to Harbeck in the sum named “by virtue of a judgment,” whereby, it is claimed, the discharge granted from the said indebtedness means solely and alone that evidenced by the judgment, and, therefore, necessarily includes only the judgment debtors and excludes Agate. But the instrument, by its explicit terms, negatives that construction. It does not run toBattershall and Grainger by name and purport to release them-alone, or confine its terms or its operation to the defendants in-the judgment. It acknowledges an agreement of composition,, •not with Battershall ánd Grainger merely, but with “ the members of the firm of Whitaker & Co. other than Whitaker; language not confined to two of the judgment debtors, but ex-plicity embracing all the members of the firm with the one exception. And that agreement is declared to be, not to simply discharge a judgment against two, but, as it reads, “to compromise my claim on them individually in respect to the said indebtedness to me of the said late firm.” That must necessarily be construed to mean the entire debt of the firm, however that firm was composed or whoever might constitute its members. It then proceeds to release the members of the late firm other than Whitaker from liability for or in respect of the said indebtedness of the said late firm, and very conclusively fixes the intent and meaning of the parties by the further statement that it shall operate to release and discharge “ all and" every person or persons other than the said W. H. Whitaker of and from any and all liability and obligation growing out of the indebtedness aforesaid.” That was not, as is contended, a mere general clause to be restricted by a narrower and special statement preceding, for there was none of that character, but it was a further explanation of a purpose already stated, entirely consistent with it, and meant to put the meaning of the parties beyond any reasonable doubt. “Any and all liability and obligation growing out of the indebtedness aforesaid,” covered the original account, the note which expressed it, and the judgment which secured it, and from that liability, whatever its form, all persons, and every person other than Whitaker, were to be released. The creditor must have been very blind not to understand that, as the condition of receiving three thousand dollars in cash and certain specified notes, he was required to discharge, not merely two judgment debtors, but his claim against every member of the firm other than Whitaker. That he did not know that there was any other does not matter. It is not even yet certain that there was, but if there was or should be such an unknown person the release plainly covered his liability ; was intended to cover it by those who paid for it, and must have been understood to cover it by the creditor who executed it. The trouble is not that he did not understand its obvious meaning, but that he was ignorant of facts which now make it much more important than at the time he imagined it to be. The use of the words “ said ” and “ aforesaid ” are the links by which the appellant seeks to connect the whole range of the covenant with the judgment merely, because incidentally the debt is described by reference to the judgment confessed to secure it, but the terms employed pass beyond the judgment merely in two ways. They relate to the indebtedness, using that broad expression continually, and describing it as that of the late firm, and then they pass beyond the judgment debtors and embrace all the members of the late firm other than the one excepted member. It seems to me very clear that the release cannot be limited to the judgment debtors alone, but does discharge every member of the dissolved firm except-Whitaker.

But the appellant next changes his position and assails the release for fraud. I am not sure that he has left himself the right to assume that attitude. In his complaint he sets up the release as forming no obstruction to his remedy. He does not allege it to be fraudulent., He does not ask any relief against it. He seeks neither to reform it nor to rescind it. On the contrary he assumes its validity and plants himself upon its construction. Possibly he might have omitted all reference to it and left himself free to fight it on any ground when it appeared as a matter of defense. But he did not choose to do that, and, by the form of his pleading, admits the validity of the release, but claims that it failed to cover the _ liability of the dormant (partner. He now seeks to change position without any amendment of his pleading, and after more or less misleading his adversary. And, even at the close of the evidence, when a motion is made for a nonsuit, he does not ask to go to the jury on any question of fraud. He was not bound to ask it, I grant, but his omission indicates that he had not yet changed the issue raised by his pleading. Yet the evidence on which he relies is in the case, though taken under the defendants’ objection, and it would be at least a narrow and perhaps a doubtful conclusion to dispose of it as a matter of pleading, except in so far as the questions raised are consistent with the assumed validity of the instrument. For I do not understand now that the appellant claims to rescind for fraud. It is difficult to see how he could do so in view of the fact that he retains the fruits of his arrangement and is holding on to the money of Agate, knowing it to be his, and which was paid for the very release assailed; but it is sufficient to say that the point in the appellant’s brief which goes upon a rescission for fraud was formally withdrawn on the argument, and leaves open only the questions of estoppel and of reformation.

I can see no ground for estoppel. The claim in that direction is only a disguised form of the abandoned effort to rescind, for what is asked is that, on the ground of fraud, the instrument shall not have its legal construction as to Agate, or in substance and effect to annul and rescind the discharge as against him. Calling it estoppel does not modify its character as rescission. And since the instrument is to stand and is not to be rescinded as between the litigating parties, the office of an estoppel must necessarily be to prevent the defendants from putting the intended and legal construction upon the instrument. But the form and shape of the release was the work of Agate through his attorney, Root. Neither at that time made any representation at all. Six months before Root, for the purposes of a confession of judgment, had given the names of the firm, not mentioning Agate. There is not a particle of proof that Root at that time represented anybody but three known partners or had the least authority from Agate, or knew of a single fact which would tend to make the latter liable as a partner. Root told the truth as he understood it, but, at all events, never represented Agate or had any authority to represent him until the date of the release. It was then, for the first time, that Root acted for Agate or by his authority as a matter of fact, and an estoppel for fraud which shuts out the truth in the interest of justice should not be based upon some constructive authority having no foundation in fact. Indeed, I think the suggestion of an estoppel is entirely inapplicable to the situation. The doctrine I understand to be that where a party, by conduct or words represents one state of facts, knowing or intending that the. other party will or shall rely upon them as true, and shape his conduct by them, which representations are untrue, the party making them shall not thereafter be allowed to show their untruth or contradict the statement of fact by which he induced the action of the other . party. Now, the representation here, stated in its broadest possible form, was that Agate was not a member of the firm. An estoppel would simply prevent a denial of that assertion and compel Agate to adhere to it. But he is not seeking to prove the contrary. He adheres to it still. He proves nothing inconsistent with it, for the release itself, legally construed, involves neither an admission nor assertion by Agate that he was a member. It guards against such an assertion by others and shuts off from litigation a denial of the truth of the representations by making such denial useless.

Nor is there furnished by the facts any ground for what is called a reformation of the instrument. This again is a disguised effort to rescind the release, wholly and utterly, as between Harbeck and Agate. There is not even a claim that there is a single word in it which both parties did not understand and entirely and fully agree should be there. It expresses the agreement as at the time actually made. The real trouble is not that it does not contain the actual contract made, but that the plaintiff might not have made it if he had inquired about the facts and been tala the truth. Are-formation can only be permitted in any case by a decree in equity. There is no pleading to justify it—no such relief asked for—and the attitude of the plaintiff does not admit of it.- On the witness stand he says, “ I have never offered to pay back the $3,000 paid me on taking this release. I hang on to that of course. * * * I hang on to those four notes. * * * I will collect those notes if I can.” And yet, holding the fruits of the agreement, and refusing their surrender, he seeks to reform it out of existence, to annul it entirely as a contract operative between himself and Agate. There is no basis for any such reformation.

There is a further proposition suggested. Authorities are cited to the purport that where one deals with a known member of a firm, so as to discharge him, the release does not operate to set free an unknown and dormant partner. The case specifically relied on is that of Robinson v. Wilkinson (3 Price Exch. 538).

What it holds is applicable only to a case where no release actually discharging the dormant partner has been executed, but his discharge is claimed under the common-law rule that a discharge of one is a discharge of all. That was the legal inference from the act and, possibly, was not invariably drawn in behalf of a dormant or unknown partner. But here the discharge comes not from a legal inference, which may be restrained or modified, but from an express covenant to release the dormant partner. The question is not one of inference from ambiguous acts, but of an actual contract for a discharge.

It is unnecessary to discuss other questions argued, and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Frank Saumby, an Infant, etc., Resp’t, v. The City of Rochester, App’lt.

      (Court of Appeals,

      Filed February 26, 1895.)

    Trial—Question of law.
    Where the sole question involved is one entirely outside of ordinary ex* perience and only capable of being answered by scientific skill, and such answer is adverse to plaintiff's claim, there is no question for-the'jury.
    Appeal from judgment of the general term of the supreme court in the fifth judicial dspartment, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      Thomas Raines, for app’lt; P. Chamberlain, for resp’t.

       Reversing 54 St. Rep. 770.

   Finch, J.

The evidence in this case raised questions of fact for the jury, both as to the alleged negligence of the defendant and the absence of contributory negligence on the part of the plaintiff. Neither question could be answered as one purely of law. In the process of paving a street with asphalt and laying the necessary sewers, the agents of the city made an excavation in the unflagged portion of the sidewalk, next to the curb, and there is proof tending to show that it was left unguarded. The plaintiff, who was about thirteen years of age, fell into it and was injured. The accident occurred in the early dusk of the evening, and it is probable that the plaintiff stumbled over the earth about the opening and in his fall struck his face against the .curb, for one tooth was broken off another driven up into his jaw, and his lip seriously cut.

But there was manifest error in the refusal of the court to charge upon the question of damages as requested by the defendant. A claim was made on the part of the plaintiff that the injury had harmed his .eyes and affected his sight. There was no adequate proof of any such fact. It appeared that about six months after the accident the plaintiff’s eyes began to be affected. There was a twitching of the lids and an inability to see clearly. He went to Dr. Rider, who told him that the trouble was farsightedness, which glasses would remedy, and he has used them more or less from that time. The plaintiff did not call Dr. Rider. The defendant called Dr. Burke as an expert oculist. He had ex-’ amined plain tiff’s eyes with an opthalmoscope, and pronounced them wholly uninjured, but far-sighted. He added that the difficulty was congenital, but might not reveal itself until some age was reached or some occupation trying to the eyes was adopted. On that state of facts there was no proof whatever that injury to the eyes came from the accident. That it developed after the event ■ shows only a sequence in point of time, and not necessarily one of .cause and effect. In that state ,of the proof the court was asked to charge on behalf of the defendant that there was no evidence in the case which would justify the jury in finding that the condition of the plaintiff’s eyesight, aside from any twitching of the lids, is attributable to the injury from the accident. The request was re-fused and the defendant excepted to the refusal. As a result, the jury were allowed to guess or imagine that plaintiff’s defect of sight was caused by the accident, simply because it'supervened after the occurrence, and in the face of the uncontradicted evidence of the expert to the contrary. The question was one entirely outside of ordinary experience and only capable of being-answered by scientific skill, and that answer was adverse to the plaintiff’s claim. There is often, in this class of cases, a tendency to aggravate in the proof the consequences of an injury with a view to enhance the damages, and the tendency is one quite difficult for a defendant to protect himself against. While a plaintiff should be always allowed in a proper case to show fully the damage which he has suffered, he should not be permitted to prove physical defects, having no known or proven connection with the injury, simply because they manifested themselves at some time thereafter, and then to ask the jury to supply from their imagination the lack of proof. That was permitted in this case, and it was an error for which the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Haight, J., not sitting.

Judgment reversed.