author: Herrick, J.: Putnam, J.

text:
    Robert Armstrong, Jr., Appellant, v. The Village of Fort Edward, Respondent.

      Municipal corporation — powers thereof — employment of broJcers to negotiate a sale of its bonds — duties that cannot be delegated to thi/rcl persons.

    A municipal corporation possesses and can exercise the following powers and no others, viz, : Those granted in express words; those necessarily or fairly implied in or incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.
    A municipal corporation in issuing bonds has the right, as an incident to such power (and in fact in a business sense it may be said to be necessary to the exercise of such power), to use the customary and ordinary business agencies in negotiating or selling its bonds, to place them in the hands of bond brokers or bankers, who make a business of dealing in such securities, and who have greater facilities than the municipality for the disposal of such bonds, and to pay such persons the ordinary commissions upon the sale of such securities; but duties, tlie performance of which is peculiarly within the power of municipal officers, cannot be delegated to a third person, not an officer of the municipality, nór can such third person be authorized to perform such duties at the expense of the municipality.
    Putnam, J., dissenting.
    Appeal by the plaintiff, Robert Armstrong, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the ■ office of the clerk of the county of Washington on the 11th day of May, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Washington Circuit.

      R- Armstrong, Jr., and A. D. Wait, for the appellant.

      R. 0. Bascom, for the respondent.
   Herrick, J.:

The defendant, by its board of water commissioners, entered into a contract for the erection of water works.

The board of water commissioners, for the purpose of paying the contractor for the construction of such water works, had authorized the execution and sale of bonds of the defendant to raise the requisite money. Owing to the stringency of the money market during the summer of 1893, they experienced difficulty in making sales of such bonds. Money was falling due to the contractor and the defendant had no means to make the necessary payments.

At a meeting of the board of water commissioners, dated June 16, 1893, the following resolution was adopted: “ Resolved, that the President, with our counsel, Mr. Hull, with others that he or they may select, be a committee to see the Comptroller and others in regard to the sale of bonds.”

The president waited upon plaintiff and requested him to act as a member of such committee, and it appears that Mr. Hull informed the plaintiff that, “ If you will take hold and help, you will be paid for your services.” Thereafter the plaintiff acted with such committee, and spent some considerable time in seeing different persons in endeavoring to make a sale of such bonds; he called upon the Comptroller upon several occasions, and upon others who he thought would have influence with tlie Comptroller to induce •him to purchase the bonds. The Comptroller finally purchased bonds to the amount of $18,000.

Tlie plaintiff presented a bill to tlie water commissioners for tlie sum of $1,200 for liis services; this the board refused to pay, but finally passed a resolution as follows:

“Resolved, that for tlie purposes of settlement of all claims for services rendered by Robert Armstrong, Jr., tliat we pay him the sum of $25 per day for 18 days’ services, this to be in full for all claims and demands to date. November 13, 1893.”

With the exception of the plaintiff’s testimony that at the time he was asked to serve upon the committee Mr. Hull told him that he would be paid for his services, there is no evidence in the case that the board of water commissioners ever authorized his employment for compensation, except as such employment for compensation may be implied from the evidence in the case; that after he had consented to act and was acting as a member of such committee he appeared before the board of water commissioners in reference to a report that a man named Cantwell had an option upon the purchase of said bonds for the period of sixty days; the plaintiff, desiring to know if such report was true, saying: “ That if they had placed the bonds in any other broker’s hands, I did not choose to serve the Board any more in the capacity of trying to place the bonds, for at the end of it there would be difficulty about my pay.” And again, saying that if they felt bound by anything that had passed between themselves and Mr. Cantwell, that he did not care to go on, because when it came to a settlement for his pay there would be trouble about it.

Upon granting the motion for a nonsuit the trial court adverted to the character of the services rendered by the plaintiff, and held that they were not of such character as entitled tlie plaintiff to compensation.

I have not thought it necessary in the view that I take of this case to particularize more specifically than I have done the nature of the services rendered by the plaintiff because back of the services actually rendered comes the question as to whether the defendant, through its board of water commissioners, had the power to employ for compensation any person to render services of the kind I have described, and if they had such power, whether the defendant did in fact enter into a contract with the plaintiff to pay him for such services.

The question as to whether a citizen of a municipality called upon and consenting to act at the request of, and in conjunction with, that municipality’s officers, in performing a public service, is entitled to compensation therefor, will not be considered, for the reason that it is apparent that the plaintiff was given to understand at the time he was solicited to act that he would be paid for his services.

While the action of Mr. Hull, in informing the plaintiff that he would be ■ paid for his services, was without authority and was not binding upon the defendant, I will assume that the subsequent action of the board of water commissioners, "at the time the plaintiff appeared before them and spoke in reference to their rumored agreement with Mr. Cantwell, during which conversation the plaintiff referred to such arrangement as being one that would interfere with his pay or compensation, thus giving them to understand that he expected compensation for his services, constituted by their silence and apparent acquiescence therein and continued employment an implied contract on their part to pay him for such services.

Assuming, then, that there was an agreement on the part of the defendant, through its board of water commissioners, to employ the plaintiff for compensation, the question arises, did they possess the power to do so ?

The defendant is a municipal corporation. I do not know any better or more generally accepted definition of the powers of municipal corporations than that given by Dillon in his work on Municipal Corporations (§ 89, 3d ed.): A municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.”

The powers vested in the defendant upon the subject now under consideration are those granted to its board of water commissioners by chapter 181 of the Laws of 1875, and the various acts amendatory thereof. The only powers of employment granted to such board are those contained in section 4: “It shall be the duty of the commissioners to examine and consider all matters relating to supplying the village with pure and wholesome water, and for that purpose they shall have power to employ engineers, surveyors and such other persons as shall be necessary for that purpose.”

That is the only express grant of power to employ persons that has been made by the Legislature, and under that it will not be contended that there was any authority to employ the plaintiff for the services in question here.

Under section 8 of said act the water commissioners are authorized to borrow money and to execute and deliver bonds to secure the payment of the money so borrowed.

Under the second definition given by Dillon, they would have the power and authority "to do those things that were “necessary or fairly implied in or incidelit to” the power granted to borrow money and issue bonds to secure the payment thereof.

I think it may be fairly implied that municipal authorities in issuing bonds have the right as an incident to such power, and in fact in a business sense it may be said to be necessary to the exercise of such power, to use the customary and ordinary business agencies in negotiating or selling their bonds, as, for instance, to place them in the hands of bond brokers or bankers, who make a business of dealing in such securities, and who have greater facilities for disposing of them, as was done in the case of Brownell v. Town of Greenwich (114 N. Y. 519), and to pay such persons the ordinary commission upon the sale of such securities.

When a municipal corporation is authorized to borrow money, it goes into the money market as a private individual, or a business corporation, and to negotiate its loans to advantage it may make use of the ordinary business agencies to procure the needed money and float its securities.

But the case we have before us is not such a case; the plaintiff is not a banker or a broker, or a person engaged in dealing in securities, but is a practicing lawyer.

He was engaged to do those things which the officers of the defendant were elected to do, and could do. His employment for the services in question was neither “ necessai’y ” nor “ essential ” to aid them in floating the bonds. His employment was “ convenient,” but not “indispensable.” The resolution under which he was employed, “ that the President, with our counsel, Mr. Hull, with others that he or they may select, be a committee to see the Comptroller and others in regard to the sale of bonds,” does not indicate or contemplate the rendition of services other than those that devolved upon the officers of the defendant, or services which they could not perform.

The services that were rendered, as testified to upon the trial, consisted mainly in importuning the Comptroller to invest a portion of the State funds in his hands in the bonds of the defendant, and the importuning of personal and political friends of the Comptroller to use their influence to induce him to do so; although the plaintiff and his associates did call upon some bankers and others to induce them to purchase the bonds, all these services were services that could just as well have been performed by the officers of the municipality as by any one else.

The attorney of the defendant, -the president of the water commission and the other members of the committee would seem to be persons peculiarly adapted to state the nature of the securities they offered, the proceedings of the defendant in issuing them, and the necessities of the village to secure their prompt negotiation, which were the main things that seem to have been considered and pressed upon the Comptroller and others in attempting their sale.

It seems to me that duties which are peculiarly within the power of municipal officers to perform they have no right, under the doctrine of implied or incidental powers, to devolve upon a third person, not an officer of the municipality, or authorize such person to perform such duties at the expense of such municipality.

For these reasons I think that the employment of the plaintiff to perform the services in question for compensation was beyond the power of the defendant, and that, therefore, the judgment of nonsuit was proper.

Let the judgment be affirmed, with costs.

Mayham, P. J\, concurred.

Putnam, J.

(dissenting):

Plaintiff performed valuable services for defendant, both parties expecting that he was to receive compensation therefor. I think he should be allowed to recover what the services were worth. The defendant’s water commissioners, in the disposal of its bonds, were authorized to do all things necessary to be done in the performance of their duty. (Sedgwick Const. & Stat. Law, 245; Mayor, etc., of New York v. Sands, 105 N. Y. 210-218; Brownell v. Town of Greenwich, 114 id. 518-529.) They could employ plaintiff or any other person as a broker to sell the bonds. They could as well employ him as a broker in New York or Albany. Nor, in my opinion, did it make any difference that plaintiff was a lawyer; that his regular business was not that of a broker. In the sale of defendant’s bonds he acted as a broker, and I am unable to see why defendant’s commissioners were not as much authorized to employ him as the commissioners in Brownell v. The Town of Greenwich (supra) were authorized to employ Andrews (a banker), or the Comptroller, in Mayor, etc., of New York v. Sands, to employ Sands as officer of the city.

The fact that plaintiff was a citizen of Fort Edward, and was named as one of a committee, does not interfere with his right to recover, the evidence showing that the services in question were rendered with the understanding that he was to be paid therefor. (Mayor, etc., of New York v. Sands, supra; Gould v. Board of Education, 34 Hun, 16; Batchelder v. Epping, 28 N. H. 354.)

I am, therefore, unable to concur in the opinion of the majority of the court.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    Henry W. Sage and Others, Appellants, v. David G. Burton, Respondent.

      Debtor and creditor — effect of the giving of a check by a debtor to the creditor’s agent ■ —■misappropriation of the proceeds thereof by the agent ■ — the debtor clischa/rged.

    Where a person makes settlements with, and payments to, the authorized agent of another, of all claims existing in favor of the principal against him, the giving of a check to such agent and the subsequent payment of the same by a bank out of the funds of the debtor, is a payment by the debtor which discharges him from liability to his creditor, the principal.
    While a check of a debtor does not until paid ordinarily amount to the payment of a debt, it does after the payment of the check extinguish the debtor’s liability, if the same is paid to the creditor, or to the agent of the creditor authorized to receive the check of the debtor.
    After the debtor has parted with his check to the creditor or his agent, he has no further duty in the matter except to see that funds sufficient to meet it are in the bank on which it is drawn.
    The check given in payment and afterward paid constitutes a valid payment as of the date of its receipt.

      In such case the creditor takes, as between himself and the debtor, the risk of the act of his (the creditor’s) agent.
    The debtor takes the risk of establishing that the agent had power and authority to take the check in settlement, and that he, the debtor, had funds in the bank with which to paj>- the check on presentment. He does not even take the risk of a forged indorsement.

      Semble, that such risk of forgery is that of the bank upon which the debtor’s check is drawn.
    Putnam, J., dissenting.
    Appeal by the plaintiffs, Henry W. Sage and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 8th day of May, 1894, upon the verdict of a jury, rendered after a trial at the Albany Circuit, dismissing the plaintiffs complaint, and also from an order entered in said clerk’s office on the 10th day of May, 1894, denying the plaintiffs’ motion for a new trial made upon thé minutes

      James Fenimore Gooper, for the appellants.

      George U. Stevens, for the respondent.
   Mayham, P. J.:

This action was brought by the plaintiffs to recover the amount of the balance of hn account accruing in favor of the plaintiffs for some kind of merchandise.

The answer in effect admitted the accruing of the account and its correctness, but set up payment in the defendant’s check given by the defendant to one Abbott on account of such indebtedness, payable to the order of the plaintiffs.

Abbott had been for a long time in the employ of the plaintiffs, and was salesman for them, and at times collected accounts for them and received checks of customers for accounts du'e the plaintiffs. He had also made settlements of accounts with customers of the plaintiffs, and on such settlements abated from the amount claimed, and such settlements and abatements had been acquiesced in by his employers. The proof showed on the trial of this action that the defendant settled the account in suit with the agent Abbott, who on such settlement made a reduction from the amount claimed of $100, and took the defendant’s check for the balance of $234.11 payable to the order of the plaintiffs, and at the same time receipted the bill of the plaintiffs in their firm name in full for that amount. The proof also shows that the check was subsequently indorsed in the name of the plaintiffs’ firm and was paid at the bank out of the funds of the defendant. The indorsement of the firm name of the plaintiffs on the check was made by Abbott without the express authority of the plaintiffs, and the money received by him on the same from the bank, but the same was not paid by him to the plaintiffs, and they were never in fact paid the amount of their bill. The main question in this case, and the one upon which the rights of the parties turned in the trial court, and must turn here, is whether the act of the agent Abbott bound the plaintiffs so that under the circumstances of this case the giving of this check by the defendant, and its subsequent payment by the bank, amounts to a payment by the defendant so as to discharge him from this debt. It is unnecessary for us to consider here the right or power of Abbott to adjust amounts due on claims of plaintiffs and make reductions on the same, as that seems to have been conceded on the trial by the plaintiffs’ consent to reduce the amount of their claim to the sum represented by the check.

There was, on the trial, a sharply contested question of fact as to whether or not the plaintiff Dean Sage told the defendant, in the presence and hearing of Abbott, before the transaction in question, that his dealings with the plaintiffs’ firm must be with Abbott. The defendant testified upon that subject as follows:

“ He (Sage) then told me in the future I must deal with Mr. Abbott individually in buying, adjusting and settling.”

This is contradicted by Sage, and the learned trial judge left it to the jury to say whether this general and sweeping authority was given to Abbott by the plaintiff Dean Sage, and was relied upon by the defendant as authority for him to settle all claims between him and the plaintiffs with Abbott. That was, we think, a proper disposition of that disputed question. It is true that payment of this check to Abbott was not in fact payment to the plaintiffs, and if Abbott improperly indorsed the check in their name, and appropriated the proceeds to his own use, it would in effect be a larceny from the plaintiffs and they would be the losers to that amount. But so long as the defendant was authorized to make settlements with, and payments to, Abbott of all claims in favor of plaintiffs against him, the giving of the check and the subsequent payment of the same by the bank out of the funds of the defendant was payment by the defendant so as to discharge him from liability to the plaintiffs.

While a check of the debtor does not, until paid, ordinarily amount to payment of the debt, it does, after payment of the check, extinguish the debtor’s liability, if the same is paid to the creditor, or to the agent of the creditor authorized to receive, the check of the debtor, for the reason that, after he has parted with the check to the creditor, or his agent, he has no further duty in the matter except to see that funds are in the bank on which it is drawn for its payment.

“ A check given in payment, and afterwards paid, becomes a valid payment as of the date of its receipt.” (18 Am. & Eng. Ency. of Law, 174, and cases there cited.)

The plaintiffs having authorized the agent to receive the check, and thus removing’ it beyond the control of the defendant, took; as between them and the defendant, the risk of the acts of their own agent; all the risk that the defendant took in the matter was that of establishing that the agent had power and authority to take the check in settlement, and that the drawer had funds in the bank with which to pay it on presentment. He did not even take the risk of a forged indorsement. That, probably, was the risk of the bank.

The jury under the charge of the court have, we think, found, upon sufficient evidence, that the agent in this matter was authorized by the principal to receive this check, and that, coupled with its finding of payment of the check, operated to discharge the defendant from liability. (Carroll v. Sweet, 128 N. Y. 22-27.)

If it be held that Abbott in this transaction was not the alter ego of the plaintiffs, and had no authority to indorse this check, yet, if he was authorized by the plaintiffs to receive this check from the defendant, any misappropriation of its proceeds by him is at the risk of the party who set him in motion and put it in his power to perpetrate the wrong; such party must suffer rather than the party who is in no wise accountable for, and has no control of the perpetration of the wrong.

We have examined the exceptions taken by the plaintiffs to the various rulings of the trial judge and his charge, and see no error for which this judgment can be reversed.

Herrick, J., concurs; Putnam, J., dissenting.

Judgment affirmed, with costs.


author: Pratt, J.: Brown, P. J.

text:
    George Alger, Appellant, v. The Metropolitan Life Insurance Company, Respondent.

      Application for life insurance — errors therein, made and written down by the examiner, are not chargeable to the assured.

    Upon the trial of an action brought to recover the amount of a policy of life insurance, it was shown that the printed, application for insurance contained an inquiry whether any relative of the assured had died of consumption or any pulmonary disease, to which the answer in the handwriting of the insurer’s medical examiner was “No;” it further appeared that the brother of the assured had died of pneumonia twenty years prior to the trial of the action, and that when the medical examiner questioned the assured at the time of the application for the policy she replied that she did not know of what disease her brother had died.

      Held, that the duty of the assured consisted in truthfully answering the questions propounded to her, and that she was not chargeable with the mistake of the examiner in writing them down.
    Brown, P. J., dissenting.
    Appeal by the plaintiff, George Alger, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 7th day of March, 1894, upon the verdict of a jury rendered by direction of the court dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 7th day of March, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Roswell II Garpenter, for tire appellant.

      G. F. Bovee, for the respondent.
   Pratt, J.:

Tlie printed application for insurance contained the inquiry whether any relative had died of consumption or any pulmonary disease, and the answer in the handwriting of defendant’s medical examiner was No.”

It is now stated that twenty years ago the brother of the insured died of pneumonia, on which ground the plaintiff was nonsuited. Evidence was given to the effect that when the examiner questioned the applicant she replied that she did not know of what disease her brother died. The examiner, to whom defendant had confided the duty of making the inquiries, wrote down the answer, doubtless with honest intention, for the form of the question was such as to direct the mind especially to consumption, and when the sister stated that she did not know of what disease the brother died, the examiner may well have supposed that had he died of a lingering disease like consumption, the sister would have known the fact. But whether the mistake of the examiner was in a measure excusable or not, the applicant was not chargeable with the error. Her duty consisted in truthfully answering the questions propounded. Yery few applicants for insurance possess sufficient knowledge of medical terms to correctly formulate answers to the interrogations. (Insurance Co. v. Wilkinson, 13 Wall. 222; O’Brien v. Co., 117 N. Y. 310; Flynn v. Co., 15 Hun, 521.) That is the business of the examiner. The applicant must necessarily rely upon him to do that properly. In the class of people for whom the industrial insurance of defendant is carried on, it is doubtful if one in twenty would know that pneumonia is a pulmonary disease.

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

Dykman, J., concurred.

Brown, P. J.

(dissenting):

This action was brought to recover upon a policy of insurance issued by the defendant upon the life of Lucy E. Dalton.

The written application for the insurance which, by the terms of the policy, was made a part of the contract, and the answers and representations therein warranted by the insured to be strictly correct and wholly true, contained the following question: “ Did Parents, Grandparents, Brothers, Sisters, Uncles or Aunts ever have Consumption or any Pulmonary * * * disease ? ” To this question the answer given was “No.”

It appeared from the proofs of loss, made and certified to by the plaintiff and delivered by him to the defendant, that the insured’s brother died of pneumonia.

The policy further provided that it should be void if any of the representations upon which it was issued should be untrue.

At the close of the plaintiff’s case the court directed a verdict for the defendant, and from the judgment entered thereon plaintiff has appealed.

Courts take judicial notice of the meaning of words and phrases and of such matters of common knowledge and science as are known to persons of ordinary understanding and intelligence.

No evidence was necessary, therefore, to define the meaning of the word “pulmonary” or the character of the disease called “ pneumonia.” It was permissible for the court to take notice that the brother of the insured had died of a pulmonary disease.

The statement contained in the proofs of loss that the brother of the insured had died of pneumonia, in the absence of any other evidence upon the subject, conclusively established a breach of the condition of the policy. (Helwig v. Mutual Life Ins. Co., 132 N. Y. 331; Lund v. Masonic Life Association, 81 Hun, 287.)

The appellant contends that it was error for the court to compel him to introduce the application for the insurance as a part of his case.

We do not consider this exception a material one. The evidence is now before the court, and it is apparent that the plaintiff cannot recover in any event. It is of no importance, therefore, which party put in the application.

The statements therein were warranties and their untruth rendered the policy void.

The judgment must be affirmed, with costs.

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


author: Brown, P. J.:

text:
    Anchor Brewing Company, Appellant, v. The Village of Dobbs Ferry, Respondent.

      Municipal corporation— liability of, for the creation of public nuisances — liability of, for the damages caused by the flow of surface water upon private lands from streets constructed, by it.

    Municipal corporations are liable for damages occasioned by acts which have resulted in tbe creation of public or private nuisances, and also for an unlawful entry upon tbe property of another, whereby injury is caused.
    No immunity from liability is given by the fact that statutory power has been conferred upon a municipal corporation, where its exercise results in the appropriation of, or physical injury to, private property.
    A municipal corporation has no right, by the construction of sewers or drains, to collect sewage and deposit it upon the premises of an individual, nor can it, by constructing streets and gutters, collect in a body surface water, which would not naturally flow in that direction, and discharge it upon private property. But a municipal corporation is not liable for consequential damage to a landowner caused by the discharge of surface water upon his property, where such damage results solely from the grading of its streets and highways in pursuance of legislative authority, unless it appears that the flow of water has been diverted from its natural course.
    Where the increased flow of water upon the property of an individual is caused by the grading of streets, paving of gutters and flagging of walks in a village, if the water flows in its natural course, the village is not liable for the damage occasioned thereby, and such property owner, however detrimental and injurious the flow of water may be to his property, cannot compel the village to construct drains for the disposal of the surface water; neither can the property owner compel the village to destroy its streets or remove its gutters or pavements.
    Appeal by the plaintiff, the Anchor Brewing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 23d day of June, 1894, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint upon the merits, and also from an order made at the Westchester Special Term and entered in said clerk’s office on the 21st day of July, 1894, confirming said judgment, and also from an order made at the Westchester Special Term and entered in said clerk’s office on the 9th day of October, 1894, denying the plaintiff’s motion to amend said judgment by striking therefrom the words “ on the merits.”

      Edward Lauterbaoh, Wm. 3. Cohen, 3enry L. Soheuerman and Alfred Lauterbaoh, for the appellant.

      W. J. Townsend and Chas. P. McClelland, for the respondent.
   Brown, P. J.:

This action was brought to obtain an injunction restraining the defendant from maintaining and continuing sewers, culverts and drains, which, it was claimed, diverted the natural flow of surface water, and cast it, together with sewage, in excessive volumes upon the plaintiff’s property, and also to recover damages incident to such acts. The- village of Dobbs Ferry was incorporated in the year 1873, and is built upon a hillside, which slopes to the west and south. The plaintiff’s property lies at the foot of the hill, and is bounded upon the west by the land of the New York Central and Hudson River Railroad Company and the Hudson river. It receives the natural flow of surface water from a large territory, upon which the village is, in part, built, which is indicated upon a map printed in the case. The village has opened and graded streets, paved the gutters and set the curbs, and constructed drains and culverts. The population has also increased, and upon many of the private grounds within the village roads have been constructed with gutters and drains, which receive the flow of surface water and discharge into the public streets.

Plaintiff’s property is bounded on the east by Palisade street. Next to the east and further up the hill is Main street. These two streets run, in a general direction, north and south, from Cedar to Chestnut street. Other streets run to the east out of Main street. All the water flowing down the hill through the main streets is concentrated at a point on the easterly side of Palisade avenue, across which it flows through a covered drain, which is continued through private property to the land of Mr. Lange; thence it flows in an open waterway across Lange’s property, and is finally discharged into a private drain upon plaintiff’s land.

West of Main street the drain is constructed along the bottom of a natural depression in the land, and the open waterway through Lange’s land is a natural watercourse to the point where it connects with plaintiff's drain.

The testimony introduced by the plaintiff would justify the conelusion that, since the incorporation of the village, the volume of water discharged upon' plaintiff’s land has largely increased, and that plaintiff has been injured to a considerable extent by this increased flow.

The complaint was dismissed by the trial court upon the ground that the water .discharged upon plaintiff’s property was surface water only, which flowed in its natural course, and that, for injuries attributable to that source, the defendant was not liable.

We agree with the conclusion reached by the Special Term. The rules of law ajiplicable to cases of this character are well settled. Municipal corporations are liable for damages occasioned by acts resulting in the creation of public or private nuisances, or for an unlawful entry upon property of another, whereby injury is caused. And no immunity from liability results from statutory power conferred upon the corporation, the exercise of which results in the appropriation of, or physical injury to, private property.

Within this rule such corporations may not, by the construction of sewers or drains, collect sewage and deposit it upon the premises of an individual, nor can they, by constructing streets and gutters, collect in a body surface water, which would not naturally flow in that direction, and discharge it upon private property. (Bastable v. City of Syracuse, 8 Hun, 587; Byrnes v. City of Cohoes, 67 N. Y. 204; Noonan v. City of Albany, 79 id. 470; Seifert v. City of Brooklyn, 101 id. 136-143.)

But a municipal corporation is not liable for consequential damages to a landowner caused by the discharge of surface water upon his property, which is the result solely of the grading of streets and highways in pursuance of legislative authority. (Wilson v. The Mayor, 1 Den. 595 ; Kavanagh v. The City of Brooklyn, 38 Barb. 232; Lynch v. The Mayor, 76 N. Y. 60 ; Birdsall v. Clark, 7 Hun, 351.)

The testimony in this case does not show that the defendant has constructed any sewers in any of the public streets of the village. Undoubtedly a large amount of filth and obnoxious substance have been cast upon plaintiff’s property, but, so far as is disclosed in the evidence, it consisted solely of substance accumulated in the streets and gutters and carried by the large flow of water to the foot of the natural watershed.

Neither does the testimony show that, by the grading of any of the streets, the flow of the surface water has been diverted from its natural course. The construction of the culvert under Palisade street had no other effect than to conduct under the street the water, which, in the absence of the culvert, would have flowed across the surface.

The plaintiff’s witness Cozzens testified that before the street was graded the water ran on the surface at that point. He said: “ It found its way over what is now Palisade street into the property that now belongs to Mr. Morton. * * * As soon as they used wagons there they put a culvert there.”

The time of which the witness spoke was prior to the incorpora-’ tion of the village.

He also testified, speaking of. the present time, “ if that sewer were not there the water * * * would nevertheless have flowed down over that watercourse and on the plaintiff’s property.”

The increase in the size of the culvert has no material relation to the plaintiff’s complaint. It was at first constructed of too small dimension, and failed to carry off all the water flowing on the street. Some of it overflowed and may have injured other property. But none was, as a result, cast on plaintiff’s land which would not have gone there in its natural course.

Neither do I find that any water flowing to the south upon Main street has been diverted from its natural course by the defendant.

There is evidence that, prior to the defendant’s incorporation, the water flowed down the east side of Main street to Chestnut street, but the proof is that it ceased to run in that direction before the village was incorporated, and at the time of its incorporation all the water from the east side of that street was flowing into the drain at the junction of Elm street.

The case shows that the increased volume of water, which in time of rainfall is now cast upon the plaintiff’s property, is the result of the growth of population in the village and the consequent grading of streets, erection of buildings and improvement of private grounds. In its natural condition much of the water that fell upon the land was absorbed by the soil and evaporated by the atmosphere, and a part only reached the foot of the watershed. But graded streets, paved gutters and flagged walks prevent its absorption by tbe ground, and in increased quantities it flows in its natural course to the river.

For this result, however detrimental and injurious it maybe to the plaintiff’s property, we are of the opinion that the defendant is not liable. It cannot be compelled to construct drains for the disposal of surface water. (Mills v. City of Brooklyn, 32 N. Y. 489; Hines v. City of Lockport, 50 id. 236.)

Neither can it be compelled to destroy its streets or remove its gutters and paving. What the village did was lawful • at the time, and in the absence of any claim that it had exceeded its power or performed the work in a negligent manner, it is not legally responsible for the consequential injury to adjacent property.

The judgment and orders must be affirmed, with costs. -

Pratt, J., concurred; Dykman, J., not sitting.

Judgment and orders affirmed, with costs.


text:
    Gerhard Fortmann, Respondent, v. George S. Wheeler, Individually and as Executor, etc., of Nancy B. Wheeler, Deceased, and Others, Appellants, Impleaded with The Messiah Baptist Church of the City of Brooklyn, N. Y., and Another.

      Tax sale of real estate — occupants deemed to hold in subordination to the purchaser— authority of the registras' of arrears to deliver a tax deed — tax deed presumptive evidence of title — conditions essential to the validity of official acts, presumed.

    The mere fact that a party is in the possession of real estate and asserts an adverse claim thereto does not render a deed thereof void; the claim must be under a specific title.
    Where the claim is made under a deed from a purchaser at a valid tax sale, the owners or occupants of the property sold for non-payment of the tax will, after such sale, be regarded as holding the same in subordination to the title of the purchaser at such sale. In such case both parties claim the same title.
    The Legislature had the right to enact by section 1 of chapter 163 of the Laws of 1885, that a purchaser at a tax sale “ shall take a good and sufficient title in fee simple absolute to the property sold of which the said deed shall be presumptive evidence,” and the burden of disproving the authority of the registrar of arrears to deliver a tax deed is upon the person questioning the same.

      It is not incmSbent upon a party who has purchased real property from a city, which took title thereto under a tax deed, to prove, in an action wherein his title to such premises is questioned, that the city had the right to purchase the premises at the tax sale; such authority, where it is made dependent upon the determination of the mayor, comptroller and corporation counsel, will be presumed.
    When an official act, authority for which has been expressly conferred by statute, has been performed"™ a manner substantially regular, the courts will presume that the conditions essential to its validity have been fulfilled.
    AppEAL'by the defendants, George S. Wheeler, individually, and as executor, etc., of Nancy B. Wheeler, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of April, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit adjudging the plaintiff to be the owner of an estate in fee simple absolute in certain premises and that he is entitled to recover the possession of the same, and granting nominal damages to him for the withholding of such possession.

      Jesse Johnson, for the appellants.
    TPm. I. Taylor and J. B. Sabine, for the respondent.
   Brown, P. J.:

This was an action of ejectment to recover possession of lands in the city of Brooklyn, described as lot 21 on block 155 on the assessment map of the twenty-fourth ward, for unpaid taxes.

The land was sold under the Arrears Act (Chap. 114, Laws 1888) and purchased by the plaintiff, by a deed executed by the mayor and comptroller of the city, on December 12,1892.

The plaintiff, to establish his title, introduced in evidence a deed from the registrar of arrears to the city, dated March 24,1892, and a deed from the mayor and comptroller of the city to himself, dated December 12, 1892, and rested his case.

The defendants put in evidence deeds showing title in Nancy B. Wheeler in 1884, and it was admitted that the appellants were in possession of the premises as devisees of said Nancy B. Wheeler, under her will and the deeds aforesaid, at the time of the delivery of the deed to the plaintiff.

The appellants ask a reversal of the judgment upon two grounds: (1) That the recitals in the deed of the registrar of arrears are not evidence of the city’s title, and (2) that the deed to the plaintiff was void for the reason that, at the time of its delivery, the property was held adversely by the appellants.

The last proposition was decided adversely to the appellants’ contention xxx Jackson v. Sternbergh (1 Johns. Cas. 153); Jackson v. Graham (3 Caines, 188); Hubbell v. Weldon (Hill & D. Supp. 139).

In those cases it was held that under a valid tax sale or sale on execution, the owners or occupants would, after the sale, be regarded as holding in subordination to the title of the purchaser.

The mere fact that a party is in possession and asserts an adverse claim does not render a deed void. The claim must be under some specific title. (Crary v. Goodman, 22 N. Y. 170.)

The only title which the appellants had was that derived under the will of Nancy B. Wheeler. But that was the same title which the respondent had purchased.

The parties did not, therefore, claim under adverse titles, but both claimed the same title, and, if the proceedings in reference to the tax were valid, that title was vested in the plaintiff, and appellants’ possession was subordinate to it.

The Arrears Act provided that a purchaser at the tax sale “ shall take a good and sufficient title in fee simple absolute to the property sold, of which the said deed shall be presumptive evidence. (Chap. 163, Laws 1885, § 1.)

The Legislature had the right to give this character as evidence to the deed. (Curtiss v. Follett, 15 Barb. 337-343; Johnson v. Elwood, 53 N. Y. 431-435.)

The burden of disproving the authority of the registrar of arrears to deliver the deed was, therefore, upon the appellants.

The provision in the Arrears Act does not differ in substance from that contained in the act of 1850 (Chap. 183), or in the act of 1855 (Chap. 427), or in the act of 1893 (Chap. 711).

The title conveyed by a deed from the Comptroller of the State for land sold for taxes is now, by the latter act, declared to be “ an absolute estate in foe simple ” subject only to claims of the State for taxes, and the deed is made “ presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all the provisions of law relating thereto.” (Chap. Ill of 1893, § 11.)

Statutory provisions of this character, making tax deeds presumptive evidence of the validity of the purchaser’s title, have uniformly been held valid. (See Black’s Tax Titles, chap. 33, and cases cited.)

The point that it was incumbent on the plaintiff to prove the authority of the city to purchase the land cannot be sustained.

Such authority, made dependent as it was upon the determination of the mayor, comptroller and corporation counsel, will be presumed.

It was expressly conferred by statute, and when an official act has been performed in a manner substantially regular, the courts will presume that the conditions essential to its validity have been fulfilled. (Wood v. Morehouse, 45 N. Y. 376.)

The judgment must be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    Anne Jay Bolton, Respondent, v. The Village of New Rochelle, Appellant.

      Municipal corporations — liability thereof for the maintenance of nuisances — action brought to abate a nuisance caused by a sewer — connecting a house with the sewer — commissioners of sewers and drainage of the village of New Boahelle not independent officers.

    Municipal corporations have no immunity from legal responsibility for creating and maintaining nuisances, and they are liable for their acts in so doing.
    The fact that a sewer complained of was in the first instance constructed by an individual upon his own property, has no relevancy in an action brought against the village of New Rochelle to procure the abatement of a nuisance caused by such sewer, and to recover the damages caused thereby, if at the time of the commencement of such action the sewer was a public one, and the nuisance was being maintained by such village; in such case the village is liable for the damages sustained by reason thereof, unless it is relieved from such liability as the result of the law creating its board of commissioners of sewers and drainage.
    The legal character of the commissioners of sewers and drainage of the village of 'New Rochelle is not that of independent officers acting for themselves, but tliey are one of the instruments of the municipal government. While created by special statute, they perform a'duty which is primarily charged upon the village, they exist solely for the benefit of the village, have no duty to perforin disconnected with it, and an action brought to abate a nuisance caused by a sewer in such village as a nuisance is maintainable against such village.
    The fact that the plaintiff in an action, brought to abate a nuisance caused by a certain sewer alleged to be a nuisance and to recover damages therefor, connected the drain of her house with such sewer, does not debar her from maintaining the action.
    Appeal by the defendant, The Village of New Rochelle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 23d day of June, 1894-, upon the decision of the court rendered after a trial at the Westchester Circuit before the court and a jury, enjoining and restraining the defendant from permitting the outflowing material of a certain sewer to remain where it would become offensive or injurious to health or property, or in any manner be a nuisance, and directing judgment for the plaintiff in the sum of $1,500 damages.

      Gaboi/n Frost, for the appellant.

      David B. Simpson and William H. Robertson, for the respondent.
   Dykman, J.:

The plaintiff is the owner of a house and lot in the village of New Rochelle, bordering on Long Island sound. About fifty feet from the southerly side of her lot a village sewer has its outlet between high and low water. The sewage flowing from this sewer was deposited upon the flats in front of plaintiff’s property, and the odors arising therefrom were so offensive that the plaintiff’s house, in the year 1892, became uninhabitable.

This action was brought by the plaintiff to recover damages resulting from the nuisance and to obtain an injunction restraining its continuance.

Municipal corporations have no immunity from legal responsibility for creating and maintaining nuisances, and their liability for such acts as are conceded to exist in this case is settled by numerous authorities. (Noonan v. City of Albany, 79 N. Y. 470 ; Seifert v. City of Brooklyn, 101 id. 136 ; Stoddard v. Saratoga Springs, 127 id. 261.)

In Seifert’s case the authorities relied upon by the appellant for a reversal of the judgment were discussed by the Court of Appeals, and their inapplicability to cases of the character of that now before the court pointed out. It is unnecessary to add to what was then said by the chief judge, and we quote the following from his opinion r “We are also of the opinion that the exercise of a judicial or discretionary power by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which from its nature is liable to be repeated and continuous, but is remediable by a change of plan, or the adoption of prudential measures, renders the corporation liable for such damages as occur in consequence of its continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper. (Wood’s Law of Nuisances, § 'T52.) While in the present case the corporation was under no original obligation to the plaintiff or other citizens to build a sewer at the time and in the manner it did, yet, having exercised.the power to do so and thereby created a private nuisance on his premises, it incurred a duty, having created the necessity for its exercise, and having the power to perform it, of adopting and executing such measures as should abate the nuisance and obviate damage. * * * The immunity which extends to the consequences following the exercise of judicial or discretionary power, by a municipal body or other functionary, presupposes that such consequences are lawful in their character, and that the act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, the power to make such an appropriation or create such nuisance will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guaranteed by the Constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts from responsibility for their consequences. (Radcliff’s Exrs. v. Mayor, etc., 4 N. Y. 195.)”

The fact that the sewer complained of was, in the first instance, constructed by an individual upon his own property, has no relevancy to the question before the court.

The streets in the locality known as Residence Park were conveyed to the village in April, 1892, and the trustees accepted the conveyance. At the time of the commencement of this action the sewer was a public one, and the nuisance was being maintained by the village. The defendant was, therefore, clearly liable within the rule applied in the cases cited, unless it was relieved from such liability as the result of the laws creating the board of commissioners of sewers and drainage of the village. (Chap. 201, Laws' 1889 ; chap. 220, Laws 1893.)

The argument of the appellant is that, as by these laws the entire ■charge and control of the sewers was given to commissioners, and they were charged with the duty of their maintenance and management, and could sue and be sued, during the official life of such commissioners the defendant had no control over the sewers, and was not liable for a nuisance arising from the manner in which they were maintained.

This contention was overruled in In re Smiddy (19 N. Y. Supp. 949); Ehrgott v. The Mayor (96 N. Y. 273); Pettengill v. City of Yonkers (116 id. 558).

In EhrgotVs case the court said: To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is complained of is a part of the machinery for carrying on the municipal government.”

In PettengilVs case the court said of the board of water comissioners of the city, of Yonkers, that it was not an independent body acting for itself, but a department of the city, and one of the instruments of the municipal government.

Such is the legal character of the commissioners of sewers and drainage of the village of New Rochelle.

They are not independent officers acting for themselves, but constitute one of the instruments of the municipal government of the defendant. While created by special statute they perform a duty which is primarily charged on the village, and they exist solely for the benefit of the village, and have no duty to perform disconnected therefrom. All property that they may purchase or acquire is taken in the name of the village. All money that they expend is derived from the village, either by taxation of its inhabitants or though the sale of its municipal securities. They are required to report annually to the taxpayers, and at the close of their official term to turn over to the village all property and funds in their possession. In everything they do they exercise municipal power and perform municipal duties, and for their acts of misfeasance or nonfeasance the village in its corporate capacity is liable. It is of no importance, therefore, whether the nuisance existing at the. mouth of the sewer in question is primarily due to the neglect of the commissioners or to the trustees of the village. In either case it is legally the creation of the defendant, and it is liable for the result.

The point that the plaintiff, having connected her house drain with the sewer, is debarred from maintaining this action, has ne foundation in reason, and is not sustained.

The judgment is right, and should be affirmed, with costs.

Cullen and Pratt, JJ., concurred.

Judgment affirmed, with costs.


author: Dykman, J. :

text:
    William N. Coler and Others, Respondents, v. The Pittsburgh Bridge Company, Appellant, Impleaded with Others.

      Service of process on (he managing agent of a corporation — who is a managing agent.

    In determining whether a person is a managing agent of a corporation, within the meaning of section 482 of the Code of Civil Procedure permitting service of process upon such agents, each case must depend upon its own facts.
    The test is not whether the agent is subject to the control of the directors of the corporation, nor is it necessary that the person served should bo its managing agent in the State of New York, but the person served should be of sufficient, responsibility to render it probable that the corporation will receive notice of the service if it be made upon him.
    Appeal by the defendant, The Pittsburgh Bridge Company, from so much of an order of the Supreme Court, made at the Kings' County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of September, 1891, as denies the defendant, The Pittsburgh Bridge Company’s, motion to vacate and set aside the summons herein and the service thereof.

      J. Adrianee Bush, for the appellant.

      Edward W. Crittenden, for the respondents.
   Dykman, J. :

This is an appeal from an order denying a motion made by the defendant to set aside the service of the summons in this action.

The service was made upon Walter W. Curtis, who was the Chicago agent of the defendant, which is a foreign corporation.

No person had been designated by the defendant upon whom process against it could be served, and neither the president, treasurer nor secretary resided in this State.

It is difficult to determine in all cases what agents are managing agents within the meaning of section 432 of the Code of Civil Procedure which permits service of process upon such agents, and each case must necessarily depend upon its own facts.

The test is not, however, whether the agent is subject to the control of the directors of the corporation, because all agents are so.

Neither is it necessary that the person served should be a managing agent in this State. The Code attaches no such condition to the validity of such service.

A reasonable requirement seems to be that the person served should be of sufficient responsibility to render it probable that the company will receive notice of the service.

That end has been attained in thiss case, and though the extent of the powers of Curtis, as the agent of the defendant, are not very fully stated, we think they were sufficient to constitute him a managing agent within the meaning of the Code.

The order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Mary E. Bates, as Administratrix, etc., of Henry E. Bates, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Damages resulting from the death of the plaintiff ’s intestate — proof of contributory negligence.

    In an action brought against a railroad company to recover damages resulting from the death of the plaintiff’s intestate caused by the decedent’s being run into by a train, while attempting to cross the railroad tacks on foot, it appeaz'ed that the decedent “was able to see a considerable distance along the tracks at the place of the accident and could have heard the noise of an approaching train. Seld, that the fact that he did not do so was proof of his contributory negligence.
    Appeal by the plaintiff, Mary E. Bates, as administratrix, etc., of Henry E. Bates, deceased, from a judgment of tbe Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 13th day of July, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Dutchess Circuit.

      A. M. dk £r. Ga/rd, for the appellant.

      Frank Loomis and Robert F. Wilkinson, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon a nonsuit at the Circuit.

The action was brought for the recovery of damages resulting from the death of the plaintiffs intestate, which was caused by a train of cars upon the railroad of the defendant.

The course of the railroad, at the place of the accident, is substantially north and south, and the highway which crosses it there runs nearly east and west. The deceased was drawing ice in a lumber box wagon, drawn by two horses. He was coming with a load- of ice from the west, walking on the north side of his wagon, near the forward end, holding the horses’ lines in his left hand, and resting his right hand on the side of the wagon and holding his whip in his right hand also. As he approached the track he looked both ways and continued to drive on. When he was upon the track, which is single at that place, an engine with a pay ear came from the south, struck the deceased and inflicted injuries upon him from which he died in a few days.

The complaint of the plaintiff ivas dismissed at the trial, at the close of the testimony on her behalf, upon the ground that the evidence failed to show freedom from contributory negligence on the part of the deceased. The facts seem to justify such dismissal.

The deceased was walking, and thus had entire control of his own movements. He could stop and recede instantaneously at his volition. One of the witnesses for the plaintiff testified that she saw him first when his horses’ front feet were just stepping upon the ' track. Of course, he was then about ten feet from the track. The witness went out of her house and waved a towel at the deceased, and said Keep back,” but she could not attract his attention. She heard the train, and another witness heard it also.

It is impossible, in view of that testimony and other facts and circumstances, to escape the conclusion that the deceased went heedlessly upon the track and brought the calamity upon himself.

He could see a considerable distance down the track, and could have heard the noise of the approaching train. That he did not do so is proof of negligence.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


author: Pratt, J.:

text:
    Eugene Bouscher, Respondent, v. Charles D. Larkins, Appellant.

      Beal estate broker — not entitled to commissions if he abandons a trade.

    If a broker abandons a proposed trade or relinquishes his efforts to effect the same, the principal is not precluded from'negotiating .therefor with any person whom the broker has Introduced to him, and upon a trade being made with such a person the broker is not entitled to commissions.
    Appeal by the defendant, Charles D. Larkins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of April, 1891, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 11th day of April, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      George I). Beattys, for the appellant.

      Warner & Terry, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial.

The action was brought by an assignee of a real estate broker to recover commissions for the sole benefit of the assignor, who claimed to have earned the commissions by effecting an exchange of property belonging to the defendant with one Burr Wilson.

It appeared in evidence that the assignor, one Swartz, was employed by the defendant as a broker, and that he attempted to negotiate a trade with one Reynolds of the farm of the defendant, situated in Saratoga, for two houses on Lewis avenue and one house on Lexington avenue in the city of Brooklyn (which did not belong to Reynolds), but said negotiations never resulted in a trade. Indeed, Reynolds refused all offers made by defendant, and Swartz, although requested by the defendant, refused to negotiate further, and abandoned the matter, and it was declared off. The defendant after-wards learned from Reynolds that one Burr Wilson had become owner of the Lewis avenue houses, and opened negotiations with him and effected a trade. Swartz had nothing to do with this last trade, and, so far as appears, did not know Wilson or of any negotiations between him and the defendant.

The decided weight of evidence upon the question whether the trade was entirely abandoned and Swartz refused to go further -with Reynolds or Ilaskis, the original parties with -whom negotiations had been carried on, is to the effect that it was abandoned and declared off.

The said Swartz did, however, attempt to secure some new parties who owned property in the city of New York, but no result was obtained therefrom.

The well-settled rule is that if a broker abandons the trade or relinquishes his efforts, the principal is not precluded from negotiating with any person whom the broker has introduced; the broker is not entitled to commissions. (Wylie v. Marine Nat. Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 id. 378 ; Hay v. Platt, 66 Hun., 488.)

We also think that the evidence was in favor of $250 instead of $500 as the amount of commissions Swartz was to receive in case he effected a sale.

If these views are correct, it follows that the judgment must be set aside and a new trial granted.

Brown, P. J., and Dyicman, J., concurred.

Judgment and order denying motion for new trial reversed, and new trial granted, costs to abide the event.


author: Pkatt, J.:

text:
    Morris F. Brainard and Another, Respondents, v. The County of Kings and Others, Appellants; Charles A. Cregin and Others, Respondents.

      Mechanic’s lien — limitation of the liability of counties upon their building contracts — • surrender of their contract by sub-contractors— when the creditors of the sub-contractors can recover from the owner.

    The liability of counties upon their building contracts is limited by section 88 of chapter 629 of the Laws of 1892 to the amount due the contractors.
    Certain building contractors sublet a portion of the work which they had contracted to do, and their sub-contractors, after performing a portion of the work they had agreed to perform, upon a certain date refused or were unable to continue work under their sub-contract. They voluntarily surrendered their contract to the contractors and the latter voluntarily proceeded to finish the work prescribed therein. The sub-contractors wrote the contractors a letter in the following words:
    “Dear Sirs: — You are hereby authorized to take charge of work we have been doing under our contract to build bridge at Meeker ave., Brooklyn, and complete the same for our account. We do not waive by this provision our rights under the original contract, or any extra work accruing from same, we to receive one-half of the profits accruing on such extra work.”

      Meld, that there was not a rescission of the contract between the contractors and the sub-contractors, leaving due the sub-contractors the amount (twenty per cent) withheld by the contractors under the terms of the contract and the amount agreed to be paid for work done by such sub-contractors; but it was an. arrangement entered into by wbicli tlie contract was agreed to be assumed and carried out on account of tlie sub-contractors, they not waiving their rights under it, and being entitled to receive all the profits under the contract and one-half of the profits of the extra work;
    That it would be assumed that the contractors, by finishing the work provided for by the sub-contract, accepted such proposition of the sub-contractors ;
    That, in order to entitle the creditors of such sub-contractors to recover the amount due them, by filing a lien under the Mechanics’ Lien Law, they must show that some amount became due them from the contractors for work done under such sub-contract, assumed by them, on the final completion by the contractors of the work carried on by them for account of the sub-contractors.
    Appeal by tlie defendants, The County of Kings and others, from a judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 27th day of September, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term adjudging the amounts respectively due the various parties under a certain building contract made by the counties of Kings and Queens.

      F. II. Van Vediten, for the county of Queens, appellant.

      Kellogg, Rose c& Smith, for Dean & "Westbrook, appellants.

      George Q. Oollins, for the plaintiffs, respondents.

      James Stihemcm, for the King Bridge Company, defendant and respondent.

      Horace Secor, Jr., for Graves & Steers and Jos. Edwards & Co., defendants and respondents.
   Pkatt, J.:

It seems to be conceded, on the part of appellants, that the judgments in favor of Drake, Stratton & Co. (Limited), and the King Bridge Company should be affirmed, so that the only points to be considered relate, first, to the question of error raised by the two counties as to the amount due the contractors of $50,000, and, second, whether the lienors, creditors of Cregin & Co., are entitled to judgments.

The first question is of small moment as it can be readily corrected. Of course, everybody concedes that the liability of the counties is limited by the statute to the amount due the contractors (§ 88, chap. 629, Laws of 1892), which can be easily ascertained, or the counties can be relieved by a stipulation that, in no event, shall they be called upon for more than is due.

The difficult question is the second, relating to the creditors of Oregin & Co If they are to succeed it must be by showing that on or after April 13, 1893, some amount became due Oregin & Co. from Dean & "Westbrook for work done under their contract. By their refusal or inability to go on under their contract Dean & West-brook were put in a position where they must either go on and finish the contract or forfeit all rights under it.

The Cregins voluntarily surrendered up the contract to be performed by Dean & Westbrook, and the latter voluntarily accepted that duty and proceeded to finish the work described in the contract. After an interview with the engineer for the counties, in which Oregin had stated that he could not go on, and' on April 13, 1893, they wrote the following letter to Dean & Westbrook:'

April 13 th, 1893.
“'Mess. Dean & Westbrook :
“ Dear Sirs : • — You are hereby authorized to take charge of work we have been doing under 6ur contract to build bridge at Meeker ave., Brooklyn, and complete the same for our account. We do not waive by this provision our rights under the original contract, or any extra work accruing from same, we to receive one-half of the profits accruing on such extra work.
“Yours truly,
“C. A. & T. OREGIN.”

And Dean & Westbrook at once proceeded to finish the work.

I do not think this amounted to a rescission of the contract between them, leaving the twenty per cent withheld, and the work done since last pay day due the Cregins, but it was an arrangement entered into by which the contract was agreed to be assumed and carried out on account of Oregin & Co., they not waiving any rights under it, and to receive all the profits and one-half of the profits of the extra work. It must be assumed that Dean & Westbrook accepted' this proposition and finished the work under it. It seems to me that under this arrangement, supposing that the contract thus assumed by Dean & Westbrook had been completed at a profit, that in such case the Cregins would have been entitled, on an accounting with Dean & Westbrook, to the twenty per cent that had been withheld, also to be paid for all the work that had been done up to April 10, 1893, the day they quit work, and to one-half the profits on extra work, if any. It seems to me clear that the same rule should apply when a loss occurs in completing the contract.

It was to be done for the Cregins “for our account,” to wit, their account. I pay no attention to the claim that no pay was due and payable until the seventeenth of April under the contract, as some work had been done which would become payable on that day, and in this case we must regard it as equitably due, as between the Cregins and Dean & Westbrook, as it would have been allowed on. an accounting between them. Dean & Westbrook did not take the contract off the hands of the Cregins, but assumed to finish it at that date on their account.

What were the rights under the original contract that the Cregins did not waive? I assume that they were to receive when the contract was complete the full price thereof, including the twenty per cent -withheld as security, and pay for any extra work, but were entitled to nothing unless they performed their contract. The words our account,” in the letter of April thirteenth, is the key note. The proper construction of these words is that the Cregins were to be responsible for the cost of the work and to receive the pay for it, otherwise the words have no meaning. If this is a proper construction of the arrangement between Cregin & Co. and Dean & W estbrook, then when did anything become due from Dean & West-brook to them ? The twenty per cent could not become due until thirty days after completion of the contract, which Cregin & Co. never completed until after the twenty per cent and the sum due for work by them had all been exhausted in completing the contract, so that at no time did Cregin & Co. have anything due them from Dean & Westbrook. Can it be said that Dean & Westbrook, under the circumstances, took the risk of finishing Cregin & Co.’s work under the contract on their own account and allow Cregin & Co. credit and pay them for all the work up to that time, together with the reserve of twenty per cent ? They did not say so, neither did the letter of the Cregins contain any such intimation. This is the theory upon which the judgment is based. The trial judge has found fhat at the time the contract was assumed by Dean & Westbrook there was due Cregin & Co. about $3,000 earned since the last pay day (seventeenth of IVIarch) and the twenty per cent reserve provided for in the contract, but it must be observed that much labor and materials had been expended on the work before any lien was filed, and if it was done on aooount of Cregin & Co., then that must be deducted in order to ascertain what, if anything, was due Cregin & Co. at the time of filing the separate liens.

We are obliged either to hold that at the time of Dean & West-brook’s assuming to finish the contract that there was due to Cregin & Co. the said twenty per cent reserve and for labor up to April 10, 1893, about $3,000 which has remained unpaid up to the filing of liens, or we must hold that the contract was completed on account of Cregin & Co., and that it is not shown what, if anything, became due to them. It is to be observed that Cregin & Go. were not entitled to anything until the contract was finished. There was not at any time anything due them from the counties defendants here, neither does the evidence or findings specifically show what was due when any lien was filed except that it is found that the amount for labor since last pay day and the twenty per cent reserve is found to be due up to the filing of the last lien in July, 1893.

The whole question turns upon the letter and on the words “ for our account.” If Dean & Westbrook took the contract off the hands of the Cregins at their own risk, intending to allow the Cregins all they had earned up to date and the twenty per cent reserve, then this judgment is entirely right; if, on the other hand, they assumed, and that was the contract, to finish the work for account of Cregin & Co., then at no time did they owe Cregin & Co. anything. It seems to me that the latter is the true construction, and that the judgments of the lienors, creditors of Cregin & Co., must be set aside and a new trial granted.

The judgments of Drake, Stratton & Co. (Limited) and the King Bridge Company affirmed.

New trial as to the other defendants.

Dtkman, J., concurred.

Judgment appealed from affirmed as to the defendants Drake, Stratton & Co. (Limited) and the King Bridge Company; new trial granted as to the other defendants.


text:
    Michael Fitzgerald, Appellant, v. John Geils, Respondent.
    Slander— words actionable per se — ■ an allegation of special damage is unnecessary.

    A charge made maliciously in respect to the professional capacity of a person, which, if true, would render him unworthy of employment, is actionable pm' se. and in an action brought to recover damages for the uttering thereof no allegation of special damage is necessary.
    Appeal by the plaintiff, Michael Fitzgerald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of October, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Westchester Circuit, and also from an order made at tire Westchester Circuit on the 12th day of October, 1893. and entered in said clerk’s office, dismissing the complaint and ordering judgment upon the pleadings.

      Charles II. Noxon, for the appellant.

      Martin J. Keogh, for the respondent.
   Pratt, J.:

This is an appeal from a judgment rendered upon an order made at Circuit, dismissing a complaint upon its face in an action of slander. The complaint is as follows:

“The plaintiff above named, complaining of the above-named defendant, respectfully shows to the court and alleges :
First. That at all times mentioned in this complaint, both he and the defendant have been, and now are, residents of the county of Westchester and State of New York.
Second. That between the first day of Octobei’, 1892, and the .first day of May, 1893, at divers times, in the village of New Rochelle, Westchester county, New York, and vicinity, the defendant, in the presence and hearing of a number of persons, maliciously spoke, concerning the plaintiff, the false and defamatory words following: ‘The plaintiff is a drunkard,’ and ‘by reason of plaintiff’s drunkenness, he is no good any more as a mechanic.’
Thvrd. That plaintiff’s only means of supporting himself and Ms family is as a carpenter and builder.
“ Whereby the plaintiff was injured in his reputation to his damage five thousand dollars.
“ Wherefore, plaintiff demands judgment against the defendant for five thousand dollars, with .the costs of this action.”

The only criticism that can be made upon it is that it does not allege that the words were spoken of and concerning the trade or business of the plaintiff, and that he was therein specially injured and does not allege special damages. But it is evident from the face of the complaint that the words were spoken, of and concerning plaintiff’s trade, and under the Code the complaint sets forth a good cause of action.

It has been recently held in this district that a- charge made maliciously in respect to the professional capacity of a person, which, if true, would render him unworthy of employment, is actionable per se. This renders any allegation of special damage unnecessary. (Cruikshank v. Gordon, 48 Hun, 308.) But if it be assumed that the above case is not good law, we think the plaintiff should have been allowed to amend by inserting in his coim plaint an allegation of special injury and damage. (Lynde v. Johnson, 39 Hun, 12; Fowles v. Bowen, 30 N. Y. 20.)

Judgment set aside and motion denied, with costs.

Brown, P. J., concurred, stating that Gruihslumk v. Gordon was affirmed in 118 N. Y. 1Y8 ; Dykman, J., not sitting.

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


text:
    Markar G. Dadirrian, Respondent, v. Z. K. Theodorian, Appellant.

      Order denying a motion to vacate an injunction — not interfered with upon a/ppeal.

    The discretion exercised by tie Special Term of the Supreme Court, in denying a motion made by tlie defendant in an action, to vacate and set aside an injunction granted therein, will not ordinarily be interfered with upon appeal.
    ' Appeal by the defendant, Z. K. Theodorian, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of J une, 1894, denying the defendant’s motion to vacate and set aside an injunction granted on tlie 12th day of April, 1894, and continuing the same.

      Ola/rTc Bell, for the appellant.

      Betts, Hyde & Betts, for the respondent.
   Pratt, J.:

The question presented by this appeal is not free from difficulty. But there are some considerations which strongly favor the plaintiff, who seems to have expended considerable money in bringing his article into public notice.

Such discretion as the Special Term may exercise is not willingly interfered with, and the trial upon the merits, which either party can speedily bring on, will afford a more satisfactory decision than can be had upon affidavits.

The order should be affirmed, without costs.

Cullen and Dykman, JJ., concurred.

Order affirmed, without costs.


author: Cullen, J.:

text:
    Frederick A. Archer, Jr., Respondent, v. Lewis H. Archer and Others, Defendants; Emanuel G. Bach, Appellant.

      ■Jurisdiction of the court over the assignee of the purchaser at a judicial sale — stream flowing over lands sold — nota valid objection to the title thereof■ — it is not am easement.

    Where a sale of real estate takes place under a judgment, the court has authority-over the purchaser, and the person who substitutes himself in the place of the purchaser, by taking an assignment of his bid, is subject to the jurisdiction of the court to the same extent that the immediate purchaser was.
    A purchaser of property is bound to take notice of the physical conditions thereof, and the fact that a stream of running water flows over land purchased is not a valid objection to the title.
    Strictly speaking, a natural stream is not an easement, but an incident of the property over which it flows.

      Appeal by the purchaser, Emanuel G-. Bach, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of October, 1894, overruling the appellant’s objections to the title of certain premises sold, and directing the appellant to complete his purchase.

      E&wim, L. Kalish, for the purchaser, appellant.

      Seward Baker, for the respondent.
   Cullen, J.:

This is an appeal from an order of the Special Term directing the appellant, an assignee of the purchaser at the sale made under the judgment in this action, to complete his purchase.

The authority of the court over the immediate purchaser is unquestionable. (Requa v. Rea, 2 Paige, 339; Cazet v. Hubbell, 36 N. Y. 677.)

In Proctor v. Farnham (5 Paige, 614) it was held that an assignee, by substituting himself for the purchaser, made himself a party to the original suit, so far as to entitle him to a determination by the court of his rights as against those of his assignor. We cannot see why his rights and his obligations should not be equal. By substituting himself for the purchaser lie has subjected himself to the jurisdiction of the court to the same extent as the purchaser.

The only objection to the title is the existence of a running stream over the land purchased, which, it is contended, creates an easement in favor of other owners along the stream. This objection is not valid. The purchaser is bound to take notice of the physical condition of the property. The case is much stronger than that of a highway, the existence of which was held to be no breach of the covenants of title. ( Whitbeck v. Cook, 15 Johns. 483.) Strictly speaking, the natural stream is not an easement, but an incident of the property itself, like the right to enjoy the soil. (Washb. on Easm. § 20.)

In Scriver v. Smith (100 N. Y. 479) Judge Earl writes of running streams : “ Such rights have some semblance to easements, and no harm or inconvenience can probably come from classifying them as such for some purposes. But they are not in fact real easements. Every easement is supposed to have its origin in grant or prescription which presupposes a grant, and it is quite absurd to suppose that the owner of land, at the head of a stream, has an easement by grant or prescription for its flow over all the land of the riparian owners for many miles to its mouth. Would any of the usual covenants in a deed be violated because a natural stream of water flowed through the land, and the upper owners, therefore, had an easement in such land? Clearly not.” The opinion in Huyck v. Andrews (113 N. Y. 85) was written by the same learned judge, and nowise conflicts with the earlier case.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Pratt and Dykman, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Dykman, J.: Cullen, J.:

text:
    Julia M. De Forest, Plaintiff, v. Theodore G. Peck and Another, Appellants; Edith L. Halstead and Others, Respondents.

      Judgments of foreclosure — for what purpose granted — subrogation of a subsequent mortgagee to the rights of a prior mortgagee — to whom and for what purpose subrogation will be granted.

    Judgments of foreclosure are granted to enforce tlie payment of the mortgages foreclosed. They are solely for the benefit of the plaintiff, and not for that of any of the defendants. The statute prescribes the rights and remedies of judgment creditors, and such creditors have no claims to any other or more desirable remedies than the statute or law gives.
    The right of tenants in common is to have their respective shares of the land set off or the land sold in a partition suit, the same as that of a judgment creditor to an execution sale. Neither has any right or equity to have a prior general mortgage foreclosed, because it may be deemed more convenient to deal with the surplus moneys arising on the foreclosure sale than with the land itself.
    As a rule an order made in an action brought to foreclose a mortgage, granting the motion of a subsequent mortgagee for leave to pay off the mortgage in the suit and compel the assignment thereof to him, is just and proper.
    The doctrine of subrogation is applicable where a person is compelled to pay a debt or discharge an obligation to protect his own rights.
    The question as to which of the parties defendant, in an action brought to foreclose a mortgage, should obtain subrogation to the rights cf the mortgagee in whose favor judgment has been entered, depends not only upon the situation of the parties, but also upon their respective intents or purposes in acquiring the judgment.
    Appeal by the defendants, Theodore G-. Peck and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Rock-land on the 1st day of November, 1894, granting, under certain conditions, the motion of the defendant J. TIarsen Halstead, for leave to pay off the mortgage in suit and to compel an assignment thereof to him.

      Alonzo Wheeler and William W. Green, for the appellants,

      Irvirng Brown, for the respondents.
   Dykman, J.:

This action was commenced to foreclose a mortgage, and the defendant J. TIarsen Halstead was made a party, as the holder of a mortgage subsequent to the one in suit, covering the interest of one of the common owners of the premises.

After the entry of judgment in the action the defendant Halstead made a motion at Special Term for leave to pay off the mortgage in suit and to compel an assignment thereof to him.

The motion was granted, and two of the other defendants in the. action have appealed from the order.

The app>eal by the defendants is quite indicative of ulterior designs, because it is quite difficult to see how the appealing defendants can be injuriously affected by the order. Aside from that view, however, the order is plainly jnst and beneficial and based upon right, reason and sound p>rinciple.

The doctrine of subrogation has its best illustration and most frequent application where a person sustaining the relation of a surety, or one who is secondarily liable for the payment of a debt, advances money for its payment. But the doctrine is also applicable where a person is compelled to pay a debt or discharge an obligation to protect his own rights.

The defendant Halstead falls under the latter rule and his motion was properly granted. (Twombly v. Cassidy, 82 N. Y. 155, and cases there cited.)

The order should be affirmed, with ten dollars costs and disbursements.

Cullen, J., concurred.

Cullen, J.:

This is an appeal by Theodore G-. Peck and another, defendants, from an order made by the Special Term, directing the plaintiff to assign to J. Harsen Halstead, also a defendant, the bond and moi'tgage, the subject of the judgment of foreclosure made in this action.

The appellants have no standing to object to the order so far as it directed an assignment of the bond and mortgage and the judgment thereon. The plaintiff does not appeal. As she could have assigned the mortgage and judgment without the order of the court, and without the consent and against the wishes of the appellants, the appellants cannot assert her rights on this appeal. The appellants can have but one cause of complaint, that is, that the court did not order them to be subrogated to the rights of the plaintiff instead of the defendant Halstead.

The question as to which of the parties should obtain the subrogation depended not only on the situation of the parties, but also on their respective intents or purposes in acquiring the judgment. The appellants are part owners of the mortgaged premises and judgment creditors of another part owner, Jolm Peck. Halstead is the holder of a mortgage on John Peck’s interest, subsequent to the lien of the appellants’ judgment, and is the husband of another part owner. The mortgaged premises are a part of a large tract of land owned by the defendants as tenants in common, for the partition of which an action is now pending. Halstead asked for the subrogation that he might prevent a sale under the foreclosure, and it was awarded him on condition that he should not sell, but await the judgment in the partition suit. The appellants sought subrogation that they might force a present sale. The claim is made, on their part, that they are prepared to bid on the property, and that by a sale under foreclosure they can collect their judgment out of the share of John Peck in the surplus moneys more readily and advantageously then by sale on execution. We are at a loss to discover any equity in this claim. Judgments of foreclosure are granted to enforce payment of the mortgages foreclosed. They are solely for the benefit of the plaintiff, not for that of the defendant. The statute prescribes the rights and remedies of judgment creditors, and such creditors have no claim to other or inore desirable remedies than the statute and the law give. The right of tenants in common is to have their shares set off or the land sold in a partition suit; that of judgment creditors is to an execution ,sale. Neither has any right or equity to have a prior general mortgage foreclosed because it may be deemed more convenient to deal with the surplus moneys arising on the sale than with the land itself.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Pratt and Dyicman, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Ooxlbn, J.:

text:
    George H. Heath, Respondent, v. The New York Building Loan Banking Company, Appellant.

      Power of the court to correct its records — order reducing the amount allowed as a counterclaim.

    Tie Supreme Court Ras power to correct its records, but where the answer in an action sets up a counterclaim in a certain amount and prays for a sale of the land described in the complaint to satisfy this claim, and the judgment and findings allow the claim, the court has not the power, upon a motion made by the plaintiff, to correct the judgment and findings by reducing such claim — where the difference does not arise from clerical mistake, but from a substantial difference in the rulings of the court between the original and the amended findings as to the legal rights of the defendant, and where the amendment is not made in order to conform the record to the actual decision of the court.
    If the original award to the defendant was erroneous the error must be corrected either by appeal or by the granting of a new trial.
    Appeal by the defendant, Tlie New York Building Loan Banking Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of August, 1894, modifying the judgment rendered in the action and entered in said clerk’s office on the 8th day of June, 1894, and the decision of the court upon which said judgment was based, filed in said clerk’s office on the 31st day of May, 1894.

      William Id. Hamilton, for the appellant.

      A. T. Perry, for the respondent.
   Ooxlbn, J.:

This is an appeal from an order of the Special Term resettling the findings in an action tried before the court without a jury and modifying the judgment granted therein.

The action -was brought to set aside a mortgage and to rescind a deed and agreement upon plaintiff paying to the defendant the amount of its advances. It resulted in a judgment which purported to dismiss the complaint on its merits, and at the same time allowed the plaintiff to redeem within a given period on payment of a specified sum, and on his failure to redeem it decreed a sale for the payment of defendant’s lien. The decree adjudged that there was due and owing to the defendant, and secured as a lien on 'the land in question the sum of $8,014.60. Of this amount $3,800 was the premium bid by the plaintiff to secure the loan. In this judgment the defendant acquiesced. Two months after it was rendered the plaintiff, on an affidav.it that there was no consideration for this item of $3,800, and that it was either imaginary and void or usurious, applied to the court to strike the allowance of the item from the findings and to reduce the amount fixed by the judgment accordingly. The order appealed from granted the application to the extent that it reduced the amount allowed for the premium from $3,800 to $211.12.

"We think the order of the Special Term erroneous. The power of this court to correct its records is unquestionable. (Bohlen v. Metropolitan El. R. R. Co., 121 N. Y. 546.) The case cited, while it affirms the existence of this power in its broadest extent, also enunciates the principles upon which the power should be exercised. “ I am not aware that the courts have ever been denied the inherent power to correct their records, where the correction relates to mistakes or errors which may be termed clerical in their nature, or where it is made in order to conform tlie record to the truth. They should not, after the final judgment, by amendment change a ruling upon the law, or alter the decision upon the merits, for, by so doing, the substantial rights of the adverse party would be really affected. But where the amendment is in the line of the correction of a mistake, or of an omission, obviously due, as in this case, to the trial judge’s oversight, the power to make it is a general and incidental one.”

In the present case the amendment corrected no clerical error nor mistake of computation, but it changed the substantial rights of the parties. The defendant in its answer set up a counterclaim alleging that this sum of $3,800, with others, was due to it, and prayed for a sale of the land to satisfy its claim. The judgment and findings allowed this claim to the defendant. By the amendment the claim is disallowed except to the extent of $211.12. This does not arise from arithmetical mistake, but from a substantial difference in the rulings of the court between the original and amended findings as to the legal rights of the defendant. Nor is the amendment made to conform the record to the actual decision of the court. The plaintiff, in his affidavit, does not claim that the judgment and findings do not accord with the decision made. His allegation concerning this disputed item is not that the court did not allow it, but that the court should not have allowed it. It may very well be that the original award to defendant was erroneous, and the present award is correct, but the error is to be corrected either by appeal, or by the granting of a new trial. It may be also that the plaintiff presented such a case of surprise or neglect upon the part of his attorney as to justify granting him a new trial. If a proper case is made he may still obtain that relief, but the judgment should not have been changed except after a new trial, upon which the defendant would have had opportunity to produce additional evidence and justify its claim.

The order appealed from should be reversed, and the motion denied, with ten dollars costs and disbursements.

Pratt and Dykman, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.