text:
    In the Matter of the Application of Michael E. Finnigan, Appellant, for a Writ of Mandamus to Granville W. Harman, as Register of the County of Kings, and Henry C. Saffen, as Clerk of the County of Kings, Respondents.

      Mandamus — requires a clear legal right and the absence of another legal remedy— construction of an act relative to indexing deeds in Kings county.

    A writ of mandamus will not be granted to enforce a contract unless the petitioner proves that he has a clear legal right' and that there are no adequate legal means for its enforcement.

      It seems, that where the register and county clerk of the county of Kings employ a superintendent to carry out the provisions of chapter 365 of the Laws of 1894, relative to indexing and reindexing conveyances, mortgages and other instruments relating to lands and liens thereon in the county of Kings, such employ-
    ■ ment does not extend beyond the term of office of the officers who employed the superintendent.

      It seems, that, as section 30 of said act merely authorizes the employment of a superintendent for the purposes of the act, it is optional with the officers having power in the premises whether they will appoint a superintendent or not, but that, however they may have decided the question, their decision cannot control the action of those who succeeded them in office.
    Pratt, J., dissenting.
    Appeal by the applicant, Michael E. Finnigan, 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 24th day of June, 1895, denying his motion for a writ of mandamus as amended nunc pro tunc by an order entered in said clerk’s office on the 24tb day of July, 1895.

      Almet F. Jenles, for the appellant.

      William G. OooTc, for respondent Harman.

      Hirsh & Rasquin, for respondent Saffen,
   Brown, P. J.:

On October 9, 1894, pursuant to section 30 of chapter 365 of the Laws of 1894, Thomas J. Kenna and John Cottier, then respectively register and clerk of Kings county, entered into a contract with Michael E. Finnigan, whereby said Finnigan was employed for the purpose of superintending the carrying out of all of the provisions of said act, being an act relative to indexing and reindexing conveyances, mortgages and other instruments relating to lands and liens thereon in the county of Kings. For such services he was to receive $1,000 for each year, and at that rate for each fraction of a year “ until all the work under the said act is completed.”

The respondents were respectively elected to the offices of register and clerk of said county at the general election in November, 1891, and entered upon the discharge of the duties of said offices on January 1, 1895. On January second said respondents employed one Mosscrop to act as superintendent in connection with the work to be performed under said statute, and said Finnigan was discharged. This proceeding was thereupon commenced to compel the present register and clerk to recognize Finnigan as the superintendent authorized to be employed by the act aforesaid, and to afford him access to the books and papers in said- register’s and clerk’s offices.

The appellant contends that his employment was under a valid contract which continues until all the work authorized under said act is completed.

¥e agree with the Special Term that if that claim is sound the appellant has an adequate remedy at law, and is not entitled to a. writ of mandamus. It is only when there is a clear legal right and no adequate legal means for its enforcement that a writ of mandamus will be granted.

¥e think that it is very doubtful whether the register and county clerk who employed the appellant had a right to enter into a contract for the employment of a superintendent for the purpose of carrying out the provisions of the law aforesaid, which would extend beyond the expiration of their terms of office. We incline to the opinion that they had not such power.

The act provides for the doing of many things by those officers, the performance of which would extend beyond the terms of office of the register and clerk in office at the time the act was passed. Section 30 authorizes such officers to employ a superintendent, but it does not command it. It was left optional with them whether they should do so or not. Those in office when the act was passed could determine that question for themselves, but we are of the opinion that they could not control the discretion vested in their successors. The officers charged with the duty of carrying out the law have a right, we think, to exercise their own discretion and judgment as to whether tliey will employ a superintendent or not, and if they do employ one as to who lie shall be. It is sufficient, for the purpose of this proceeding, for us to say that the right of the applicant to enforce his contract against the present register and clerk is not clear, and that i'or that reason the motion was properly denied. The case of The People ex rel. Stanley v. Van Siclen (13 Hun, 537) is not analogous to tlie case before us. In that case the relator held lier office pursuant to a statute of the State, and had been illegally removed, and the court held that she could not, in tlie illegal manner there stated, be deprived of her position.

The order appealed from must be affirmed, witli ten dollars costs and disbursements.

Pyicman,- J., concurred; Pratt, J., dissented.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Brown, P. J.:

license: Public Domain

text:
    In the Matter of the Application of Thomas J. Kenna, Appellant, for a Writ of Mandamus to Henry H. Adams, County Treasurer of Kings County, Respondent.

      Kings county — act relative to indexing deeds — work to commence immediately upon the passage of the law — the expenses of the register are a county charge and no appropriation is required — the county treasurer may issue bonds to pay them.

    It was the purpose of chapter 365 of the Laws of 1894, an act providing “for indexing and reindexing conveyances, mortgages and other instruments relating to lands and liens thereon in the county of Kings,” that the register of the county should proceed at once to cause all conveyances and mortgages on record in his office to he lexicographically indexed, where that had not been done at the time of the passage of the act, and the doing of the work in question was not postponed, by the terms of the act, until January 1, 1895.
    Where the register of the county of Kings has performed such services his claim for the same is payable generally as a county charge, independent of any particular provision of the act in question, and is not dependent upon an appropriatioa by the board of estimate of the city of Brooklyn and county of Kings, made under sections 20 and 31 of said act.
    If the county treasurer is without funds to pay a claim of this nature, he is given authority by section 31 of the act to raise the money necessary by the issue of county bonds, provided always that the total amount of such bonds does not exceed the amount actually appropriated or required to carry out the provisions of the act.
    Appeal by the applicant, Thomas J. Kenna, 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 2d day of August, 1895, denying his motion for a peremptory writ of mandamus.

      Almet F. Jenks, for the appellant.

      George F. Elliot, for the respondent.
   Brown, P. J.:

The applicant, during the year 1891, was the register of the county of Kings, and as such caused certain conveyances and mortgages recorded in his office to be lexicographically indexed. The bill for such work, having been audited by the auditor of said county, was presented- to the county treasurer, who refused to pay it, whereupon this proceeding was instituted. The application for the writ was denied by the Special Term, and the order denying such application states that such denial was on the ground “ that the relator is not legally entitled thereto.”

The determination of this appeal requires us to construe certain sections of chapter 365 of the Laws of 1891. Authority for the reindexing of the conveyances and mortgages is claimed, by the applicant, to exist by reason of that provision in section 11 of said act which provides that the register shall cause all conveyances and mortgages now recorded in his office to be lexicographically indexed where not already done, in the same manner and form as conveyances and mortgages are now lexicographically indexed in his office, and the auditor of said county shall audit monthly and the treasurer of said county shall thereupon pay to said register his charges for said work at the rate now paid for like work in said office, but no more.”

The contention of the respondent is that the statute authorized, such work to be performed only after January 1, 1895, but this argument has not, we think, any support in the provisions of the law in question.

The title of the act is An act to provide for indexing and reindexing conveyances, mortgages and other instruments relating to lands and liens thereon in the county of Kings,” and its purpose was to introduce and establish in that county the block system of recording and indexing. It provides that after January 1, 1895,. every instrument affecting real estate or chattels real in said county which shell be recorded in the register’s office of said county shall be recorded and indexed pursuant to the provisions of that act. In other respects it took effect on April 25,1891, the date of its passage. It was made the duty of the register forthwith to make the preparations necessary to inaugurate and put in operation the new system established by the act. This work consisted of the preparation and publication of a map of the county, subdivided into sections and blocks, the procurement of block index books, daily indexes and ticklers and record books. The act also provided that after January 1, 1895, the register should keep in his office alphabetical indexes prepared in lexicographical or such other form as he should think proper, which indexes were to take the place of those theretofore required to be kept in said office, and said register was directed, in the language which I have above quoted, to cause to be reindexed lexicographically, where it had not already been done, all conveyances and mortgages which, at the time of the passage of the act, were recorded in his office.

There is nothing in the scope or purpose of the law which required that the reindexing should be postponed until January 1, 1895. Indeed, there was every reason for its immediate performance., The intent of the law was that all conveyances and mortgages in said county then recorded or those thereafter to be recorded should be-indexed in the manner provided, and it is very evident that the public interests would be subserved by reindexing the old conveyances as expeditiously as possible, and we are of the opinion that the. register was required to cause this work to be done immediately upon the - enactment of the law.

The second contention of the respondent is that no funds have been provided by the board of estimate of the city of Brooklyn and county of Kings for the payment of the work. This contention is based upon the following sections of the act:

“ § 20. The said board of estimate is hereby authorized and directed, from time to time, to determine the amounts of money not herein otherwise provided for, which- may be required to carry out the provisions of this act until the first day of January, eighteen hundred and ninety-five, and to appropriate said moneys therefor, and the county treasurer of Kings county is authorized to raise such money, from time to time, by the issue of bonds of said county, as hereinafter provided.

“ § 21. No expenditure shall be made or obligation incurred under any provision of this act, unless otherwise herein specifically authorized and provided for, until an appropriation therefor shall have been made by the said board of estimate, nor in excess of any such appropriation.”

§ 30. For the purpose of carrying out all the various provisions of this act the register and county clerk may employ an expert, who shall act as superintendent, and such clerks and assistants and other expert persons as may in their respective judgment be required in their own offices; provided, however, that all of the expenses, including printing, stationery and material as may be necessary for the purposes of this act, and for carrying out all of the provisions of this act, shall not in any event exceed the amount or amounts authorized by the said board of estimate, or otherwise specifically provided for by this act, or other existing law.

§ 31. The board of estimate of the city of Brooklyn and county of Kings is hereby authorized to include in the final estimate of the moneys to be raised by taxation in said county for the year eighteen hundred and ninety-five, and the succeeding years if required, until said block index or reindexed liens and compilations are completed, the amounts of money which may be required by said register and county clerk to carry out the provisions of this act in respect thereto and not otherwise provided, and to appropriate said moneys therefor; and the county treasurer of said county is authorized and directed to pay, out of the amounts so required and appropriated, the expenses authorized by this act, upon the requisition of the said register and county clerk for the amounts required by each in his own office, and said county treasurer is authorized to raise whatever money may be required, not otherwise provided for, from time -to time, by the issue of county bonds in such amounts, in such series arid payable at such times as the county treasurer may determine, bearing interest at a rate not to exceed four per cent, and not to be sold at less than par, provided that the total amount of such bonds shall not exceed the amount actually appropriated or required to carry out the provisions of this act.”

It will be .observed that all of .these provisions contemplate, for some of the expenses arising under the act, a source of payment other than an appropriation by the board of estimate. Thus, during the year 1894, said board is authorized to determine the amount of money required to carry out the provisions of the act, not therein “ otherwise provided for,” and expenditures, by section 21, are limited to such appropriations “ unless otherwise * * * specifically authorized and provided for ” by the act. A similar limitation and exception is made in sections 30 and 31.

The only provision of the law in question to which the exception can have airy application is that contained in section 14, which requires the county treasurer to pay the bills for reindexing the old conveyances, and bills for such work appear to be placed, with reference to their payment, upon a different basis from bills for any other services performed under this act. They are required to be audited by the auditor of the county before they can be paid, while all other expenses incurred under this act are, by the 31st section, required to be paid by the county treasurer upon the requisition of the register and county clerk.

Again, section 14 appears to have reference to some other law directing the lexicographical indexing of conveyances and mortgages by the register and fixing the amount to be paid therefor. The command of the section is to cause to be reindexed all conveyances and mortgages “ where not already done,” and the register is to be .paid for the work at the rate now paid for like work.”

We are of the opinion, therefore, that the payment of the applicant’s bill is not dependent upon an appropriation by the board of estimate under sections 20 and 31, but that it is payable generally as a county charge independent of any particular provision of the statute referred to. The affidavit of the applicant sets forth that he lias from time to time presented bills for similar work to the auditor for audit and to the treasurer for payment, and that with the exception of the bill of which payment is now sought all had been paid as provided by section Id of said act.

The treasurer made no affidavit in reply to that of the applicant It is not denied that other bills for similar services have been audited and paid; that the work for which payment is now claimed has been, performed, and it is not asserted that the treasurer has not in his hands funds from which to pay the applicant’s bill as a county charge.. Under these facts there is no defense to the claim. The law made it the duty of the applicant to cause the work to be done and fixed tbe compensation therefor, and has directed the respondent to pay the bills. If no provision has been made to obtain the money with which to make payments, that fact should have been stated.

In view of the undisputed fact that other bills for similar services, had been audited, we must assume that there is a fund from which the applicant’s bill may be properly paid, or else that lawful means of borrowing- the money exists.

And we are of the opinion that ample authority exists for raising the money necessary to pay bills of this character in the 31st section of the act, which authorizes the county treasurer to issue bonds of the county, provided that the total amount of such bonds shall not exceed the amount actually appropriated or required to carry out the provisions of this act.” This' provision of the statute, we think, authorizes the county treasurer to raise money for the purpose of paying the applicant’s bill by the issue of bonds, in the absence of any funds in his hands out of which said bill can be properly paid.

The order must be reversed and the motion granted, without costs.

Pratt and Dykman, JJ., concurred.

Order reversed and motion granted, without costs.


text:
    John O’Donnell, Respondent, v. The East River Gas Company, Appellant.

      Master and servant — duty of the master to furnish proper appliances —it cannot be delegated so as to relieve the master from liability.

    Acts, which the master as such is hound to perform for the safety and protection of his employees, cannot he delegated so as to exonerate the master from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the non-feasance or misfeasance is that of a superior officer, agent or servant or of a subordinate or inferior agent or servant, to whom the doing of the act or the performance of the duty has been committed.
    Upon the trial of an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, a day laborer, was directed to assist in cleaning out a boiler which stood within a few inches of another boiler which was under steam ; that he stood upon a platform holding the nozzle of a hose from which water was being forced into the tubes of the boiler which was not in use, and that in a few moments an explosion occurred by which he was injured. It further appeared that the hose used was attached to a fire hydrant connected by a pipe with a steam pump from which a pipe ran to the East river ; that the latter pipe and . pump were used to pump naphtha from boats and also to pump water from the river; that, although it was customary to wash the naphtha from the pipe there was a depression in it where naphtha sometimes stood, and that at times small quantities of naphtha remained in the pump.
    The engineer testified that naphtha had been pumped about a week before the accident and that he had neglected to rvash out the pipe before attempting to clean the boiler, and the testimony permitted the conclusion that naphtha, which had remained in the pipe and pump, was' carried through the hose into the tubes of the boiler and that thei'e coming in contact there with the heat from the other boiler, it had caused the explosion.

      Held, that the pump, suction pipe and hose, being the appliances with which the plaintiff was to do the work of cleaning the boiler, it was the duty of the defendant to see that they were in a reasonably safe condition when they were delivered to the plaintiff;
    That this duty could not be delegated, and that, if the engineer undertook ic, he represented the defendant; and if it was negligently performed, the defendant was liable.
    Appeal by the defendant, The East River Gas Company, from a .judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of April, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 25th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      William J. Kelly and Alfred A.. Gardner, for the appellant.

      Henry A. Monfort, for the respondent.
   Brown, P. J.:

This action was brought to recover damages for personal injuries sustained from the explosion of a boiler. The plaintiff was employed by the defendant as a day laborer, and upon the day of the accident was directed by the foreman of the defendant to assist in cleaning out one of two boilers standing side by side within a few inches of each other. The other boiler at the time of the accident was in use, working under a pressure of about fifty pounds of steam. Plaintiff stood upon a platform about five feet from the ground, holding the nozzle of a hose from which water was being forced into the tubes of the boiler. Within a few minutes after commencing the work an explosion occurred, the plaintiff was thrown to the floor of the boiler room, and received the injuries complained of. A similar explosion had occurred immediately previous while the engineer was engaged in cleaning the boiler with the same hose, but the plaintiff had no knowledge of that fact at the time he was directed to perform the work.

It appeared from the testimony that the hose used was attached to a fire hydrant which was connected by a pipe with a steam pump. Prom this pump a four-inch pipe ran to the East river. This pipe and pump were used every two or three weeks to pump naphtha, from which the defendant manufactured gas, from boats on the river to a tank in the defendant’s yard. They were also used to pump water from the river, and it was customary, after pumping naphtha, to wash out the pipe by pumping water through it. As originally laid the pipe drained into the river, but there was testimony which tended to show that about half way between the pump and the river it had become sagged, so that naphtha could stand in the pipe, and it also appeared that after pumping small quantities of naphtha would remain in the pump unless it was washed out. The engineer testified that naphtha had been pumped about a week before the accident, and tliat lie had neglected to wash out the pipe before attempting to clean the boiler.

The testimony permitted the conclusion that naphtha which had been permitted to remain in the pipe and pump was carried through the hose into the tubes of the boiler, and there, coming in contact with the heat from the other boiler, caused the explosion.

The appellant’s contention is that this was due to the negligence of the engineer, who was a fellow-servant of the plaintiff, and that, therefore, the defendant is not liable for the result of the accident.

A discussion of decided cases upon this branch of the law is never profitable. There is little room for disagreement as to the general principles of law applicable to the relation of master and servant. The difficulty always arises in their application to the particular case before the court.

In our opinion the evidence presented a case where the employer failed to provide the servant with a proper appliance or instrument to perform the work he was directed to do. The plaintiff was directed to clean the boiler. The pump, suction pipe and hose were the appliances with which that work was to be done. The defendant’s duty was to see that they were in a reasonably safe condition when they were delivered to the plaintiff. That duty could not be delegated. Whoever undertook it represented the defendant, and if it was negligently performed the defendant was liable for the result of that negligence.

The rule applicable to the case is stated clearly in Fuller v. Jewett (80 N. Y. 46-52) as follows : “We understand the principle of these cases to be that acts which the master, as such, is bound to perform for the safety and protection of his employees, cannot be delegated so as to exonerate the former from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the non-feasance or misfeasance is that of a superior officer, agent, or servant, of a subordinate or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case, in respect to such act or duty, the servant who undertakes, or omits to perform it, is the representative of the master, and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do by selecting competent servants, or otherwise to secure the safety of Ids employees.” We are of the opinion that the case was in all its aspects one for the jury, and that the damages were not excessive.

The judgment must be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Lewis Tuttle, Respondent, v. Richard W. Robinson and Others, Defendants; Marguerite De F. Raynor and Frederick W. Raynor, Appellants.

      Action by a, judgment creditor to set aside a conveyance — necessary recitals in Ms complaint as to Ms judgment recovered in a Justice’s Court.

    The common-law rule that, in pleading j udgments of inferior, courts of special and limited jurisdiction, the facts upon which jurisdiction depends must be stated, and that it must be shown that the court had acquired jurisdiction of the person as well as of the subject-matter, has been modified by the Code of Civil Procedure; and it is sufficient now to state that the judgment or determination was “duly given or made.”
    The complaint in an action brought by a judgment creditor to set aside a conveyance made by the j udgment debtor is fatally defective where it does not set out the facts showing jurisdiction, and fails to allege that the judgment of a. Justice’s Court against the defendant in question was duly given. Such a complaint is also defective where it fails to show that the judgment in question was recovered in any particular county, or does not show where it was docketed, or that execution upon it was issued by the clerk, or that the judgment, debtor was a resident of the State of New York.
    Appeal by the defendants, Marguerite De P. Raynor and another, from an interlocutory judgment of the Supreme Court in favor of' the plaintiff, entered in the office of the clerk of the county of Suffolk on the 24th day of April, 1895, upon the decision of .the-court rendered after a trial at the Kings County Special Term overruling their demurrers to the plaintiff’s complaint, except from so-much of said judgment as sustains the demurrer of the defendants, Bliss Brothers, with notice of an intention to bring up for review upon such appeal an order made at the Kings County Special Term •and entered in the office of the clerk of the county of Suffolk on the 24th day of April, 1895, overruling their demurrers.

      Tbmotlvy M. Griffing, for the appellants.

      George F. Staolcpole, for the respondent.
   Brown, P. J.:

This action was brought by the plaintiff, a judgment creditor of the defendant Richard W. Robinson, to obtain a judgment setting aside a conveyance of real estate from said Robinson to the defendant Marguerite De F. Raynor.

The first two allegations of the complaint are as follows :

That on or about March 3, 1894, in a Justice’s Court, in which Richard W. Robinson was defendant, the plaintiff recovered judgment against said Richard W. Robinson for the sum of fifty-one ■dollars and ninety-five cents. '

That on the 5th day of March, 1894, a transcript of said judgment was filed in Suffolk county clerk’s office, and an execution thereon was on the same day issued to the sheriff of Suffolk county, New York, and the same was thereafter returned by said sheriff wholly unsatisfied.”

The objections made to these allegations are, we think, well founded.

The common-law rule was that, in pleading judgments of inferior courts of special and limited jurisdiction, a general averment of jurisdiction was not sufficient. The facts upon which jurisdiction depended were required to be stated, and it was necessary to show that the court acquired jurisdiction of the person as well as that it had jurisdiction of the subject-matter. (Dakin v. Hudson, 6 Cow. 221; Bowman v. Russ, Id. 234; Thomas v. Robinson, 3 Wend. 267; Cleveland v. Rogers, 6 id. 438; Turner v. Roby, 3 N. Y. 193.)

The Code of Civil Procedure modified this rule, and it is now provided (Code Civ. Proc. § 532) that in pleading a judgment or ■other determination of a court of special jurisdiction it is not necessary to state the facts conferring jurisdiction, but that the judgment or determination may be stated to liave been “ duly given or made.”' Tbe plaintiff lias not set out the facts showing that the judgment against Dobinson was recovered before a justice having jurisdiction to render the same, nor has he followed the rule prescribed by the Code. The statement that the judgment was duly given ” is one of substance, and the omission to allege it is fatal to the complaint. (Hunt v. Dutcher, 13 How. Pr. 538; Wheeler v. Dakin, 12 id. 537; Cutting v. Massa, 15 N. Y. St. Repr. 316.)

In other respects the complaint is defective. It does not appear that the judgment was recovered in this State, nor in Suffolk county,, nor that it was ever docketed in that county, nor that the execution was issued by the clerk. Neither does it appear whether the judgment debtor was a resident of this State, and, if he was, that lie-resided in Suffolk county.

In view of the plain provisions of section 1872 of the Code of Civil Procedure the omission to allege the facts in chis regard is-fatal to the pleading.

The judgment must be reversed, with one bill of costs of appeal,, and the demurrers sustained, with one bill of costs of trial, with leave to plaintiff to amend his complaint within twenty days on payment of costs.

Pratt and Dykman, JJ., concurred.

Judgment reversed, with one bill of costs of appeal, and demurrers sustained, with one bill of costs of trial, with leave to plaintiff to-amend his complaint within twenty days on. payment of costs.


author: Prown, P. J.:

text:
    Anna Minott Mitchell, as Administratrix, etc., of Isabella H. Mitchell, Deceased, Respondent, v. The Village of White Plains, Appellant.

      Trespass — the trespasser cannot be compelled to buy the land at a price fixed by the court — equitable rule where there a/i'e continuing trespasses — damages recoverable by an administratrix.

    Where the complaint in an action alleges that the plaintiff is the owner and in. possession of certain premises, and that the defendant, a village, entered upon a portion of her land, broke down a fence, dug a sewer upon the land and appropriated the land for sewer and highway purposes, hut does not ask for an injunction, the action is not equitable in its nature, hut is a common-law action for a trespass.
    Where the plaintiff recovers for the value of the fence and separately for the depreciation in value of the property taken, and the referee, appointed in the case, finds that the plaintiff has offered, upon the payment of the latter sum, to convey the land to the defendant, there is no power in the referee, nor in the court, to direct a judgment for such sum, coupled with a provision that upon the payment of the sum tlie plaintiff shall convey the land to the defendants.
    A trespasser cannot he compelled to purchase the land upon which the trespass was committed at a price to ho fixed by the court.
    An action at law cannot he maintained by an owner to recover prospective damages for injuries to real estate, but where an owner proceeds in equity to restrain the continuance of a trespass, the court may determine the damages which the owner will sustain if the trespass continues permanently, and may provide that, upon the payment of those damages, the plaintiff shall convey the rights or easements in question to the defendant.
    The privilege, of securing the right to continue the acts complained of, is granted as a favor to the offending party, and not as a matter of right to the injured owner.

      It seems, that such a privilege has never been granted except in cases where the defendant had the right to exercise the power of eminent domain.
    Where the action is brought by the owner of land against a village for breaking down a fence and appropriating land for a sewer, and he dies after a referee appointed in the ease has made a report in his favor, and an administratrix is •duly substituted as plaintiff, a recovery by the administratrix must he limited to the damages sustained before the commencement of the action, viz., the value ■of the fence.
    Appeal by tlie defendant, Tlie Tillage of White Plains, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of tlie clerk of tlie county of Westchester on the 18tli day of February, 1895, upon the report of a referee.

      IT. T. Dyhmcm, for tlie appellant.

      William P. Fiero, for the respondent.
   Prown, P. J.:

This action was commenced by Isabella IT. Mitchell. In lier complaint, she alleged tliat she was the owner and in possession of about ten acres of land in the town of White Plains, Westchester county, and tliat on September 9, 1890, the defendant unlawfully entered upon a strip of said land adjoining Mamaroneck avenue, which is described as being fifty feet in width and four hundred and fifty feet long, broke down the fence and dug a sewer thereon and appropriated the same for highway and sewer purposes. Judgment was demanded for §5,000 damages. The answer put in issue the title to the land, but that question, upon a former appeal (62 Hun, 231; 138 N, Y. 621), has been determined adversely to the defendant’s contention.

The referee found that the acts of trespass were committed as alleged in the complaint; that the value of the fence which was destroyed was $138.33. In reference to the other item of damage, he found “that the depreciation in worth and value of the said property of the plaintiff, fifty feet in width and four hundred and fifty-three feet in length so as aforesaid taken, broken into, used and appropriated by the defendant, * * * was ■ the sum of three thousand five hundred dollars.” He further found that the plaintiff had offered to convey said strip of land to the defendant upon payment of-the amount found due by the referee, with costs, and directed judgment to be entered against the defendant for the aforesaid sum and interest, and that upon payment of said judgment by the defendant, the plaintiff should execute and deliver to the defendant a deed conveying to it the aforesaid strip of land in fee simple absolute.

The referee’s report was dated January 23, 1895. On February 9, 1895, Isabella II. Mitchell died intestate. Judgment appears to have been entered on February 18, 1895. On February 25, 1895, the plaintiff was appointed administratrix of said Isabella II. Mitchell, and was, by an order of the court, dated March Id, 1895, substituted as plaintiff in this action.

It is the claim of the respondent that this action is in equity, and the appeal has been argued by her counsel upon that assumption. If such is the character of the action, it is plain that the proper parties are not before the court, and we should be compelled to defer consideration of the case until they are brought in.

The plaintiff, as administratrix of Isabella II. Mitchell, has no title to the land, and she .could not comply with the provision of the judgment which required a deed of the land to be executed and delivered to the defendant on payment of the judgment.

The title to the land is vested in the heirs of Isabella H. Mitchell. It does not appear from the record who such heirs are. but they alone can execute a conveyance of the land and are entitled to be paid its value. The plaintiff, as administratrix, took title only to such damages as had been sustained prior to the commencement of the action. (Shepard v. Manhattan E. Ry. Co., 117 N. Y. 442; Griswold v. Metropolitan E. Ry. Co., 122 id. 102.)

While, therefore, it was proper, upon the death of Isabella H. Mitchell, that her administratrix should have been made a party plaintiff, her interest in the recovery was limited to the damages sustained before the commencement of the action, which the referee has found to be $138.33.

As to that part of the recovery which was based upon the depreciation in value of the land appropriated for the sewer, the heirs of Isabella II. Mitchell are the sole persons interested, and they have not been made parties to the action.

We are of the opinion, however, that the complaint sets out a common-law action for trespass only. There is no prayer for a permanent injunction, and none is granted by the judgment.

The theory upon which the action was tried appears to have been that the owner could recover the value of the strip of land taken, and that upon payment of its value the land could be conveyed to the defendant; in other words, that the defendant could be compelled to purchase the land at a price to be fixed by the court. But an action of that character is unknown and unprecedented, and cannot be maintained at law or in equity. (Galway v. Metropolitan E. Ry. Co., 128 N. Y. 143-146; Pappenheim v. Metropolitan E. Ry. Co., Id. 436.)

It is settled in this State that no action at law can be maintained by an owner to recover prospective damages for injuries to .real property. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Pond v. M. E. R. R. Co., 112 id. 187; Tallman v. Metropolitan E. Ry. Co., 121 id. 119.)

An action in equity may be maintained by a landowner, not for the purpose of recovering the value of land appropriated by a trespasser, but to restrain the continuance of a trespass and to prevent a multiplicity of actions at law to recover damages. In such an action the court may determine the amount of damages which the owner would sustain if the trespass were permanently continued, and may provide that, upon payment of that sum, the plaintiff shall convey the right to continue the acts complained, of to the defendant. But a court of equity cannot adjudge that the defendant shall pay and the plaintiff shall convey. The privilege of securing the right to continue the acts complained of is granted as a favor to the offending party and not as a matter of right to the injured owner. And in all cases wherein judgments of this character have been granted it will be found, I think, that the offending party had the right to exercise the power of eminent domain and acquire the property upon which the trespass was committed or the right to do the acts complained of. The rules applicable to equitable actions of this character and the power of the court therein are fully discussed and stated in Galway v. Metropolitan E. Ry. Co. and Pappenheim v. Metropolitan E. Ry. Co. (supra).

An owner of land trespassed upon may sue at law to recover damages for the tresspass, or he may resort to equity and have an injunction restraining its continuance. The trespasser is under a legal obligation to discontinue his acts, and the law presumes he will do so. But where it is conclusively determined that the acts complained of are to be' continued and the case is one where the defendant may acquire the right to continue them, a court of equity as an act of grace or favor will withhold its injunction upon condition that the defendant pay the valúe of the right. In that way condemnation proceedings are avoided and the owner recovers the permanent damages to his property.

In this case it was decided upon the former appeal that the statute under which Mamaroneck avenue was laid out (Chap. 552 of the Laws of 1868) was unconstitutional, and we are not referred to any law which grants to the defendant the right to acquire title to the strip of land in dispute.

The right to recover was, therefore, limited to damages sustained prior to the commencement of the action. The only damage of that character proven was the value of the fence destroyed, which was found by the referee to be $138.33.

The judgment must, therefore, be reversed and a new trial granted, unless the respondent stipulates within twenty days to reduce the recovery to $138.33, with interest from September 9, 1890, and, if sucli stipulation is filed, the judgment as so modified is affirmed, without costs of appeal.

Pratt and Hykman, JJ., concurred.

Judgment reversed and new trial granted, costs to abide event, unless tlie respondent stipulates witbin twenty days to reduce the recovery to $138.33, witli interest from September 9, 1890, and, if such stipulation is filed, the judgment as so modified is affirmed, without costs of appeal.


author: Brown, P. J. :

text:
    The Freeport Bank, Respondent, v. George Hagemeyer and Casper Hagemeyer, Composing the Firm of George Hagemeyer & Sons, Appellants, Impleaded with William H. Chew and C. F. Chellborg.

      Usury — legal inception of an accommodation note — loan by a purchaser to the maker through agents.

    In an action brought to recover upon a promissory note to which the makers interposed the defense of usury, it appeared that the note was made to the order of one Chew, to whom it was delivered for discount, the proceeds to be applied in payment of certain notes of the firm of Chew & Eadie, which had been indorsed by the makers of the note in suit; Chew delivered the note to one Cokefair, upon an agreement that he should have it discounted and pay to Chew one-half the proceeds less six per cent, the other half to be retained by Cokefair and to be repaid by him at the maturity oí the note; Cokefair delivered the note to one Kendall, upon an agreement that Kendall should have it discounted, retain twenty-five per cent of the proceeds, after taking out tlie discount, and repay the twenty-five per cent at maturity of the note. Kendall paid to Cokefair seventy-five per cent of tlie note, less the discount, and the plaintiff subsequently discounted the note for one Chellborg and paid to him a sum which represented the face of tlie note, less six per cent discount and two per cent for collection.

      Held., that the note had no legal inception until it was purchased by Kendall;
    That it was accommodation paper, and that the effect of the transaction was a loan made by Kendall to the makers of the note through the agency of Coke-fair and Chew;
    That the agreement hy Cokefair with Kendall was usurious, because Kendall’s agreement, to repay at maturity the twenty-five per cent of the proceeds of the discount, left the interest until maturity to be paid by the makers, although the discount had already been taken out.

      Appeal by the defendants, George Hagemeyer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of June, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County Circuit.

      William O. Seedier, for the appellants.

      George Wallace, for the respondent.
   Brown, P. J. :

This action was brought to recover upon a promissory note for $2,500, made by the appellants to the order of William IT. Chew and payable four months after date.

The defense was usury. It appeared by uncontradicted testimony that the note was made by the appellants and delivered to Chew in order that he might have it discounted and the proceeds applied to the payment of notes made by the firm of Chew & Eadie and indorsed by the appellants. Chew delivered the note to one Charles C. Cokefair, upon the agreement that he was. to procure its discount and pay to Chew in cash oneJialf of the proceeds less six per cent. The other half Cokefair was to retain and use, and at maturity he was to repay the one-lialf received by him. Cokefair delivered the note to one Kendall under an agreement with him that he was to procure it to be discounted and retain twenty-five per cent of the proceeds after taking out the discount, and at the maturity thereof to pay the one-quarter of the proceeds of the note received by him. Kendall paid to Cokefair seventy-five per cent of the note, less the discount. Thereafter the plaintiff discounted the note for one Chellborg, and paid to him $2,434.79, which amount represented the face of the note less six per cent discount and two per cent charged for the cost of collection.

The trial court held that the agreements testified to were not usurious and directed a verdict for the plaintiff.

I am unable to agree with this conclusion. If the agreements themselves did not conclusively establish usury they were of such a remarkable character that the jury should have been permitted to determine whether they were made in good faith or as a mere cover to escape the effect of the Usury Law. But as I understand the testimony the agreement with Kendall was usurious. The note was not a valid obligation in the hands of Chew. He could not have maintained an action upon it against the appellants. It was accommodation paper, and its sale was merely a loan of money, the purchaser being the lender and the seller the borrower. (Claflin v. Boorum, 122 N. Y. 385.)

The first one to advance money on the note was Kendall. It had no legal inception when sold to him, and the transaction therefor was a loan by Kendall to the appellants through the agency of Cokefair and Chew. If that loan violated the statute the note was rendered absolutely void and no subsequent transaction could make it valid. (Claflin v. Boorum, supra, and cases cited.)

Cokefair testified as follows in reference to this agreement: “ A. Mr. Kendall was to retain twenty-five per cent of the proceeds of the note, after taking out the discount. Q. Twenty-five per cent in addition to the discount ? A. In addition to the discount, and he was to hold himself responsible for the payment of that twenty-five per cent when the note came due. Q. And that arrangement had been made by you with him before the delivery of this note to him ? A. Simultaneously at or before the delivery of the note. By the Court. Q. Do you mean that he was to have twenty-five per cent and that he was to make the twenty-five per cent good when the note was taken up? A. Yes, sir. He was to get the benefit of the advance of twenty-five per cent of the note and I got the seventy-five per cent, and when the note became due he was to pay the twenty-five per cent.”

That is, Kendall was to pay at maturity, not twenty-five per cent of the note, but twenty-five per cent of the proceeds of the discount. In other words, he was to repay just what he received, thus leaving the interest to be paid by the makers. Thus Cokefair was to pay fifty dollars for the loan of $1,837.50 for four months, or nearly nine per cent. This was plainly usurious.

In the case of The East River Bank v. Hoyt (32 N. Y. 119) it was held that “ an arrangement by which one seeking a discount at a bank, is required to obtain a discount of paper amounting to $1,500, to secure the application to his use of $1,000 of the proceeds, without the right to use the remainder thereof, except in payment of the paper discounted when it shall become due, renders the transaction, usurious and void.” Tbe facts of that case are quite similar to the case before us.

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

Pratt and Dtkman, JJ., concurred.

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


text:
    John Kennedy and William Kennedy, Appellants, v. The Ball & Wood Company, Respondent.

      Verdict — a general verdict cannot stand where special findings conflict with it — the jury may be sent bach — otherwise the verdict must be set aside — affidavits of jurors used —■ a judgment must rest on a clear decision.

      A judgment in favor of a party should rest upon a positive and clear decision in his favor. The decision may be illegal or erroneous, but the procedure in the courts of the State of New York contemplates that it shall not be doubtful or ambiguous.
    Where the findings of a jury as to special questions submitted to them are inconsistent with a general vérdict, the special "findings- control the general verdict, and the court must render judgment accordingly.
    Where the general verdict of a jury is inconsistent with special findings made by it, the court may call the attention of the jurors to the inconsistency and send them back to the jury room to reconsider the case.

      It seems, that the rule that affidavits of jurors will not "be considered for the purpose of impeaching their verdict, does not apply to a case where the verdict of the jury is inconsistent on its face, but only to cases in which the application is to set aside a general verdict or a special finding where there was no general verdict.
    Where a jury find a general verdict for the plaintiff on a claim for work done by the plaintiff, and also find specially that the plaintiff has been paid for the work, and that certain other work done by the plaintiff for the defendant was defective, insecure and unworkmanlike, and the damage caused to the defendant thereby, and the case is one calling for a mere money judgment and requiring no special findings, it is the duty of the court to set the judgment aside and to grant a new trial.
    Appeal by the plain tiffs, John Kennedy and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of December, 1894, upon the vez’dict of a jury rendez-ed after a tz-ial at the Kings County Ciz-cuit, and also frozn an order entered in said clerk’s office on the 14th day of March, 1895, denying the plaintiffs’ motiozi for a ziew tz-ial made upon the minutes, and also frozn an order entered in said clerk’s office on the 16th day of February, 1895, deziyizzg plaintiffs’ motion to amend and correct the answer of the jury to the first special question submitted to them.

      Artemas B. Smith, for the appellants.

      James JM. JTunt, for the respondent.
   Brown, P. J.:

This action was brought to recover about $600 claimed to be due to the plaintiffs frozn the defendant for work performed by the plaintiffs kt Lancaster, Pennsylvania, during the year 1892.

The answer’ adznitted’tlze performance of the work and its value as alleged izi the complaint, and as a defense pleaded (1) payment, (2) á counterclaim of about $400 az-ising ozzt of the alleged defective pez-formance of a contz-act by plaizztiffs to do certain woz’k at Ilion in tne State of New York.

The jury was instructed by the cozzrt to render a general verdict and to answer specifically the three following questions t

“ Fi/rst. Have the plaintiffs beezz paid in full for the services at Lancaster mentioned in the eozziplaizzt %

Second. Was the woz-k done by the plaintiffs at Ilion defective, inseczzre and zznworkmanlike ?

Third. If so, what daznages did the defendant suffer by z-eason of the defective clzaz-acter of such work ? ”

The jury found a general verdict for the plaintiffs for the full amount of their claim azzd izzterest, and returzzed azz affirzzzative answer to the first two questions and $200 as the answer to the third question. The couz-t thereupozz directed a verdict for the defezzdant for $200 upon the grorzzzd that the special findings, being inconsistent with the gezzeral verdict, were controlling.

The plaizztiffs moved zzpon the court’s zzzinutes to set aside the verdict, which zzzotion was denied. Subsequently, upon an affidavit made by all the juz-oz’s, the plaintiffs moved to correct the verdict by changing the answer to the first question frozn “ yes ” to “ zzo,” and that judgment should be entered for the plaintiffs for the difference between the amount of the general verdict and the damages awarded on the 'Counterclaim, which motion was also denied.

Appeals from the judgment and from the orders denying the said motions are now before us.

It would, I thinlc, be a reproach upon the administration of the law and the procedure of the courts if the judgment rendered in this action is allowed to stand.

It is beyond dispute that it is impossible for the defendant to affirm positively that tire jury intended to award it a verdict.

A judgment in favor of a party to an action should rest upon a positive and clear decision in his favor. The decision may be illegal or erroneous, but our procedure contemplates that it shall not be doubtful or ambiguous, but positive and clear in favor of the successful party.

In this case the findings of the jury are inconsistent. The general verdict cannot stand with the special findings. In such a case the law is that the special findings control the general verdict and that the court must render judgment accordingly. (Code Oiv. Proc. § 1188.)

But like all other proceedings on the trial of an action, the conduct of the jury and its action in rendering the verdict under consideration was subject to the control of and review by the court. The verdict as rendered should not have been received, but the attention of the jurors should have been called to its inconsistencies, and they should have been sent back to their room to reconsider the case. It must be assumed that the jurors were honest and intended to discharge their duties fairly and intelligently. They doubtless intended to decide the case in favor of one party or the other, and not to nullify their verdict and cause the parties to lose the benefit of the trial. And it was apparent when the verdict was rendered that there was a misunderstanding of the case in the minds of the jury and a mistake in their conclusions.

I know of no rule of law wliich would have prevented the court then and there to have inquired of the jnry the reason for the inconsistencies in their verdict, to have explained to them the result of the verdict and to have directed them to have returned to their room and reconsidered the case.

The respondent, however, to sustain the judgment rendered, invokes the rule that affidavits of jurors will not be considered, when made for the purpose of impeaching their verdict.

All the cases cited by the respondent and others which I examined, in which this rule was applied, were ones in which the application was to set aside a general verdict, or a special finding where there was no general verdict. I have not found a case where that rule was applied when the inconsistency of the jury’s findings appeared on the face of the verdict. In such a case, I do not think the rule is applicable. Affidavits of-jurors have been received in exculpation of their action and in support of their verdict.

In Surgent v. - (5 Cow. 106) the verdict was set aside on affidavits of jurors showing that they had adopted a rule in estimating damages not allowed by law. This was approved in Ex parte Caykendoll (6 Cow. 53) and in Dalrymple v. Williams (63 N. Y. 361). That was going further, I think, than we would be called on to go in this case, as here the inconsistency of the verdict appears on its face, while in the cases cited it did not. But it is not necessai-y that we should consider that rule further or explain its application. The affidavit of the jurors was used upon the motion made by plaintiffs to change or set aside the special findings. That motion, we think, was properly denied. To have granted it would have required the court practically to have decided the case. That, it had no power to do, but it could have set the verdict aside and granted a new trial, and that, we think, it should have done. The case was not one which required any special findings from the jury. It was purely an action at law and called for a money judgment only. The questions were not submitted to the jury for the court’s information, or with reference to any proceedings in the action by the court subsequent to the verdict, but solely to inform the jury of the questions involved, and'aid them in considering the evidence and to arrive at a proper result.

After a clear and intelligible charge in which the several issues involved in the case had been presented to the jury, the court said : “ In order that you may more readily determine these questions, I instruct you not only to find a general verdict one way or the other * * * but also to pass upon these three* special questions of fact which I have stated in writing. * * * These are all questions that you will necessarily have to consider in arriving at a general verdict. Perhaps if you have them before you in writing you will be aided considerably in arriving at a just and proper conclusion.” It is evident from the result that the purpose of the learned judge to aid the deliberations of the jury and to illuminate the questions at issue, miscarried, and instead of a. certain positive result, we have uncertainty and confusion, and probably a judgment not intended to have been given.

"Without speculating as to what the jurors did really intend, and disregarding their own explanation made in their affidavit, it is very plain that they did not decide the case in favor of either party, and that to direct a verdict for the defendant upon the findings is to give it the benefit of a technical rule of practice, to which it is not in justice entitled, and which was never intended to apply to such a case'as this.

We are of the opinion that the motion to set aside the verdict should have been granted.

The judgment and order denying the motion for a new trial must be reversed and 'anew trial gran ted; with costs to abide the event.

The order denying the motion to amend the verdict is affirmed.

Pratt and Dykman, JT., concurred.

Order denying motion to amend verdict affirmed. Judgment and order denying motion for new trial reversed and new trial granted, costs to abide event.


text:
    Augustus D. Porter, Respondent, v. The Seaside and Brooklyn Bridge Elevated Railroad Company and Others, Appellants.

      Easements — taken by an elevated railroad — inconsistent Jindings as to damages— future damages not to be conjectural.

    Easements of light, air and access, taken or impaired by structures of an elevated railroad, are of no value to the property owner when separated from the land; the damages to him are merely consequential.
    In an action brought to recover damages resulting from the taking of easements of light, air and access by the defendants, street railway corporations, and to recover past and fee damages therefor, it appeared that the premises in question extended from Sands street, in the city of Brooklyn, on the north to High street on the south, and that the lot was built upon on both streets ; that the Brooklyn Elevated railroad has been operated through Sands street since 1887, and the Seaside and Brooklyn Bridge Elevated railroad was in process of construction in High street. It was also shown that there had been a great depreciation in tlic value of real estate in Brooklyn during the last few years that Sands street had changed from a street for residences into a street for business purposes, and that the rental value of property used for business purposes had not decreased. A single witness testified that property had decreased in value one-half since 1886.
    The trial court found that there had been no diminution in the rental or usable value of the property as a result of the construction, maintenance and operation of the Brooklyn Elevated railroad during the eight years it had been in operation, and awarded the plaintiff a nominal sum for past damages with 81,500 for fee damages.

      Held, that the findings were inconsistent, and that in the absence of evidence tending to show that depreciation in the value of the.property was caused by the construction and maintenance of the elevated railroad there was no ground for awarding fee damages.
    Appeal by the defendants, The Seaside and Brooklyn Bridge Elevated Railroad Company 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 9th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from the said decision.
    The action was brought to restrain the erection and maintenance by the defendants of a street railway in front of plaintiff’s premises and to recover past and fee damages therefor

      Henry L. Soheuermcm, for the appellants.

      Francis R. Whitney, for the respondent.
   Brown, P. J.:

The plaintiff is and has been since 1854 the owner of a lot of land in the city of Brooklyn about thirty-four feet wide and two hundred and six feet deep, extending from Sands street on the north to High street on the south. On the Sands street side there is a two-story and attic frame dwelling house standing some distance back from the street line, and on the High street side there are two two-story buildings, one a frame building and the other built of brick, one used as a dwelling and the other in part as a barber shop.

The Brooklyn Elevated railroad is built and has Deen operated in Sands street since 1887. The Seaside and Brooklyn Bridge Elevated railroad is in process of construction in High street.

The court awarded for past, damages the sum of six cents, and for damages to the fee the sum of $1,500. A similar award in the case of Sutro v. The Manhattan Railway Company (137 N. Y. 592) was characterized by the Court of Appeals as a “ singular result,” and I am unable to see how there is any basis for the conclusion that there will be injury to the property in the future as a result of the maintenance and operation of an elevated road, if there has been no injury from the maintenance and operation of a road for the past eight years.

The rule is now well settled that the easements of light, air and access taken or impaired by the elevated railroad structures are of no value to the property owners separated from the land, and that the damages to the land owner are consequential merely.

If the fact be as the learned trial judge has determined it, there has been no diminution in the rental or usable value of the property, as a result of the construction, maintenance or operation of the Brooklyn Elevated railroad during the eight years it has; been in operation, that fact is strong evidence that the fee value of the property has not been diminished in the past, and there is no testimony in the case from which it can be inferred that there will be any material change in the future. The award of fee damages rests upon the testimony of a single witness who gave his opinion that the property had depreciated in value from $50,000 in 1886 to $25,000 at the time of the trial, and that the annual rental value had fallen from $1,200 to $600. This witness, however, and the witness called by defendants agreed that Sands street had, in the period since 1886, changed from a residential to a business street, and that the rental value of property in that street which had been changed and altered for business purposes had not fallen. The plaintiff’s expert also testified on cross-examination that property on Sands street had held its own since 1886, and that plaintiff’s property, for residence purposes, never was worth as much as $40,000. It is impossible to harmonize the different opinions expressed by the plaintiff’s witness, and in view of the fact that it was undisputed that there had been great depreciation of real estate values in many parts of the city within the past few years and that the1 court determined that the rental value of the plaintiff’s property had not been depreciated by the operation and maintenance of the Brooklyn Elevated railroad, we are of the opinion that the evidence was wholly insufficient to sustain the award of fee damages. If the property had depreciated in value there were many causes to which that depreciation could be attributed. The court substantially found that’it was not to be attributed to the elevated railroad, and there was no evidence that the future would produce a result different from that already existing.

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

Pratt and Dykman, JJ., concurred.

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


text:
    In the Matter of the Petition of William C. Camp, Respondent. In the Matter of the Petition of Mary Ella Camp, Respondent. In the Matter of the Petition of Julia A. Tebbetts, Respondent. Nelson Cross, as Executor, etc., of Calvin B. Camp, Deceased, Appellant.

      Guardian and ward — a surrogate may direct the executor of deceased guardian to account — res adjudicata.

    Jurisdiction to direct the executor of a deceased guardian to account is conferred upon the surrogate by section 2606 of the Code of Civil Procedure.
    In a proceeding instituted against one Calvin B. Camp by his children, it was decided by the Court of Appeals that he had received a certain fund as guardian for his children, subject to his right to use the fund during his life ; that the surrogate had power to direct an accounting, but that payment to the infants could not be directed during the lifetime of their father.
    Pending a new accounting, the father died and the matter was continued against his executor whose answer did not deny the allegations of the petition relative to the prior proceedings against the father.

      Held, that the question whether the father was bound to render an account of his proceedings as guardian was not open for consideraron, and that it was to be taken as a fact that he received the fund in question as guardian.

      Appeal by Nelson Cross, as executor of Calvin B. Camp, deceased, from three orders of the Surrogate’s Court of the county of Kings bearing date on the 3d day of May, 1895, and entered in said court, directing him, as such executor, to file the accounts of Calvin B. Camp as general guardian of the petitioners.
    These proceedings were instituted by the petitioners to compel the executor of Calvin B. Camp, deceased, to -account for the proceedings of said Camp, as general guardian of the petitioners, and to compel the payment to them of an award in condemnation proceedings which was alleged to have been received by Camp as guardian of the petitioners.

      William G. Beecher, for the appellant.

      F. B. Jennings, for the respondents.
   Brown, P. J.:

The rights of the petitioners and their father, Calvin B. Camp, in and to the fund in question were fully discussed and settled in the proceeding instituted during Mr, Camp’s lifetime. The Court of Appeals decided that Calvin B. Camp received the fund as guardian for his children, subject to his individual right to the use of the same for his own life; that the surrogate had power to direct an accounting, but that payment to the infants could not be directed during the guardian’s lifetime.

Accordingly the decree of the surrogate directing immediate payment to the petitioners was reversed and the accounting directed to proceed anew. (Matter of Camp, 126 N. Y. 377.)

Pending the new accounting Mr. Camp died. Thereupon these proceedings were instituted.

Jurisdiction to direct the executor of a deceased guardian to account is conferred upon the surrogate by section 2606 of the Code of Civil Procedure.

There is no denial in the answers of the allegations in the petitions as to the prior proceeding against Mr. Camp, and it having been there determined that he was bound to render an account of his proceedings as guardian, that question is not open for consideration here. It is to be taken as a fact that the fund was received by Mr. Camp as guardian.

The appointment as guardian having been admitted, the right of the petitioners to an accounting was established.

The orders must be affirmed, with ten dollars costs and disbursements in each case.

Pratt and Dykman, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements in each case.


text:
    The People of the State of New York ex rel. Michael J. Dady, Appellant, v. The Supervisor of the Thirty-First Ward of the City of Brooklyn, Formerly the Town of Gravesend, Respondent.

      Motion for reargument — appellate court, bound by the record — it cannot consider affidamts, not read at Special Term, showing further facts.

    As the General Term is an appellate court, it is necessarily bound by the record .and cannot consider facts evidenced by affidavits which were not before the Special Term.
    The court cannot consider, upon a motion for a reargument, an affidavit of counsel setting forth alleged newly-discovered evidence.
    Motion by the appellant, Michael J. Dady, for a reargument upon a decision of the General Term of the Supreme Court rendered July, 1895. (Reported in 89 Hun, 241.)

      James O. Ghw'ch, for the motion.

      H. JB. Hubbard, opposed.
   Brown, P. J.:

This motion is based upon two grounds : First. That the court misapprehended the facts in relation to the resolution of the board of supervisors relating to the opening and grading of Neptune avenue. Second. Upon newly-discovered evidence.

Upon the last ground the affidavit of counsel is as follows:

“ Since the argument and decision of this case, however, I have discovered, by accident, that the board of supervisors, before the supervisor of tlie town of Gravesend appointed the grading commissioners on the point in question, on January 30, 1893, passed a specific resolution amending the resolution of June 13,1892, by striking therefrom the provision for the grading of Neptune avenue between West Fifteenth street and West Sixth street.

“ After the passage of this amending resolution, the supervisor of the town of Gravesend, on the 1st day of February, 1893, appointed grading commissioners of Neptune avenue, between Old Lot 47 and West Fifteenth street, and the said grading commissioners duly filed their oaths of office on February 5, 1893.”

The General Term being an appellate court, it would seem hardly necessary to state that we are bound by the record, and that we cannot consider any facts that were not before the Special Term and upon which tlie order appealed from was made.

We cannot, therefore, determine whether the resolution referred to in the affidavit had any vitality when the grading commissioners were appointed, or whether, as claimed by the respondent, it took effect only when approved by the supervisor at large.

Upon the other ground of the motion, it is said that the court in its opinion appears to have assumed (1) that the grading commissioners were appointed prior to the resolution of December 12, 1892, whereas, in fact, they "were not appointed until February 1, 1893 ; (2) that the resolution of June 13, 1892, provided for the opening as well as the grading of Neptune avenue, whereas the opening of such avenue had been provided for by a resolution of the board passed November 25, 1885.

I fail to see that these criticisms, if true, are of any materiality in the decision of the case.

The facts are, as stated in the opinion of the court, that the contract which the relator holds was made with the grading commissioners; that the resolution of June 13, 1892, directed the grading of Neptune avenue from “West Sixth street to the westerly line of old lot forty-seven, excepting that portion between Shell Road and West Eighth street,” and authorized the appointment of grading commissioners “ to cause the same to be graded, constructed and improved ; ” that the resolution of December 12, 1892, made no reference to the resolution of June thirteenth; that it shifted the avenue forty feet to the south between West Sixth and West Fifteenth streets and provided a new proceeding for the opening and grading of the southerly one-half of the avenue as changed. This left the resolution of <1 une thirteenth in full force as to the whole avenue therein directed to be graded except the northerly half between West Sixth and West Fifteenth streets, which, by the resolution of December twelfth, was closed. The power of the supervisor was, therefore, under these two resolutions, confined to the appointment of grading commissioners for the district stated in the resolution of June 13,1892, and he had no power, in appointing commissioners, to ignore that part of the avenue between West Sixth street and West Fifteenth street. In vindication, however, of the charge that the court misapprehended the facts of the case, the attention of the appellant’s counsel is called to the appeal papers. It nowhere appears that the resolution for opening Neptune avenue was passed by the board of supervisors in November, 1885, or that the grading commissioners were’ appointed on February 1, 1893. These facts, if they are material to the appellant’s case, are stated for the first time on this motion. The counsel is probably correct in stating that the resolution of June thirteenth provided only for the grading of Neptune avenue, but the point is of no importance as we assumed that the report of the opening commissioners had been confirmed. The resolution is, however, a long one £*h.d covers very many streets, and by section 23 it provided that all the provisions for opening and grading Voorhis avenue should apply to “Neptune avenue from West Sixth street to the westerly line of old lot forty-seven.”

The motion is denied, with ten dollars costs.

Pratt and Dykman, JJ., concurred.

Motion for reargument denied, with ten dollars costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Jesse J. Davis, Deceased. Charles E. Davis, Appellant; Margaretta Davis, Respondent.
    Will— testa mentí ity capacity.

    Upon a contest had relative to the probate of a will, it appeared that the testator made his will in the evening of December 7, 1894; that he was an aged man and had suffered from heart disease for about a month prior to the execution of the will; that for a good part of this period he was unable to sleep or lie down or to take sufficient nourishment, and was at times light headed.
    The will was witnessed by liis family physician and a neighbor, both of whom testified that the testator was of sound mind when he executed the will. Several witnesses for tlie contestant testified that just before; and soon after tbe will was executed the testator was irrational, and the lawyer who drew the will testified that the testator was irrational upon the afternoon of the day when the will was executed, and that he would not allow the testator to execute it then.

      Held, that the periods of irrational action were manifestations of the progress of the disease, and were temporary, resulting from lack of rest and proper nourishment;
    That the will was properly admitted to probate.
    Appeal by the contestant, Charles E. Davis, from a decree of the Surrogate’s Court of tbe county of Kings, entered in said court on tlie 8th day of April, 1895, admitting to probate an instrument purporting to be tlie last will and testament of Jesse J. Davis, deceased.

      Benno Boewy, for tbe appellant.

      Charles W. Culmr, for tbe respondent.
   Brown, P. J. :

The substantial and 'material facts in tliis case are undisputed. The contestant is tlie son of tbe testator, and the proponent of tbe will is liis widow.

The deceased was upwards of seventy years of age and had married the proponent about six months prior to his death. He had been sick with heart disease for about a month prior to the execution of liis will. A good part of tlie time lie was unable to sleep or lie down, or to take sufficient nourishment, and at times lie was flighty and light headed.

The will bore date of December 7, 1894, and was executed on the evening of that day. It was witnessed by his family physician, Dr. Winter, and a neighbor, Mrs. Neidhardt. It had been prepared by his lawyer, Mr. Wright, who had for a long time been his personal friend. At the request of the testator the will was read to him by Dr. Winter twice. After the second reading he said: That is just exactly as I want it to be.” Dr. Winter testified that at the time of executing the will the testator was of sound mind and memory, and Mrs. Neidhardt testified that she considered that he was of sound mind at the time. She said: “ He seemed to me to be just as sound as he had been on previous occasions when I had seen him, only he was weak.”

The eoiitestant called one witness who saw the testator the day after the will was executed, who testified that he was then irrational. Another witness saw him three times between the eighth and the twenty-third of December, when he died. The witness testified that at such times he was irrational. Another witness saw him after December thirteenth and testified that he was then irrational. Mr. Wright, who drew the will, testified that he called on him on the afternoon of December seventh - that he was then irrational and that he (Wright) would not allow him to execute the will. There was no evidence to support the charge of undue influenqe, and, upon the testimony which I have quoted, we are of the opinion that the surrogate properly decided that the testator was competent to execute the will.

The irrational conversations which were testified to by the contestant’s witnesses did not prove that the testator was insane. They were manifestations of the progress of the disease from which he suffered, and indicated a weak mind as the result of suffering from lack of rest and proper nourishment. These periods of irrational action and lack of sound mental control were temporary, and when they had passed the testator was able to attend to business and to understand the nature and character of his acts. They were fully explained by his physician, and there was absolutely no testimony to contradict the statements of Dr. Winter and Mrs. Neidhardt that when he executed the will his mind was clear.

The deci-ee must be affirmed, with costs to be paid by the ap>pellant.

Pratt and Dykman, JJ., concurred.

Decree of ■ surrogate affirmed, with costs to be paid by appellant.


text:
    Sue West Newell, Respondent, v. Edward G. Woolfolk and Charles Sillery, Composing the Firm of Woolfolk & Sillery, Appellants.

      Blasting — measure of care required — bioio.farone may use Ms own property to the prejudice of his neighbor — failure to prove title, an objection based thereon cannot be first tabeen on appeal.

    Tlie maxim “ sic utere tuo ut alienum non laedas ” does not prevent an owner of property from making proper use thereof, although such use may inflict damage upon his neighbor; the real meaning of the rule is that a person may not use his own property to the injury of any legal right of another.
    A person cannot conduct the operation of blasting on his own premises,(an act from which injury may be apprehended to the property of his neighbor) without the most cautious regard for the rights of such neighbor.
    Where, upon the trial of an action for trespass upon real estate, the plaintiff does uot prove that he is the owner of the property, the objection that ownership has not been proved, unless taken upon the trial, cannot be considered upon appeal. In an action brought to recover damages done to a dwelling house, resulting from llie alleged negligence of the defendants who were engaged in blasting rock near the plaintiff’s premises, it appeared that, in conducting the work “ breasts ” or rows of holes, from fourteen to twenty feet deep, were charged with dynamite and were exploded simultaneously, shaking the surrounding earth for a considerable distance and causing logs placed upon the rocks previous to the blasting to be thrown a distance of over 200 feet and over the tops of houses; that the rock could have been removed with smaller blasts, but that the method adopted was the usual one and the one most profitable to the defendants.

      Held, that the plaintiff was entitled to recover for damages done to the walls and ceilings of her house by the concussions.
    Appeal by tbe defendants, Edward G. Woolf oik and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of January, 1895, upon the report of a referee; also, from the order of the referee denying the defendants’ motion for a nonsuit, and also from the report of the referee.

      Thomas J). Husted, for the appellants.

      Milo J. White, for the respondent.
   Brown, P. J.:

This action was brought to recover for injuries to the plaintiff’s property caused by the blasting of rocks by the defendants. The defendants were engaged from September, 1892, until January, 1894, in excavating in a rock cut near Mount Yei’non upon tlxe property of the New York, New Haven and Hartford Railroad Company. The ¡xlaintiffs house was situated about 200 feet from where the blasting was beixig carried on.

The referee found upoxi sufficient evidence and after a personal examination of the premises, made with the consent of the parties, that the walls and ceilings of the plaintiffs house wex’e cx-acked and broken and injured as the result of concussions and vibrations occasioned by such'blasting.

The rule of law applicable to a case of this character was stated by the Court of Appeals in Booth v. R., W. & O. T. R. R. Co. (140 N. Y. 267).

Mere proof of iixjuries sustained from the blasting would not be sufficient to enable the plaintiff to maintain this actioxx. It must appear that the defendants failed to exercise due and proper care. The maxim sic litere tuo ut alienum non laedas does xxot prevent an owner of property from making proper use thereof, although such use may inflict an injuiy upon his íxeighbor. The real meaning of the rule is, as stated ixi the case cited, that one may xxot use his propei'ty to the irxjni’y of axxy legal right of anotlxei’. The defendants’ liability, therefore, depends upon tlxe degree of care exercised, and this was to be determined by the danger to the adjoiniixg property that was reasonably to be anticipated from the character of the work carried on.

It appeared that in conducting the work of blasting, “ breasts ” or rows of holes from fourteen to twenty feet deep were chai’ged with dynamite and simultaneously exploded, making blasts so powerful that the surrounding earth for a coixsiderable distance was shaken and legs placed upon the rocks to doadexx the blast were thrown a distaixce of over 200 feet axxd over the tops of houses. It was not disputed bxxt that the rock could have been removed with much smaller blasts, but it would not have been removed so expeditiously, and there would, in using smaller blasts, have beexx much less px’ofit to the defendants. The method adopted by the defexxdants was the usual oxxe for excavating rock axxd the oxxe most profitable to themselves. It is very evidexxt that the defexxdaxits iix conductixxg this work had regard only to their own interests. Reasonable care, however, required from them a due regard for the interests of the adjoining property owners.

In the case cited it was said: “ The law exacts from a person who undertakes to do even a lawful act on his own premises, which may produce injury to his neighbor, the exercise of a degree of care measured by the danger, to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor’s rights. This ivould be reasonable care only under the circumstances. If it was practicable in a business sense for the defendant to have removed the rock without blasting, although at a somewhat increased cost, the defendant would, we think, in view of the situation, and especially after having been informed of the injury that was being done, have been bound to resort to some other method.”

The judgment has ample support in the testimony, and must be affirmed.

An objection is made by the appellants that the finding that the plaintiff is the owner of the property is not sustained by the evidence. This point does not appear to have been raised specifically upon the trial. There wras a motion made to dismiss the complaint at the close of the ease upon the ground that no cause of action had been proved, but it was not suggested that there was a failure to prove plaintiff’s ownership of the property. We think the defendants must be deemed to have waived the objection. If attention had been called to it, it would probably have been obviated by the production of the deed.

The judgment must be affirmed, with costs.

Pratt and Dyicman, J J., concurred.

Judgment affirmed, with costs.


author: Brown, R. J.:

text:
    John New, Respondent, v. The Village of New Rochelle, Appellant.

      Payment of an assessment void upon its face — when it is voluntary it cannot be recovered — ignorance of the law is not a protection.

    The mere issuing of process to collect a void, assessment does not constitute coercion in law; and when an assessment is paid which, upon its face, carries notice of its illegality and consequent invalidity, and no duress is resorted to for its collection, a payment so made is voluntary and the amount paid cannot be recovered.
    The fact that the person who made the payment was ignorant of the invalidity of the assessment does not make his payment an involuntary one; ignorance of the law will not protect him.
    Upon the trial of an action brought to recover the amount of an assessment levied upon the property of the plaintiff by the defendant, a village, it appeared that, by the charter of the defendant, assessments of the character of the one in question were made liens upon the lots’in front of which the work was performed, and that the trustees of the village were empowered to sell the property assessed in case of non-payment. It was conceded that the assessment in question was void upon the face of the proceedings. It further appeared that after the assessment was levied the trustees of the village caused a warrant to be issued for its collection, by the terms of which the receiver of taxes was directed, after the expiration of sixty days from the date of the warrant, to collect the same by distress, if the same had not then been paid, and that while the warrant was in the hands of the collector the plaintiff, who supposed the assessment to be valid, paid it.
    Held, that, as there was no threat or taking of the plaintiff’s goods, there was no coercion in fact; and that, upon the facts shown, there was no coercion in law, and, therefore, the plaintiff could not recover from the village the amount paid by him.
    Appeal by the defendant, The Village of New Rochelle, from a judgment of the County Court of 'Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of July, 1895, upon the decision of the court rendered after a trial before the county judge without a jury."

      Michael J. Tierney, for the appellant.

      O: II. & J. A. Young c& Terry, for the respondent.
   Brown, R. J.:

This action was brought to recover the amount of an assessment levied upon the plaintiff’s property by the defendant for resetting curbs on the streets in front of said property, and which was paid by the plaintiff to the receiver of taxes of the village.

An assessment for similar work ivas declared void by this court in the case of The People ex rel. Spencer v. The Village of New Rochelle (83 Hun, 185). The assessment reviewed in that case’ depended upon the same provision of the village charter as that under which the assessment in question was levied against the plaintiff, but the effect of the decision of the court in Spencer's case was not to set aside all the assessments for recurbing levied under the resolution of the trustees of the village, but only that against the relator in that proceeding.

The ease was not one where a single sum of money to he raised by assessment was divided and distributed over a given district; each assessment was separate and distinct from all others, and was supported by facts applicable alone to the property and individual assessed.

This action may, however, he maintained, although the assessment has not been declared invalid, if, first, the assessment is void upon the face of the proceedings, and, second, if the payment made by the plaintiff wTas involuntary and the result of coercion in fact or in law.

That the assessment was void upon the face of the proceedings is not disputed by the appellant, and it was so decided by this court in Spencer's Case (supra). It is, however, claimed that the payment made by the plaintiff wTas voluntary, and that question is the only one to be considered on this appeal. It appears that, after the assessment was levied, the trustees of the village caused a warrant to be issued for the collection thereof to the receiver of taxes, whereby the said receiver of taxes was directed, after the expiration of sixty days from the date of the warrant, if said assessment was no't paid, to collect the same by distress, in the same manner as collectors of town taxes are authorized by law to do. While said warrant wras in the hands of the receiver of taxes, the plaintiff, not knowing that said assessment was invalid, but supposing it was enforcible, paid the same. By the charter of the village, assessments of the character of the one under discussion were made liens upon the lots in front of which the work was performed, and trustees were empowered in case of non-payment to sell the property.

The decision of the learned county judge was made upon the authority of Vaughn v. The Village of Port Chester (135 N. Y. 460). I think that case has been misapprehended and misapplied. The decision there did not rest upon the fact that a warrant had been issued for the collection of the tax, but upon the fact that a resolution had been passed by the village trustees directing the treasurer to sell the land. That such was the basis of the decision of the court is apparent from the authorities cited and from the' concluding remarks of Judge Guay’s opinion, where he says: “ When proceedings to collect the assessment had taken such legal shape, as that the payment might be enforced by a sale authorized to be made, then the payment by the plaintiff could not be termed a voluntary one, wdthin the doctrine laid down in the cases of Peyser v. The Mayor (70 N. Y. 497); Horn v. New Lots (83 id. 100); Bruecher v. Port Chester (101 id. 240) and Tripler & Redmond v. The Mayor (125 id. 617, 632).”

What constitutes coercion in law is very clearly stated by Judge Folckeb in Peyser v. The Mayor (supra). It exists, he says, Where a court having jurisdiction of the person and the subject-matter has rendered a judgment which is collectable in due course.” Also, in “those quasi adjudications of inferior tribunals, such as assessors of taxes or assessments, where their proceedings are regular on their face, and on presentation make out a right to have and demand the amount levied and to collect it in due course of law.” And it was further said that, To warrant an action to recover back money paid by coercion of law upon a judgment or * * * assessment laid, it must appear that the judgment or proceedings were prinna facie regular, so as not, themselves, to furnish evidence of their own invalidity.”

In Bruecher v. Village of Port Chester (supra) an involuntary payment was defined to be one made to an officer who has a valid process which he can enforce. And in Redmond v. The Mayor (125 N. Y. 632) it was scid that coercion in law would exist only in cases where payment of an _ assessment, having been demanded by the authorities, appears to be legally and rightfully due them.

There cannot be coercion in law, therefore, by the mere issuing of process for the collection of a void assessment, and when an assessment is paid which, upon its face, carries notice of its illegality and consequent invalidity, and no duress is resorted to for its collection, sucli payment is voluntary in the eyes of the law, and its restoration is properly denied. (Fleetwood v. City of New York, 2 Sandf. 475; Redmond v. The Mayor, 125 N. Y. 632.)

The fact that the plaintiff was actually ignorant of the invalidity of the assessment does not make his payment an involuntary one. The rule is well established that a person cannot recover money paid, on the ground that he supposed he was legally bound to pay it. Ignorance of the law is not a justification of the payment. (Phelps v. The Mayor, 112 N. Y. 216.)

There was in this case no threat or taking of the plaintiff’s goods, and, therefore, no coercion in fact, and, as we are of the-opinion that there was no coercion in law, the payment of the assessment must be deemed to have been voluntary and the amount thereof cannot be recovered.

The judgment must be reversed, with costs of appeal, and the complaint dismissed, with costs.

Pratt and Dykman, J J., concurred.

Judgment reversed, with costs of appeal, and complaint dismissed, with costs.