author: Dykman, J.: GrAYNOR, J.:

text:
    Elie Weill and Elie Lazard, Appellants, v. Joseph Malone and Others, Respondents.

      fraud — restoring the, consideration upon the rescission of a contract — construction,' determined by the acts of pai ties.

    Where a person desires to rescind a contract because of fraud, he must restore or offer to restore the consideration which he has received under it.
    Where a question arises as to the proper construction of an agreement the court • may consider the acts which the parties have done under it, with a view to ascertaining what they understood the agreement to be.
    A debtor and creditor, mutually interested in insurance policies, running to the debtor, upon which a loss has occurred, entered into an agreement as to the way in which the insurance moneys and the salvage on the stock insured should be divided, which agreement further provided that the debtor, upon assigning the policies to the creditor, should be released from responsibility.

      Held, that the debtor, upon making such assignment, was released from all claims and demands against him upon the part of the creditor.
    Appeal by the plaintiffs, Elie Weill and another, from a judg'ment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 10th day of December, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiffs’ complaint upon the merits, and also from an order entered in said cleric’s office on the 9th day of March, 1895, denying the plaintiffs’ motion that the said judgment be opened and the case set down for further hearing.

      Frederic A. lia mum and Fu-gene G. Kremer, for the appellants.

      Charles J. Patterson, for the defendants Halstead.

      James C. Church, for the defendants Malone.
   Dykman, J.:

This is an appeal from a judgment entered upon the decision of a justice of this court after a trial at the Special Term, and also from an order denying a motion of the plaintiffs to open the judgment.

The facts are recited in the opinion of the trial judge, and as we concur in his conclusions a recitation of the case by us would be unprofitable.

The judgment should be affirmed, with costs, on the opinion of tlie trial judge, and as the appeal from the order is destitute of merit it should also be affirmed, with ten dollars costs and • disbursements.

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

Judgment affirmed, with costs; order affirmed, with ten dollars costs and disbursements.

The opinion of the trial judge was as follows:

GrAYNOR, J.:

The plaintiffs were commission merchants, -while the defendants Joseph Malone & Co. were manufacturers of corset steels and like corset materials. These parties entered into a written agreement hr which the plaintiffs became the selling agents of the entire product of the factory of the said Joseph Malone & Co. They ivere to guarantee all sales and have a commission of live per cent, and Joseph Malone & Co. were to fill all orders for such manufactured goods as they should be given to them by the plaintiffs. The contract also contemplated that the plaintiffs should make money advancements and deliver merchandise to Joseph Malone & Co., for it provided that they should be credited with all such advances and with the price of any goods shipped and invoiced by them to Joseph Malone & Co. It also provided that balances should be struck monthly and paid by the debtor side. Under this arrangement when, goods were manufactured, though still lying- in the factory and not yet delivered to customers, the plaintiffs were in the habit of crediting Joseph Malone & Co. with them and advancing to them their value, less the cash discount and the five per cent commission. They were also in the habit of depositing at the factory quantities of stool bars, which Joseph Malone & Co. drew from and used to make the corset materials, notifying the plaintiffs from time to time of tire quantity used, whereupon the plaintiffs would charge them with the same. During these dealings Joseph Malone & Co. purchased some machinery from the plaintiffs, and gave them a chattel mortgage thereon to secure the payment of $4,000, the purchase price. The said chattel mortgage is also in terms for the faithful performance of the aforesaid agreement, which, of coarse, embraced the payment of all balances found against the said Joseph Malone & Co. as aforesaid. Books of account embracing the dealings, and showing the credits and debits between the parties were kept by the plaintiffs. This being the condition of affairs, a fire occurred in the said factory of Joseph Malone & Co., by which the said factory and the machinery and the goods and material therein were much damaged. At the time of the fire the plaintiffs’ books showed a balance against Joseph Malone & Oo. of about $5,500. The fire occurred on April 26, 1890. The plaintiffs claim that, of the steel bars -which they had deposited with Joseph Malone & Co. at their factory from time to time as aforesaid, there should have been as much as ninety-two casks, of the value of about $5,000, at the time of the fire. About $4,000 worth of manufactured stock also lay in the factory at the time. In these circumstances, both parties having suffered by the fire, and the insurance, namely, $14,000, being in the name of J oseph Malone & Co., about $7,000 of which was upon the stock and the rest upon the machinery and fixtures, the said parties entered into the following agreement:

“ This agreement, made this 1st day of May, 1890, by and between Elie "Weill & Company and Joseph Malone & Company, witnesseth: “ The parties hereto agree to pool their joint loss on machinery and stock on the following basis, to wit:

First-. That the money received shall first be applied to cancel the indebtedness of Joseph Malone & Company to Elie Weill .& Company, amounting to about $6,000 in full, and the balance, if any, to be divided pro ruta between the parties as follows, and in the following proportions:

“ Seventy-five per cent to Elie Weill & Company and twenty-five per cent to Joseph Malone & Company.

“ And it is further agreed that' whatever salvage there may be left after the payment of the five per cent to the adjusters shall be divided equally between Elie Weill & Co. and Joseph Malone Ss Co. ; there shall be a reléase of responsibility to Joseph Malone & Company, and they are hereby released from said responsibility, and in consideration thereof they shall, and do hereby, assign their policies to Elie Weill & Company.

“ In witness whereof, the parties hereto have hereunto set their hands and seals the year and day first aDove written.

“ ELIE WEILL & OO. [seal.]

a in presence of “JOS. MALONE & CO. [seal.]

Bernard Oberndoerfer.”

This agreement was carried out, in that the insurance money was paid and the salvage of stock divided in kind as therein provided; but the machinery was not divided, neither party apparently understanding that it should be, for nothing ivas said or done in that view. It is conceded that the insurance money was more than sufficient to pay the said book balance of $5,500. Afterwards, namely, in July, the plaintiffs began an action against J oseph Malone & Co. for an alleged conversion of about fifty-two casks (52,401 pounds) of the said ninety-two casks of steel deposited, from time to time, with them, at their said factory, by the plaintiffs as aforesaid. In the following month they took from said Joseph Malone & Co. the machinery mentioned in their said chattel mortgage thereon, j>rofessing to take it by virtue of the said mortgage. In the following March J oseph Maloue & Co. brought an action against them for an alleged conversion of the said machinery. In this latter action the plaintiffs therein (Joseph Malone & Co.) claimed that the agreement above set out, and the carrying out of the same, waa a complete adjustment between the parties, and that the taking of the said machinery under the said mortgage was, therefore, without right and a trespass. The present action was, therefore, brought to set aside the said agreement for fraud ; or, failing in that, to have it so reformed or construed as to exclude the said mortgage from its intendment and operation. And now, at the end of the case, it is insisted, as it is in the complaint, that Joseph Malone & Co., having converted to their own use about fifty-two casks of the said steel bars deposited in their factory as aforesaid, and the plaintiffs being unaware of such conversion when they entered into the said adjustment agreement, it should be declared void for fraud. It is an answer to say that they have not restored, nor do they offer to restore, the money and the share of the salvage which they got under it (Gould v. Cayuga, Bank, 99 N. Y. 333). But I also find that Joseph Malone & Co. converted none of the steel. They had used at least twenty casks in manufacturing, a large quantity was made worthless by the fire, and at least forty casks formed part of the salvage, which was examined, sorted, weighed and divided by the parties without a word of dissatisfaction or accusation. I also find that the $4,000 for the machinery had been paid. But as the mortgage also subsisted to secure the payment of any balances which Joseph Malone & Oo. should owe the plaintiffs, from time to time, it matters not whether any part of the said $4,000 remained unpaid; if it did, it formed part of the balance of $5,500; and, that having been paid out of the insurance money, the mortgage had no more life.

But as the plaintiffs insist that there still remains money due from Joseph Malone & Co., it may bo well to go further.

The first words of the agreement are that the parties “ agree to pool their joint loss on the machinery and stock.” The only interest the plaintiffs had in the machinery was through their said chattel mortgage on part of it. The agreement then proceeds to provide that the insurance money for loss of both machinery and stock “shall first be applied to cancel the indebtedness ” of Joseph Malone c% Oo. It then provides that if there be any overplus of insurance money, seventy-five per cent of it shall go to the plaintiffs and twenty-five per cent to Joseph Malone & Co., and that the salvage shall be divided equally. As each suffered a loss on stock, this seems to mean salvage on stock, and the parties so interpreted it practically, as has been stated. And, finally, the agreement provides that “ there shall be a release of responsibility to Joseph Malone & Co., and they are hereby released from said responsibility.” The intention plainly was that the entire responsibility of Joseph Malone & Oo. to the plaintiffs should be released; so that if it can be made out that there was some indebtedness outside of the book account, which remains unpaid (which, however, lias not been shown), nevertheless it was all contemplated by the agreement and is released thereby. The intention was not to give the plaintiffs the advantage which was given to them for nothing. If it was meant that only the book account should be released, or released only to the extent which the insurance money should pay it, I do not see why Joseph Malone & Co. turned their policies over to the plaintiffs and made with them such an agreement.

Let judgment be entered accordingly.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Elihu Lovett, Respondent, v. William A. Randall, Appellant.

      Town — highway commissioner — effect of chapter. 344 of 1893 upon the length of the term — the statute is not self-executing — effect under the Puhlie Officers Law of an officer holding over — successor to a highway commissioner when chosen — Laws 1890, chap. 569, § 17; 1893, chap. 344, §§ 13, 17; 1893, chap. 681, § 5.
    In an action brought to determine the title to tbe office of highway commissioner of the town of Warwick, it appeared that at a town meeting, held in March, 1893, the defendant was elected such commissioner for one year; that at a town meeting held March, 1894, he was a candidate, having the relator for his opponent; that the result of the balloting was a tie; that the defendant held over, and at a town meeting- held in March, 1895, the relator was duly elected to the office.

      Held, that the relator was entitled to the office;
    That chapter 344 of the Laws of 1898 (passed April 11, 1893), amendatory of section 17 of chapter 569 of the Laws of 1890, the Town Law, making tlie term of a highway commissioner in towns having but one such commissioner two years, had no application to the 'defendant’s tenure of office. tiemble, that tlie statute did not execute itself, but contemplated a decision by tlie town whether it should have one or three commissioners of highways, and no action in this regard having- been taken by the electors of the town the term of office had not been thereby extended to two years;
    That the term of the defendant expired in one year (in March, 1894), and that as there was a failure to elect liis successor, the defendant hold over under the Public Officers Law, being section 5 of chapter 681 of the Laws of 1893, until his successor, the relator, was duly eliosen and had duly qualified;
    That such successor must be chosen at the time of holding an annual town meeting, and, if chosen to fill a vacancy, would hold office for the rest of the unexpired term.
    Appeal by the defendant, William A. Randall, from a judgment of the Supreme Court in favor of tlie relator, entered in tlie office of the clerk of tlie county of Orange on tlie STtli day of June, 1895, upon the decision of tlie court rendered after a trial at tlie Orange Circuit before the court without a jury.

      M. N. Kcone, for tlie appellant.

      M. II. llirsolib&rg, for tlie respondent.
   Dykman, J.:

This is an action to determine tlie title to the office of commissioner of highways of the town of Warwick in Orange county.

Both parties claim the office under the following facts, which are undisputed:

The town of Warwick has had but one commissioner of highways since 185?. At the town meeting held in the month of March, 1893, the appellant, William A. Randall, was elected commissioner of highways for one year.

At the expiration of his term he was a candidate for re-election, his opponent being the relator, Elihn Lovett. At that election, held in the month of March, 1894, no choice was made, the election resulting in a tie, and by reason of the failure to elect his successor Randall held over, and continued to discharge the duties of the office as permitted by the Public Officers Law (Chap. 681 of the Laws of 1892, § 5).

At the next town meeting held in the month of March, 1895, Lovett, the relator, was again'regularly placed in nomination for the office and no one was nominated against him. lie was elected and accepted the office in writing, and qualified and gave the proper bond, and entered upon the discharge of the duties of his office.

The theory of the defendant is that chapter 344 of the Laws of 1893 (passed April 11, 1893), amending section 1? of chapter 569 of the Laws of 1890, operated to extend the term of office of the commissioner of highways of the said town from one year to two years, and that upon the failure of the electors of such town to elect his successor he could hold over for the full term of two years, and that his term was not abridged by the election of the relator.

Section 1? is as follows : “ Commissioners of highways.— The electors of each town may, at their annual town meetings, determine by resolution whether there shall be elected in their town one or three commissioners of highways. If only one shall be determined upon, and it shall be a town having but one commissioner of highways, one commissioner only shall thereafter be elected at each alternate annual town meeting, who shall hold his office for two years.”

The electors of the town of Warwick failed to determine by resolution whether there should be elected one or three commissioners of highways in that town after the passage of that statute until March, 1895, and it is, therefore, very doubtful whether the term of that office has been extended to two years. The statute did not execute itself. It required action on the part of the electors of the town, and that essential prerequisite never received compliance. As we have said, the defendant was elected commissioner of highways in March, 1893, for one year. The statute of 1893 did not become a law until April, 1893, and did not extend his term or affect his tenure in any way. According to this view his term expired in March, 1894, and as there was a failure to elect his successor he held over under section 5 of the Public Officers Law, until his successor was duly chosen and qualified, in March, 1895.

There is another view which conducts us to the same result.

Prior to the enactment of the Public Officers Law in 1892 (Chap. 681) an office was not deemed vacant while there was a person authorized to perform its functions, and was acting in it. Even now there is no physical vacancy, as by section 5, already mentioned, every officer, with the exception of those therein named, holds over and continues to discharge the duties of his office after the expiration of the term for which he shall have been chosen until his successor shall be chosen and qualified ; after the expiration of such term, the office is deemed vacant for the purpose of chosing his successor. Such successor must be chosen at the time of holding an annual town meeting, and the persons chosen to fill such vacancies hold their offices for the residue of the unexpired term for which they are elected. (§ 12 of chap. 569 of the Laws of 1890, as amended by chap. 344 of the Laws of 1893.)

The statute is plain and easily understood, and readily applied to this case. The defendant, having regularly entered upon the duties of his office, held over and continued to discharge the same until March, 1895, because no person was elected to succeed him. Then the office was deemed vacant for the purpose of choosing his successor, and the relator was duly elected and qualified and so became entitled to the office.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J\, not voting.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. John A. Fuhry, Appellant, v. The Board of Excise of the City of Brooklyn, Respondent.

      Boards of excise — when the court will not interfere with the refusal of the hoard, !o consent to a change in the place of business.

    Boards of commissioners of excise are organized for tire purpose of regulating tlie sale of liquors and they are clothed with power and discretion to determine whether a license shall he issued to a particular person or for a specified locality.
    It was not the intention of the Legislature to transfer the discretion vested in the boards of excise of this State to the courts or to judges.
    Where an assignee of a person, to whom a license to sell liquor has been granted, applies to an excise board for permission to carry on business under the same license at another place in the same city for the balance of the term, upon the-discontinuance of the business conducted on the premises for which the license was originally granted, and the application is denied by the board, the court will not interfere with the determination where it cannot determine that the application was denied arbitrarily or without good or valid reasons therefor.
    Appeal by the relator, John A. Fuhry, from an order of the-Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 26th day of July, 1895, quashing and dismissing a- writ of certiorari theretofore granted in the proceeding.

      Francis A. McGloskey, for the appellant.

      Jacob Brenner, for the respondent.
   Dykman, J.:

On the 25tk day of October, 1894, the hoard of excise of the city of Brooklyn granted a license to F. W. Coddington to sell spirituous liquors at 156 Conover street, in that city, for one year. That license seems to have been assigned to the relator, hut the fact is not clearly stated.

On the 24th day of December, 1894, the relator made an application to the excise hoard for permission to carry on the business under Coddington’s license at No. 313 Bedford avenue, in tlie city of Brooklyn, for the balance of the term of such license upon discontinuance of the business on the premises for which the license was originally granted. The application was denied, and the relator instituted this proceeding by a certiorari to review the action of the board which resulted in such denial.

The writ is authorized by section 24 of chapter 401 of the Laws of 1892. The case was heard before a justice of this court, and decided against the relator, who has appealed from the order. Section 24 of the statute, which authorizes the writ, closes with these words: If such court shall, upon the hearing, determine that rsuch application for a license has been by such board arbitrarily denied, or denied without good or valid reasons therefor, such court may make an order commanding such board of excise to grant such application, and to issue a license to such applicant upon the payment of the proper license fee.”

Although the converse of the rule is not laid down, yet it is to be assumed that if the court cannot determine that the application for a license has been arbitrarily denied, or has been denied without good or valid reasons therefor, the issuance of the license will not be commanded.

Boards of commissioners of excise are organized, for the purpose of regulating the sale of liquors, and they are clothed with power and discretion to determine whether a license shall bo issued to a particular person or for a specified locality. So long as their action is within the scope of their powers, and is just and reasonable, and free from oppression, it is subject to no judicial control.

It was not the intention of the Legislature to transfer the discretion vested in the boards of excise of this State to the courts or judges.

The purpose of the statute is to prevent arbitrary and unreasonable action, and afford relief where it has been exercised.

There is nothing in the record of this case to show arbitrary, unreasonable or even inconsiderate action. On the contrary, the proceeding from first to last was marked by deliberation.

A full opportunity was offered for a public hearing, and a case was presented to the court for the exercise of its judgment. The facts deduced are amply sufficient to exculpate the commissioners from the charge of arbitrary or unreasonable action, and the order should be affirmed, with costs.

Bbown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs.


author: Pratt, J.:

text:
    Margaret E. Purcell, Respondent, v. Long Island City, Appellant.

      •Ifunicijial corporations — Long Island Gily — liable to a janitor for a wrongful discharge by the board of education.

    The charter of Long- Island City makes the board of education and the school trustees the lawful instrumentalities of the city in caring for the public schools; and the appointment of a janitor for a school is a reasonable and necessary part of their duty.
    The board in making- such an appointment acts within the scope of its authority and for the benefit of the city; and tlie city is liable in damages to such an appointee who is discharged without cause before the expiration of her contract of employment.
    Appeal by tlie defendant, Long Island City, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie clerk of tlie county of Queens on the 19tli day of April, 1895, upon a verdict of a jury rendered by direction of tlie court after a trial at the Queens County Circuit.

      Willicvm E. Stewart, for the appellant.

      I. Newton Williams, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered on a verdict directed by the court in an action for breach of contract in discharging plaintiff without cause before the expiration of her contract.

The plaintiff was appointed, in pursuance of a resolution adopted by the board of education of Long Island City, as janitress of one of the public schools in said city, for one year, commencing September 1, 1892, and ending August 31, 1893.

It was the duty of the defendant under its charter to establish and maintain schools.

The charter makes the board of education and the school trustees the lawful instrumentalities of the defendant for caring for the schools, and the appointment of a janitress is a reasonable and necessary part of their duties, and is within the scope of their authority and for the benefit of the defendant. (Laws of 1871, chap. 461, tit. 9.)

This principle has been decided by this General Term in effect. (See Leonard v. Long Island City, 20 N. Y. Supp. 26.)

This case must stand as an authority until it is overruled, and renders any discussion unnecessary.

There is no error in the rulings of the court upon the trial.

The judgment must be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    Elizabeth G. Standen, Appellant, v. The New Rochelle Water Company, Respondent.

      Watercourses — a water company must compensate a riparian owner for water talcen by it — can use no more water than any other proprietor — the c'onrt cannot fie the amount needed by a lower proprietor — customary use by the latter is immaterial — damages for prospective use— a recovery must carry costs.

    The general rule of the law is that the owner of lands through which a stream of water runs has a legal right to the usual and natural flow of water across his premises of which ho cannot be deprived without his consent or just compensation; subject to the right of the upper riparian owner to use the water for his own domestic purposes. The water is a part of the freehold of which no man can be deprived except by the lawful judgment of his peers or by due process of law.
    A water works company, organized under the laws of this State for the purpose of supplying water to a village, has power to take water from a non-navigablo stream for the purposes of its organization, but is bound to provide a fair com- , pensation to tilo individual whose property is thus taken; and, until such indemnity is afforded to the party, that power cannot be legally exercised.
    It is not competent for such a corporation, nor for the court, to determine what amount of water is needed by a lower riparian proprietor upon the same stream; such proprietor is entitled to all the water except that which is used by the corporation for ordinary purposes, separate and apart from its needs arising from its business of furnishing water to a village.
    A lower riparian proprietor upon the same stream is not limited to his customary use of the water, but may bring an action for the impairment of any prospective use which he might reasonably make of the stream, and in such an action , is entitled to a recovery of nominal damages large enough at least to carry costs.
    Where an action is brought by a lower riparian proprietor against an upper riparian proprietor upon the same stream, alleging that he has been deprived by the latter of the use and enjoyment of the natural flow of the water, and it appears from the evidence iii the case that 212,000,000 gallons of water were annually diverted and sold by the defendant, and that this was a large proportion of all the water that ran in the stream, it is not material that at some seasons of the year the water flowed over the dams, which had been constructed by the defendant, in a sufficient quantity to supply the plaintiff with all the water that was needful, when it appears that at other seasons of the year the stream was nearly or quite dry upon the plaintiff’s premises.
    Appeal by the plaintiff, Elizabeth G. Standen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester-on the 5th day of March, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint upon the merits.

      Grove H. Harwood, for the appellant.

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

This is an appeal from a judgment entered in the office of the clerk of Westchester county on March 5, 1895, upon a decision rendered at a Special Term of this court. The action was commenced on August 22, 1894, and was brought for the purpose of enjoining and restraining the defendant from obstructing the natural flow of a non-navigable stream of fresh water known as Hutchinson river, which runs in a southerly direction through portions of the towns of New Rochelle, Pelham and Eastchester, and from diverting the water from the channel of the stream, except for such uses on defendant’s premises as are usual and proper for upper riparian owners. The plaintiff also asks judgment for such damages as she can prove were sustained by reason of such alleged obstruction and diversion.

The plaintiff and defendant are riparian owners on said river, the defendant being the upper riparian owner. The defendant owns over 14,000 feet on both sides of the stream, while the plaintiff owns 1,000 feet. The defendant has constructed entirely upon its own land, at different points on said stream, two dams, by means of which it has provided two resevoirs, for the storage of a part of the waters of said stream, upon its premises. The plaintiff claims that, in consequence of tlie erection of these- dams, she has been deprived of the use and enjoyment of the natural flow of water in the stream, and she seeks by this action to enjoin the defendant from further interfering with such use and enjoyment, and to recover damages for the loss occasioned thereby. Judgment was rendered for the defendant, dismissing the complaint upon the merits, with costs.

It seems to me plain from the evidence in this action that the .judgment should have been the other way. The defendant is a' water works conrpany, organized under the laws of this State for the formation of water works companies, for the purpose of supplying water to the village of New Rochelle, and the purpose of these dams was to make two reservoirs to hold water for sale to the customers of the defendant. The general rule of law is that the owner of land, through which a stream of water runs, has a legal right to the usual and natural flow of the water across his premises, of which he cannot be deprived without his consent or just compensation, subject, of course, to the right of the upper riparian owner to use water for his own domestic purposes. The right to a stream of'water is as sacred as the right to the soil over which it flows. It is a part of the freehold, of which no man can be disseized but by tho lawful judgment of his peers or by due process of law. (Gardner v. Trustees of the Village of Newburgh, 2 Johns. Ch. 162; Scriver v. Smith, 100 N. Y. 471-480; City of Syracuse v. Stacey, 86 Hun, 441; Washb. on Easem. 276; Angell on Watercourses, § 596.)

“ Though the Legislature has power to take private property for useful and necessary public purposes, it is bound to provide a fair compensation to the individual whose property is taken; and, until a just indemnity is afforded to the party, the power cannot be legally exercised.” (Gardner v. Trustees, supra.)

It was not competent for the defendant or the court to determine what amount of water was needed by the plaintiff, for she was entitled to the whole of it, except what was used by the defendant for ordinary purposes. Undoubtedly the defendant had the right to build dams upon its own lands and to store water ; but that does-not carry the right to divert the water from its natural course. It appears from the evidence that 212,000,000 gallons were annually-diverted and sold by the defendant. This evidence in the case is mot disputed. That was quite a large proportion of all the water that ran in said stream. It is true that, at some seasons of the year, the water flowed over the dams so as to supply all that was needful to the plaintiff below ; but the storage of the water and its sale at other seasons of the year made the stream nearly or cpiite dry on the plaintiff’s land. The case of The New York Rubber Company v. Rothery (132 N. Y. 293-296) it seems to me is decisive of this case. In that ease the court went so far as to hold that the title of the riparian proprietor to his water rights in a stream, and his right to redress for their invasion, are not conditional upon the beneficial user of them. “ Where there is a diversion of the waters of the stream, which materially diminishes its natural flow over the lands of a proprietor below, he may maintain an action, and is entitled to recover nominal damages, although he has as yet made no use of the waters, or water enough is left in the stream for the purposes of his business as then conducted.” It was not competent for the court to determine what quantity of water was necessary for the plaintiff for the purposes of her business as it had been conducted. But the plaintiff’s title to his water rights, and his right to redress for their invasion, were not conditional upon the beneficial user of them.” (Corning v. The Troy Iron & Nail Factory, 40 N. Y. 191.)

We also think that the extent of watershed of the two parties to this suit was not material evidence upon the issues in this case, and that its admission was error. The plaintiff was not limited in her use of the water by the fact that the defendant owned a larger watershed than she did. She was entitled to the beneficial use of all the water that flowed in the stream, except such as was reasonably used by the defendant. The rights of the parties did not at all depend upon the extent of watershed owned by them. The lower riparian owner had a right to all the water that ran in the stream, except such as the defendant had a right to reasonably use for its own purposes.

There are numerous exceptions in this case, but the law seems t® be well settled. The plaintiff is not limited in her use of the water as she has been accustomed to use it, but she has a right to bring an action for the impairment of such prospective use as she might reasonably make of the water. It is perfectly plain that here was a material diversion of a stream .of water which would naturally run through the plaintiff’s premises. The plaintiff having established the right and shown that it was invaded, was at least entitled to nominal damages, which would have carried costs.

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

•Brown, P. J., concurred; Dykman, J., not sitting.

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


text:
    Thomas P. Wood, Appellant, v. The Third Avenue Railroad Company, Respondent.

      Negligence — a hole in a manhole cover — evidence that many had passed the place in safety.

    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that a corporation, operating a cable railroad, laid manhole covers in a public street opposite the New Tiork entrance of the Brooklyn bridge, with a circular hole in the center of each cover one and seven-eighths inches in diameter; that this hole, which was open and unguarded, was designed to facilitate access to the manhole, and that its employment enabled the corporation or its servants to lift the cover about eighteen seconds sooner than if the cover had been built with a notch in its side; that while the plaintiff, who used crutches, was crossing the street, one of his crutches slipped into the hole, by reason of which he was thrown down and injured.
    Upon the trial of the action the defendant proved that large numbers of persons had crossed the cover without meeting with any accident, and the court held, as matter of law, that the defendant was not negligent.

      Held,, that this was erroneous; that proof of the fact that no accident had previously happened was not conclusive upon the question of damages, and that the case should have been submitted to the jury.
    Appeal by the plaintiff, Thomas P. Wood, from an order of the Supreme Court, made at the Kings County Circuit and entered in the office of the clerk of the county of Kings on the 10th day of July, 1895, setting aside the verdict of a jury rendered in favor of the plaintiff and granting the defendant’s motion for a new trial.

      Isaac M. Kapper, for the appellant.

      William, H. Gohen and Henry L. Seheuerman, for the respondent.
   Pratt, J.:

The defendant, which operates a cable railroad, laid manhole covers in the public street opposite the New York entrance of the Brooklyn bridge, with a circular hole in the center of each of such covers one and seven-eighths inches in diameter.

The hole was open and unguarded. The plaintiff was crossing the street when one of the crutches with which he walked went into the hole and plaintiff was thrown down and injured. The jury found the construction negligent, and gave plaintiff a verdict, which was set aside. Plaintiff appeals.

The defendant showed that since the manhole cover had been' so placed a great number of people had crossed at that place without accident, and claimed that to be conclusive evidence that the construction was a safe one. That view prevailed.

We think that while the safe passage of so many people was a matter proper for the consideration of the jury, the court went too far in holding that, as a matter of law, it entitled defendant to a judgment in its favor.

The hole in the iron cover was large enough to admit the heel of a shoe, and, obviously, it was only a question of time when an accident would occur. It is not rare 'to see people with crutches, and they have a right to use the streets. The manhole covers are between the tracks, and if a lady with a high-heeled shoe should step into the hole it would be a happy accident if she escaped with her life. It is not possible that the good fortune of defendant in escaping accidents for a season can give it a vested right to maintain such a dangerous obstruction in the public street. This is the more obvious when we learn that the only benefit the defendant derives from the hole is that the cover can be lifted about eighteen seconds sooner than it can be if built with a notch in the side. That advantage is too trivial to be considered in opposition to the safety of the public.

The order appealed from must be reversed and judgment ordered on the verdict, with costs.

Brown, P. J., and Dykman, J., concurred.

Order granting now trial reversed and judgment ordered on the verdict, with costs.


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    Emily Moses, an Infant, by Salomon Strauss, her Guardian ad Litem, Appellant, v. The Newburgh Electric Railway Company, Respondent.

      ..Examination of the plaintiff’s person in an notion for physical injuries — the defendant need not allege that it intends to use the exa/mination upon the trial.

    Where an action is brought- to recover damages resulting from personal injuries, caused by the alleged negligence of the defendant, a corporation, and an affidavit is made upon its part that it is ignorant of the nature and extent of the plaintiff’s injuries, and these allegations are not contradicted, a case is made for an order directing that the plaintiff be personally examined before a referee, and that she be physically examined by a physician before the trial of the action.
    The objection that there is no allegation in the affidavit that the defendant intends to make use of the examination upon the trial is frivolous; a party cannot determine whether he will use testimony until it has been given.
    Appeal by the plaintiff, Emily Moses, by Salomon Strauss, her guardian ad litem, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the cleric of the county of Orange on the 25th day of March, .1895, directing that the plaintiff be personally examined before a referee, and that she be physically examined by a physician before the trial of the action.

      Ma/urice Untermyer, for the appellant.

      William D. Dickey, for the respondent.
   Pratt, J.:

This action is to recover damages for personal injuries, and the moving affidavit states that defendant is ignorant of the nature and extent of plaintiff’s injuries. That is not contradicted, and it constitutes good cause for allowing the examination. The objection that there is no allegation that defendant intends to make use of the testimony adduced at the examination upon the trial is frivolous. Obviously a party cannot have any intelligent purpose as to whether he will use a certain person’s testimony until he knows what it is to be. If it proves favorable to the party by whom it is taken it will ordinarily be read by that party; if unfavorable, it will ordinarily be read by the other party. In the present case, if on the trial the plaintiff’s -witnesses testify to the Same facts that this-examination discloses, there will be no need to produce it.

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

Dykman, J., concurred; Brown, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


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    Catharine Manning, Respondent, v. The Atlantic Avenue Railroad Company of Brooklyn, Appellant.

      Negligence — credibility of witnesses is for the jury — place of the physical injury and positions of the witnesses, considered.

    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, the real issue was whether a car belonging to tbe defendant started while the plaintiff was endeavoring to got upon the rear platform. The contention of the defendant was that the car did not stop, and that the plaintiff slipped and fell, and upon this question the greater number of witnesses were with the defendant.

      Held, that the jury were better judges of the credibility of the witnesses than the appellate court, and that their verdict should not he disturbed;
    That the jury had a right to consider the place upon the plaintiff’s body of her injuries, these having been exhibited to the jury, and also the positions in which the witnesses who testified claimed to have stood.
    Appeal by tbe defendant, The Atlantic Avenue Railroad Company of Brooklyn, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of tbe clerk of tbe county of Kings on tbe 8th day of April, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the oth day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Jam.es C. Bergen, for the appellant.

      Foster L. Backus, for the respondent.
   Pratt, J.:

This is an ajrpeal from a judgment entered upon the verdict of a jury. The action was brought to recover damages for injuries alleged by the plaintiff to have been received as a result of the sudden starting of one of the defendant’s cars while the plaintiff was boarding it from the rear platform. The defense is that the car did not start, but that plaintiff slipped and fell. Of the fact that the plaintiff did fall and -was injured there is no dispute.

The principal ground urged by the appellant for reversa] is that the verdict was against the weight of evidence. It is not sufficient to reverse a judgment, upon the ground that the jury has found a verdict against the weight of evidence, that the court, had it been sitting as a jury, would have rendered a different verdict. It is true that the defendant had a greater number of witnesses than the plaintiff, but the jury had the right to believe a less number of witnesses. They were better judges of the credibility of the witnesses than the court, which has before it simply the testimony as printed in the appeal book.

The case is in a nutshell. The simple question is whether the car started while the plaintiff was trying to get upon the rear platform. The jury had the right not only to consider the sworn testimony, but it also had the right to weigh all the facts and circumstances of the case. The places upon the plaintiff’s body where she was in j ured, which were exhibited to the jury, and the positions in which the witnesses claimed to have stood, wrere all facts to be considered by the jury in arriving at a verdict.

The plaintiff claimed that just as she was stepping upon the ear it started ; and her witnesses testified that the car started, moved ten feet and then stopped; and the witness Fragner, who testified for the defendant, stated that the car was standing still while she was being lifted up and carried away. But there was evidence in the case that Fragner did not arrive upon the ground until after the car had started and the woman had fallen. Fragner corroborated the plaintiff’s witness, Bell, in swearing that the car was opposite an iron post, while the defendant claimed that the car was upon the crosswalk, where it stopped to receive the plaintiff.

We do not think that there was such a preponderance of evidence in favor of the defendant as to justify a reversal upon the ground that the verdict was against the weight of evidence. ~VVe have examined the exceptions in the case and are of the opinion that they are not well taken. The question, put to the witness Fragner, as to where the car stood when he arrived at the scene of the accident after it occurred, was competent and relevant. If the car stopped at the crosswalk, and when Fragner arrived the car was not upon the crosswalk, but w'as opposite an iron post, the question was very material as showing that the ear must have started after it first stopped.

The judgment must be affirmed, with costs.

Brown, P. J., concurred; Dyicman, J'., not sitting.

Judgment affirmed, with costs.


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    Orval A. Lockwood, Appellant, v. George A. Waldorf, Respondent.

      Action to recocer chattels— the ealue of the property must be fixed by the judgment to en title the plaintiff to costs.

    Where an action is brought to recover chattels, and the plaintiff recovers a judgment directing a return of the property only, and the value of the property is not fixed, he is not entitled to costs.
    Appeal by the plaintiff, Orvai A. Lockwood, from an order of the County Court of Orange county, granted at a Special Term thereof, entered in the office of the clerk of the county of Orange on the 27th day of April, 1895, striking from the judgment entered in the above-entitled action the part thereof which awards to the plaintiff costs and disbursements.
    This action was commenced in a Justice’s Court to replevin certain chattels described in the complaint, and the plaintiff recovered judgment for $100 or the return of the property. He appealed from said judgment to the County Court, where a verdict was rendered “ by which the jury found for the plaintiff the possession of the property.”
    Thereafter plaintiff entered judgment awarding to him possession of the property in question, and the clerk taxed and entered therein the sum óf $124.64, costs.

      Upon a motion made by the defendant to vacate and cancel that part of the judgment awarding costs to plaintiff, on the ground that there was no statute authorizing the award of costs to plaintiff, and that the same was illegal and void, the order appealed from was made.

      T. N. Little, for the appellant.

      George LI. Smith, for the respondent.
   Pratt, J.:

This is an appeal from the county judge of Orange county disallowing $124.64 costs awarded to plaintiff against defendant.

The county judge’s ruling was correct; there was nothing determined by the appellate court, except that the plaintiff was entitled to a judgment for the return of property the value of which toas not fixed,. The appellant relies on section 3228 of the Code of Civil Procedure as to when plaintiff is entitled to costs. Subdivision. 2 of that section says: “ An action to recover a chattel. But if the value of the chattel, or of all the chattels recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of value and the damages.”

I find no means of assisting plaintiff under the jaw in the Justice’s Court. The plaintiff recovered judgment for $100 or the return of the property. He appealed from this judgment and got the same result without damages or the value of such property.

The other sections of the Code of Civil Procedure referred to by plaintiff are inapplicable to this case. The plaintiff is unfortunate, but there are no legal means of helping him out.

Order affirmed.

Brown, P. J., and Dykman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Pratt, J.: Dykman, J.:

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    Rachel C. Odell, Respondent, v. The Nyack Water Works Company, Appellant.

      Torts — causing a reservoir, by closing its customary outlet, to overflow by a subterranean passage into a neigboring well.

    While the right oí the owner of real property is unlimited in point of duration, it is not so in the manner of enjoyment, and a person is bound to use his property in such a manner as not to infringe upon the rights of others.
    He has a legal right to maintain a reservoir upon his premises, but is bound to use and guard it in such a manner that it will not become a source of annoyance or damage to others.
    ■In an action brought to enjoin the defendant from permitting waters from its reservoir to flow tack upon tile premises of the plaintiff and into her well, and to prevent the defendant from continuing its stoppage of the usual overflow from its reservoir and for damages, it appeared that the plaintiff was in possession of real property in a village, upon which there was a well; that upon adjoining property belonging to the defendant there was a large reservoir and also a well, which latter well was between the reservoir and the well of the plaintiff; that there was a natural subterranean passage from the plaintiff’s well connecting these bodies cf water, and that through this passage the surplus water of the plaintiff’s well flowed away in a northwesterly direction; that the defendant closed an overflow pipe from the reservoir upon its north side; that this caused the reservoir to overflow at its southwest corner, with the result ■that waters were forced back through‘the subterranean channel into the plaintiff’s well, greatly damaging ii and also injuring her premises.

      Held, that the action could be maintained and did not in any manner depend upon, the rights of contiguous landowners in and to subterranean waters;
    That the wrong of the defendant consisted in the fact that it had destroyed the plaintiff’s well by overflowing it with water from its reservoir.
    Appeal by the defendant, The Nyack "Water Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 29th day of May, 1895, upon the verdict of a jury rendered after a trial at the Rockland Circuit, and upon the decision of the court, the trial having been continued and finished before him ; and also from an order entered in said clerk’s office on the 9th day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Lexow & Wyre, for the appellant.

      Artlvwr 8 Tompkins, for the respondent.
   Pratt, J.:

This was an equity suit to enjoin the defendant from permitting certain waters from the reservoir owned by the defendant to overflow back upon or against the plaintiff’s premises, or into a well belonging to the plaintiff, and from in any manner interfering with the plaintiff’s use and enjoyment of her premises or any part thereof, and from continuing the stopping of the usual overflow from said reservoir in a northerly direction, and also for damages for injury caused by the overflow of the defendant’s reservoir upon the premises and into the well of the plaintiff.

Certain questions of fact were submitted to a jury, and also the question of damages. The jury found a verdict for the plaintiff, and assessed the damages at the sum of $1,346. After the rendition of the verdict the trial was continued and finished before the justice who tried the cause, and findings of fact and conclusions of law were made by him, and a judgment entered thereon. A motion was made for a new trial upon the minutes upon all the grounds mentioned in section 999 of the Code of Civil Procedure, which motion was denied.

We were not favored in this case with any argument or brief by the appellant, but notwithstanding that we have examined the case and are satisfied that the findings of fact made by the trial judge are supported by the evidence, and that the conclusions of law are j ustified by those findings.

We have also examined the exceptions in the case, and find no error sufficient to warrant a reversal of the judgment.

We think the case was decided upon its merits, and that the judgment must be affirmed.

Drown, P. J., concurred.

Dykman, J.:

This is an appeal by the defendant from a judgment entered upon the decision of the court, rendered upon findings of fact and conclusions of law made and signed after the verdict of a jury upon certain questions of fact submitted to it, and from an order denying a motion for a new trial made upon the minutes of the court.

The facts in this case, as found by the trial judge after the rendition of the verdict of the jury at the Circuit in favor of the plaintiff for §1,346, are as follows : The defendant is a domestic corporation. On the 31st day of October, 1894, the plaintiff was the lessee and in possession of certain real property in the village of Nyack,, upon which there was a well of water about thirty-two feet deep. The defendant, on the 31st day of October, 1894, was the owner of certain real property adjoining the premises of the plaintiff in the village of Nyack upon which premises of the defendant there was a large reservoir of water, and also southerly therefrom a well of water, which well is located between the plaintiff’s well and the defendant’s said reservoir. On the 31st day of October, 1894, and for some time prior thereto, there was a natural subterranean channel or passage extending from the plaintiff’s well, through which there had been accustomed to flow, in a northwesterly direction, a natural stream of water. On the 31st day of October, 1894, the defendant closed and stopped up the overflow pipe on the north side of its reservoir, thereby preventing the water from flowing out of the reservoir in the usual and ordinary manner, and filled said reservoir beyond its usual quantity and condition, and caused the water from the reservoir to overflow its bank at the southwest corner thereof, and thereby caused the waters to overflow the well upon the defendant’s premises, and in that manner unlawfully and wrongfully forced waters from said reservoir through said subterranean watercourse into and upon the plaintiff’s premises in large quantities, and into the plaintiff’s said well, causing the wall and arch of the plaintiff’s well to loosen, cave in and break, injuring the plaintiff’s premises. The court also found that the defendant, byitssaid acts, had caused water from its reservoir to flow in large quantities through the seams in the rock and through the subterranean watercourse in a southwesterly direction and in an unnatural and unusual manner, from its said reservoir and well, to and into the plaintiff’s well, causing the injuries aforesaid, in the manner and to-the extent found by the jury as aforesaid. That a continuance of the defendant’s acts or a repetition thereof would interfere with the plaintiff’s use and enjoyment of her said premises and cause irreparable damage to her.

As a conclusion of law the trial judge found that the acts of the defendant -were wrongful and constituted a trespass; that the plaintiff was entitled to judgment against the defendant for the amount. of the verdict of the jury, to wit, $1,346, and forever restraining and enjoining the defendant, its officers and Servants, from causing or permitting the waters from its said reservoir to flow back or upon the plaintiff’s premises, or into or against her said well, and from in any manner interfering with her use and enjoyment of her said premises, or any part thereof, together with the costs of the action and an allowance of five per cent on the verdict.

These findings, as well as the verdict of the jury, are well sustained by the evidence, and they must constitute the basis of our decision. They show the plaintiff in the lawful possession of a well of water, supplied from subterranean sources, and her right to the same cannot be invaded with impunity. The case does not require the examination or determination of the rights of contiguous landowners in subterranean waters, for the wrong of the defendant consisted in destroying the well of water of the plaintiff by overflowing it with water.

The defendant’s liability is imposed by the principle of law which requires persons so to use their property as not unnecessarily to injure their neighbor.

While the right of the user of property is unlimited in point of duration, it is not so in point of enjoyment; on the contrary, the right of user is limited by the rights of all other persons.

The maxim, sio utere two ut al-ienum non laedccs, liolds a prominent place in the law of property. While the defendant has the legal right to maintain a reservoir upon its premises, it was bound to so use and guard the same that it would not become a source of annoyance or damage to the plaintiff and others.

The law of the case was correctly given to the jury by the trial judge, and the exceptions to the charge present no error. The same may be said respecting the findings of the trial judge subsequent to the rendition of the verdict.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Drown, P. J., and Pratt, J., concurred.

Judgment affirmed, witn costs.


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    James E. Mitchell, Respondent, v. The Niagara Fire Insurance Company of the City of New York, Appellant.

      Insurance — misrepresentation and concealment — a house, used as a dwelling, need not be wholly occupied in all its parts for lining purposes.

    In an action brought to recover upon a policy of insurance, insuring the plaintiff’s dwelling, the damage resulting from its injury by fire, the defendant interposed an answer, alleging misrepresentation and concealment. It appeared that prior to 1889 the building was used as a carpet factory and was insured as such; that subsequently the plaintiff’s agent returned the policy to the company and said that factory rates no longer applied to the building as it had been changed from a factory into a dwelling house. The policy in question was then issued at dwelling house rates.
    Upon the question whether this was a fair description of the premises, the proof was that the rooms in which the family did not live were used for washing, drying clothes and for storing wood and coal, and also furniture not in continual use.

      Held, that there was no fraud or misrepresentation in describing the building as a dwelling house.
    Appeal by the defendant, The Niagara Fire Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 9th day of July, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Orange Circuit, and also from an order entered in said clerk’s office on the 1st day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Robert Thorne, for the appellant.

      Taylor c& Gardner, for the respondent
   Pratt, J.:

This is an appeal from a judgment rendered in favor of plaintiff against defendant, upon a verdict directed by the court, for the sum of $1,020, at the Orange County Circuit in June, 1895, and from an order denying defendant’s motion for a new trial.

The action was brought to recover upon a policy insuring plaintiff’s dwelling in Newburgh, issued by defendant in December, 1892, to plaintiff for the sum of $1,000, payable to plaintiff's assignor as mortgagee. The assignment to the plaintiff appears in the case.

While the answer set up several defenses, most of them were abandoned on the trial, or no evidence w-as offered to prove the same. The policy being offered in evidence, service of proofs of loss being admitted, the fire and the value of the property destroyed, and the assignment to plaintiff being proved, plaintiff rested.

The only testimony offered by defendant was that of its agent, Robinson, who issued the policy. He testified that it was stated to him, on the application for the policy sued upon, that the building to be insured thereunder was a dwelling. Nothing else was said. The uncontradicted proof shows that it was a dwelling, having been formerly a factory. The rooms not lived in by the family were used for washing, drying clothes, putting in wood and coal, etc., so that the whole house was occupied. Robinson also testified that a dwelling of the size of the building in question that has a storeroom in it should be insured at the rate of ten dollars per thousand. No evidence was offered that the number of stories of a house make any difference as to rates, or that any statement was made as to the number of stories of the dwelling in question. The rate charged was that usually charged for insuring dwelling houses. Defendant then rested.

Both parties moved for the direction of a verdict, and the court directed a verdict for the plaintiff.

The defendant claims that upon the facts proved there was concealment or misrepresentation by the agent of the insured which avoided the policy in which the risk is described as a dwelling house.

The proof shows it was a dwelling house and used as such and nothing else; it was, therefore, no misrepresentation to call it a dwelling house, and no concealment was practiced by not saying that every room in the house was continually used as a living room during all the time it was occupied by the assured.

In fact it was all occupied within the meaning of the law; the attic was used to dry clothes, part was used as a laundry, and other parts to store furniture not in continual use. It is plain that no fraud was practiced or intended by the insured, and no misrepresentation made.

There seems to be no alternative to an affirmance of the judgment as there is no exception by defendant in the record. The defendant took no exception to the direction by the court to the jury to find a verdict for the plaintiff, nor has any order been entered denying the motion for a new trial.

The judgment must be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Dykman, J.:

This is an appeal by the defendant from a judgment and an order denying a motion for a new trial made upon the minutes of the court.

The action was based upon a policy of fire insurance, and upon the trial at the Circuit a verdict was directed in favor of the plaintiff against the defendant for $1,020.

Bor a defense to the action the defendant set up misrepresentation and concealment, which was based upon the following facts ■. Prior to 1889 the building was used as a carpet factory and insured as such at a premium of fifteen dollars a year, and in that year the policy was renewed at the same rates. Thereafter the agent of the plaintiff returned the policy to the company, and stated that the building had been changed from a factory into a dwelling house,, and that the factory rates no longer applied. Relying upon that statement a new policy was issued upon dwelling-house rates. The statement of the agent was true. The building never was used as a factory subsequent to the issuance of the last policy, and it was occupied as a dwelling. There was no misrepresentation and no concealment of any fact. At the close of the testimony each party moved for the direction of a verdict, and so it was assumed by both that there was no question of fact for the jury, and there was none. The facts are undisputed.

While principie and authority condemn a policy procured by false representation or fraudulent concealment, the rule has no application to this case, because there was no proof of either therein.

The judgment and the order denying the motion for a new trial should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Pratt, J. :

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    Abram A. Demarest, as Receiver, etc., Appellant, v. Isaac E. House and Others, Respondents.

      Fraudulent conveyances —notice — bona fide purchaser of real estate — failure of a wife to sign her husband’s deed.

    In an action, where the only relief demanded upon the trial was that certain deeds executed hy Isaac E. House should be declared fraudulent, it appeared that prior to December, 1893, House and his wife Melissa had been living together in Nyack, although upon unfriendly terms; that on December 6, 1893, he conveyed to his cousin by a deed, in which his wife did not join, a house in New York taking back a mortgage, and that on December 15, 1893, he conveyed two lots in Nyack hy deeds to James R. Comesky, the brother of his attorney, and that Comesky subsequently executed two mortgages upon these premises, one to Hannah B. Wool and the other to House. On or about December 15, 1893, House suddenly left Nyack and never returned.
    There wras no proof that the purchasers did not pay fair prices for the property. Subsequently Melissa House brought an action for a limited divorce and was allowed temporary alimony, and a receiver of'the property of her husband, having failed to collect this alimony, and the whereabouts of House being-unknown, brought the present action and asked that the above-mentioned deeds executed by House be set aside.

      Feld, that there was no proof impeaching the transactions or showing that the defendant grantees were not bona fide purchasers, as at the time the conveyances were made to the defendants no suit had been commenced for a separation and there was no proof that either of the grantees knew or suspected that any such action was about to be brought;
    That the fact that Melissa House did not sign the deeds did not put the grantees upon inquiry as to the right or motives of her husband in making the conveyances.
    Appeal by the plaintiff, Abram- A. Demarest, as receiver, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rockland on the 29th day" of August, 1895, upon the decision of the court rendered after a trial, pursuant to a stipulation, at the Orange Special Term, dismissing the plaintiff’s complaint.
    This action was brought by the plaintiff, as receiver in an action for a limited divorce, to have certain conveyances of real estate executed by Isaac E. House to the defendants Comesky and Bleekei set aside as fraudulent and void.

      Garrett Z. Snider, for the appellant.

      Arthur S. Tompkins and Frank Comesky, for the respondents.
   Pratt, J. :

This is ail appeal from a judgment in an equity action entered upon a dismissal of the complaint after a trial at Special Term.

Isaac E. House and Melissa House were husband and wife, and prior to December, 1893, had lived together in Nyack.

The relations between Isaac E. House and his wife for years had been unfriendly, and this fact was not concealed.

After the death of the father of the said Isaac E. House, which occurred in August, 1891, there were negotiations between the said Isaac E. House and his wife, with the assistance of their respective attorneys, looking towards some settlement of their differences and some provision to be made for the support of the wife and child. "While these negotiations were still pending, Isaac E. House, about the 15th day of December, 1893, suddenly left Nyack and has never returned.

After his departure an action for a limited divorce was commenced by his wife and the summons therein was served upon her husband by publication.

She applied in the meantime for temporary alimony, and this, as well as a moderate counsel fee, were awarded her by an order of this court. Subsequently, on showing inability to collect this alimony, the court appointed the plaintiff receiver of the property of her husband.

Prior to the time of his leaving Nyack, Isaac E. House was the owner of certain real estate, consisting of a house and lot on "West Thirty-first street in New York city; a house and lot on Burd street, Nyack, and a house and lot on Franklin street, Nyack.

These properties were at the time of the death of the father of the said Isaac E. House unincumbered and were producing a revenue.

It appears that on the 6th of December, 1893, Isaac E. Flouse executed a deed of the New York property to the defendant William H. Bleeker, his cousin by marriage, and took back from him a mortgage for $8,000, and on the fifteenth of December he executed a deed of his Nyack properties to James R. Comesky, brother of his attorney, who executed two mortgages thereon, one to Hannah B. Wool for $1,200 and one to Isaac E. House for $1,500.

After the receiver was appointed, he attempted to collect the rents of this property and failed, because of the fact that the tenants had been instructed to pay rent to the parties who had the deeds.

He then applied for leave to bring this action to set aside these conveyances, as having been made in fraud of the rights of Melissa House; or, in the event of his inability to set aside the deeds, to impound the mortgages given back to Isaac E. House at the time of the transfer.

The $8,000 mortgage upon the New York property, together with the bond to which it was collateral, were in the possession of Isaac E. House.

He also had the bond for $1,500 made by James R. Comesky. The mortgage to secure the payment of this bond is in the possession of the plaintiff as receiver, having been obtained by him from the clerk of Rockland county, with whom it had been left.

At the time the conveyances were made to the defendants no suit had been commenced for a separation, and there is no proof that either defendant knew or suspected that any such suit was to be brought. Neither is there proof that either defendant did not pay a fair price for the property.

Assuming even that the motive of Isaac E. House in making the sales was to prevent his wife from receiving any alimony in any suit she might commence therefor, that fact would not invalidate the sales unless the fact was known to the grantees, and they participated in the fraud.

It is not necessary to discuss the other questions raised by the appellant, as there was an utter failure of proof to impeach the transactions, or to show that defendants Bleeker and Comesky were not bona fide purchasers.

The fact that the wife did not sign the deeds, under the circumstances, was not such a material fact as would operate to put the defendants Bleeker and Comesky upon inquiry as to the right of the husband to make the conveyances or as to his motive in doing so. It does not appear from the case that any other relief was' demanded upon the trial than that the deeds should be set aside as fraudulent.

The judgment must be affirmed.

Dykman, J., concurred ; Brown, P. J., not sitting.

Judgment affirmed, with costs.


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    James Weed, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Negligence — gates at a railroad crossing, not in operation — it does not excuse a person who knows that the gates are only operated at certain hours.

    The rule that a failure upon the part of a railroad corporation to shut gates, at a railroad crossing, may he considered by the jury as evidence of negligence upon the part of the corporation and also upon the question of a contributory negligence on the part of the injured person, does not apply-to.the case of a person, familiar with the crossing and aware that the corporation is accustomed to operate the gates only between seven a. m. and seven-thirty p. m., who is injured at ten minutes before six in the morning.
    Appeal by tlie plaintiff, James Weed, from a judgment of the Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of Orange on the 22d day of April, 1895, upon the verdict of a jury rendered after a trial at the Orange Circuit, and also from the order denying the plaintiff’s motion fo7 a new trial.

      A. F. F. 8eeger, for the appellant.

      AsKbel Oreen and A. 8. Oassedy, for the respondent.
   Pratt, J. :

This was an action for damages for general injuries caused by plaintiff’s being run into by a south-bound train of defendant’s on the West Shore railroad at about ten minutes before six in the morning. The action was tried before a jury and a verdict rendered for defendant. The case was submitted to the jury under a fair and unexceptionable charge, and there is no exception in the case disclosing error sufficient to wai’rant a reversal of the judgment.

The principal point made by the plaintiff to establish his case was that the gate at the place where the highway crossed the track where the plaintiff was injured was not manned and ivorked.

The answer to this proposition as well as to the cases cited upon this point, is made by tlie fact that appeared njion the trial, that defendant was accustomed to operate the gate only between seven o’clock in the morning and seven-thirty p. m., and this fact was known to tlie plaintiff, wlio was accustomed to cross tlie railroad at this point; therefore, those cases which hold a failure to shut the gate may be considered by tlie jury upon the question of the defendant’s negligence and the plaintiff’s freedom from contributory negligence, are not in point upon the case here.

All these latter named cases, which are of a similar character, have been the result of accidents taking jdace while gates were in operation, and the injury was inflicted upon persons not familiar with tlie locality.

We think the verdict was fully supported by the evidence and ought to stand.

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

Judgment affirmed, with costs.


author: Pjiatt, J. :

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    Cecilia Beebe, as Administratrix, etc., of William H. Beebe, Deceased, Respondent, v. The New York and New England Railroad Company, Appellant.

      Appeal — a ease, containing no order denying a new, trial and no ces'tificate that it contains all the evidence, brings up only questions of law.

    Where the case upon appeal contains no order denying a motion for a new trial upon the minutes of the justice, and there is no certificate that the case contains all the evidence given upon the trial, the appellate court can only consider the questions of law which are contained in the record.
    Appeal by the defendant, The New York and New England Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 20th day of April, 1895, upon the verdict of a jury rendered after a trial at the Orange County Circuit, with notice of an intention to bring up for review on such appeal the order denying the defendant’s motion for a new trial made upon the minutes, and also the orders made on said trial denying the defendant’s motion to dismiss the complaint, and for a nonsuit.

      Walter O. Anthony, for the appellant.

      John M. Gardner, for the respondent.
   Pjiatt, J. :

Tliis is an appeal from a judgment entered, upon a verdict of a jury. There is no order contained in the record denying a motion for a new trial made upon the judge’s minutes and no certificate that the case contains all the evidence given upon the trial; therefore, under the rule, all we can consider upon this appeal are questions of law contained in the record.

Upon examining the case thei e appears to have been only one exception taken, to wit, that to a question put by the court which was clearly competent. Under these circumstances there is no alternative to an affirmance of the judgment.

The judgment must be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


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    Henry J. Clark, as Executor, etc., of Eliza Clark, Deceased, Respondent, v. Cecelia Frances Clark, Appellant.

      Trial — a request for the direction of a verdict — its denial does not prevent a demand to yo to the jury.

    Where a motion is made in an action, by the defendant, asking the court to direct a verdict, in his favor and this is denied, the defendant may still demand that the case bo sent to the j my.
    Appeal by the defendant, Cecelia Frances Clark, 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 13th day of March, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order bearing date the 7th day of March, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Eugene If. Sackett, for the appellant.

      John R. Farrar, for the respondent.
   Pratt, J.:

The complaint alleged that Eliza Clark died possessed of a certain bank book. This was denied by the answer, and the issue thus raised was the only question in dispute.

The defendant produced several disinterested witnesses, who testified that several years before her death Eliza Clark gave the book in question to the defendant. Their testimony was not shaken in any respect, and defendant’s motion for the direction of a verdict in her favor should have been granted.

After that motion was denied defendant asked to be allowed to go to the jury. The Circuit judge held that by moving for the direction of a verdict defendant had lost the right to go to the jury. That was an error. "When the motion to direct a verdict in defendant’s favor was denied defendant properly requested to go to the jury. (Koehler v. Adler, 78 N. Y. 290; Thompson v. Simpson, 128 id. 283; Yale v. Dart, 26 Abb. N. C. 472.)

For these errors the judgment must be reversed and a new trial ordered, costs to’ abide event.

Brown, P. J., and Dykman, J., concurred.

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


author: Pjratt, J.:

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    George Follett and Others, Respondents, v. The Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, Appellants.

      B lection —plaintiff cannot be compelled to elect whether he will try his action as one for a nuisance or as one to restrain continuing trespasses — transfer by a cestui que trust pendente lite.

    Where an action is brought against elevated railroad corporations for tlie taking of the plaintiff’s easements of light, air and access, and the complaint states the facts upon which the plaintiff's rights depend, the defendants cannot compel the plaintiff to elect whether he will try the cause as a legal action to restrain the continuance of a nuisance or as an equitable action to prevent continuing trespasses.
    Where the original action was brought by the plaintiffs as trustees of an express trust and a supplemental complaint is filed two years later by which it appears that the rights of the cestui que trust have been relinquished to the trustees, such a transfer, ’pendente lite, does not affect tlie merits of the action nor destroy the right of the plaintiffs to recover.
    The only difference in the situation is that under the original complaint the plaintiffs would be liable to account to the beneficiary for the proceeds of the judgment, while under the supplemental complaint they are freed from such a liability.
    Appeal by the defendants, The Brooklyn Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 6th day of July, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.
    This is a suit in equity brought to restrain the defendants from maintaining and operating a street railway in front of plaintiffs’ premises, and to recover damages resulting therefrom.

      Henry L. /Scheuermcm, for the appellants.

      Benjamin B. Kenyon and Woolsey Garmali, for the respondents.
   Pjratt, J.:

At the opening of the trial, defendants moved that plaintiffs be compelled to elect whether they would try the cause as for a continuing trespass or as for a nuisance.

The motion was properly denied. Under our present system parties are allowed to plead the. real facts. What benefit will result from-that liberality if upon the trial the party may not prove the facts as pleaded. A party has an absolute right to plead and prove the facts upon which his rights depend; to prove them all, and to prove them as they took place. The determination of the rights that flow from those facts is the duty of the court, which cannot properly be transferred to the party. The only motive conceivable for urging such a motion is a hope that the party might make an unwise election to the detriment of his rights. To compel a party to take a position involving such a peril would be an abuse of discretion which would speedily be corrected by an appellate court.

The principal objection urged against the judgment is that the transfer pendente lite destroyed the right of plaintiffs to recover rental damages.

The action was originally brought by the plaintiffs as trustees of an express trust. Two years afterwards a supplemental complaint is filed by which it appears that the rights of the cestui que trust have been relinquished to the trustees. In this there is nothing that affects the merits of the action, nor the rights of the plaintiffs to recover. In the one case the plaintiffs would be liable to account for the fruits of the judgment. In the other they are free from such liability. The only concern the defendants have with the'question is that they be not compelled to pay their debt twice. To that danger they are not exposed.

The judgment must be affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


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    Christopher Clarke, Respondent, v. Richard K. Fox, Appellant.

      Slander — improper charge in regard to repetitions thereof.

    Where an action is brought to recover damages resulting from the publication of slanderous words, and there is no proof in the case that the slander was repeated, it is erroneous for the court, to charge the j ury that the originator of a slander is responsible for its repetitions and that they must inquire carefully to what extent, if at all, under the proof, the alleged slander had traveled. Such a charge invites the jury to give damages upon a mistaken basis.
    Appeal by the defendant, Richard K. Fox, 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 30th day of April, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 6th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover- damages for slanderous remarks alleged to have been made by the defendant about the plaintiff.

      Charles J. Patterson, for the appellant.

      John S. Griffith, for the respondent.
   Pratt, J.:

Tbe court charged the jury that the originator of a slander is responsible for the repetitions of such slander, and that it must inquire carefully to what extent, if at all, under the proof, the alleged slander had traveled. In this respect the charge was erroneous.

There was no proof that the slander had been repeated, and the jury was invited to give damages upon this mistaken basis. The exception taken was sufficient.

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

Brown, P. J., and Dykman, J., concurred.

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


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    Thomas L. Hawkins, Respondent, v. Alonzo E. Smith, Appellant.

      Appeal — judgment by default, how renewed — recital in a judgment of a County Court that two justices of the Sessions were present.

    No appeal lies from a judgment taken by default, tbe remedy of the defendant being to move to open the default.
    Where a proceeding is entitled in a County Court, and the county judge was present when the decision was rendered, and the defendant has appealed specifically from a judgment of the County Court, the judgment is not invalidated by a recital in it that two justices of the Sessions were present with the county judge.
    Appeal by the defendant, Alonzo E. Smith, from a judgment of tlie County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 5th day of June, 1895, upon the decision of the court rendered after an inquest taken upon the defendant’s default at the Suffolk County Court.
    This action was brought to recover $267.45, alleged to have been the balance due on account of certain work and labor performed by the plaintiff at the request of the defendant. The action having been brought on for trial at the Suffolk County Court, the defendant moved, upon an affidavit of merits, for a postponement of such trial. Upon the denial of such motion the defendant withdrew, whereupon an inquest was taken and a decision rendered in favor of the plaintiff. From the judgment entered upon such decision the defendant ajipeals.

      Elliott J. Smith, for the appellant.

      George H. Furman, for the respondent.
   Pratt, J. :

No principle is better settled than that no appeal lies from a judgment taken by default. (Code Civ. Proc. § 1294; Avery v. Woodi/n, 44 Hun, 269.) The defendant’s remedy was to move to open his default. The recital that two justices of Sessions were present with the county judge and took part in the decision does not invalidate the judgment.

The proceeding was entitled in the County Court; the county judge was present, and the defendant has appealed from •&. judgment of the County Court.

Judgment affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.


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    Richard Hannigan, Respondent, v. The Lehigh and Hudson River Railway Company, Appellant.

      Negligence — rule of a corporation disregarded by its employee — question for the jury, whether the rule was a lire one.

    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, a railroad company, it was urged that the plaintiff, a brakeman, was guilty of contributory negligence in having failed to use a coupling stick. It appeared that a rule of the defendant, printed upon the back of its time table, required the use of such coupling sticks, and stated that they could be procured at Warwick; but there was evidence tending to show that the rule had never been enforced, and that a brakeman who had applied for them at the storehouse at Warwick had been unable to procure them.

      Held, that the court properly left it to the jury to say whether the rule was a live one or whether it had ceased to be in force.
    Appeal by the defendant, Tlie Lehigh, and' Hudson River Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 3d day of January, 1895, upon the verdict of a jury rendered after a trial at the Orange Oircuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 31st day of December, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages resulting from personal in jmies sustained by the plaintiff by reason of the alleged negligence of the defendant in failing to provide proper appliances for use in coupling cars.

      John J. Beattie, for the appellant.

      John W. Lyon, for the respondent.
   Pratt, J.:

The objection chiefly urged against the judgment appealed from is. that the plaintiff was guilty of contributory negligence in failing to use a coupling stick. The rules of the company, printed on the back of the time table required their use and stated they could be procured at Warwick. But it was proved that the rule had never been enforced, and that brakemen who had applied for them at the storehouse had been unable to procure them.

On the testimony the court properly left it to the jury to say whether the rule was a live rule, or whether it had ceased to be in force. (Hays v. Bush & Denslow Mfg. Co., 41 Hun, 407.)

The verdict was not excessive. (Wooster v. Western New York & Penn. R. R. Co., 40 N. Y. St. Repr. 844.)

No other question requires discussion.

The judgment must be affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


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    Irene E. Storm, an Infant, by Jaques Van Brunt, her Guardian ad Litem, Respondent, v. Catharine D. Bennett and F. Schenck Remsen, as Committee, etc., of Cornelia L. Bennett, a Lunatic, Appellants, Impleaded with Jacob L. Vandenburgh, as Executor, etc., of Sarah Storm and Others, Defendants.

      Bquity — allegation that thxre exists no adequate remedy at law — contingent interest in a trust threatened with destruction — plaintiff not remitted to an action for damages against the trustee, although he is solvent.

    Where the case made by a complaint sufficiently shows the need of a resort to equity, the complaint need not allege that the plaintiff has no adequate remedy at law.
    The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and to the mode of attaining it, is as efficient as the remedy in equity.
    Where the complaint in an action alleges the destruction of a trust, in which -the plaintiff has a contingent interest, but does not allege that the trustee is insolvent, equity will take cognizance of the action, and will not remit the plaintiff to an action at law against the trustee for damages.
    Appeal by the defendants, Catharine D. Bennett and another, as committee, etc., of Cornelia L. Bennett, a lunatic, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, ■entered in the office of the clerk of the county of Kings on the SOtli day of August, 1895, upon the decision of the court, rendered .after a trial at the Kings County Special Term, ‘overruling their ■demurrer to the plaintiff’s complaint.
    This action was brought to have a certain deed executed by Jacob L. Yandenburgh, as sole surviving executor, etc., of Sarah Storm, •deceased, canceled, on the ground that said deed was made and ■delivered without any valuable consideration, and not in bona fide ■exercise of the power of sale given to him under the will of said ■Sarah Storm.

      Ilector M. Hitchings, for the appellants.

      Josiah T. Marean, for the respondent.
   Pratt, J.:

The appellants object to the complaint that it contains no allegation that the plaintiff has no adequate remedy at law. N o such allegation is necessary. "When the case made by the complaint sufficiently shows the need of an equitable remedy, the only benefit from an allegation that such relief was requisite will be to call attention to a fact which already sufficiently appears.

In the present case the complaint avers the destruction of a trust in which the plaintiff has a contingent interest. There being no allegation that the trustee is insolvent, the defendants suggest that an action for damages against the trustee is an adequate remedy. In order to oust the equitable remedy, the legal remedy must be as practical and efficient to the ends of justice and its prompt,administration as the remedy in equity. (Boyce’s Exrs. v. Grundy, 3 Pet. 210; Arthur v. Oakes, 63 Fed. Rep. 328.) Or, as expressed by Fuller, Ch. J., in Kilbourn v. Sunderland (130 U. S. 505, 514), the jurisdiction in equity attaches, unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy in equity.

In other words, the suitor is entitled not only to an adequate remedy, but to the best remedy, which must depend on many considerations as to which the suitor is in general the best judge.

Under any other rule the rights of the suitor will often, while ostensibly protected, practically be sacrificed, and lie will get the shell of protection and lose the substance.

To sum up, in any given case the suitor is entitled to avail himself of the best remedy afforded either at law or in equity, and he may protect the fund, and will not be remitted to an action at law against the trustee.

As pointed out in the opinion below, a contingent remainder is an estate which the courts recognize and will protect.

The judgment must be affirmed, with costs.

Dykman, J., concurred ; Brown, P. J., not sitting.

Judgment affirmed, with costs.