text:
    J. DeWitt Butts, Eespondent, v. The J. C. Mackey Company, Appellant.

      Negligence — contract to furnish a fire extinguishing equipment, including a water ' tank, upon the roof — • tank furnished by a sub-contractor — liability of the contractor for doomages caused, by water leaking from the tank — assignability of the claims of tenants for damages to their goods.

    A company engaged in supplying buildings with a sprinkling system for extinguishing fires contracted with the owner of a building to equip it, for a certain sum, with a system, which included a water tank to he placed upon the roof, and sublet the furnishing of the tank to a third person, who constructed it and placed it on the roof. Thereafter, an agent of the company who had general ' supervision of the work, without investigating the tank to see if it would hold water, directed a servant of the owner to fill the tank, which he did accordingly. The tank proved leaky and the water ran therefrom down the sides of the wall beneath, behind tin flashing which had drawn away from the brick ' work. The roof, notwithstanding this defect in the flashing, was sufficient for the ordinary purposes of a roof.

      The tenants in the building, whose goods were injured by the water, assigned their claims for damages to their goods to the owner of the building, who brought an action thereon against the company, and recovered judgment.

      Held, that the rule invoked by the defendant, that, having sublet the making of the tank to a responsible and competent builder, it was not liable to third parties for damages caused by the negligence of its sub-contractor, did not apply, as the defect in the tank was a defect in the very article which the defendant had contracted to furnish as a part of the equipment, and the damages were cans; d by the negligent act of the defendant’s agent in directing the tank to be filled;
    That no negligence could be imputed to the plaintiff because of the act of his servant in filling the tank by direction of the defendant’s agent, since, although the servant had general charge of the building for the plaintiff, he did not appear to have had any special information in regard to the work or the condition of the tank, and he properly assumed that the defendant’s agent knew wlietherdt was safe to fill the tank;
    That the claims of the tenants for damages to their goods were assignable.
    Appeal by tlie defendant, the J. C. Mackey Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Monroe county on tbe 15tb day of August, 1S92, upon tbe report of a referee.

      A. AT. Wilson, for the appellant.

      William AT. Cogswell, for tbe respondent.
   Lewis, J.:

Tbe defendant is a domestic corporation engaged in supplying buildings with a sprinkling system for extinguishing fires known as the J. C. Mackey Company automatic fire extinguisher. Plaintiff, being the owner of a block of buildings in the city of Kochester, entered into a contract with the defendant by the terms of which the defendant agreed to equip said block of buildings with its automatic sprinkling system. A part of the equipment consisted of a tank of sufficient capacity to hold the necessary water for the operation of the plant, which the defendant contracted to furnish and place upon trestle work over the building and connect therewith water pipes for the purpose of filling the tank with -water, for all of which the plaintiff agreed to pay the defendant $1,850. The defendant sublet to the firm of T. F. Montgomery & Son of the city of Kochester the furnishing of the tank. Montgomery & Son constructed the tank and placed it in position over the building, and, upon water being let into it, it was found to leak, and Montgomery & Son repaired it. One F. L. Bellows, the defendant’s secretary, had general charge of the work and of testing it. After the tank was repaired and the pipes were in place, plaintiff’s servant, by direction of Bellows, let water into it for the purpose of testing the plant. The tank still leaked, and the water ran out of it down into-the building, and damaged a quantity of goods and materials therein belonging to the plaintiff’s tenants. They severally assigned their claims for damages to the plaintiff, and he brought this action, which was duly referred, and a judgment was entered upon the report of the referee in favor of the plaintiff for the damages to the goods, and from said judgment this appeal was taken.

The tank was placed upon a trestle over a center brick fire wall, the top of which extended above the roof of the building. The water, in leaking from the tank, ran down this fire wall behind some tin flashing, which was originally inserted into the brick wall, but which had settled and drawn away from the brick, and the water thus made its way into the building and caused the damage. The roof, notwithstanding the defect mentioned, was sufficient for the ordinary purposes of a roof.

The appellant contends that, having sublet the making of the tank to Montgomery & Son, who were responsible and competent builders, it is not liable to third parties for damages caused by the negligence of its sub-contractors. The tank in question was a part of the equipment which the defendant had contracted to furnish. The defect which caused the damages was in the very article which the defendant had contracted to furnish. Ye incline to the opinion that the rule suggested by the appellant has no application in such a case. As we have seen, the defendant’s agent had general supervision of the work, and personally directed Angel, the plaintiff’s servant, to let the water into the tank without investigating to ascertain if it would hold water. This negligent act of defendant’s agent caused the damages complained of. While Angel had general charge of the building for the plaintiff, he does not appear to have had any special information in regard to this work or the condition of the tank after the repairs were made. He very properly assumed that Bellows knew whether it was safe to fill the tank with water. No negligence can be imputable to the plaintiff because of the act of Angel.

"Whether the defendant had formally, as between itself and Montgomery & Son, accepted the tank as completed is not material, Bellows was there to test the apparatus, and in order to do so it was necessary that the tank should be filled, and in consequence of its defective condition the damage ensued.

The claims of the tenants for damages to their goods wore assignable. (§ 1912, Code Civ. Proc.)

The referee found that their claims had been properly assigned to the plaintiff, and no exception was taken to this finding.

We see no reason for a reversal of the judgment, and it should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Margaret R. Greene, as Executrix, etc., of Phebe Abbey, Deceased, Respondent, v. Emma S. Reynolds, Appellant.

      Inchoate right of dower under a conveyance upon conditions — defeat of the dower interest on the failure of tlie husbands title through non-performance of the conditions — costs.
    A wife’s inchoate right of dower in premises which have been conveyed to her husband upon the sole consideration of the performance by him of conditions named in the conveyance (such as the support and maintenance of the grantor) ceases and determines on the failure of the husband’s title through non-performance of the conditions of the conveyance to him; and if, on such failure to perform, the grantor re-enters for condition broken and the husband voluntarily conveys the premises hack to the grantor by an instrument in which the wife does not join, her apparent dower right may be foreclosed, and declared forfeited and terminated, in an action brought against her for that purpose.
    It is proper to allow costs against the wife, the defendant in such action.
    Appeal by the defendant, Emma S. Reynolds, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Cayuga county on the 20th day of June, 1892,'upon the report of a referee.

      F. JD. Wright and Frank G. Gushing, for the appellant.

      John J). Teller, for the respondent.
   Lewis, J.:

This action was brought to obtain a judgment declaring the defendant’s inchoate right of dower in certain premises in the city of Auburn, county of Cayuga, conveyed to her husband, Fred A. Reynolds, by his grandmother, Pliebe Abbey, forfeited and terminated.

The referee, to whom the action was referred upon evidence sustaining his findings, found as facts that Phebe Abbey, a resident of the city of Auburn, was the owner in fee of the premises described in the complaint, and on November 5, 1890, she entered into an agreement with her grandson, Fred A. Reynolds, to convey to him the premises described in the complaint, on condition that he assume and fulfill the covenants and conditions set forth in the deed as the consideration for the grant, and that, relying upon said agreement, she executed and delivered to him a conveyance of said premises upon the conditions stated therein, to the effect that the grantee should support, maintain and clothe the grantor during the term of her natural life, pay her funeral expenses, keep the buildings upon the premises insured and in good repair, and pay the taxes and assessments thereon, and that, upon failure to perform any of said covenants and conditions, the grant should be void and of no effect. These conditions were the sole considerations for the conveyance. Reynolds accepted the deed, assented to the covenants and conditions, went into possession of the premises, but he wholly failed and neglected to, perform on his part, and conceded his inability so to do, and on the 31st day of January, 1891, at the request of the grantor, he executed and delivered to her a quit-claim deed reconveying the premises. The sole and only consideration for said reconveyance was his failure to keep and perform his agreements, and covenants contained in the deed to him. Mrs. Abbey on the same day presented the deed to the defendant, and requested her to join in the execution thereof, which she refused to do, and thereupon this action was commenced. Mrs. Abbey died after the commencement of the action, leaving a last will, which ivas duly admitted to probate, and letters testamentary were granted to the plaintiff, who was the executrix named therein.

The plaintiff was the sole devisee of the real estate described in the complaint, and was by the will authorized to sell and convey the same as executrix.

The referee found as conclusions of law that the estate acquired by Fred A. Reynolds under the deed from Phebe Abbey was forfeited on account of the breach of the conditions upon which the same was held, and that the estate of the defendant in said premises was at the same time terminated by the forfeiture of the principal estate, and that she had no interest as doweress or otherwise in the premises described in the complaint, and directed judgment accordingly.

The defendant was at the time of the conveyances mentioned, and still is, the wife of the grantee, Fred A. Reynolds. The reconveyance to Mrs. Abbey by her husband was without her knowledge or consent.

The defendant’s dower interest in the land was a mere incident to the title held by her husband.

The instrument by which he took the title provided that if he failed to pay for the property by performing the conditions contained in the deed the grant should be void and of no effect. The sole and only consideration for the conveyance of the property was the grantee’s agreement to perform the conditions upon which he was to have the property. Plaintiff’s right to dower in the premises depended upon the performance by her husband of the conditions mentioned. The husband voluntarily reconveyed the property to his grantor, being unable or unwilling to perform his part of the agreement. Had he refused to reconvey and a joint action against himself and wife had been brought upon the evidence presented by this record, plaintiff would have been entitled to a judgment declaring the conveyance void as against both defendants.

The defendant moved away from the premises a few days after her husband reconveyed them, so that Mrs. Abbey was fully restored to her former possession. It was the case of a re-entry into the possession of all estate for a breach of a condition upon which the estate was held, and the dower interest of the wife, being a meré incident to the title of her husband, fell with the estate of the husband. Beardslee v. Beardslee, 5 Barb. 324.

Hpon the same principle that in case of a deed and a mortgage executed simultaneously for the purchase money, the right of dower of the wife of the grantee is liable to be defeated by the foreclosure of the mortgage for the non-payment of the purchase money.

Mrs. Abbey, in fact, continued to reside upon the premises from a time prior to the conveyance to her grandson, and up to the time of her death. The doctrine that the breach of a condition subsequent does not defeat an estate until entry by the grantee has no application in this case, for hers was a re-entry for conditions broken. The plaintiff having shown a state of facts which would have entitled her to a judgment declaring the conveyance to the defendant’s husband void, there would not seem to be any good reason why her action to foreclose and divest the defendant’s apparent dower interest should fail because of the voluntary surrender by her husband of his rights and interest in the property of his grantor.

The referee gave the plaintiff costs ag’ainst the defendant; the defendant claims this was an error. The defendant, by refusing to join with her husband in the conveyance, put the plaintiff to the necessity of commencing and prosecuting the action.

It was within the discretion of the referee to allow costs, and we see no reason for disturbing the judgment because he exercised that discretion in favor of the plaintiff.

The judgment appealed from should be affirmed, with costs against the defendant.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Asher W. Miner, Deceased.

      Will — ambiguous ■residuary clause.

    A residuary clause in a will provided as follows : “All the rest and residue of my estate both real and personal not heretofore disposed of I give bequeath and devise as follows all of my household goods furniture and effects after the decease of myself and wife to Kate M. Wellman, Myra E. Corbin and Ella Lockwood to be equally divided between them, share and share alike.”

      Meld, in accordance with the intention of the testator, as disclosed by extrinsic evidence, and without giving the word “effects” abroad sense, that this clausa of the will disposed of the entire residue of the estate, .and should not be limited to “ household goods, furniture and effects.”

      Appeal by Maria L. Mills and others, contestants, from a decree of the Surrogate’s Court of Allegany county,-entered in the office of the cleric of that court on the 1st day of February, 1893, admitting the will of Asher W. Miner to probate, and construing that part of the will which relates to the disposition of his .residuary estate.

      James 0. Smith, for appellants Maria L. Mills and others.

      George Barlcer and A. IF. IRelcman, for appellants Simon GL Miner and others.

      O liarles B. Wheeler, for appellant Amelia R. Heath.

      Charles Daniels and A. T. Ellioott, for proponents and respondents. .
   Lewis, J.:

This is an appeal from a decree of the surrogate of Allegany county, the controversy being over the construction given to the fourteenth clause of the will of Asher ~W. Miner, deceased.

The testator died in the village of Friendship, Allegany county, on the 13th day of May, 1892, aged seventy-eight years. He left him surviving his widow, Electa R. Miner, two brothers, and a large number of nephews and nieces. Mrs. Miner survived her husband but a few months. The testator drew his own will and executed it on the 10th day of August, 1891.

By the first clause of his will, he bequeaths to his wife $20,000 and the use and income of the further sum of $20,000 during her life ; also, all his household goods, furniture, fixtures and effects, and all his horses, harnesses, carriages, robes and cutters, and the use, during her lifetime, of all the lands owned by him in the town of Friendship ; he directed that the $20,000 devised to her should be paid one-half in one year, and one-half in two years from his decease, with interest from the time of his decease, to be paid quarterly.

The provisions for his wife were to be in lieu of her dower. By the second clause of his will he bequeathed to each of the proponents the sum of $10,000, and provided that any notes or indebtedness he might have against the proponents, or their husbands, at the time of his decease, should be deducted from the sum devised respectively. By the third clause, he bequeathed to his niece Harriet Hoxie the interest on $4,000 during her natural life, and then follow'- various-bequests to Baptist churches and societies, and to a cemetery,, amounting in all to some $27,000.

The fourteenth clause, being the one in controversy, is as follows ; “ All the rest and residue of my estate both real and personal not heretofore disposed of I give bequeath and devise as follows all of my household goods furniture and effects after the decease of myself and wife to Kate M. Wellman, Myra E. Corbin and Ella Lockwood to be equally divided between them, share and share alike.” The contestants claim that the testator, by this clause of his will, disposed of no more of his property than his household goods, furniture and effects. The proponents contend that the testator intended to bequeath to them- the entire residue of his property.

Mr. Miner resided all his business life in the village of Friendship, Allegany county. -He was an intelligent, enterprising, successful business man. He operated to some extent in oil lands, oil and lumber, but 1ns principal business -was banking, which he liad carried on for many years successfully. He left an estate of the value of from $500,000 to $600,000. Mr. and Mrs. Miner married early in life, but not having any children of their own, they adopted the very commendable plan of taking the children of others, and making, them members of their household. The proponent Kate M. Wellman became a member of their family in the year 1846 or 1847, when she was three years of age. The proponent Myra E. Corbin was taken into the family when she was sixteen months old, and the proponent Ella Lockwood when she was eleven years old. They were not legally adopted, but remained members of the family until they were respectively married, and were in all respects treated by the testator and his wife as if they were their natural children. -

They were liberally educated, and enjoyed all the advantages and privileges of children of wealthy parents. The relations between the foster parents and these children, from the time they became members of the family until the death of Mr. Miner, were as tender and affectionate apparently as if they had been their natural children.

They were habitually addressed by Mr. aud Mrs. Miner as natural children would have been, and Mr. and Mrs. Miner were called and addressed by them as father and mother. They took the family-name of Miner; they became members of the Baptist church to which Mr. and Mrs. Miner belonged, were married at the home of the testator, one of them to the business partner and confidential friend of Mr. Miner. One married a Doctor Lockwood, who was at the time a physician residing in the State of Illinois, and she went there to reside with her husband. Mrs. Wellman and Mrs. Corbin continued to reside after their marriages near the residence of the testator. Mrs. Wellman’s husband died prior to the making of the will, leaving a family of children. The relations of affection and love between the testator and proponents continued after their marriage. Mrs. Wellman and Mrs. Corbin had children¿ and the relations between Mr. and Mrs. Miner and these children were such as would be expected between grandparents and grandchildren. The record shows that the love which Mr. Miner had for the proponents was fully reciprocated by them and their children. They were, for all the purposes of giving construction to the will, his natural children. The testator left him surviving two brothers who were his seniors in age. One of them was a farmer residing near the testator; the other was a minister and resided in another State. They were in moderate financial circumstances. His nephews and nieces resided in different parts of the United States. He had given financial aid to the brother who was a minister and to his sisters. His relations with his brothers and sisters and their -descendants appear to have been cordial and affectionate. The testator’s letters, which were introduced in evidence, tended to show that he was exceedingly considerate of the feelings and comfort of his brothers and sisters and frequently suggested that they should not in any respect embarrass or harass themselves by making payments to him upon their indebtedness.

The testator executed a former will in the year 1885, which Avas found among his papers after his decease canceled. He unquestionably had that will before him when he dreAV the Avill in question, for several of its clauses Avere copied verbatim into the last will. The provisions for his wife were the same in both wills. By the will of 1885 he gave to each of the proponents the use during their life of $8,000, which was to go to their children after their decease, and in case of the death of either of them without issue •the same was to be a part of the residuary estate. The same provision was made in both wills for Mrs. Iloxie ; substantially the same provisions in both wills for the churches and societies. By the thirteenth clause of his first will he gave to the three proponents the use during life of his entire residuary estate and provided on their death it should go, share and share alike, to their children, and that in case either of said devisees should die leaving no children, then the share of said persons dying childless should go to the survivor or survivoi’s of the residuary devisees in equal proportions, thus showing that the testator had in mind at the date of his first will to ■make the proponents and their children the principal' beneficiaries of his large estate, and did not intend that his brothers and sisters or their descendants, with the exception of Mrs. Hoxie, should share in the estate.

By stipulation of the parties, photographic copies of both wills were produced upon the argument. They were both in the handwriting of the testator with the exception of the names and residences of the witnesses. The arrangement of the various clauses ■of the will, the penmanship and phraseology, show that the testator was a man of intelligence and to a considerable extent familiar with the use of legal language and legal principles. In drafting the clause in controversy he obviously failed to express his thoughts with that clearness that appears in the balance of the will. In writing the wills he entirely ignored the rules of punctuation, for there is not in either of the wills a punctuation point of any kind. In giving con■struction to this clause of the will we start with the legal presumption against partial intestacy, and in this case that presumption is strengthened by the provisions of his first will, which, as we have seen, was prepared by his own hand and intelligently disposed of his entire estate upon the same general plan as the last will. He contemplated, when preparing the last will, that there would be a residuary estate to be disposed of, for he refers to it three times in the will. It is quite improbable that he used the following import■ant and significant words in the fourteenth clause : All the rest and residue of my estate both real and personal not heretofore disposed of I give bequeath and devise ” and intended that they would carry only the household goods and effects after the death of his wife. Such a conclusion would impute to him ignorance of the meaning of the words not justified by the evidence. He had, in his former will, given to the proponents only the use of the bequests for life, but it was of the bulk of the estate, amounting to several hundred thousand dollars. By the last will his bequests to them, with the exception mentioned as to deduction on account of indebtedness to him at the time of his death, by the devisees or their husbands, were without conditions. To hold that the proponents only take the household goods by the residuary clause involves a very remarkable and unexplained change in the feelings of the testator towards them between the dates of the two wills. Having by the will of 1885 given to them and their children the great bulk of his estate, if the appellant’s contention be correct, by his last will he gave them, in addition to the $10,000 each, only the use of the household furniture after the death of the widow. If such a radical change was intended by the testator, we should expect that some cause for ij; would appear in the record, and there is an absence of any suggestion of the kind. On the contrary, the proof shows that, the kindly and affectionate feelings he entertained for them in 1885 apparently continued down to the time of his death. Having provided in the first clause of his will that his widow should have the-use of the household goods, etc., during her life, the insertion of this provision regarding the household goods in the residuary clause, was not necessarily inconsistent with an intention on his part to give the proponents the residue of this estate. He might well have thought her right to it might be endangered if that property was not excepted from the general language of the residuary clause. Had the words, “ All of my household goods furniture and effects after the decease of myself and wife ” been inclosed by the testator-within dashes or curved lines, there would be left no room for doubt that the clause in controversy carried the residuum of the estate. It is our duty to give this construction to the clause in question, if it can be fairly and consistently done, in order to prevent partial intestacy and carry out the intention of the testator.

When a plain and definite purpose is “ endangered by inapt or inaccurate modes of expression, and we are sure that we know what the testatrix meant, we have a right, and it is our duty, to subordinate the language to the intention. In such a case the court may reject words and limitations, supply them or transpose them, to get at the correct meaning.” (Phillips v. Davies, 92 N. Y. 199-204.)

,It was held in Lamb v. Lamb (131 N. Y. 227), that “ where the language of a residuary clause is’ ambiguous, the leaning of' the courts is in favor of a broad rather than a restricted construction. It prevents intestacy, whicli it is reasonable to suppose testators do not contemplate, and if the- mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses and to cover whatever is left after satisfying specific and special purposes of the testator, manifested in the other clauses of his will. * * * The intention to include is presumed, and an intention to exclude must appear from other parts of the will, or the residuary devisee will take.”

It is not necessary to take as great liberties with the phraseology of the clause in question in order to put it beyond doubt that it was intended to devise the residue of the estate as would seem to be warranted by many authorities. Itds contended by the counsel for the respondents that the word “effects” in the residuary clause should be held to include and carry the balance of the estate not specifically devised, and many authorities are cited where that word was held to have that effect. ¥e incline to the opinion that the testator did not use the word in so broad a sense, but intended that it should apply to and cover articles belonging to the household furnishings, using it in the same sense as in the first clause of the will. If he used it-in the broad sense claimed by the respondents he failed to make any provision for the disposal of the income of the residue of the estate during the life of his widow. We are of the opinion that the testator intended by the fourteenth clause of his will to dispose of the entire residue of his estate to the proponents, but failed to express his intention with that clearness, perhaps, that he would if he had not had the former will before him when preparing the clause in question. He copied the first part of the residuary clause from the first will, and left out of the last will its provisions as to a life interest in the proponents, which accounts partially for the clause failing to express his intention with that clearness that it otherwise would. The residuary clause was so ambiguously phrased as to justify the admission of extrinsic evidence to aid the court in its interpretation.

’ The order and decree of the surrogate appealed from should be affirmed, without costs of this appeal.

Dwight, P. J., and Haight, J., concurred.

Decree of the Surrogate’s Court of Allegany county appealed from affirmed, without costs of this appeal to either party.


author: Dwigiit, P. J.:

text:
    In the Matter of the Application of The Highway Commissioners of the Town of Niagara to have Flagmen Placed at Certain Crossings.

      Flagmen at a railroad grade crossing — application therefor by town commissioners of highways — requisites of the petition — Railroad Law, 1892, chap. 676, § 33.
    The designation of the petitioners as “highway commissioners” of a certain town, instead of the statutory designation of " commissioners of highways,” isa sufficient description of the official character of the persons named, in a petition to compel a railroad company to place flagmen at certain grade crossings in the town, under section 33 of the Railroad Law (Laws of 1892, chap. 676), which provides that “at any point where a railroad crosses a * * * highway * * * at grade, and the corporation owning or operating such railroad refuses, upon request of the ’local authorities, to station a flagrqan or erect gates, to be opened and closed when an engine or train passes, the Supreme Court or the County Court may, upon the application of the local authorities, and upon ten days’ notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, * * * ”
    The omission of the individual names of the commissioners in the title of such a petition is of no importance, when they are individually named in the body of the petition and in the verification.
    When the town in which the crossings are stated to be situated, and of which the petitioners are stated to be the highway commissioners, is designated in the petition as of a certain county in the State of Hew York, the County Court of that county will, on presentation of such petition, take judicial notice of the correctness or otherwise of such designation of the town, and of its existence as a political division of the county.
    The allegation, in such a petition, that the petitioners are the highway commissioners of the town, is sufficient to show that they are “ the local authorities,” within the meaning of the statute, entitled to proceed under the statute.

      When such a petition describes the highway crossings in question as being in the town of which the petitioners are the commissioners of highways, it will bo presumed that the highway is within the jurisdiction of such commissioners ; it will not be presumed that there are any villages in the town, and the petition need not allege that the highway is not within the jurisdiction of any village.
    A petition under the above statute need not allege any facts which the statute does not require to be shown, in order to give the court jurisdiction of the application, and to entitle the petitioners textile remedy provided ; hence, the petition need not state facts to show that the crossing is dangerous, bejmnd the fact that it is a grade crossing.
    Appeal by tlie Now York Central and Hudson River Railroad Company from an order of tlie County Court of Niagara county, entered in tlie office of the clerk of that county on the 8th day of April, 1893, denying its motion to dismiss the petition of the highway commissioners of the town of Niagara.

      JD. 11. Mcllilla/%, for the appellant.

      Eugene Oary, for the respondents.
   Dwigiit, P. J.:

The application was made under section 33 of chapter 676 of the Laws of 1892 by the highway commissioners of the town of Niagara, in the county of Niagara, ta compel the appellant to station flagmen or to erect gates at two crossings by its tracks of a highway of that town, known as the River road. The particular provision of the statute referred to is in the following terms: “At any point where a railroad crosses a * * * highway * * at grade, and- the corporation owning or operating such railroad refuses, upon request of the local authorities, to station a flagman or erect gates, to be opened and closed when an engine or train passes, the Supreme Court or the County Court may, upon the application of the local authorities, and upon ten days’ notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a person be stationed to open and close them when an engine or train passes, or may make such other order -respecting the same as it deems proper.”

The application in this case was made to the County Court by the verified petition of three persons who were named in the introductory clause, and described as the “ highway commissioners of the town of Niagara, Niagara county, N. Y.” The petition was also signed in the names of the same three persons as highway commissioners, etc., and was verified by them. The allegations of the petition were, in substance : (1) That the petitioners were the-highway commissioners of the town of Niagara; (2) that the New York Central and Hudson River Railroad Company was a domestic railroad corporation and was operating its road through the said town of Niagara; (3) that said railroad crossed the highway, above mentioned, at grade, at two points in said town particularly described ; that there were no flagmen or gates or other means of protection at those points of crossing, and that such crossings were dangerous for the passage of persons and vehicles; (4) that the petitioners had requested said railroad company to station flagmen or erect gates at those crossings and that said company had refused to do so; and the prayer of the petition is for the relief prescribed by the statute above quoted.

Due notice in writing was given to the railroad company of the time and place at which the application would be made to the County Court on the petition, a copy of which was served with the notice, and the notice, as well as the petition, particularly described the location of the two crossings in question.

At the time mentioned in the notice the railroad company appeared “ specially ” by its attorney, and moved to dismiss the petition “ on the ground that it does not set forth facts sufficient to give the court jurisdiction, or to entitle the petitioners to the relief authorized by the statute; ” and on the more particular grounds, in substance, as follows: (1) That there is no such office in the town as that of ‘ highway commissioners,” and that the petitioners are not named individually in the title to the proceeding; (2) that the petition does not show that the town of Niagara is a political division of the county of Niagara; (3) that it does not show that the petitioners are the “local authorities” of the town, or that the crossings in question are within their jurisdiction, and not within the jurisdiction of some village of the town; (4) that it does not show that the local authorities made the request of the railroad company required by the statute; (5) that it does not set forth any facts tending to show that the crossings are dangerous or in what particular they are so ; (6) that it does not set forth facts sufficient to inform the court of the character and surroundings of the crossings, so that it may exercise an intelligent discretion in the matter. The court denied the motion to dismiss the petition on the grounds stated, and gave the railroad company ten days in which to file an answer thereto; and from that order this appeal was taken.

We think it may well be questioned whether the order was appeal-able since it was not a final order nor one, of itself, affecting a substantial right, but was, rather, a ruling of the court on a question arising in the course of the hearing, which ruling may be reviewed on appeal from the final order. But counsel for the appellant urge that the motion was in the nature of an oral demurrer, and that the appearance by them was special for the purpose of making that motion only, and with the view of making the present a test case under the new statute. We have decided to entertain the appeal— especially as the objection is not made on the part of the respondent — and for the-reasons stated we are disposed to give more detailed consideration to the several grounds of the motion than we should otherwise feel called upon to do.

And, First, it is true that the statutory designation of those officers of the town who are charged with the care of its highways is “ commissioners of highways,” and not “highway commissioners;” but the latter is the more common designation in popular use. Its use in this petition was a sufficient description of the official character of the persons named, and could have misled no one. The omission of the individual names of the commissioners in the title to the petition was, of course, of no inpportance when they were individually named both in the body of the petition and in the verification. Second, the town of Niagara is twice designated in the petition as of the county of Niagara and State of New' York, and it was, no doubt, the privilege and the duty of the County Court of that county to take judicial notice of the correctness, or otherwise, of that designation. All the courts of the State take judicial cognizance of its statutes by which counties, towns, cities and villages are created. ( Wood v. The People, 1 Hun, 381.) Third, the petition expressly alleges that the petitioners are the highway commissioners of the town; such commissioners are certainly local authorities of the town, and, we think, they may be fairly regarded as the local authorities within the meaning of the statute in question for the reason that they are the authorities who are particularly charged with the care of the highways of the town. There is no presumption that there are any incorporated villages in the town of Niagara, and a highway within the boundaries of the town will be presumed to be within the jurisdiction, of the commissioners of highways. Fourth, this objection is embraced in the last. The petition does show that the request was made by the highway commissioners, and we hold that they are the local authorities within the meaning of the statute. Fifth, this is the objection of most importance of those made to . the petition. It is, in effect, that the petition does not state facts to show that the crossings are dangerous, but only the conclusion that they are so; and counsel in his argument characterizes the allegation as a conclusion of law. It undoubtedly is a conclusion of fact, but as such we think it a sufficient allegation to meet the requirements of the statute. That statute is exceedingly general and comprehensive in its terms. It requires only that there should be a crossvng at grade, an absence of flagmen or gates, a request for one or the other by the local authorities, a refusal by the railroad company, and an application to the court on a notice of ten days. It does not even require a petition, at all, nor prescribe any particular mode in which the application shall be made. But it may be conceded that a petition, or its equivalent, is necessary in order to present the case to the court and that such petition must contain all the allegations necessary to bring the case within the conditions prescribed b-y the statute. But certainly the petition need do no more. It need not allege any facts which the statute does not require to be shown in order to give the court jurisdiction of the application, and entitle the petitioners to the remedy provided. It will be seen that there is no requirement that the crossing should be shown to be a dangerous one, beyond the fact that it is a crossing at grade, and it is undoubtedly true, as the experience of many years in this country has demonstrated, that all crossings at grade are, in a greater or less degree, dangerous.

I The sixth objection to the petition is substantially the same, in effect, as the fifth, and it points to no particular in which the petition fails to meet the requirements of the statute.

It was undoubtedly the intention of the Legislature to give a wide discretion to the courts named in the matter of requiring needed safeguards against the dangers which are inherent in the “grade crossing,” and while that discretion must be wisely exercised with a view to the necessities of railway traffic as well to the safety of the public highways, the beneficent purpose of the statute will not be thwarted by the imposition of requirements and conditions which are not prescribed by the statute itself.

We are clearly of the opinion that none of the objections to the petition in this case are well taken, and that the order denying the motion to dismiss must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Order of the County Court of Niagara county appealed from affirmed, with ten dollars costs and disbursements, and proceedings remitted to that court to proceed therein.


author: Dwight, P. J.:

text:
    The Empire State Telephone and Telegraph Company,. Respondent, v. Frank A. Bickford, Appellant.

      Principal and agent — accounting — inclusion of tortious acts of the agent — equitable jurisdiction— refwence.

    When the complaint, in an action brought by a telephone company against the manager of one of its offices for an accounting of his receipts and disbursements and losses occasioned by his mismanagement and wrongful acts, discloses the fiduciary relation of principal and agent, continuing through a series of I years, involving the daily receipt and disbursement of moneys by the agent for the principal, with the consequent duty to account from time to time, and the failure to account or the rendition of false accounts, a case of equitable jurisdiction to compel an accounting is presented, which is properly referable to a. I referee to hear and determine.
    An accounting, based upon such fiduciary relation of principal and agent, will I be made to embrace questipns of fraud, neglect and mismanagement, and this ( is so even though some of the allegations of the complaint might have afforded! ground for an action of tort, as, e. g., allegations of the conversion by the defend- j ant of property of the plaintiff, and injury to the plaintiff’s business caused! by the defendant’s attempt to organize a competing telephone business, consti-l tuting part and parcel of the course of dealing of the agent with the property j and interests of the principal.

      Appeal by tbe defendant, Prank A. Bickford, from an order of the Supreme Court, made at the Monroe Special Term upon the motion of the plaintiff, and entered in the office of the clerk of Cayuga county on the 5th day of May, 1893, referring the issues in the action to a referee to hear and determine.

      T. E. Courtney, for the appellant.

      E. E. Storhe, for the respondent.
   Dwight, P. J.:

The action was brought to obtain an accounting by the defendant, of his agency for the plaintiff as manager of its office and business at Cortland, for a period of nine years ending with the 31st day of December, 1892. The business so managed by the defendant was that of a telephone exchange through which communications were carried on between about 135 subscribers, besides what was known as toll or trunk line business. The complaint further alleges that during the period of his agency the defendant rendered to the plaintiff frequent reports, in items, which purported to contain a true account of the receipts and disbursements of the office, but that after defendant was dismissed from the service of the. plaintiff in December, 1892, the plaintiff, for the first time, discovered that those reports were incorrect and untrue in many particulars both as to receipts hy the defendant to the use of the plaintiff, and as to disbursements which were charged as having been made in its behalf, the items, amounts and dates of which are known to the defendant but are unknown to the plaintiff.

The complaint also alleges that for a considerable time before his dismissal the defendant had entertained the purpose to establish a telephone business in the village of Cortland in opposition to that of the plaintiff, and in furtherance of that plan had taken in his own name a lease of the office occupied by the plaintiff, without its knowledge ; and had negligently and willfully permitted the plant and property and service of the plaintiff, under his charge, to deteriorate and become less effective than if properly and faithfully cared for and managed by him, and had thereby caused the patrons of the plaintiff to become dissatisfied with such service, and had imputed the fault of such deterioration to the plaintiff; that in further execution of his plan the defendant had appropriated and converted to his own use certain structures and apparatus belonging to the plaintiff: and used by it in the operation of its business, and had refused to deliver possession of the same to the plaintiff: on demand ; that by reason of such acts and omissions on the part of the defendant the plaintiff has suffered great loss and damage in its business and revenue and been put to large expense, which loss and expense the plaintiff seeks to recover, when ascertained by a proper accounting, for all of which the plaintiff has no adequate remedy at law, and the plaintiff, therefore, demands judgment for an accounting by the defendant in respect to his receipts and disbursements of moneys belonging to the plaintiff ; in respect to the value of the cost and value of the articles of personal property of the plaintiff converted to his own use by the defendant; determining the amount of loss and damage to the plaintiff in its business and revenue, and of the expense to which it has been put, by reason of the acts and omissions of the defendant before mentioned, and adjudging that the plaintiff recover of the defendant the amount found chargeable to him on sucli accounting.

The defendant, by his answer, admits the incorporation of the plaintiff, its business at Cortland and his employment therein as the plaintiff’s agent and manager as -alleged in the complaint. But he denies specifically all the allegations of violation of duty, bad faith and negligent and willful mismanagement on his part in that relation; denies that he is indebted to the plaintiff in any sum for or by reason of any of the matters and things mentioned in the complaint; pleads the Statute of Limitations, and that he has paid and settled in full for all the causes of action so alleged.

There can be no doubt that the complaint above sketched presents a case for the equitable cognizance of the court, and one which entitles the plaintiff to an accounting. Here was the fiduciary relation of principal and agent, continuing through a series of years, involving the daily receipt and disbursement of moneys by the latter for the former, with the consequent duty to account from time to time, and the failure to account, or what was worse, the rendition of false accounts. Nothing was wanting to give to equity jurisdiction to' compel an accounting. In Marvin v. Brooks (94 N. Y. 71), Finch, J., speaks of an agent so intrusted as standing in the attitude of a quasi trustee and by reason of that relation knowing wbat tlie other party cannot know, and bound to reveal to him the entire truth.”

It is also by reason of this relation of trust and confidence, demanding absolute fidelity and the greatest diligence, that such an accounting will be made to embrace questions of fraud, neglect and mismanagement (Christy v. Libby, 5 Abb. Pr. [N. S.] 192; Marston v. Gould, 69 N. Y. 220), and this is true even though some of the allegations of the complaint might have afforded ground for an action of tort. (Vilmar v. Schall, 61 N. Y. 564.) In this case all the facts alleged, which suggest a cause of action ex deUct/u, constitute part and parcel of the course of dealing of the agent with the property and interests of the principal, and are, consequently, matters of which the plaintiff is as much entitled to an accounting as if no bad faith and willful violation of duty were charged.

The case made by the complaint being clearly one of equitable cognizance, and which entitles the plaintiff to an accounting, it was of course referable on the motion of either party, or of the court itself on the trial. The account of receipts and disbursements alone is a long one, both in point of time and necessarily in the number of its items. We think the reference was properly made, and that the order appealed from must be affirmed.

Lewis and Haight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Buffalo, Bellevue and Lancaster Railroad Company, Respondent, v. The New York, Lake Erie and Western Railroad Company and The Buffalo, New York and Erie Railroad Company, Appellants.

      Intersection of railroads — street surface railroads — determination as to the place and manner of crossing — motive power — MaAlroad Lam, 1892, chap. 676, § 12.
    The provisions of the Railroad Law (Laws of 1890, chap 565, § 12, as amended by Laws of 1892, chap 676), which authorize the crossing or intersection of one railroad by another, and prescribe the proceedings by which such right may be enforced, apply to street surface railroads.

      The commissioners appointed under section 12 of the Bailroad Law are the tribunal by which all questions in regard to the place and manner of the crossing of one railroad by another are to be determined, in view, among other things, of the motive power employed, and the mode of its application, as, e g., among others, the electric trolley system; and such questions are not to be passed upon by the court on an application for the appointment of commissioners, or by a referee to whom such application may be referred
    Appeal by the defendants, the New York, Lake Erie and Western Railroad Company and the Buffalo, New York and Erie Railroad Company, from an order or interlocutory judgment of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Erie county on the 17th day of March, 1893, confirming the report of a referee and appointing commissioners to determine the point and manner of the intersection of each of the defendants’ roads by the road of the plaintiff, and the compensation to be made therefor.

      E. G. Sprague, for the appellants.

      Porter Norton, for the respondent.
   Dwight, P. J.:

The proceeding was under section 12 of the Railroad Law, being-chapter 565 of the Laws of 1890, as amended by chapter 676 of the Laws of 1892. Issue was joined in the proceeding by an answer of the defendants to the plaintiff’s petition, and the issues so made were referred to a referee “ to hear and determine,” but by stipulation of the attorneys approved by the court, his report was treated as that of a referee to take testimony and report the same with his opinion thereon, and his findings and conclusions of law and fact were taken as the opinion and recommendation of a referee so appointed. Accordingly, the case was moved at Special Term for a confirmation of the report, which was in favor of the plaintiff, and for the appointment of commissioners. The motion to that effect was granted, and from the order or interlocutory judgment granted, thereupon this appeal was taken.

We are unable to see that there was any good ground for the appeal. The grounds assigned by the-appellants are two: (1) That the provisions of the Railroad Law, which authorize the crossing or intersection of one railroad by another and prescribe the proceedings by wMch such right may be enforced, do not apply to the case of street surface railroads of whatever motive power; and (2) that the use of the electric trolley system in the places and in the manner proposed by the petitioner ” for its crossings, would be unnecessarily dangerous,” a public nuisance,” “ a conversion of a highway or street into an entirely new use,” and “ an invasion upon and disturbance of the rights of the defendants.”

The latter objection was raised by an averment to the effect above stated in the answer of the defendants, and by their offer, on the hearing before the referee, to prove the facts so particularly averred. The evidence so offered was excluded, on the objection of the plaintiff, which was sustained, as appears by the referee’s memorandum opinion, on the ground that the question of the place and manner of the crossing was not within the matters referred to him, nor to be passed upon by the court on the application for the appointment of commissioners, but to be determined by the commissioners after the_y should be appointed. And such is distinctly the provision of the statute in question, viz., that “ if the two corporations cannot agree upon * * * the line or lines, grade or grades, points or manner of such intersections, * * * the same shall be ascertained and determined by commissioners * * * to be appointed by the court,” etc. (Laws of 1892, supra, chap. 676, art. 1, § 12.)

The commissioners, then, are the tribunal by which all questions of the places and the manner ” of the crossings to be made by the plaintiff’s road are to be determined, and that determination must necessarily be made in view, among other things, of the motive power employed and the mode ox its application. If the commissioners do their duty, no nuisance will be created at the crossings fixed upon by them; but in any case it is clear that objections to their determination cannot anticipate the determination itself.

The other ground of objection to the proceeding is the one principally relied upon, but is, we think, untenable. It is, as we have seen, to the effect that the provisions of section 12 of article 1 of the Railroad Law, above cited, have no application to street surface railroads. An examination of that section shows that it makes no exception of street surface railroads from its operation, but, on the contrary, by its terms includes “ every railroad corporation.” This must, of course, be construed to mean every railroad corporation whose organization, location and powers are provided for in the same article of the statute in which this section occurs, and that this category includes street surface railroads there can be no doubt. The article embraces the subjects of organization, general powers and location. Its second section, providing for the incorporation of railroad companies, prescribes the contents of the certificate to be executed, acknowledged and filed, and by its eleventh subdivision, specifically states what the certificate shall contain if the railroad to be incorporated is a street surface railroad. Further, section é confers “ additional powers ” upon every corporation thus formed, and among them, by subdivision 7, the power to convey persons and property on its railroad “ by the power and form of steam, or of animals, or by a/ny mechanical power f except where the power is specially prescribed, etc. Again, section 6 of the same article, in providing for the location of the route of railroads to be constructed under the act, expressly excepts from its requirements street surface railroad corporations; and, finally, section 12, which contains the particular provisions whose application is here in question, in terms extends its provisions to “ every railroad corporation whose road is or shall be intersected by any new railroad.” We think the conclusion is unavoidable that street surface railroads are included in all the provisions of article 1 of the Railroad Law, except those from which they are expressly excluded; and, consequently, that the jwovisions of section 12 are applicable to the case of the plaintiff in this proceeding.

The order or interlocutory judgment appealed from should be affirmed.

Lewis and Haight, JJ., concurred.

Order and interlocutory judgment affirmed, with costs.


author: Haight, J.:

text:
    The Buffalo, Bellevue and Lancaster Railway Company, Respondent, v. The New York, Lake Erie and Western Railroad Company and The Buffalo, New York and Erie Railroad Company, Appellants.

      Crossing of a steam railroad by a street surface railroad — constitutionality of chapter 239 of the Laws of 1893.
    The provision of chapter 239 of the Laws of 1893, which permits a street surface railroad corporation to lay its tracks across and intersect with any railroad operated by locomotive, steam or other power, upon the surface of any street in any city, town or village having less than 500,000 inhabitants, after application for the appointment of commissioners to determine the mode of intersection and the compensation to be made therefor, upon giving a bond conditioned for the performance of the terms which may be imposed by the commissioners and affirmed by the court, is not in contravention of that provision of the Constitution of the State of New York which prohibits the taking of private property for public use without just compensation.
    The right to compensation rests upon the statute and not upon the constitutional provision.
    Appeal by the defendants, the New York, Lake Erie and Western Railroad Company and the Buffalo, New York and Erie Railroad Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Erie county on the 8th day of May, 1893, denying the defendants’ motion to set aside an order made at the Erie Special Term on the 6th day of April, 1893.

      JE. G. Sprague, for the appellants.

      Porter Norton and AdeTbert Moot, for the respondent.
   Haight, J.:

On the 6th of April, 1893, a petition was presented to the Erie Special Term on behalf of the respondent, setting forth that it is a street surface railroad corporation duly organized under and by virtue of chapter 565 of the Laws of 1890 and amendments thereto ; that it had proceeded to lay out, designate and adopt a route for its. railroad between the termini specified in its articles of incorporation,, and had obtained the consent of the local authorities and property owners therefor required by statute, and had proceeded to construct its railroad; that a portion of the route was along and in the Union road, a highway in the town of Cheektowaga, and that such route intersects and crosses the tracks and roadbed of the appellants upon the surface; that the town of Cheektowaga has less than 500,000 inhabitants, and that the respondent has been unable to agree with the appellants as to the line or lines, grade or grades, points or manner of such intersection or crossing, and upon the compensation to be made therefor; that an application had been made to the court to appoint commissioners to determine the same, and that the court had by an order duly appointed such commissioners. The petition concluded with a prayer for an order permitting the respondent to lay its tracks across and to intersect, on the surface of the Union road, the tracks and roadbed of the appellants pursuant to the provisions of chapter 239 of the Laws of 1893. Accompanying such petition was a bond executed by the respondent, with sureties, conditioned that if the respondent company shall fully and faithfully perform and carry out any and all conditions and requirements which may or shall be imposed by the commissioners and be confirmed by the court in determining the line or lines, grade or grades, points or manner of the crossing and intersection of the tracks and roadbed of the appellant companies by the respondent company, and also in determining the amount of compensation to be paid therefor, and shall further conform the crossing and intersection of the tracks and roadbed of the appellant companies by the respondent company to the requirements made by the commissioners and confirmed by the court, then this obligation shall be void and of no effect, otherwise to remain in force and effect. Thereupon, on the motion of the attorneys for the respondent, the bond was approved, and the order prayed for granted. Thereafter, and on May 3, 1893, the appellants, upon notice, moved for an order vacating the former order, which motion was denied. From the order denying such motion this appeal was taken.

Chapter 239 of the Laws of 1893 is entitled “ An act in relation to the intersection and crossings of the tracks and roadbeds of certain railroads laid in, across or upon the highways, streets, avenues or roads of the cities, towns and villages of the State.” The 1st section of the act is as follows: Whenever the railroad or route of any street surface railroad corporation shall intersect and cross, or shall I cross the tracks and roadbed of any railroad operated by locomotive, steam or other power which are laid in, across or upon the surface of any street, avenue, road or highway in any city, town or village of the State having less than five hundred thousand inhabitants, and such street surface railroad corporation having been unable to agree with the corporation owning the tracks and roadbed so intersected or to be intersected and crossed, as to the line or lines, grade or grades, points or manner of such intersection and crossing, or upon the compensation to be made therefor, shall have applied to the court by petition to appoint commissioners to determine the same, the court shall, upon ajiplication made by such street surface railroad corporation, at or after the time of the appointment of such commissioners, or if an answer to the petition of such street surface railroad corporation has been inteiposed at any time thereafter, direct that such street surface railroad corporation be permitted to lay its tracks across and to intersect upon the surface of the street, avenue, road or highway, the tracks and roadbed of such railroad operated by locomotive, steam or other power j provided such street surface railroad corporation shall, at the time of obtaining such order, make and file with the clerk of said court its bond or undertaking in writing in an amount and with surety or sureties to be approved by the court, conditioned for the full and faithful performance by such street surface railroad corporation of any and all conditions and requirements which may be imposed by said commissioners, and be affirmed by the court in determining the line or lines, grade or grades, points or manner of such intersection and crossing, and as to the amount of compensation to be paid therefor, and also conditioned to conform such crossing and intersection made by virtue of such order of the court to the requirements made by said commissioners as affirmed by the court.”

It is claimed that this act is in contravention of the Constitution of the State, which provides that “ Private property shall not be taken for public use without just compensation.”

Upon reference to the act it will be observed that the proceedings authorized by it are connected with and dependent upon the proceedings authorized by the General Railroad Act in reference to the determination of the line or lines, grade or grades, point or manner of intersections and crossings of other railroads, and of the amount of compensation to be paid therefor. Proceedings under the act can only be resorted to where the parties have been unable to agree, and where proceedings have been taken to procure the appointment of commissioners, and not then until after the commissioners have been appointed or an answer has been interposed. The crossing can be allowed only upon the giving of a bond approved by the court, conditioned for the full and faithful performance of all of the requirements of the commissioners, etc. It is apparent that the occupation provided for is temporary, and only continues pending the determination of the commissioners and the confirmation of their report by the court. The proceedings instituted are not for the purpose of condemning or divesting the appellants of any title to the lands occupied by their roadbed, or of their rights to use the same, nor is it to acquire any exclusive use of the lands for the respondent. It is merely to fix the line or lines,' grade or grades, points or manner of crossing, and to determine, the compensation which shall be paid therefor. (Matter of Lockport & Buffalo R. R. Co., 77 N. Y. 557.)

The Railroad Law (Chap. 565 of the Laws of 1890, § 4, subd. 2; General Laws, Chap. 39 of 1892) provides that railroad corporations may “ take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroad, and to acquire by condemnation such real estate and property as may be necessary for such construction, maintenance and accommodation in the manner provided by law, but the real property acquired by condemnation shall be held and used only for the purposes of the corporation during the continuance of the corporate existence.” The statute further provides that it may “cross, intersect, join or unite its railroad with any other railroad before constructed at any point on its route and upon the ground of such other railroad corporation, with the necessary turnouts, sidings, switches and other conveniences in furtherance of the objects of its connection.” And further, “ every railroad corporation whose road is or shall be intersected by any new railroad shall unite with the corporation owning such new railroad in forming the necessary intersections and connections, and grant the requisite facilities therefor. If the two corporations cannot agree upon the amount of compensation to be made therefor, or upon the line or lines, grade or grades, points or manner of such intersections and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court as is provided in the Condemnation Law. Such commissioners may determine whether the crossing or crossings of any railroad before constructed shall be beneath, at or above the existing grade of such railroad, and upon the route designated upon the map of the corporation seeking the crossing or otherwise.” (§ 12.)

It will thus be observed that one railroad has the right to cross another railroad, and that such right is given by the statute ; that every railroad company in acquiring land for its right of way ■acquires the same subject to this right. A railroad traversing the State might completely cut off and prevent intercourse of one part of the State with the other, were it not for the reservation of the right of crossing. This reservation extends to highways of every nature and character. In this regard, railroad corporations acquire a qualified title in their real property different from that of an individual.

Commissioners of highways may lay out public roads across the railroad tracks, and require the railroad company to construct the same, and this without compensation. (Laws 18.53, chap. 62.)

In the case of The Albany Northern Railroad Company v. Brownell (24 N. Y. 345-349), Denio, J., in considering the question of the constitutionality of the act permitting highways to be laid across railroad tracks without compensation, says : “ But the statute declares that the highway may be laid across the track without compensation to the corporation owning the railroad. This, it is argued, is repugnant to the Constitution, as the taking of private property for the use of the public, without,recompensingtlie owner. Upon this, my opinion is, that the railroad companies, under the general act, do not acquire the same unqualified title and right of disposition of real estate taken for the road, and paid for, according to the act, which individuals have in their lands. The statute declares the effect of the proceedings, which it authorizes, to be that the company shall be entitled to enter upon, take possession of, and use the said land for the purposes of its incorporation during the continuance of its corporate existence; ’ and it further declares that the land which, it thus appropriates shall be deemed to be acquired for public use. The title to the land being thus limited to its use for the purposes of the railroad enterprise, it is necessarily subject to the exercise of all those powers reserved to the Legislature to which the franchises of tli<$ corporation are subject. If the latter can be restricted or modified by subsequent legislation, the uses to which the land which the corporation has acquired may be changed by the same authority. It has long been the policy of the Legislature to qualify corporate franchises in such a manner as to render them subject to the control of the law-making power. For this purpose, the Revised Statutes provided that the charter of every corporation which should thereafter be granted by the Legislature should be subject to alteration, suspension or repeal, at its discretion. (1 R. S. p. 600, § 8.) * * * The property of the railroad is not taken away from the proprietors, who are still allowed to use it for all the purposes for which it was acquired from the original owner. Nor is there anything unlawful in obliging the railroad company to make the necessary excavations or embankments for taking the highway across the railroad. The disturbance of the surface of the ground, which has rendered such work necessary, was effected by the railroad itself; and the reservation of legislative authority we may suppose to have been inserted for the purpose of obliging the companies to conform to such directions as subsequent Legislatures should discover to be necessary for the public good, or which should be required by public policy.”

In the case of The Boston & Albany R. R. Co. v. The Village of Greenbush (52 N. Y. 510), Church, Ch. J., says : “ The validity of the act of 1853, authorizing the laying out of streets and highways across the track of railroads, without compensation to the owners of such railroads, was affirmed in The Albany Northern Railroad Company v. Brownell (24 N. Y. 345), upon grounds entirely satisfactory to this court, and we concur in the construction of the act given in that case.”

To the same effect is the case of The President, Managers & Directors of the Delaware & Hudson Canal Company v. The Village of Whitehall (90 N. Y. 21).

It will be observed that these cases proceed upon the theory that the Legislature, in granting a charter to a railroad corporation, has reserved to itself tlie power to qualify the corporate franchises and determine how its power shall be exercised, and that under this power it may permit the construction of highways on railroad lands so as to allow the public to cross the same without awarding compensation for property taken. In such a case, the constitutional provision referred to has no application, for the reason that it is not the taking of private property, but is the exercise of a right reserved by. the statute, and the title of the railroad is deemed subject and subordinate to such right.

¥e are unable to see why this principle does not dispose of the question under consideration. True, a railroad is different from a highway laid out by commissioners of highways of towns, but, as we have seen, the statute gives one railroad corporation the right to cross another. The railroad to be crossed is deemed to own its lands subject to the conditions imposed by the statute. One of the conditions is that it shall permit any other railroad to intersect or cross. True, compensation is to be awarded. Such is the provision of the statute. But the compensation is awarded under the statute, and not by reason of the Constitution. The Legislature, in granting a charter to a railroad corporation, had the right to impose the condition that it should allow other railroads, to cross without compensation, and had it so provided, it could not be successfully contended that the provision would have been in contravention of the Donstitution. The Legislature has seen fit to provide for the manlier in which the crossing shall be made, and allows compensation Rherefor. This is independent of the Constitution. It has now proRided that the compensation may be secured by a bond approved by Rhe court, and that, upon giving such a bond, the crossing may be Rad pending the determination of the commissioners. It is not an Rnreasonable enactment. The proceedings may be prolonged Bhrough a number of years, and in the meantime the public deprived Bf the facilities which the crossing would afford, and under the Bowers reserved by the Legislature, the enactment does not appear R> us to be in violation of the provisions of the Constitution.

B These views render it unnecessary to consider the question as to Brh.eth.er a bond furnishes a definite and adequate source of payment H>r the property taken under the rule referred to in the cases of In the Matter of the Mayor of the City of New York (99 N. Y. 577) ; Sage v. City of Brooklyn (89 id. 196), and Bloodgood v. M. & H. R. R. Co. (18 Wend. 18).

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

Dwight, P. J., and Lewis, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: UwieHT, P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of Howard Soule, Charles F. Durston and George S. Everts, as Executors, etc., of Lyman Soule, Deceased.

      Surrogates — power of, to.open or modify a decree— Code of Civil Procedure, § 3481, subdivision 6 — meaning of “other sufficient cause."

    A surrogate or Surrogate’s Court lias only power to open or modify a decree of such court for the causes prescribed by subdivision 6 of section 3481 of the Code of ■ Civil Procedure, namely, “ for fraud, newly discovered evidence, clerical error, or other sufficient cause.”
    The application of the words “or other sufficient cause,” in the above clause, is controlled by the rule noscitur a soaiis, and, accordingly, the other sufficient cause must be of the same or like nature with the causes particularly specified.
    One of three executors died about a year after the issuance of letters testamentary, and thereafter a successor was appointed. Proceedings, for an accounting by| the executors, were subsequently instituted in the Surrogate’s Court, in whicl: the personal representatives of the deceased executor were cited and appeared by attorneys. During the pendency of such proceedings an agreement wai| arrived at between all the parties interested, one provision of which was tha three full commissions should be allowed, one to each of the two survivin, original executors, and the third to the estate of the deceased executor and th executor succeeding to his position, jointly; and it was agreed between tli representatives of the deceased executor and his successor that such third con: mission should be divided equally between them. The drafting of a decre| was delegated to certain of the attorneys, and a decree was entered whiej divided one commission, earned up to its date, equally between the estate d the deceased executor and the successor executor, but was silent in respect 1 commissions thereafter to be earned. Some three months thereafter the rej] resentatives of the deceased executor applied to the surrogate to open a: modify the decree, on the ground of its omission to provide for the distributid of future commissions, which application was granted and an order was made hy the surrogate opening the decree and modifying it hy dividing the third commission in a different proportion. From this order the executor who had succeeded to the place of the deceased executor appealed.

      Held, that if any error existed in the original decree it was the result of inadvertence merely on the part of the attorneys for the representatives of the deceased executor;
    That no cause for opening the decree was disclosed which was at all of the nature of fraud, newly discovered evidence, or clerical error •,
    And, hence, that the surrogate had no power to open and modify the decree, and the order so doing was erroneous.
    Appeal by George S. Everts, one of the executors of the estate of Lyman Soule, deceased, from an order of the surrogate of Cayuga county, entered in the Surrogate’s Court of that county on the 11th day of February, 1893, opening and modifying a decree of the said Surrogate’s Court previously made in the same matter, with notice of an intention on the part of said Everts to bring up for review on such appeal that part of the previous decree relating to the award of commissions.

      Osear Try on, for the appellant.

      F. F. Storfee, for the respondent.
   UwieHT, P. J.:

The controversy here is solely between one of the present executors of the will and the personal representative of a former executor, deceased ; it relates solely to the award of commissions to the two, respectively, and it must turn, as we think, upon the single question of the power of the surrogate to make the order appealed from.

The testator, Lyman Soule, died in November, 1885, leaving a will by which he nominated Howard Soule, Charles F. Durston and Charles G. Briggs as its executors, and they received letters testamentary in June 1886. Mr. Briggs died in August, 1887, and Mr. Everts was appointed his successor in April, 1891.

In May, 1891, the proceedings for an accounting were instituted which finally resulted in the decree, the modification of which is the subject of this appeal. All parties interested were duly served with citation to such accounting, among whom the respondents here, executors of the will of the deceased executor, Briggs, appeared by attorneys, who represented them throughout the proceedings. Those proceedings were adjourned from time to time until August, 1892, during which period of more than a year, negotiations for an amicable adjustment of all questions arising upon the accounting were pending between counsel for the numerous parties interested, and frequent conferences on the subject were held, at nearly all of which one or the other of the attorneys for the executors of Briggs was present. The result of these negotiations seems to have been a compromise and settlement of all differences between the parties, and an agreement in which all united, upon the provisions of the decree to be entered, and it was delegated to two of the attorneys, one of whom represented the executors and one various legatees, to draft the decree, and the decree thus prepared was duly entered by the surrogate as of the 1st day of August, 1892.

Among the matters so agreed upon was a provision to the effect that three full commissions should be allowed to the executors, one of which should be awarded to Mr. Soule, one to Mr. Durston, and the third to Mr. Everts and the estate of Briggs jointly; and the agreement between the two last-named parties was that such third commission should be divided equally between them; and so it was provided by the decree as entered so far as the provision on that subject went. But just at this point the difference arose. Counsel for the executors of Briggs depose that they understood the question extended to all the commissions earned and to be earned throughout the entire administration of the estate, and supposed that the decree to be entered would so provide; whereas the decree as entered made provision only for commissions earned up to its date and was silent in respect to the award of commissions thereafter to be earned. It was on the ground of this omission to provide for the distribution of future commissions that the order was made from which this appeal was taken. The application for -that order was not made until more than three months after the decree was entered, and after Mr. Everts had been called upon by the executors of Briggs and had declined to sign an agreement to the effect that all future commissions awarded to him should be equally divided with them.

The order appealed from, in modifying the decree previously | entered, entirely ignored the agreement for equality of division between the Briggs estate and Mr. Everts upon which the provisions of the decree in that respect had been based, and made the division upon an entirely different basis and in about the proportion of twenty-five to the former to eleven to the latter.

We do not think it necessary to examine the grounds upon which the new apportionment was made, becausé we are of opinion that the surrogate was wholly without jurisdiction, upon the allegations and proofs before him, to open the decree for any purpose or to modify it in any respect.

The surrogate and the Surrogate’s Court are tribunals of strictly statutory jurisdiction. Section 2481, subdivision 6 of the Code of Civil Procedure, confers upon either of them, as the case requires, the sole power which is possessed by either to open or modify a decree of the Surrogate’s Court; and the limitation of that power is prescribed by the same subdivision, viz., that it may be exercised only “ for fraud, newly discovered evidence, clerical error or other sufficient cause.” There was in this case no suggestion of fraud, of newly discovered evidence or of clerical error, but only, at the most, that the provision of the decree in question was not fully in accordance with the understanding of one party as to the effect of the agreement, the terms of which were not in dispute, which was the basis of that provision. Such a ground of complaint is clearly not within the purview of the phrase other sufficient cause,” as employed in the statute above quoted. It is well settled that the application of those words is strictly controlled by the rule of nosoitw' a sociis, and, accordingly, that the other sufficient cause must be of the same or like nature with the cause particularly specified. (In the Matter of Hawley, 100. N. Y. 206; In the Matter of Tilden, 98 id. 434; In the Matter of Kranz, 41 Hun, 463.) It seems very clear that neither the allegations nor the proofs of the moving party in this case disclose any ground for the opening of this decree which are at all of the nature of fraud, newly discovered evidence or clerical error. The provision complained of was not based upon evidence adduced before the surrogate, but upon an agreement between the parties which was arrived at in the course of negotiations extending over a period of many months in which the respondents here were fully represented. They had the fullest opportunity to inspect the draft decree before it was entered, and there is really no reason to suppose that they would have objected to the provision in question if they had so inspected it, since their objection now made is not to the terms of the provision as made, but to its possible effect upon the award of commissions in the future. In short, we think it must be said that the error complained of, if any was committed, was the result of inadvertence merely on the part of the attorneys for the representatives of Briggs, and was not within the provisions of the statute which confers upon the surrogate the power to open and vacate or modify a decree of his court.

For the reasons stated we are of the opinion that it was error to grant the order appealed from, and that the' same must be reversed.

Lewis, Haight and Bradley, JJ., concurred.

Order of the Surrogate’s Court of Cayuga county appealed, from reversed, with ten dollars costs and disbursements, and motion to open the decree denied.


author: Dwight, P. J. :

text:
    William Redner, Appellant, v. Benjamin F. Jewett, Respondent.

      Supersedeas and discharge from imprisonment — Code of Oiril Procedure, § 573, is applicable only to an order of arrest, not to an execution against the person.

    Section 573 of the Code of Civil Procedure is intended only to provide for superseding or setting aside an order of arrest and discharging or relieving a party from imprisonment by virtue of such an order, in the cases prescribed thereby, and its provisions are not applicable to a motion to vacate or set aside an execution against the person, except- where the defendant has been already discharged from imprisonment under an order of arrest.
    Appeal by the plaintiff, William Redner, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Wyoming county on the 18th day of March, 1893,, relieving the defendant, Benjamin F. Jewett, from imprisonment “ by virtue of an execution against his person issued herein, * * or by virtue of any other mandate which has been or may be issued I in the action upon the judgment heretofore rendered therein.”

      George W. Daggett, for the appellant.

      Bowen <& Washburn, for the respondent.
   Dwight, P. J. :

The sole question presented by this appeal is that of the proper meaning and application of section 572 of the Code of Civil Procedure. The language of the section, so far as it is material to this inquiry, is as follows:

“ Except in a case where an order of arrest can be granted only by the court, if the plaintiff unreasonably delays the trial of the action, or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, * * * the defendant must, upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or, if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action.”

It is difficult to see how it could ever have been considered that this section of -the Code was intended to provide for setting aside, vacating or superseding an execution against the person, or that the term mandate,” as there employed, intends or includes that process.

The section is found to be a part of article 2 of title 1 of chapter 7 of the Code of Civil Procedure. The chapter is entitled General provisional remedies in an action.” Title 1 is entitled Arrest, pending the action and proceedings thereupon.” Article 2 is entitled “ Granting, executing and vacating or modifying the order of arrest,” and section 572 itself is entitled “ Supersedeas, unless the defendant is charged in execution.” It will be seen that all these titles absolutely exclude execution against the person from the subjects to which they relate. That process is not a “ provisional remedy,” and is, therefore, not included by the title,, to 'the chapter; the entitling of the title and the article in terms includes only orders of arrest, and the title of the section is equally significant. It is Supersedeas unless charged in execution,” etc. But supersedeas of what ? Plainly not of execution, because the title indicates that the supersedeas is to-be granted only if the party has not been charged in execution. Manifestly it is supersedeas of the order of arrest which is indicated by the title of the section. And the text of the section is equally unmistakable to the same effect. By its terms the defendant, in case of neglect to enter judgment or to issue execution against the person within the time limited, is to be discharged from custody if he has already been taken under the mandate in such action; or, if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate. Here, most clearly, the mandate mentioned is not the final process of execution against the person, but the mesne process of an order of arrest, under which the defendant may have been imprisoned before judgment. And the last clause of the section is conclusive to the same effect. It provides that in case of the discharge from such imprisonment the defendant shall not be arrested upon an execution issued upon the judgment in the action.

This exposition of the present statute is supported by reference to the provisions of the Revised Statutes, of which it is in large part a re-enactment. (2 R. S. 556, §§36, 3Y.) Those sections read as follows: § 36. “ When any defendant, at the time judgment shall be rendered against him, in any court of record, shall be in the custody of a sheriff or other officer, either upon process in the suit in which such judgment shall have been rendered, or upon being surrendered in discharge of Ms bail in such suit, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after the last day of the term next following that at which such judgment shall have been obtained. * * ■* ” § 3Y. “ If any plaintiff shall neglect so to charge any defendant in execution, as required ■in the last section, such defendant may be discharged from custody by a supersedeas, to be allowed by any judge-of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown; and after being so discharged such defendant shall not be liable to be arrested upon any execution which shall be •issued^-upon such judgment.”

It spems to be entirely clear that the supersedeas mentioned in the title of section 5Y2 of the Code and in the text of section 3Y of the Revised Statutes is the same, and is a supersedeas, not of an execution against the person, but of an order of arrest. (See Luppman v. Petersburger, 18 How. Pr. 270; Smith v. Knapp, 30 N. Y. 590.)

We should not have deemed it necessary to enter upon so full a discussion of the question here presented, but for the fact that there have been some decisions, mainly at Special Term, which have treated the section of the Code under consideration as if it prescribed conditions and a mode of vacating or setting aside an execution against the person. But we regard any conflict of authority on the question as set at rest by the decision of the Court of Appeals in the case of Sweet v. Norris (110 N. Y. 668), which is the only case, so far as we are aware, in which that court has passed upon "the question here presented. That decision afiirmed the order of the General Term of this court in the fourth department (45 Hun, 595), which in turn affirmed the order of the Chemung Special Term, which denied the motion of the defendant therein to set aside a body execution for the reason that it was not issued within the time limited by section 572 of the Code. The motion was denied on the distinct ground that the section in question had no application to any case in which an order of arrest had not been issued pending the action. The opinion at Special Term (per Pollett, J.) is reported in 12 Civ. Proc. Rep. at page 175. It is the only opinion delivered in either of the courts which passed upon the case, and may be regarded as approved, in respect to the grounds of the decision, by each of the appellate courts by which the order was affirmed.

There can be no doubt, we supjjose, but that section 572 of the Code of Civil Procedure provides only for superseding or setting aside an order of arrest, and discharging or relieving from imprisonment by virtue of such an order, in the cases prescribed, and that its provisions are not applicable to any motion to vacate .or set aside an execution against the person, except in the possible case suggested by the last clause of the section, viz., where the defendant had already been discharged from imprisonment under an order of arrest.

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

Lewis and Haight, JJ., concurred.

So ordered.


text:
    Anna Brayton, as Administratrix, etc., of Charles Brayton, Deceased, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Service of swnmons upon a domestic co?poration— “a ‘managing agent” of a railroad— Code of Civil Procedure, § 481, sulid. 3.
    A “division superintendent” of a large and important division of a railroad, remote from the general offices of the company, is “ a managing agent ” of the corporation, within the meaning of that term as used in subdivision 3 of section 431 of the Code of Civil Procedure, which provides that personal service of a summons upon a domestic corporation may be made by delivering a copy thereof to a managing agent.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Erie county on the 20th day of May, 1893, denying the defendant’s motion to set aside the service of the summons in the above-entitled action.
    The defendant is a domestic railroad corporation of the State of New Yprk, having its principal or general office in the city of New York.

      A. D. Scott, for the appellant.

      Win. H. Clark, for the respondent.
   Dwight, P. J.:

The service of the summons in an action brought in Erie county,, for the death of the plaintiff’s intestate, was made upon the division superintendent of the .defendant at Buffalo, his division having, as. termini, the cities of Buffalo, Jamestown and Hornellsville. The objection made to the service is that the person served was not “ a. managing agent ” of the defendant within the meaning of the-statute. (Code Civ. Proc. § 431, subd. 3.) We think the objection is not well taken.

It will be observed that the requirement is not that the service shall be made upon the managing agent, but only upon a managing agent of the defendant. That the division superintendent of a large and important division of the company’s road, remote from the general offices of the company, is such we can have no doubt.

•In the case of Palmer v. Pennsylvania Co. (35 Hun, 310; affd., 99 N. Y. 679), it was held that “ the statute is satisfied if he (the person served) be a managing agent to any extent.” In Ruland v. Canfield Pul. Co. (18 Civ. Proc. Rep. 282), a managing agent was defined to be “ a person having independent, discretionary control in the locality where his duties are performed.” In Barrett v. Am. Tel. Company (31 N. Y. St. Repr. 465), it was held that “if he (the person served) sustains sufficient character and rank to render it reasonably certain that the corporation will be apprised of the service, the requirement of the statute is answered.”

Under the application of either of these tests, it is plain, we think, that the statute was satisfied in the service in question ; and in the case of Poch., H. & L. R. R. Co. v. The N. Y., L. E. & W. R. R. Co. (15 N. Y. St. Repr. 686), we held that a division superintendent was, for the purposes of that action, a managing agent within the meaning of the statute and that service upon him was sufficient.

The motion to set aside the service in this case must be denied and the order appealed from affirmed.

Lewis and Haight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.