author: Danforth, J.

text:
    James J. Belden et al., Survivors, etc., Appellants, v. The State, Respondent.
    A claim was presented to the hoard of claims for alleged balances due certain contractors on three contracts with the State. The board found balances due on two of the contracts, but that the contractors had been overpaid on the third contract and decided that so much of the overpayment as was necessary should be applied to extinguish the amounts due on the other contracts. Held, no error ; also that the fact that an action on the part of the State would be barred by the statute of limitations did not prevent such application ; that as the claimants had moneys overpaid in their hands the application thereof in payment of the other obligations would be presumed to have been made when they accrued.
    An action had previously been brought by the State to recover back the whole sum paid under the contract upon which the overpayments were made, on the ground that it had been obtained by fraud. The defendants therein answered, setting up, among other things, a balance due them on the contract. The State succeeded on the trial, but the judgment was reversed by the General Term, and on appeal to this court from the order of reversal judgment absolute was rendered against the State. {People v. Denison, 80 H. T. 656.) Held, that this judgment was not conclusive against the State as to payments in excess of the sum rightfully due under the contract, as the question was neither litigated nor decided in that action.
    A judgment is not conclusive and is no evidence as to facts, not in issue in the action but proof of which is given therein to establish facts in issue.
    (Argued December 15, 1885 ;
    decided October 5, 1886.)

      Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made January 24, 1884, which affirmed an award of the board of audit; the nature of which and the material facts are set forth in the opinion. (Reported below, 31 Hun, 409.)

      Martin, A. Knapp for appellants.
    The State having brought an action in tort for the fraud, in which the larger sum could be recovered, if a recovery could be had at all, in which a liability against the person would arise, and in which a counterclaim arising out of contract could not be interposed, it thus waived the remedy in contract. (Pomeroy’s Remedies and Remedial Rights, §§ 110, 567,573,801; 2 Wait’s Practice, 358, 361; Rice v. King, 7 Johns. 20; Bk. of Beloit v. Beale, 34 N. Y. 473; Johnson) v. Smith, 8 Johns. 299 (353); Spring-stead v. Lawson, 23 How. Pr. 302; Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498; Kinny v. Kiernan, 2 Lans. 492; Morris v. Rexford, 18 N. Y. 552; Rodermond, v. Clark, 46 id. 354; Bowen v. Mandeville, 95 id. 237; Wright v. Fierce, 4 Hun, 351; Goss v. Mather, 2 Lans. 283 ; Morgan v. Skid-more, 3 Abb. N. C. 92; Teal v. City of Syracuse, 32 Hun, 332; Sweet v. Ingerson, 12 How. Pr. 331; Krum v. Beach, 96 N. Y. 399; Roth v. Palmer, 27 Barb. 652 ; Dudley v. Scranton, 59 N. Y. 424; Hiscock v. Harris, 80 id. 402; Cobb v. Hatfield, 46 id. 533 ; Gray v. Board of Supervisors, 93 id. 603 ; Mackey v. Lewis, 73 id. 382; Godfrey v. Moser, 66 id. 253 ; Keep v. Kaufman, 56 id. 332 ; Manly v. Ins. Co. of N. Am., 1 Bans. 24 ; Nelson v. Ingersoll, 27 How. Pr. 1; Lermont v. Boetger, 49 Barb. 362.) A prior adjudication in an action between the same parties, and involving the same sub- > ject-matter, is conclusive in a subsequent action, not only as to the main question decided, but as to every other question essential to, and which was necessarily considered in the decision of the main question, and also as to every question relating to the subject-matter of the litigation and which might have been litigated and decided as incident to, or essentially connected with, the main question. (Luska v. O’Brien, 68 N. Y. 447;
      Castle v. Noyes, 14 id. 829; Church v. Kidd, 88 id. 652; Angell v. Hollister, 38 id. 379; Dunham v. Bower, 77 id. 77; Blair v. Bartlett, id. 150; Collins v. Bennett, 46 id. 491; Jordan v. Van Epps, 85 id. 436 ; Leavitt v. Wolcott, 95 id. 213; Crabb v. Young, 92 id. 57; Patrick v. Shafer, 94 id. 425 ; Clemens v. Clemens, 37 id. 74; Harris v. Harris, 36 Barb. 89.) Assuming that overpayments were made on contract A, the right to recover the debt or demand thus arising in the favor of the State, was barred by the statute of limitations, before that debt or demand was interposed, as a defense to this claim, and hence it constituted neither a legal nor equitable counterclaim or set-off in favor of the State. (Code of Civ. Pro., §§ 397, 389 ; R,. S., part 3, chap. 6, tit. 2 ; Code of Civ. Pro. [Throop’s ed.], § 501, note; Laws of 1880,'chap. 245, § 1, subd. 3 ; Code of Civ. Pro., § 414; Watson v. Forty-Second Street R. R. Co., 93 N. Y. 523; Drake v. Wilkie, 30 Hun, 537; People, ex rel. Sheridan, v. French, 31 id. 617; Burgettv. Striclcland, 32 id. 264; Code of Civ. Pro., § ¿^2; Morris v. Budlong, 78 N. Y. 543 ; De Lavallette v. Wendt, 75 id. 579; Clinton v. Eddy, 1 Lans. 61; Code of Civ. Pro., § 410; Northrup v. Hill, 57 N. Y. 351.) Assuming that the right of the State to recover back of claimants this sum, $417,571, or any part of it, is open to consideration as an original question, the State cannot sustain such a recovery, for the reason that the payments were voluntarily made by the State, without any fraud on the part of its officers, or of claimants or their agents, and without any mistake of fact as to either the quantity or quality of the work or materials. (Baird v. Mayor, etc., 96 N. Y. 592; Arthur v. Griswold, 55 id. 401; Morris v. Talcott, 96 id. 100 ; Dudley v. Scranton, 57 id. 424; Ross v. Mather, 51 id. 108; People v. Stevens, 71 id. 529; Stettheimer v. Killip, 75 id. 282; Supervisors of Onondaga v. Briggs, 2 Den. 26; Elting v. Scott, 2 Johns. 157; Clarke v. Dutcher, 9 Cow. 674; Taylor v. Beavers, 4 E. D. Smith, 215; Wyman v. Farnsworth, 3 Barb. 369 ; Smith v. Knapp, 18 Week. Dig. 95 ; N. Y. C & H. R. R. R. Co. v. Marsh, 12 id. 309.; Hill v, Hill, 10 id. 239; Mut. L. Ins. Co. v. Wager, 53 N. Y. 240; Dambmann v. Shutting, 75 id. 55 ; Mayor, etc., v. Erban, 3 Abb. Ct. App. Dec. 255; 1 R. S., chap. 9, tit. 9, art. 2, §§ 9, 10, 15, 29, subd. 3 and 5, §§ 31, 32, 42, 44; Laws of 1847, chap. 278, §§ 2,3, 4, 7, 11, 14; Hart-well v. Root, 19 Johns. 344; Mandeville v. Reynolds, 68 N. Y. 534; Leland v. Cameron, 31 id. 115; Smith v. Munrow, 84 id. 534.) The work and materials having been accepted, with knowledge of their defects, if there were any, the defense now interposed was waived. (Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 12 Week. Dig. 421; 88 N. Y. 648 ; Devendorf v. Wert, 42 Barb. 228.) The seals attached to the contracts take them out of the six years’ limitation. (3 Bac. Abr. 163 ; Goddard’s Case, 2 Co. 5 A; Bouvier’s Law Diet., “ Specialty ; ” Mill Dam Foundry v. Hovey, 21 Pick. 417, 428; Taylor v. Gleaser, 2 Serg. & Rawl. 502; Thrasher v. Everhart, 3 G. & J. 234; Williams v. Greer, 12 Geo. 459; Hubbard v. Beckwith, 1 Bibb, 492; Scruggs v. Brackin, 4 Yerg. 528; Ralph ft. Gist, 4 McCord, 267; Me Raven v. McGuire, 9 S. & M. 34; English v. Helms, 4 Tex. 228.) It is only necessary in this State, in order to make a sealed instrument, that the seal should be attached. (Merritt v. Cornell, 1 E. D. Smith, 335 ; Anthony v. Harrison, 14 Hun, 198.) The claim for the fifteen per cent, retained on contract A, having been set up as a counter-claim in People v. Denison, and a judgment having been entered against the State on the counter-claim, which was reversed, but not on the merits, the running of the statute was (Suspended during the entire pendency of that action. (Code Civ. Pro., §§ 405, 412.) A defendant must set up in his answer the defense of the statute of limitations, or it will be regarded as waived. (Converse v. Miner, 21 Hun, 367, 372.)

      Denis O’Brien, Attorney-General, for respondent.
    The claim was barred by the statute of limitations. (Constitution, Art. VII,§14; 1 E. D. Smith, 335, Randall v. Van Vechten, 19 Johns. 60, 64; Briggs v. Partridge, 64 N. Y. 364; Stanton v. Camp, 4 Barb. 474; Peters v. Delaplaine, 49 N. Y. 362; Bush v. Shaw, 4 W. D. 539; Loder v„ Hatfield, 71 N. Y. 92; Welles v. Yates, 44 id. 525 ; Coleman v. Second Ave. R. R. Co., 38 id. 201; Yale v. Nixon, 6 Cow. 445 ; Jewell v. Schroeppel, 4 id. 564.) The General Term on appeal may consider and examine both the law and evidence. (Laws of 1881, chap. 211, § 13 ; 4 Hun, 793 ; 64 N. Y. 236.) This appeal does not bring up the facts for review. (Reed v. Antrop, 13 W. D. 450; 12 N. Y. 258; 63 id. 8; 19 id. 207; 71 id. 137.) If the evidence is conflicting the judgment cannot be reversed. (Stillwell v. Mut. Life Ins. Co., 72 N. Y. 385 ; Auburn City Nat. Bk. v. Hunsiker, 72 id. 252 ; Van Gelder v. Van Gelder, 77 id. 446; Green v. Fortier, 80 id. 640.) The questions of fact decided by a jury are not reviewable by the Court of Appeals, unless there is no evidence whatever to support the decision. (Parker v. Jervis, 3 Abb. Ct. App. Dec.. 449.) On appeal from a j udgment on a verdict, the Court of Appeals has no power to review a case for the purpose of determining the weight of the evidence. (Cooper v. Eastern Transp. Co., 75 N. Y. 116.) If there is any evidence to sustain findings by a referee, his conclusion, if the facts are capable of his interpretation, is final as to this court. (Quincy v. White, 63 N. Y. 370, 375 ; Marvin v. Brewster Iron Mining Co., 55 id. 538, 547; Sherwood v. Hauser, 94 id. 626 ; Parker v. Jervis, 3 Keyes, 271; Waters v. Green, id. 385,; Vermilyea v. Palmer, 52 N. Y. 471.) The moneys paid to the claimants under contract “A” were paid under a mistake of fact, and for that reason could have been recovered back in a direct action for that purpose. (Lawrence v. Am. Nat. Bk., 54 N. Y. 433.) But there must be á mistake, and it must also appear that; ¡'.lie plaintiff was not under either a legal or moral obliga*!'»!’ ir pay the money. (Edgar v. Shields, 1 Grant’s Cases ! V vi.], 361; Foster v. Kerby, 31 Mo. 496; Gould v. E ’irich, 2 Swan. [Tenn.] 295; Mowat v. Wright, 1 "Wend. 355; Mayor, etc., v. Eben, 10 Bosw. 189 ; Renard v. Fiedler, 3 Duer, 318 ; Chapman’s Canal Manual, 164, A 39; chap. 877, Laws of 1869, § 1; Stewmi v. Sears, 109^mass. 143; Story’s Agency, § 435.) It is 'ho answer to say that the auditor had the means of finding out the mistake, for that would constitute no defense. (Wheadon v. Olds, 20 Wend. 174; Kingston Bk. v. Eltinge, 40 N. Y. 391; Mayer v. Mayor, etc., of N. Y., 63 id. 455.) It would not be any defense to say that the State’s officers, the engineers in charge of the work, accepted it as performed, because there was no actual acceptance. (Glacius v. Black, 50 N. Y. 145;. Swift v. State, 89 id. 52; Belden v. State, 31 Hun, 409, 416; Moore v. Moore, 3 Abb. Ct. App. Dec. 303; Shirley v. Vail, id. 313, note.) There is no evidence in the case or in the statutes of this State of any legislative action which can be construed as a ratification of the payments in excess. (People, ex rel. Wasson, v. Schuyler, 69 N. Y. 242.)
   Danforth, J.

On the 2d of December, 1881, the appellants presented to the board of audit a claim for $125,406.90, with interest on $91,044.60, part thereof, from December 1, 1881, and on the 2d of May, 1882, a further claim by way of amendment to the original claim of $28,410.58, with interest from May 1, 1882, making the total amount claimed $153,-817.48, and for this sum, with interest, asked an award in their favor and against the State. The claim is for money alleged to have been earned under three contracts for canal work, dated September 9, 1869, and referred to respectively as “A,” B ” and “ O ”. It seems apparent that upon contract B ” there was unpaid $7,605, with interest, and on contract O ” $9,750, with interest. But the board of audit found that for work done under contract “ A ” the - claimants were entitled only to $314,960.70, and had in fact been paid $417,-570, leaving due the State for overpayment t|m sum of $102,610.30. They, therefore, held, 1st, that contract “A” had been fully performed by the State, and 2d, that much of the overpayment under color of that contract, as might be necessary, should be applied to extinguish the amounts "^otherwise due on contracts “ B ” and “ O ”; that for the balance, viz.: $85, 368.40, the claimants were indebted to the State.!, and accordingly dismissed their claim. ■ V

There is evidence in the case to support the conclusion of the over-payment, and the question upon this appeal is whether it is available to the State.

The appellant contends that the decision by this court in People v. Denison (80 N. Y. 656), is conclusive against the State as to the payments in excess of sums rightfully due under contract “A.” In that case the State sued to recover back the whole sum of $417,571, upon the sole ground that it had been obtained from its officers by false pretenses and false certificates. The defendants answered, and, among other defenses, set up a certain claim for $73,674.05, as yet due upon that contract, being, as is now stated, the same moneys claimed before the board of audit under contract “A.” The State succeeded upon the trial, but upon appeal, both the Supreme Court at General Term and this court held that the action was in tort and not on contract, and reversed the judgment rendered by the trial court, on the ground that the plaintiff having failed to establish the fraud alleged, had not made out its case.

The Supreme Court had granted a new trial, but the plaintiff stipulated so as to perfect an appeal, and this court, in pursuance of the stipulation, gave judgment absolute against it. Such a judgment presents no obstacle to the recovery of money paid by the State officers in ignorance that the amount of work and materials in the estimates on which they acted, was incorrectly stated and in excess of that really done or furnished, and under a mistake as to those facts. That question was neither litigated nor decided in the former action, nor could it have been. It was not involved in the pleadings, nor presented for determination. Moreover, evidence, however ample to warrant a recovery for money paid under a mistake of fact, would be wholly insufficient to show that its payment was procured by fraud. The cause of action is not the same. The judgment relieved the contractor from the imputation and" the consequences of obtaining the money fraudulently, but it did not establish the fact of indebtedness, nor confirm a title to the money, if it was otherwise defective. The plaintiff failed because its action was misconceived, and for a cause not warranted by the facts proved. The judgment is no bar to a claim, therefore, for a sufficient cause, or where the evidence to sustain the second would not have entitled the plaintiff to recover in the first; where, in other words, there is no identity .of the question with that before decided.

It is entirely consistent with the record in that action, that money paid under a mistake of fact, may be recovered back, although the State there failed in its assertion that the money was obtained from its officers by fraud and false pretenses; that question was settled, but not the right of the defendant to retain it.

Nor does that, judgment establish the sum due to the appellants upon contract. That question was not in issue. It may have come collaterally in question, and, as incident to the general charge of fraud, been the subject of evidence and controversy, but it was not in issue within the meaning of the rule which gives effect to the adjudication. That applies to that matter only upon which the plaintiff proceeded by its action, and which the defendants answered by their pleading. Facts offered in evidence to establish the issue so presented, are not themselves in issue, and the judgment is no evidence in regard to them (Jackson v. Wood, 3 Wend. 27; Lawrence v. Hunt, 10 id. 81; Remington Paper Co. v. O' Dougherty, 81 N. Y. 474.)

The appellants contend that the statute of limitations barred the right to recover the overpayments. Whether time had elapsed sufficient in any view for that purpose, I do not think it needful to inquire. No judgment has gone in favor of the State against the appellants. The money in their hands was in excess of that due from the State when they presented their claims, and a tribunal having the powers of a court not only of law but equity, and expressly charged to allow only such sums as it considered should equitably be paid by the State to the claimants (Laws of 1876, chap. 444, § 2), has adjudged that while retaining it, they have no claim which can be allowed. That conclusion has been approved by a court authorized upon appeal to consider both the law and the evidence, and determine the same between the claimant and the State, as shall be equitable and just ” (Laws of 1881, chap. 211). A different decision would be a reproach to either jurisdiction. The claimants could aslc for only so much as was due to them, and before a court having power to take an account and strike a just balance between the parties, it would be a surprising assertion for one to say, I obtained the money of my adversary under circumstances which imposed on me an obligation to repay, but in the meantime he became justly indebted to me, and as by lapse of time, no action can be brought by him, I now demand that my title to the money so obtained, shall not be questioned, but be deemed absolute, and he be required to pay the debt which has accrued.” It might well be answered: “ You shall be deemed to have done your duty, and at the moment of the accruing of the claim, to have applied upon it the money which you had already received from your debtor.” So here the money received by the claimants in overpayment on one contract, must be deemed to have been money in their hands for the use of the State, the State entitled to its application, and the claimants be presumed to have applied it in payment of the other obligation, the moment it accrued. The existence of means of payment in the hands of the creditor, and the lapse of time, are conclusive evidence of the pre-existing fact of an actual discharge of the accruing debt, or are of themselves facts which require a court of equity to adjudge such application to have been made. Equity requires that one demand should extinguish the other, by deducting the less from the greater.

Other propositions are advanced on behalf of the appellants. They are insufficient to disturb the judgment; nor do they answer the opinion of the General Term. As we agree, therefore, with that court and the Board of Audit in the conclusion reached by them, the judgment appealed from should be affirmed.

All concur, except Andrews, J., dissenting, and Huger, Oh. J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Elizabeth R. Cogswell, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
    Whether the legislature can authorize a railroad corporation to maintain an engine-house, under circumstances, which if maintained by an individual would, by the common law, constitute a nuisance to private property without providing compensation, quaere.

    Bat if this should be conceded, nevertheless the statutory sanction which will justify an injury by a railroad corporation to private property without, making compensation therefor, and without the consent of the owner, must be express or given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury; it may not be presumed from a general grant of authority.
    Where the terms of a statute giving authority to such a corporation are not imperative but permissive, this does not confer license to commit nuisance although what is contemplated by the statute cannot be done without. Defendant erected upon a lot adjoining a dwelling-house owned by plaintiff, an engine-house and coal bins for its road, and used the same in operating it. The smoke, soot, cinders and coal dust caused by such use filled plaintiff’s house, rendering the air offensive and unwholesome and the house untenantable. Held, that the engine-house as used was a nuisance; that the authority conferred upon defendant by the act of 1848 (§ 6, chap. 143, Laws of 1848), to run its trains over the Harlem railroad was not a legislative sanction to the committing of such a nuisance; that an action was maintainable to recover damages and to restrain the nuisance; and that in such action it was no defense that it was necessary for defendant to have its engine-house located where it is, or that in the management thereof it exercised all practicable care.

      Badcliff v. Mayor, etc. (4 N. Y. 195), Bellinger v. H. Y. O. B. B. Go. (28 id. 42), distinguished.

      Cogswell v. N. Y., H. H. & H. B. B. Go. (16 J. & S. 31), reversed.
    (Argued December 17, 1885 ,
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Superior Court, of the city of New York, entered upon an order made December 12, 1881, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury. (Eeported below, 16 J. & S. 31.)
    This action was brought to recover damages to plaintiff’s premises in the city of New York, alleged to have been' caused by the use on the part of defendant of an engine-house on adjoining premises, and to restrain such use.
    The material facts are stated in the opinion.

      Lewis Johnston for appellant.
    Even if the defendant could by comity lawfully purchase and take title to the land and erect the engine-house in, question thereon as against the plaintiff, in so doing it acted beyond the scope of express legislative authority and subjected itself to liability, as in the case of a private citizen, to the plaintiff for all damages resulting to her from its acts in using the same. (Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y. 353; Tracy v. T. & B. R. R. Co., id. 353; C. & P. R. R. Co. v. Speer, 56 Penn. St. 325; Laws of 1816, chap. 195; Laws of 1818, chap. 113.) The plaintiff is entitled to recover against the defendant upon the facts found by the court, if it be conceded that the defendant is not protected by legislative authority to construct the engine-house, etc., complained of by the plaintiff. (Wood’s Law of Nuisances, §§ 195,197, 198, 501, 505, etc.; Gatlin v. Valentine, 9 Paige’s Ch. 575; Pish v. Dodge, 1 Den. 311; Brady v. Weeks, 3 Barb. 157; Smith v. Cummings, 2 Pars. Sel. Cas. [Penn.] 92; Dennis v. Eckhart, 3 Grant’s Cas. [Penn.] 390; Wesson v. Washburn Iron Co., 13 Allen [Mass.], 95 p Sampson v. Smith, 8 Simon, 272; Whitney v. Bartholemew, 21 Conn. 212; Cartwright v. Cray, 12 Grant’s Ch. [Ont] 399; St. Helenas Smelting Co. v. Tipping, 1 B. & S. 608; affirmed, 11 H. L. Cas. 612; Prescott’s Case, 2 City Hall Rec. 161.) Assuming, however, that the defendant was duly authorized by legislative grant to acquire lands for the purpose and to construct the engine-house and shops for its sole use, independently of the New York and Harlem Railroad Company, as held by the court below, that court is in error in holding that the injuries complained of and found as facts by the court below aré damnum absque injuria. (Wood’s Law of Nuisances, §§ 759, 762 ; Cooper v. N. B. R. R. Co., 35 Scott. Jurist, 295 ; Commonwealth v. Kidder, 107 Mass. 188 ; Rad-cliff v. City of Brooklyn, 1 Comst. 195, 198, 199, 200.; N.

      Y. E. R. R. Co., 22 N. Y. Week. Dig. 153 ; Carhart v. Auburn Gas L. Co., 22 Barb. 297, 310, 312 ; Brieson v. Long Island R. R. Co., 31 Hun, 112.) Authorizing a corporation to do such acts upon its own land as shall destroy or seriously impair the enjoyment of the adjoining land of a citizen i's a “ taking ” of the land of such citizen within the meaning of the Constitution, and although such authority be given for “ public purposes,” if provision be not made for “ compensation ” to the party injured the authority is void. (Pumpelly v. Green Bay, etc., Co., 13 Wall. 166; 74 N. Y. 516.) Private convenience is no excuse for infringing upon the rights of another under the tyrant’s plea of “ necessity.” (Truman v. London, Brighton & S. E. C. R. R. Co., L. R., 25 Ch. Div. 423 ; Cooley’s Const. Lim. [5th ed.] 489, 657, 671; B. & O. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317.)

      H. H. Anderson for respondent.
    The burden of proving neglect was upon plaintiff, to show affirmatively, by a preponderance of proof, that a practical change in the construction of the structures could be made so as to lessen the annoyances complained of. (Shearm. & Redf. on N eg., § 12 ; Pierce on Kailroads, 433, 437.) By comity between the States the defendant may hold land here. (2 Kent’s Com: 283 ; Merrick v. Van Santvoord, 34 N. Y. 208; McGregor v. Erie R. Co., 35 N. J. L. 115.) By the amendment to defendant’s charter any possible question is set at rest. (Boyce v. St. Louis, 29 Barb. 650 ; The defendant has explicit legislative authority to take, hold and use the land in question for the purposes of its business, by virtue of its charter. (Conn. Pri. Acts, 1844, p. 59, fols. 31Ó, 347; Laws of 1846, chap. 195; Conn. Pri. Acts, 1848, chap. 143, § 6; Conn. Pub. Acts, 187.1, chap. 129, fols. 371, 387 ; Conn. Pri. Acts, 1873, p. 6, fol. 388.) By virtue of the General Railroad Law of New York (Laws of 1850, chap. 140, § 28; Laws of 1850," chap. 140, §§ 21, 49; as amended by Laws of .1869, chap. 237; Laws of 1877, chap. 224), railroad companies may properly acquire land for engine-houses, shops for the repair of locomotives, fuel yards, turnouts and side tracks as necessary incidents to the operation of a railroad. (In re N. Y. C., etc., Co., 77 N. Y. 248; Purdy v. N. Y. & N. H. R. R. Co., 61 id. 353; N. Y. & H. R. R. Co. v. Kip, 46 id. 547.. 552, 553 ; State v. Mansfield [3 Zabr.], 23 E. J. L. 510 ; Williams v. P. W. & P. R. R. Co., 54 Penn. St. 103; People v. Utica Ins. Co., 15 Johns. 358, 380 ; Pierce on Railroads, 149, 150, 484.) The location of the buildings and structures of the company is within the reasonable discretion of its managers. (N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 549.) Where the grantees of a franchise have not exceeded the power conferred upon them, and when they are not chargeable with want of due care, no claim can be maintained for any consequential damages resulting from their acts. (Sedgwick on Damages, 110, 111, 112'; Pierce on Railroads, 197,431; Sixth Ave. R. R. Co. v. Gilbert El. R. R. Co., 43 N. Y. Supr. 315 ; Kéllinger v. 42nd St. R. R. Co., 50 N. Y. 206, 211; Plant v. L. I. R. R. Co., 10 Barb. 26 ; Boothby v. A. & K. R. R. Co., 51 Me. 318 ; Richards' Appeal, 57 Penn. St. 105 ; Washburn v. Worcester, 116 Mass. 458 ; Frankfort T. P. Co. v. P. & T. R. R. Co., 54 Penn. St. 345 ; Brand v. Hammersmith, L. R., 1 Q. B. 130; L. R., 4E. & P. App. 171; Mersey Dock v. Gibbs, 1 id. 112 ; B. & So. A. Turnpike Co. v. C. & A. R. R. Co., 2 Har. 314; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42.)
   Andrews, J.

We are relieved by the findings of the trial judge, from any question as to the sufficiency of the evidence to establish that the engine-house as used by the defendant, constitutes, under the general rule of law, a private nuisance to the property of the plaintiff. The compromises exacted by the necessities of the social state, and the fact that some inconvenience to others must of necessity often attend the ordinary use of property, without permitting which there could in many cases be. no valuable use at all, have compelled the recognition, in all systems of jurisprudence, of the principle that each member of society must submit to annoyances consequent upon the ordinary and common use of property, provided such use is reasonable both as respects the owner of the property, and those immediately affected by the use, in view of time, place and other circumstances. It is in many cases difficult to draw the line, and to determine whether a particular use is consistent with the duties and burdens arising from vicinage, or whether it inflicts an injury for which the law affords a remedy.

There is, however, upon the evidence and findings in this case, no room, for doubt. The plaintiff, from 1870, has been' the owner of a house on East Forty-sixth street, in the city of Mew York, used as a private residence, of the value, at that time, of at least the sum of $20,000. In 1872, the defendant, The Mew York and Mew Haven Railroad Company, purchased a lot adjacent to the lot of the plaintiff, extending from Forty-sixth and Forty-seventh streets, and bounded on the west by Fourth avenue, and erected thereon an engine-house and coal-bins for the use of its road, and since the year 1872, has used the engine-house for the reception, sheltering, storing, cleaning, oiling, dumping, repairing and firing of its locomotives, and the coal-bins for coaling the same. The engine-house was designed to accommodate eleven locomotives, and has eleven smoke-stacks extending above the roof to about the height of the third-story windows of the plaintiff’s house. The court found that the engine-house and coal-bins were so constructed and used by the defendant as necessarily to cause damage from the use thereof to the plaintiff’s d welling-house, and that the coal-bins were unprovided with sufficient covering to prevent the dust of the coal from time to time stored therein and removed therefrom by defendant,from passing into and upon the plaintiff’s land and dwelling-house. The court further found that there is now, and at all times since 1872, has been emitted from the engine-house and smoke-stacks, and frota the defendant’s engines in the engine-house, hurtful and offensive gases, smoke, soot, and cinders and coal-dust from the coal-bins, and that the same pour down upon, and are borne by the winds into and upon the plaintiff’s dwelling-house and premises, filling the house with smoke, soot and cinders, injuring the furniture and clothing therein, rendering the air offensive and unwholesome, and the house uncomfortable and unhealthy as a habitation, and greatly reducing the rental value of the premises. The evidence fully justifies the findings of the court. It was shown that the house was rendered untenantable, and could not be rented, although before the erection of the engine-house, it had been rented for $2,500 a year; that the plaintiff’s son became ill in consequence of the unwholesome atmosphere, and that she was compelled to remove him from the house on that account, and that the value of the house had diminished one-half, a depreciation caused in great part at least by the maintenance and use of the engine-house. In short, the engine-house as used, practically deprived the plaintiff of the use of the house as a residence. The defendant did not physically eject °her therefrom, but by filling it with smoke and dust, and by corrupting and tainting the atmosphere with offensive gases made life therein uncomfortable and unsafe. ItTs scarcely necessary to cite authorities to show that the engine-house as nsed, was, within every definition a nuisance, for which, as between individuals, an action would lie for damages, and for which a court of equity would afford a remedy by injunction. (See St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Fish v. Dodge, 4 Den. 311; Campbell v. Seaman, 63 N. Y. 568.) In Radcliff v. Mayor, etc. (4 N. Y. 195,198), a case which is often cited to sustain the doctrine that consequential injuries to private property, from the prosecution of public improvements do not give a right of action, Judge Bronson, referring to the general rule that a man may do what he will with his own property, said : “ He may not, however, under color of enjoying Ms own, set up a nuisance wMch deprives another of the enjoyment of his property.” The correctness, of the findings of fact, made by the court, is not questioned by the defendant. The court placed its judgment denying relief, upon the ground that the defendant was a railroad corporation, authorized by law to acquire real estate for an engine-house; that an engine-house at the point where this engine-house was erected was necessary for the operation of its road ; and that in the construction and use of the engine-house and coal-bins, it had exercised all practicable care. The finding of law from these premises, was that u whatever damage has resulted to the plaintiff or her property, by reason of the defendant’s use and occupation of its engine-house and coal-bins, is damnum absque inju/riaP

It is manifest that if this judgment can stand a most serious injury is inflicted by the defendant upon the plaintiff for which she has no redress. Her premises are subjected to a burden in the nature of a servitude in favor of the defendant, which seriously impairs the value and enjoyment of her property. The principle upon which the court below proceeded, was that what the legislature has authorized the defendant to do, can neither be a publie'nor private wrong; in other words the legislature has authorized the maintenance of this nuisance by the defendant and the plaintiff must bear the consequences. The court below, in denying any relief to the plaintiff, of course assumed that the legislative authority and the act of the defendant thereunder resulting in flooding the plaintiff’s premises with soot, smoke and noxious gases was not a taking of the plaintiff’s property within the Constitution. We place our judgment in this case on the ground that the legislature has not authorized the wrong of which the plaintiff complains, and it is, therefore, unneccessary to determine whether the legislature could have authorized it consistently with the principles of the Constitution for the security of private rights, without providing for compensation.

The legislative authority ¡under which the defendant seeks to justify the maintenance of the nuisance in question, is found in section 6, chapter 143 of Laws of 1848, entitled An act to amend an act entitled ‘A n act relating to the Hew York and -Harlem Railroad Company,’ passed May 7, 1840.”. That section authorizes the defendant, the Hew York and Hew Haven Railroad Company, to enter upon and run its cars by the power or force of steam, animals or any mechanical power over the road of the Hew York and Harlem Railroad Company, from the point of junction of the two roads- in Westchester county, to and into the city of Hew York, “upon such terms and to such point as has been or may-hereafter be agreed upon by and between said companies.” The defendant is a Connecticut corporation. Its road extends from New Haven in that State, to a point on the Harlem railroad in Westehester county in this State. It constructed the part of its road in this State, from , the State line to its junction with the Harlem railroad at Williams Bridge, under the authority of the act of the legislature (Chap. 195 of the Laws of 1846). When the act of 1848 was passed, the two companies had entered into an agreement for the use by the defendant, of the tracks of the Harlem railroad from Williams Bridge to the city of New York, in which, among other things, the New York and Harlem Bailroad Company agreed to furnish the defendant corporation, room for their engine-house at Thirty-third and Forty-second streets, not to exceed one-half of the real estate of the former company at that place, for which the defendant was to pay as provided in the agreement. It is claimed that the legislature has authorized the erection and use of ,the defendant’s structure on Forty-sixth street. The only express authority conferred by the legislature is found in the sixth section of the act of 1848, above referred to. .The authority conferred by that section, on the face of it, is simply an authority to the defendant to run its cars on the Harlem railroad to the city of New York upon such terms as maybe agreed upon between the two companies. The most obvious purpose of this section was to confer corporate capacity upon the defendant to do that which, without legislative authority it could not do, viz., operate its road beyond the terminus fixed in the act of 1846, from Williams Bridge to the city of New York. But even this authority was not absolute. It could be exercised only in case and upon the terms of an agreement between the two companies for the use by the defendant of the tracks of the Harlem railroad. Upon this slender authority is based the claim of the defendant that the legislature has authorized the injury in question. The argument in brief is : The legislature has authorized the defendant to run its trains into the city of New York, over the Harlem road; it cannot do this without an engine-house conveniently located; the power to acquire lands for, and to construct an engine-house is, therefore, incidental to the power expressly given; the company has exercised due care in its location, construction and maintenance ; the annoyances suffered by the plaintiff are a necessary consequence of its use, and, therefore, the principle applies 1 ‘ that an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow.”

We shall pass without examination the question whether the authority given to the defendant to. pinchase land for an engine-house is implied in the power conferred in the sixth section of the act of 1848, to enter into an agreement with the Harlem railroad for the use of the tracks of that road, and to run its cars thereon to the city of Hew York. For the purpose of this case we shall assume that .the general power conferred included the latter power as incident. It is no doubt settled principle of the law that many things may be done by the owner of land, causing consequential damages to his neighbor, for which the law affords no remedy. The cases embraced within this rule are those either where what was done was in the lawful and reasonable use by an owner of land of his own property, or where the damages suffered, although by possibility attributable to the wrongful act of another, weré too remote therefrom to justify the court in treating the one as the sequence of the other. The case before us belongs to neither of these categories. The defendant’s engine-house, as maintained, was a palpable nuisance, causing special injury to the plaintiff, for which, by the general rule of the common law, she has a right of action. The defendant, however, does not rely for its justification upon the ordinary rule governing the rights of adjoining proprietors, but, as we have said, rests upon the claim that the legislature has authorized the acts of which the plaintiff complains, and has, therefore, made that lawful which otherwise might be unlawful, and has taken away any remedy which' the plaintiff otherwise might have had. It is undoubtedly true that there are cases in which the legislature in the public interest may authorize and legalize the doing of acts resulting in consequential injury to private property, without providing compensation, and as to which the legislative sanction may be pleaded in bar of any claim for indemnity. Indeed such is the transcendent power-of Parliamént, that it is the settled doctrine of the English law that no court can treat that as a public or private wrong which Parliament has authorized, and consequently, as stated by Blackburn, J., in Hammersmith, etc., Railway Co. v. Brand (4 H. L. Cas. [Eng. & Ir. App.] 171), “the person who has sustained a loss by the doing of that act is without remedy, unless in so far as the legislature has thought it proper to provide for compensation.” The legislative power in this country is subject to restrictions, but nevertheless private property is frequently subjected to injury from the execution of public powers conferred by statute, for which there is no redress. The case of consequential injuries resulting from street improvements authorized by the legislature is a familiar example. In Radcliff v. Mayor, etc. (supra), which is a leading case, the corporation of Brooklyn laid out, opened, and graded a street, under authority contained in the charter, and the court held that in the absence of negligence, the city was not liable for consequential damages suffered by the plaintiff from the sliding down of his land, caused by the cutting down of the street, and thereby removing the lateral support. The court in its opinion declared that it had never been considered that consequential damages to private property, resulting from the opening and improving streets or highways, or other work of a public nature, could be recovered. The ease has been frequently followed, and its authority completely established by repeated decisions in this State. It is an application of a principle well settled, that private interests must yield to the public welfare, but the case carries to the utmost limit the right of the legislature, for public reasons, to interfere with private property to the injury of the owner, without making compensation. The case of Bellinger v. New York Central Railroad Co. (23 N. Y. 42) is another case frequently cited to support the claim that a use of property authorized by the legislature, cannot, in the absence of negligence, constitute an actionable injury. It was an action brought for the flooding of the plaintiff’s land on the Mohawk flats, caused, as was charged, by the turning of the water of the W est Canada creek out of its natural course, by an embankment constructed for the use* of the railroad over the low lands west of the creek. The Utica and Schenectady Railroad Company (to whose rights and obligations the defendant succeeded), was created a corporation by chapter 294 of the Laws of 1833, with power to construct a railroad between Schenectady and Utica, “ on the north side of the Mohawk river as far as the village of Herkimer.” The charter authorized the directors to locate the line where it would be most advantageous for the road, and file a certificate of location, and the charter declared that the line so located should be deemed the line on which the road should be built. The company located its line on the creek at the point in question. It constructed a bridge across the creek five hundred feet long, and also left a water-way eighty-two feet wide in the embankment, for the passage of water in time of flood. The freshet which flooded the plaintiff’s land, occurred at the time of the breaking up of the ice of the creek in the spring. It was shown that ice and water flowed and was forced upon the plaintiff’s premises at the breaking up of the creek in 1799, and again in 1813, and on three occasions after the road was built, between 1835 and 1866. There was some evidence tending to show that the flooding in question was occasioned by the embankment, and the want of sufficient apertures for the passage of the water. The plaintiff recovered a verdict and the judgment was reversed b v this court, on the ground of the rejection of evidence offered by the defendant, bearing upon the point whether the embankment and bridge were carefully and skillfully constructed. It was claimed by the counsel for the plaintiff that this was an immaterial issue. The court in its opinion, conceded that according to the general rule of law, if the structures of the defendant caused the injury, it would be liable irrespective of negligence, but held that as the company was authorized by statute to construct its road across the creek at the point where it was located, it was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the statute authority. The case of Bellinger v. New York Central Railroad Company is perhaps the strongest case to he found in our reports, of the application of the doctrine that a statutory authority justifies acts which otherwise would give a right of action. But it will be noticed that it was a case where the line of the road was fixed by the charter. It was necessary in constructing the road on that line, to cross the creek on a bridge, and the low lands upon an embankment. The flooding of the plaintiff’s premises was an unusual occurrence, and the evidence was very slight that it was caused by the structures of the defendant. It was under these circumstances that the court reached the conclusion that the damages suffered by the plaintiff were not recoverable in the absence of negligence on the part of the defendant in the construction of the road.

But the statutory sanction which will justify an injury to private property, must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the resonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be presumed, from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons, where no compensation is" provided, except upon eon-, dition of obtaining their consent. This construction of statutory powers, applies with peculiar force to grants of corporate powers to private corporations, which are set up as a justification of corporate acts to the detriment of private property.' In the case of Gardner v. Trustees of the Tillage of New-burgh (2 Johns. Ch. 162), the chancellor granted an injunction to prevent the village" of Kewburgh from diverting the water of a stream, under an act of the legislature which authorized in general terms the taking of water for the use of the village, and which provided for compensation to the owner of land on which the spring or source of supply was situated, but made no provision for compensation to the owner of land below, through which the stream passed. When this- case arose there was no provision in the Constitution of the State, prohibiting the taking of private property for public use, without compensation. But the chancellor held that the making of compensation was an indispensable attendant of the exercise of the public right, and what is more material to our present purpose, he declared that the legislature could not have intended by the general powers conferred, to violate or interfere with private rights. The same principle is stated with unusual force of language by Chief Justice Marshall in United States v. Fisher (2 Cranch, 390). He says: Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” What may be a sufficient statutory sanction for acts which injuriously affect general public rights or individual1 property is illustrated by cases which hold that an authority to construct a railroad and use locomotives thereon, takes away any remedy by indictment or private action, for such consequences as necessarily result from the use of locomotives, such as noise, vibration, etc., although no compensation is provided. (Rex v. Pease, 4 Barn. & Adol. 30; Vaughan v. Taff Vale R. Co., 5 Hurl. & Norm. 679; Hammersmith R'y Co. v. Brand,supra.)

There are two recent English cases which apply with great distinctness the principle that a statutory sanction cannot be pleaded in justification of acts which by the general rules of law,-constitute a nuisance to private property, unless they are expressly authorized by the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred. These are the cases of Hill v. Managers of the Metropolitan Asylum District (L. R, 4 Q. B. Div. 433; S. C. on appeal, 6 App. Cas. 193), and Truman v. London & Brighton Railway Co. (L. R, 25 Ch. Div. 423). The case of Hill v. Managers of the Metropolitan Asylum District was an action for damages, and for an'injunction to restrain the use of a small-pox hospital, established by the defendants under direction of the poor law board, under authority of the Metropolitan Poor Act of 1867. The act of Parliament authorized the erection of asylums for sick, infirm and insane paupers in Metropolitan asylum districts in London, to be designated by the poor law board, and authorized the purchase, leasing or fitting up of buildings for that purpose, and the act referred to small-pox- patients as among the class of persons to be provided for. The managers under the direction of the poor law board, erected a hospital for small-pox patients near premises of the plaintiff. The jury found that the hospital was a nuisance occasioning damage to the plaintiff. The court on the hearing granted an injunction, and the case was appealed to the House of Lords, where it received great consideration, and the judgment was affirmed. The defendants justified under the act of Parliament. The judges pronouncing opinions, conceded that according to the settled doctrine of the English law, if Parliament had expressly authorized the construction of the hospital upon the very site where it was located, its use in the manner and for the purpose contemplated, could not be restrained by injunction, except in so far as it was negligent, although such use should constitute a nuisance at common law, and no compensation would be due in respect of injury to private rights, unless provided for in the act. But it was held that the statutory sanction sufficient to justify the creation of a nuisance, must be express; that the particular land or site for the hospital must have been defined in the act, or, as held by one of the judges, it must appear that the act, while defining certain general limits, could not be complied with at all without creating a nuisance, and that the emotion of the hospital at the particular place was made imperative. In the House of Lords, opinions were pronounced by Lord Chancellor Selbobne, Lord Blaoicburn and Lord Watson, all concurring in substantially the same view. Lord Watson said: “If the order of the legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to show that the legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the purpose.”

The case of Truman v. London c& Brighton Railway Company was also an action for damages and for an injunction to restrain a nuisance created by the maintenance by the defendant of cattle-yards at its station at East Oroyden. The defendant was authorized by its charter to purchase lands in such places as it should deem eligible for the purpose of providing station yards for loading and unloading cattle, etc. It purchased lands for that purpose adjoining its East Oroyden station but near the dwelling of the plaintiff. The court found that the company acted bona fide in selecting the site and conducted the business with all practicable care, but also found that it created a nuisance to the plaintiff and granted the injunction. The case arose after the decision in Rill v. Managers of the Metropolitan Asylum District, and was decided upon the principles there laid down. The court construed the charter as not conferring express authority upon the company to locate the cattle-yards at the place in question. It is manifest that these cases, if well decided, completely answer the defense in the present case. (See, also, Queen v. Bradford Nav. Co., 6 B. & S. 631; Atty.-Genl. v. Colney Hatch Lunatic Asylum, L. R., 4 Ch. App. 147; Hooker v. N. H. & N Co., 14 Conn. 146 ; S. C., 15 id. 312.)

The authority conferred upon the defendant by the sixth section of the act of 1848, to run its trains over the Harlem railroad, was not, however broadly construed, a legislative sanction to commit a nuisance upon private property. The authority expressly given was not absolute, but conditional upon obtaining the consent of the Harlem railroad. It could not be known by the legislature that the building of an engine-house would necessarily interfere with private rights. However necessary it may be for the defendant that its engine-house should be located where it is, this constitutes no justification for the injury suffered by the plaintiff, nor is it any answer to the action that it exercises all practicable care in its management. It may have the right, which it claims, to acquire land by purchase fay the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Public policy indeed requires that in adjusting the mutual relations between railroad companies and individuals, courts should, not stand upon the assertion of extreme rights on either side, but in this case the facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury.

The case of Baltimore & Potomac Railroad Co. v. Fifth Baptist Church (108 U. S. 317) fully supports the conclusion we have reached in this case, and the able opinion of Hr. Justice Field in that case vindicates the right of private property to protection against substantial invasions under color of corporate franchises.

The judgment should be reversed and a new trial ordered.

All concur.

Judgment reversed,


author: Rapallo, J.

text:
    The Equitable Co-operative Foundry Company, Respondent, v. Annette C. Hersee, as Executrix, etc., Appellant.
    The burden of showing error in the conclusions of a referee is upon the appellant, and this court will not, for the purpose of reversing a judgment entered upon a referee's report, look into the evidence to supply a fact not found ; it is only for the purpose of sustaining a judgment that it may do this.
    The mere bringing of an action for the price of goods sold is not a binding election of remedies, or a waiver of a right to rescind the sale on the ground of fraud, unless the action was brought zwith knowledge of the fraud.
    (Submitted February 5,1886 ;
    decided October 5, 1886.)
    . Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made May 30, 1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 33 Hun, 169.)
    This action was brought to recover damages for' the alleged conversion of a number of stoves.
    The stoves in suit were sold by defendant to the firm of Fisher & Co., the sale having been induced by fraudulent representations made by a member of the firm as to its responsibility. Plaintiff sought to rescind the contract of sale on the ground of the fraud; it demanded the stoves of defendant’s , testator, who claimed title under a sale on execution against members of the firm, and on refusal to deliver, this action'was brought.
    The facts material to the questions discussed are stated in the opinion.

      G. A. Scroggs for appellant.
    The plaintiff having full knowledge of the fraud alleged in the complaint herein when it commenced the action against Fisher & Whiting on the contract of goods, thereby elected to waive the fraud, affirm the contract and rely on that remedy. (6 Bac. Abr., Elect. 431; Morris v. Rexford, 18 N. Y. 352 ; 4 T. R. 212; 8 Alb. Law Jour. 303; Littlefield v. Brown, 1 Wend. 404,405 ; McElvoy v. Manoius, 13 Johns. 122; Rawson v. Turner, 4 id. 469 ; Brown v. Littlefield, 7 Wend. 454; affirmed, 11 id. 467; Sanger v. Wood, 3 Johns. Ch. 416; Masson v. Bovet, 1 Den. 69; Kinney v. Kiernan, 49 N. Y. 164, 174 ; Wright v. Pierce, 4 Hun, 351, 353; Roth v. Palmer, 24 Barb. 652; Hughes v. Vt. Copper Min. Co., 72 N. Y. 207, 209; Smith v. Knapp, 30 id. 581, 591; Lloyd v. Brewster, 4 Paige’s Ch. 537, 541; Bigelow on Estoppel, 578, 581; Pomeroy on Remedies, 570, 574, 584, 801; Herman on Estoppel, 461,463, 464, § 471; Benedict v. Bk. of Com., 3 Daly, 171.) By merely bringing the action on the contract the plaintiff adopted his remedy and waived the tort. (2 Coke, 36; Kenney v. Kiernem, 49 N. Y. 164; Rodermund v. Clark,46 id. 354; Morris v. Rexford, 18 id. 537; Wright v. Pierce, 4 Hun, 351; Rawson v. Turner, 4 Johns. 469 ; Herman on Estoppel, 463, 464, § 471; 467, § 476 ; Bigelow on Estoppel, 578.)

      Geo. H. Humphrey for respondent.
    The suit brought in Hay, 1877, was not available as a defense to this action. (Miller v. Manice, 6 Hill, 114; Royce v. Burke, 42 Barb. 655; Stowell v. Chamberlain, 60 N. Y. 272, 276 ; Dawley v. Brown, 79 id. 390-396.)
   Rapallo, J.

The point is elaborately and ably discussed in the opinion of Smith, P. J., at General Term, that the bringing of the action by the plaintiff against Fisher & Whiting for the contract price of the goods sold to them, was not an election to affirm the contract, which was final, and precluded the plaintiff subsequently bringing this action in disaffirmance of the contract, because the first action was abandoned and discontinued before trial or judgment, and no provisional remedy or other benefit was obtained by the plaintiff therein, nor was the position of the parties changed thereby.

We do not, however, deem it necessary to pass definitely upon that point, for the reason that there appears in the case no finding or request to find that, at the time of the bringing of the action on the contract, the plaintiff had knowledge of the fraud which entitled it to rescind the sale. This fact was essential to put the plaintiff to its election of remedies, and it should appear in tne findings, of fact, to disclose error in the conclusion that the bringing of the action was not a waiver of the right to disaffirm the contract.

The burden of showing error in the conclusion of the referee is on the appellant, and nothing is better settled than that this court will not, for the purpose of reversing a judgment, look into the evidence to supply a fact not found. It is only for the purpose of affirming a judgment that the court will look at the evidence to supply a fact not specified in the findings.

The mere bringing of the action for the price of the goods, unless it was brought with knowledge of the fraud, was not a binding election, or a waiver of the right to rescind, and no error in the conclusion of the referee is disclosed by the record.

The point made in the dissenting opinion of Barker, J., at General Term, that the finding of the referee that before the commencement of this action the plaintiff demanded of the defendant possession of the goods, and the defendant refused to surrender them, is unsupported by the.evidence, is not available to the appellant on this appeal. If the finding was unsupported by any evidence, it was an error of law, reviewable in this court; but in order to raise the point here, it was necessary that the finding should have been excepted to, and the case contains no such exception.

The other points are fully discussed and, I think, properly disposed of in the prevailing opinion at General Term.

The judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    George Mark et al., Respondents, v. The Hudson River Bridge Company at Albany, Appellant.
    Plaintiffs’ steam ferry-boat was carried by floating ice down against defendant’s bridge and became entangled therein; in the attempt by defendant to extricate the boat, a span of the bridge was pulled down upon it, causing serious injuries thereto. In an action to recover damag-es, held, that the boat, in the position it was placed, became a nuisance, which the defendant for its own protection had a right to remove, yet in exercising that right, it was its duty to use ordinary care to do no unnecessary injury.
    The court declined to charge in express terms that the defendant was not liable unless there was gross negligence on its part. The charge, howiever, was, in substance, that in the removal of the boat, defendant was not bound to use the highest skill, or to have skilled workmen and the best appliances, but was only bound to have ordinarily careful men and such appliances as the statute creating it required, and that to render defendant liable, the jury must find that the injury was caused by such acts of carelessness and negligence as ordinarily careful, prudent men intent on doing their own work properly would not have committed. Held no error; that the charge gave a sufficient definition of the degree of negligence necessary to be shown.
    Also held, that in freeing the boat from the span of the bridge which fell upon it, plaintiffs were only required to use ordinary diligence, and that if by the use thereof they could not have done this, they could recover of the defendant the subsequently accruing damages.
    In repairing the boat some improvements were made therein. The gross amount of expenditures was shown on the trial, without separating the expenses of the repairs from those of the improvements. Held, a refusal to charge that plaintiffs could recover only nominal damages, and could recover no damages for the loss of the use of the boat while being repaired, was not error; that while the burden of proof was upon plaintiffs on the question of damages, yet as the evidence showed substantial damages caused by defendant’s negligence, the failure to distinguish as to all the items between the expenditures thereby incurred and those for which defendant was not liable, did not limit’the recovery to nominal damages.

      It seems if the request had been simply to charge that defendant was only liable for expense of repairs or loss of time, which were affirmatively shown to have been caused by defendant’s negligence, a refusal so to charge would have been error.
    (Argued February 5, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 10, 1884, which affirmed a judgment in favor of plaintiffs, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for injuries to plaintiffs’ steam ferry-boat alleged to have been caused-by defendant’s negligence.
    The boat was running across the Hudson between Troy and West Troy. On April 8, 1872, in making a regular trip it was caught by floating ice in the river and carried down against defendant’s bridge and became entangled therein. In the attempt to remove it by forcing it through the bridge, a span of the bridge was carried away and fell upon the boat, inflicting serious injuries.
    The further material facts are stated in the opinion.

      Matthew Hale for appellant.
    E egligence may consist either in the careless performance of obligation assumed, or in neglecting to undertake the performance of obligations imposed by law. (Shearm. & Redf. on Reg., §4.) Where the proximate cause of damage is the plaintiff’s own supineness or carelessness, he has no ground of action against the defendant, even though the primary and original cause of the damage be the defendant’s wrongful act. (Shearm. & Redf. on Neg., §§ 10, 33.) The court erred in refusing to charge that plaintiffs could not recover if their boat came in contact with the bridge through their negligence. (Hicks v. Dorn, 42 N. Y. 47; Austin v. N. J. Steambt. Co., 43 id. 75 ; Shearm. & Redf. on Neg., § 33; Chicago, etc., R. R. Co. v. Goss, 17 Wis. 428.) Eb allowance should have been made for the loss of the use of the boat in the absence of proof as to how much time was lost in consequence of the alleged negligence of defendant. (Leeds v. Met. Gas L. Co., ,90 N. Y. 26.) The court erred in refusing to charge that the defendant was not liable in this action, unless there was a gross negligence on the part of its servants in the removal of the boat, and also in its charge as to the degree of care for want of which defendant was liable. (Coggs v. Bernard, 2 Ld. Raym. 909; Alexander v. Greene, 7 Hill, 533, 546, 560, 574; Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 44; First Nat. Bk. v. Ocean Bk., 60 id. 278, 295; Pattison v. Syracuse Bk., 80 id. 82.) If one does an act of pure favor for another, with the assent of the latter, his responsibility to him is reduced to the duty of merely slight care and diligence. (Shearm. & Redf. on Reg., § 22 ; Spooner v. Matoon, 40 Vt. 300.)

      Isaac Lawson and R. A. Parmenter for respondents.
    The fault of the plaintiffs in allowing their boat to come against the bridge, if they were in fault, would not justify the defendant in subsequently doing damage to the boat by its negligence, carelessness or recklessness, or that of its servants in attempting its removal. (Wood on'Nuisance, §§ 730, 764, 767, 769; Cooper v. Marshall, 1 Burr, 260; Harrower v. Ritson, 36 Barb. 201; State v. Kernan, 2 Ames [R. I.], 497; Gates v. Blencoe, 2 Dana [Ky.], 158; Dyer v. Depue, 5 Whart. [Penn.] 584; Wright v. Moore, 38 Ala. 594; Moffat v. Brewer, 2 Gen. [Iowa] 348; Perry v. Fitzhow, 8 Adol. & Ellis, 775 ; City of lndia-apolis v. Miller, 27 Ind. 398; Graves v. Shattuck, 35 N. H. 257; Hicks v. Dorn, 42 N. Y. 47, 52, 54; Babcock v. etc., 56 id. 268; Tuff v.. Warner, 6 C. B. [N. S.] 573; 2 id. 740; Davis v. Mann, 10 Mees. & Wels. 546 ; Scott v. Dublin, etc., R. R. Co., Irish C. L. P. 394; 3 Ohio St. 172; 4 Ind. 94; 43 Mo. 380 ; 38 Ala. [N. S.] 76; 9 Allen, 557; 3 id. 176.) The fact that defendant, or its agents or servants, acted in good faith would furnish no justification for carelessness, negligence or recklessness. (Hieles v. Dorn, 42 N. Y. 47.) The burden of proof was clearly upon the defendant, in case the jury should find the defendant was guilty of negligence in pulling the span upon the boat, both upon the question of the plaintiffs’ negligence in failing to «remove the span, and upon the question as to the amount of damages caused by the failure to remove it. (Howard v. Daly, 61 N. Y. 371; Hamilton v. McPherson, 28 id. 77; Costigan v. M. & H. R. R. Co., 2 Denio, 609; DeBenedetti v. Manchin, 1 Hilt. 213; Thomas v. Kenyon, 1 Daly, 132.) Under the circumstances the law does not require strict proof of the exact amount of damages apportionable to each party. (Parkenheimer v. Van Orden, 20 Barb. 479; Van Steenberg v. Tobias, 17 Wend. 562; Auchmuty v. Ham, 1 Denio, 495.) The jury might have found that the damage from the pulling down of the bridge was caused by gross negligence or willfully, and in such case if the amount of damage sustained could not have been accurately determined, the wrong-doer must bear the burden of such difficulty. (Shearm. & Redf. on Neg., § 594; Leeds
      v. Amherst, 20 Beav. 239.) Whether sucha degree of negligence as gross negligence is known to and defined in the law is in serious doubt. (Perkins v. N. Y. C. R. R. Co., 24 N. Y. 206-7; Wills v. N. Y. C. R. R. Co., id. 186; New World v. Kings, 16 How. [U. S.J 474; Hurton v. Dibbin, 2 Q. B. 646-661; Wilson v. Bull, 11 Mees. & Weis. 113.) If such a degree of negligence is known to and defined in the law, it is defined to be and is “ the want of even slight care and diligence.” (Shearm. & Redf. on Reg., § 18; Story on Bailments, § 17.)' Or “the want of that care which every man of common sense, how inattentive soever, takes of his own property.” (Edwards on Bailments, 44.) The defendant having undertaken to remove the plaintiffs’ boat, as the jury might hav4 found, without the requést, consent or permission of the plaintiffs, against their protest as to the manner in which it was being done, without any pretense of necessity for the haste made, and without allowingo the plaintiffs a reasonable time for consultation or preparation, it owed to the plaintiffs in the work of removing the boat, not such slight care and diligence as the absence of which constitute gross negligence, but such care and diligence as a reasonable, prudent and careful person would exercise. (Hicks v. Dorn, 42 N. Y. 54; Richmond v. Danville R. R. Co., 31 Gratt. 812; Radley v. L. & N. W. Railway Co., L. R., 1 App. Cas. 754; Trow v. Vt. Cent. R. R. Co., 24 Yt. 487; Penn Co. v. Sinclair, 62 Ind. 301; S. G., 30 Am. Rep. 190.) The plaintiffs were only bound to the exercise of reasonable care, skill and diligence, and were not bound to incur any hazard, or assume unusual risks to obviate the consequences of the defendant’s acts. (Roberts v. White, 73 N. Y. 380, 381; Hamilton v. McPherson, 28 id. 76, 77; Bevier v. D. & H. C. Co., 13 Hun, 259; Shearm. & Redf. on Reg., §§ 29, .31, 32, 34, 598.) The cost of repairs, the loss of the use of the boat,-and interest, furnished the proper measure of damages. ( Whitehall, etc., Co. v. N. J. Steamboat Co., 51 N. Y. 369; Miller v. Ex. Prop. Line, 61 id. 312; Harris v. D., L. & W. R. R. Co., id. 657; The Catharine v. Dickinson,
      17 How. [U. S. ] 170; The Granite State, 3 Wall. 310; The Blossom, Olcott, 188 : Buffalo, etc., Turnpike Co. v. City of Buffalo, 58 N. Y. 639.)
   Rapallo, J.

The first point made by the appellant on this appeal is that the trial court erred in refusing to direct the jury that the plaintiffs, upon the evidence in the case, were not entitled to any recovery against the defendant.

The injury done to the plaintiffs’ boat by coming in contact with the defendant’s bridge was not shown to have been occasioned by any fault of the defendant, and whether it was owing to any fault on the part of the plaintiffs was, upon the evidence, a fair question for the jury. That question was material, however, only with respect to the defendant’s counter-claim, for if, as claimed by the plaintiffs, after the boat had become entangled in the bridge, the method adopted by Tanner, the superintendent of the bridge company, for extricating it was reckless and displayed a want of ordinary care, and caused unnecessary injury to the boat, the defendant was liable for the unnecessary injury, even if the plaintiff was in fault in getting its boat in that position. Although the defendant was not to blame for the situation in which the boat was placed, and it became a nuisance which the defendant had a right, for its own protection, to remove, yet in exercising that right it was its duty to use ordinary care to do no unnecessary injury to the boat. (Hicks v. Dorn, 42 N. Y. 47.)

It was claimed on the part of the plaintiffs that the act of Tanner, in causing the boat to be pulled by main force through the bridge so as to break it and pull the span of the bridge down upon the boat, was a reckless act, evincing a want of ordinary care and prudence, whereby unnecessary injury was done to the boat as well as to the bridge. This charge, if substantiated, was sufficient to constitute a cause of action for the damage thus unnecessarily inflicted. There was evidence sufficient to authorize the submission of the question to the jury, and consequently the court committed no error in refusing to charge the jury that the plaintiffs, upon the evidence in the case, were not entitled to any recovery against the defendant.

The claim that the uncontradicted evidence in the case showed that Tanner, and the men working under him, in attempting1 to effect the removal of the boat from under the bridge, were acting at the request or with the consent of the plaintiffs, is not sustained by a reference to the testimony. The trial judge charged the jury distinctly that if Tanner and his men proceeded to remove the boat, either upon the request of George Mark (who represented the plaintiffs), or with his consent expressly or impliedly given by a failure to object to their proceedings, the defendant was not liable; that the men who did the work, although generally in the employ of the defendant, became for that service the servants of the plaintiffs, and for their conduct the defendant was not responsible. Without recapitulating the testimony, we think that upon the evidence it was a fair question for the jury whether Tanner and his men were acting at the request of Mark, and as his agents, or in the exercise of the right of the defendant to free the bridge from the obstruction, and in its service. The verdict necessarily determined that question in favor of the plaintiffs.

Exception was taken to the refusal of the judge to charge the jury, at the defendant’s request, that the defendant was not liable in this action unless there was gross negligence on the part of its servants in the removal of the boat.

It is true that the judge declined, in his instructions to the jury, to use the term gross negligence ” in explaining to them the degree of negligence necessary, under the circumstances of the case, to render the defendant liable. But without using that term, he charged them very fully on the point, and described to them, in his own language, what kind of negligence was necessary to charge them with damage. He charged that the boat being against the bridge so as to impede and obstruct its use, and being there without any fault on the part of the defendant, it was the duty of the plaintiffs to remove it at the earliest possible moment and to be extraordinarily diligent in that removal; that if they failed in that duty the defendant had the right to remove the boat; that in that removal the defendant wag not bound to use the highest skill; that it was not bound to have skilled workmen and the best appliances to meet the emergency; that it was only bound to have ordinarily careful men in its employ and such appliances as the statute creating the company required it to have, and that to render the defendant liable they must find that the injury was caused by such acts of carelessness and negligence as ordinarily careful and prudent men, intent on .doing their work properly, would not have committed or failed to perform; that if they found that the defendant’s servants were not doing the work at the request of the plaintiffs but in the service of the defendant, they were to determine whether or not the boat was so carelessly and recklessly removed that the careless and reckless removal caused the injury.

It was several times repeated throughout the charge, that the defendant was not liable for want of skill in the persons engaged in the removal of the boat, but only for the commission or omission of some act which an ordinarily prudent man would not have committed or omitted, and for reckless conduct on their part.

We think that this was a sufficient definition of the degree of negligence necessary to be shown, and was probably more intelligible to the jury than would have been the term “ gross negligence.” As said by Allen, J., in First Nat. Bank v. Ocean Fat. Bk. (60 N. Y. 295), the term is incapable of precise definition. It depends very much on the circumstances to which the term is to be applied. It has been most frequently used in cases where a gratuitous bailee has been sought to be made liable for loss or damage of property intrusted to him, the general rule being that a gratuitous bailee is liable only for gross negligence. In such cases the term has been defined to mean the want of that ordinary diligence and care which a usually prudent man takes of his own property of the like description. (Giblin v. McMullen,, L. R., 2 P. C. Cas. 318, 327.) In other cases it is said that a gratuitous bailee is held only to that degree of diligence which a person of common sense, not a specialist or expert in a particular department, should exercise in such department; and sometimes it is defined as the want even oi slight care or such as even an habitually careless person would take. (2 Whart. on Beg., § 470.)

In 2 Kent’s Com. 560, gross neglect is defined to be the want of that care which every man of common sense, under the circumstances, takes of his own property, citing Jones on Bailments, 118, and Coggs v. Bernard (2 Ld Raym. 909, 913).

In many, cases the term itself has been condemned as incapable of being usefully applied in practice, and incapable of being accurately defined. (Hinton v. Dibbin, 2 Q. B. 646, 650; Austin v. Manchester Railway, 11 Eng. L. & Eq. 506, 513; Steamboat New World v. King, 16 How. [U. S.] 474; Stover v. Gowen, 18 Me. 177; Wilson v. Brett, 11 Mees. & Welsb. 113.)

It seems to us that the jury were correctly instructed as to the rule of liability in this case, and that, under the circumstances, the exercise of such ordinary prudence as would be expected, even of unskilled persons, was not too stringent a requirement, in view of the serious consequences liable to ensue from a reckless performance of the work in which the defendant’s servants were engaged.

In Hicks v. Dorn (42 N. Y. 47), where a boat had become an obstruction in the canal, it was held that it was the duty of the superintendent to remove it, and that he had no right, even if it had become a nuisance, to destroy it, unless such destruction was necessary, and that the question was whether the defendant discharged his duty as a reasonable, prudent and careful man.

According to the testimony of the plaintiff, Tanner was warned that by attempting to force the boat through, he would bring down the bridge, but that nevertheless, after having failed with two tugs to get her through while her gallows frame was in contact with the south chord of the span, he obtained a third boat, and with the united power of the three broke through, bringing the span of the bridge down upon the boat and crushing her joiner work, upper cabins and machinery.

The verdict established that this damage was caused by the acts of Tanner and his assistants, and that their acts were such as even unskilled men, of ordinary prudence, would not have committed, but were reckless. A cause of action was thus made out.

But further questions are raised which affect the amount of the recovery. There was a great conflict in the evidence as to what was done after the span of the bridge had been brought down upon the boat. The defendant contends that it removed the debris and made the boat fast to the wharf, and that she afterward drifted away and sank, and that it is not liable for the damages accruing after the falling of the span; while according to the plaintiffs’ testimony the-defendant took no measures to remove the span, but left it on the boat, and she was sunk thereby, and in the night drifted down the river.

The. court charged the jury that if the facts were as claimed by the defendant it was not responsible for the subsequent damages but only for those which flowed directly from the fall of the bridge; but that if the span was permitted to rest upon the boat until it sank by the weight of the structure and then drifted down the stream, the plaintiffs could recover for the subsequently accruing damages, provided that they themselves, by the use of ordinary diligence, could not have relieved the boat. The only exception taken on the part of the defendant to this portion of the charge, related to the degree of diligence which the plaintiffs were bound to exercise for the purpose of freeing the boat from the span of the bridge after it had fallen upon the boat, defendant claiming that the plaintiffs were bound to use extraordinary diligence for that purpose, and the court holding that they were bound to use ordinary care and attention in protecting their property. It seems to us that if the jury found that the defendant had wrongfully pulled the span of the bridge down upon the boat, nothing less than want of ordinary care on the part of the plaintiffs to protect their boat by relieving it of the burden, would absolve the defendant from liability for the damage which ensued.

The court was requested by the defendant to charge with reference to this point, that the plaintiffs could not recover for any damage done to the boat alter a portion of the bridge was pulled upon her, for the reason that such damage, on the uncontradicted evidence in the case, might have been prevented by the plaintiff.

After the first trial of this case, the trial judge so held on a motion for a new trial, and the General Term affirmed this holding. It was mainly based on the testimony of the plaintiff Mark. Upon a new trial this ruling was adhered to and a verdict was rendered for those damages only, which accrued from the fall of the span, and before the sinking of the boat. On appeal by the plaintiffs to the General Term the judgment entered on that verdict was reversed and a new trial ordered, on the ground that on the second trial Mark had so modified his testimony, given on the first trial, as to raise an issue of fact as to whether he could have relieved the boat of the fallen span, and on the third trial, which is the ' one now under review, his testimony was such as, in our judgment, required the submission of that question to the jury, and it was accordingly submitted to them, with the instruction that if they found that Mark could, with the exercise of ordinary care and diligence, have removed the debris from the boat and saved her from the subsequent injuries, the defendant was not liable therefor. We think this branch'of the case was properly disposed of by the court.

It appears that after the boat had sunk, she was raised at considerable expense and all her injuries repaired, as well those arising from her original collision with the bridge, as those accruing afterward, and she was also lengthened beyond her original length, and much time was consumed in all these operations, they having extended over two hundred days, during which period the plaintiffs lost the use of their boat, the value of which was proved to be $40 per day. The gross amount of the expenditures was shown. The expense of repairing the injuries from the collision, and the expense of lengthening the boat, were included. The jury were, under the charge, left at liberty to allow interest on the damages, and this seems, by the defendant’s request to charge, to have been assented to by it. The defendant requested the court to charge that the burden of proof was upon the plaintiffs, as well upon the question of damages as upon the question of negligence, and that if plaintiffs had failed to show what damages resulted from the alleged negligent acts of the defendant, and to distinguish them from damages for which defendant was not responsible, they could recover only nominal damages.

The court refused to charge this request, and we think properly. It was too broad. The first part of the proposition was undoubtedly correct, but the testimony clearly showed some substantial damages to which the plaintiffs were unquestionably entitled, if the issues as to negligence were decided in their favor, and the failure to distinguish as to all the items bétween damages of that character, and those to which the plaintiffs were not entitled, could not be visited on the plaintiffs, under the circumstances, by confining their recovery to mere nominal damages.

The same remark is applicable to the exception to the refusal of the judge to charge that there was no evidence in the case from which the jury could determine how long the plaintiffs were deprived of the use of their boat by reason of any negligence of the defendant, and that, therefore, the plaintiffs were not entitled to recover any damages for the supposed loss of the use of the boat. If the request had been to charge that the jury could only allow such damages, either for expenses of re-pah’s or loss of time, as were affirmatively shown by the evidence to have been caused by the acts for which the defendant was responsible, a different proposition would have been presented.

It is very evident from the verdict, that the jury must have distinguished between the damages for which the defendant was responsible, and those which were attributable to the misfortune of the plaintiffs in getting their boat into the perilous position in which she was. According to the testimony the total expense of the raising of the vessel and of the repairs was from $9,700 to $9,800, and the total loss of time, two hundred days, which, at $40 per day, amounted to $8,000. These two items, with interest to the time of trial, would have amounted to nearly $30,000, and all that was specifically shown to be included therein for damages for which the defendant was not responsible, was $2,400 for lengthening the boat and about $900 for repairs of damages caused by the collision with the bridge, and some small items. It is obvious from the amount of the verdict, that the jury did not proceed on the theory of charging to the defendant, in the first instance, the total loss, and then deducting the items for which the defendant was shown not to be responsible, thus shifting the burden of proof. They were not instructed by the court to pursue that course.

After examining the numerous other exceptions in the case, we are of opinion that there is none which requires a reversal of the judgment, and it should, therefore, be affirmed, with costs. All concur Judgment affirmed.