author: Mayham, P. J.: Putnam, J.

text:
    Martin Coffin, Respondent, v. William Lockhart, Appellant, Impleaded, etc.

      iSale of real estate subject to an outstanding moi'tgage — bond and mortgage subsequently given by the purchaser to the vendor to secure the assumption of such mortgage — want of consideration.

    Martin Coffin, having executed a bond and mortgage to Charles Parsons, conveyed the mortgaged premises to William Lockhart, subject to the Parsons mortgage, which, by the deed, Lockhart assumed, and agreed to pay, as part of the purchase price. About five years thereafter, Lockhart executed to Coffin a bond and mortgage upon other land, conditioned for the payment of the amount of the Parsons mortgage, and to save Coffin harmless from liability by reason thereof. Thereafter, Parsons foreclosed his mortgage, and obtained a judgment for deficiency against Coffin.
    About the same time, Coffin brought an action against Lockhart for specific performance of the agreement contained in the deed, to assume and pay the Parsons mortgage, and obtained a judgment against Lockhart for the amount due ami unpaid on that mortgage, execution on which judgment was issued, and returned milla bona. Thereafter, Coffin brought an action to foreclose the mortgage executed by Lockhart to him, and obtained a judgment of foreclosure and sale to satisfy the sum which he (Coffin) had been compelled to pay on the Parsons mortgage.

      Held, that the judgment should be reversed. (Putnam, J., dissenting.)
    The doctrine applied, that, when a purchaser of real estate, subject to an outstanding mortgage, assumes, by his deed, the payment of the mortgage as part of the purchase price, and the vendor accepts that agreement as complete, without exacting any security as collateral to the same, a bond and mortgage thereafter executed by the purchaser to the vendor, as. an original undertaking, to secure the payment of the mortgage already assumed by him, without any new or other consideration, will be void for want of consideration, so long as the original agreement to pay the assumed mortgage remains in full force, (Per Mayham, P. J.)
    Appeal by tbe defendant, "William Lockhart, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of "Warren county on the 31st day of December, 1892, upon a decision of the court rendered after a trial by the court at the "Warren County Circuit and Special Term.

      QhcM'les P. Patterson, for the appellants.

      J. II. Bain, for the respondent.

      See Roberge v. Winne, ante, page 172.— [Rep.

   Mayham, P. J.:

This is an appeal from a judgment entered upon the decision of the court at Special Term in an action to foreclose a mortgage.

On the 1st of January, 1880, the plaintiff executed his bond, conditioned for the payment of $1,500 to Charles Parsons, and as collateral thereto, executed and delivered to Parsons a mortgage on certain real estate belonging to the plaintiff, to secure the payment of the aforesaid sum.

On the 9th of October, 1884, the plaintiff and wife, by warranty deed, conveyed the mortgaged premises to "William Lockhart, this defendant, for the consideration of $2,500, $1,000 of which was paid at the time, and the remaining $1,500 the defendant Lockhart, in and by the deed received by him, agreed to assume and pay in the payment of the $1,500 and interest on the Parsons mortgage. The language in said deed by which the defendant assumed this payment is as follows: This conveyance is given subject to a mortgage of $1,500 and interest from October 1st, 1884, which the party of the second part hereby assumes and agrees to pay as a part of the purchase price.”

On the 10th day of December, 1889, the defendant Lockhart executed and delivered to the plaintiff his bond with the penalty of $3,000, containing the following condition : The condition of this obligation is such that if the above-bounden heirs, executors or administrators shall well and truly pay, or cause to be paid unto the above-named Martin Coffin, or his certain attorney, executors, administrators or assigns, the just and full sum of $1,500, with interest according to the conditions of a bond executed by Martin Coffin to Charles Parsons, dated January 1st, 1880, to secure the payment of the sum of $1,500 with interest.

“ This bond is given to secure said Martin Coffin and save him harmless of and from all liability upon or by virtue of the said bond so given by him to the said Charles Parsons. The premises described in the mortgage given by said Coffin to said Parsons to secure the aforesaid bond having been conveyed to the party of the first part, and he having assumed and agreed to pay said bond and mortgage as a part of the purchase price for said premises.”

As collateral to this bond the defendant at the same time executed and delivered to said Coffin a mortgage, which mortgage, among other things, contained the following: Provided, always, and these presents are on the express condition that if the said William Lock-hart, or his heirs, executors or administrators shall well and truly pay or cause to be paid to the party of the second part, executors, administrators or assigns, the sum of $1,500, with interest, according to the conditions of a certain bond or writing obligatory, bearing even date, herewith executed by the said Lockhart to said Coffin, the said party of the second part, which said sum the said William Lockhart Hereby covenants to pay, then these presents shall cease and be void.”

The mortgage also contained the nsnal condition in case of default by the defendant in paying according to the terms of the bond.

On the 27th day of July, 1891, an action was commenced by Charles Parsons against the plaintiff and defendant, to foreclose the mortgage of $1,500 given by the plaintiff to Parsons, the payment of which had been assumed by the defendant Lockhart, in the deed of conveyance to him, and such proceedings were thereupon had that judgment of foreclosure and sale was entered in said action in September, 1891, and on the 31st day of December, 1891, a judgment for deficiency on said foreclosure and sale was entered and docketed in the proper county against this plaintiff for $803.09.

About the 26th of November, 1890, this plaintiff commenced an action against- this defendant and one'Walter Lockhart, setting up the conveyance of these premises by the plaintiff to the defendant and the condition in the deed, by which this defendant assumed and agreed to pay the Parsons mortgage, and praying that a specific performance of that agreement be decreed against this defendant, and such proceedings were thereupon had; that on the 17th day of August, 1891, a judgment was recovered against this defendant in favor of the plaintiff in that action for the sum of $1,626.67 damages and $43.18 costs, being the amount claimed to be due and unpaid on the $1,500 Parsons mortgage. This judgment contained this recital:

In case the defendant William Lockhart pays or satisfies the said bond and mortgage described in the complaint and in the report of said referee before the sum of-$1,626.67 be collected upon execution, then there shall be credited upon any execution issued or to be issued for the collection of this judgment, the said sum of $1,626.67, with the interest thereon, but this provision shall not in any manner affect the execution issued or to be issued for the collection of the costs of this action.”

On this judgment execution was issued to the sheriff of the proper county on the 18th of August, 1891, and also an execution on the same judgment on the 12th of December, 1891, which first-mentioned execution was indorsed received August 18, 1891,” and returned nulla bona the 5th of October, 1891, by the sheriff of Warren county.

On the 19th of November, 1891, this action was commenced for the foreclosure of the mortgage executed by defendant to plaintiff dated December 10, 1889.

The complaint in this action was in the usual form of a complaint in foreclosure, but recited that said bond and mortgage was upon condition that the defendant should save the plaintiff “ harmless of and from all liability,” upon and by virtue of a certain bond executed by Martin Coffin to Charles Parsons, dated January 1, 1880, which bond was conditioned for the payment of $1,500. The answer set up substantially the transactions between the plaintiff and defendant, the prosecution of the equitable action for a specific performance, and that no effort had been made at the time of the commencement of this action for the collection of the judgment recovered in that equitable action; that that action resulted in the recovery of the amount claimed to be due on this mortgage; that the defendant, at the time, of the commencement of this action, was the owner of the premises described in the mortgage; that the plaintiff still owns and holds the judgment in the action for specific performance, and that there is no valid consideration for the mortgage on which this action is brought.

The trial judge found, as a conclusion of law, that there was due upon the bond and mortgage in suit in this action the sum of $803.68, and directed judgment of foreclosure and sale of the mortgaged premises to satisfy that amount, and judgment against the defendant for any deficiency that might arise on said sale. Upon this, judgment was entered, and from that judgment plaintiff appealed.

The defendant on purchasing the premises in question became liable to pay, as apart of the consideration, the sum of $1,500, to satisfy a mortgage then upon the premises.

That sum he failed to pay, and the plaintiff, who was primarily liable upon the bond to which that mortgage was collateral, was compelled to, and did pay the sum which is found due in this action.

The appellant’s contention is that the bond and mortgage in suit in this action was void for want of consideration. If this bond and mortgage was an original undertaking between the parties to it, with no other consideration than that which the defendant agreed by accepting the deed to perform, then it would seem that the defendant’s contention is sound, as in that case there would be no new consideration for the giving of the same, the defendant having already-contracted to pay the $1,500 by his acceptance of the deed containing that agreement, and the plaintiff at that time having accepted that agreement without exacting any security as collateral to the same.

There could not, therefore, be any consideration of benefits to the mortgagor to support this bond and mortgage, or of harm to the mortgagee, by not reserving such collateral, as the rights of the parties, so far as the payment of this $1,500 is concerned, were fixed by the agreement in the deed, and there is nothing in the case from which any new consideration can be found. This would seem to bring the case within the decision of Vanderbilt v. Schreyer (91 N. Y. 392).

That was an action to charge a guarantor with the payment of a mortgage guaranteed by him. The plaintiff in that action undertook to build a house, and was, by the contract, to be paid in part by the assignment of the $5,000 mortgage. At the time fixed in the contract for making the assignment the defendant tendered the mortgage, duly assigned, without guaranty.

The plaintiff insisted upon the defendant guaranteeing the same, and he accordingly, without any new consideration moving to him for such guaranty, yielded to the plaintiff’s request, and guaranteed the mortgage. In an action upon such guaranty it was held that the same was without consideration and void as to the guarantor, and Ruger, J., in discussing that question, says: “ It being clear that Yanderbilt had no legal right to require, as a condition to the fulfillment of his contract, the performance of an act not required by the contract, it is difficult to see what benefit he has bestowed or what inconvenience he has suffered in return for the undertaking assumed by the defendant.

He promises to do only that which he was before legally bound to perform, even though it lay in his power to refuse to perform his contract; he could do this only upon paying the other party the damages occasioned by his non-performance, and that in contemplation of law, would be equivalent to performance.

He had no legal or moral right to refuse to perform the obligation of the contract into which he had, upon a good consideration, voluntarily entered. There is no evidence in support of the claim that this guaranty was given as a compromise of any dispute arising with reference to the obligations of the plaintiff under his contract with Gebhart and Ritchie. The case is not, therefore, brought within the cases in which a promise has been upheld on the theory that it was made in settlement of a controversy over disputed claims. The authorities seem quite uniformly to show the inadequacy of the consideration alleged for the guaranty in question.”

And the learned judge also says: “The incorporation of this guaranty into the assignment, for which there was a consideration, does not affect the question. It was not essential to the assignment, and was so far as its legal effect was concerned a separate instrument, and must be supported upon a sufficient consideration, or treated as a nudum pactum.”

It is quite clear that the plaintiff had no right to demand this guaranty by the terms of the original contract.”

.It seems to us that the same may be said in reference to the right of the plaintiff to demand the execution and delivery of the mortgage of December tenth as a guaranty for the performance by tlie defendant of his implied agreement in the acceptance of the deed. The rule seems well settled that the past transaction, complete in itself, by which the rights and obligations of the parties became fixed, furnishes no good consideration to support a subsequent agreement by which one party to the contract assumes new -and increased obligations, withoüt any new consideration.

In the case at bar the contract between the plaintiff and defendant was complete in itself when plaintiff conveyed his farm to the defendant, and received $1,000 of the consideration, and accepted the defendant’s agreement in the deed to pay the balance of $1,500 consideration upon the outstanding mortgage.

That agreement being complete in itself, it did not lie with the plaintiff subsequently to demand of the defendant collateral security for the performance of that agreement, and any collateral security given without new and adequate consideration moving from the plaintiff to the defendant, would be a nudmnpactwm so long as the original contract remained in full force, unchanged and unaffected by the new agreement.

It is quite true, as contended by the learned counsel for the respondent, that the defendant, by taking a conveyance of the land, which, by its terms, subjected him to the payment of the mortgage, and which he assumed and agreed to pay, became bound to indemnify his guarantor against liability for the mortgage debt. (Comstock v. Drohan, 71 N. Y. 9.)

But it is equally true that that obligation to indemnify grew out of, and the obligation of the defendant was created by, his original agreement to assume and pay the mortgage debt, and when that contract was consummated, any additional agreement subsequently made to secure the plaintiff against his liability, to be binding, must be upon a new and sufficient consideration.

If we are right in this conclusion, the other questions raised by the appellant on this appeal need not be examined.

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

Herrick, J., concurred in result.

Putnam, J.

(dissenting):

This action was brought to foreclose a mortgage executed by defendant to plaintiff. The latter had made and delivered to one Charles Parsons his bond for the sum of $1,500, secured by a mortgage upon real estate, which, upon October 29, 1881, he sold to the defendant, who paid $1,000 in cash, and assumed the said Parsons bond and mortgage in payment of the purchase price of said premises. On December 10, 1889, without any new or other consideration, defendant executed the bond and mortgage set out in the complaint to secure the performance of his obligation to pay the Parsons bond and mortgage, and to secure plaintiff and save him harmless of and from all liability upon or by virtue of the said last-named mortgage, the payment of which has been assumed, as above stated, by the defendant.

It is urged by the appellant that the bond and mortgage upon which this action is brought were given without any legal consideration, and hence that the court below erred in directing judgment for the plaintiff. That by and under the provisions of the deed executed by plaintiff and accepted by defendant, the latter assumed the payment of the Parsons bond and mortgage and became legally liable to pay the same as principal debtor. The contract between the parties being complete in itself, plaintiff as surety could not call upon defendant afterwards for collateral security for the performance of his agreement, and any such security given without a new and adequate consideration was nudum paetum as long as the original contract remained in full force unaffected by the new agreement.

I am unable to concur in this position of defendant’s, believing that the court below made the proper disposition of the case. The bond and mortgage upon which this action was brouglit were made to secure a concededly valid obligation existing in favor of plaintiff and against defendant when the mortgage was executed. This obligation was a sufficient consideration to sustain the bond and mortgage in an action brought by the mortgagee against the mortgagor. (Jones on Mortgages, § 458; Havens v. Willis, 17 Wkly. Dig. 372 ; Hiscock v. Phelps and Others, 49 N. Y. 97; Buck et al. v. Axt, 85 Ind. 512; Knapp v. McGowan et al., 96 N. Y. 75, 76-86 ; Young v. Guy, 23 Hun, 1, 2; 87 N. Y. 457 ; Hewitt v. Powers, 84 Ind. 296; Cooley v. Hobart, 8 Iowa, 358; Wright v. Bundy, 11 Ind. 400-409 ; Work v. Brayton, 5 id. 396 ; Youngs, Admin., et al. v. Wilson et al., 27 N. Y. 351; Louthain v. Miller, 85 Ind. 161.)

This case is not like that of Vanderbilt v. Schreyer (91 N. Y. 392), and kindred cases, to which we are referred by the learned counsel for appellant. In the case cited the defendant, being by his contract legally bound to assign a bond and mortgage without a guaranty, in payment of an installment due on a building contract, and the plaintiff refusing to accept such assignment without the guaranty, executed such guaranty with the assignment, without being under any legal liability so to do, and without any new consideration. The defendant in the case cited, therefore, took upon himself a new and distinct obligation, without any new consideration. The cases and authorities referred to by Judge Ruger in Vanderbilt v. Schreyer (supra), are all to the same effect.

The distinction between such cases and that under consideration is clear. Here the bond and mortgage does not hold the defendant to any obligation he had not previously incurred by the acceptance of the deed from plaintiff, being given merely to secure such existing liability. Prior to the execution of the instruments in question defendant was legally bound to pay the Parsons bond and mortgage. He was under a liability to plaintiff to do so, and the mortgage in question was given to secure to the plaintiff the performance of said legal obligation. As held in Knapp v. McGowan (96 N. Y. 86), a debtor may mortgage his property to secure existing claims. The difference between this case and the authorities relied upon by appellant is that the mortgage in suit was given to secure a conceded liability, while in the authorities so cited by defendant a new and distinct liability was assumed without any new consideration.

1 have examined the other eases cited by defendant, but do not deem it necessary to discuss them. They do not support her contention.

The former ineffectual action brought by plaintiff, for a specific performance is not a bar to the present one. The former and present actions are not inconsistent, each being brought to enforce the contract. Also, as an execution was issued and returned unsatisfied on the judgment obtained in the former action, the provisions of section 1630, Civil Code, do not prevent the plaintiff’s recovery. I have examined the several exceptions taken by the defendant, mentioned in his brief. I do not think they need discussion, or that either of them require a reversal of the judgment. It seems to me, on the conceded or clearly established facts of the case, plaintiff was entitled to the judgment of foreclosure directed by the learned trial justice, and, therefore, that the judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Dennis H. Kennedy and Others, Relators, v. Peter Lahr and Others, Defendants.

      City of Hudson — commissioners of excise — appointment and continua/nce in office— eligibility of a supervisor of a city wan'd.

    By force of the provision of section 2 of chapter 401 of the Laws of 1892, which took effect April 30, 1892, providing that “ the term of office of every commissioner of excise now in office shall he the term for which he was elected ox appointed, and the term of office of every commissioner of excise appointed prior to the expiration of the term of the mayor now in office, shall he for the term as now provided bylaw,” commissioners of excise of the city of Hudson appointed April 4, 1892, by the mayor, whose term of office continued to the end of that year, for a term of three years from May-1, 1892, as provided by chapter 145 of the Laws of 1879 then in force, are entitled to hold their office for such term of three years, although said act of 1879 was repealed, and the time and manner of appointing and the tenure of office of excise commissioners were changed, by the act of 1892.
    Such appointment on April 4, 1892 — having been a valid appointment for the term of three years from May 1, 1892, as provided by law at the time the act of 1892 took effect, and, therefore, preserved by that act — it was not affected, or a vacancy in office created, by a subsequent appointment, on July 23,1892, of the same persons by the same mayor for the unexpired portion of the same term, and their qualification under such appointment, nor by the appointment of other persons as excise commissioners, in January, 1893, by the succeeding mayor who took office January 1, 1893, and their qualification as such..
    The appointment made April 4, 1892, for the term of three years from May 1, 1892, having been a valid appointment under the act of 1879, then in force, was within the saving clause of section 45 of chapter 401 of the Laws of 1892, Which provides that the repeal of any law by it shall not affect or impair any act done or right accrued prior to the taking effect of the act of 1892, under or by virtue of any law so repealed.
    A supervisor of a city ward is not rendered ineligible to the office of excise commissioner of the city merely by force of the provision of section 3 of chapter 401 of the Laws of 1892, that “no person shall be eligible to the office of commissioner of excise who is a supervisor, justice of the peace or town clerk of a town.”

      People ex rel. Furman v. Clute (50 N. Y. 451), distinguished.
    Submission of a controversy without action upon an agreed statement of factB under section 1279 of the Code of Civil Procedure.

      I. F. Longley, for the relators.

      Collier, Collier c& Brownmg, and Fdwwrd F. McCormick, for Peter Lahr et al.
   Mayham, P. J.:

This is a submission, under section 1279 of the Code of Civil Procedure, presenting to this court for adjudication and determination questions arising between the plaintiff and defendant upon a disputed claim by them respectively to the office of commissioner of excise of the city of Hudson.

The case as submitted discloses that on the 4th of April, 1892, Levi P. Longley, mayor of the city of Hudson, appointed Dennis IT. Kennedy, David Ryan, and George Yan de Bogart, respectively as commissioners of excise, by an appointment in the words and figures following:

“ Mayor’s Office, Hudson, N. Y.
' “ By virtue of the power and authority in me vested, and pursuant to the statute in such case made and provided, I, Levi F. Long-ley, Mayor of the City of Hudson, do hereby, on this first Monday of April, 1892, appoint Dennis H. Kennedy, George Yan de Bogart and David R. Ryan, Commissioners of Excise in and for the city of Hudson, for three years, commencing on the 1st day of May, 1892.
“Dated April ith, 1892.
“L. F. LONGLEY, Mayor.
“ To James McShane, City Clerk.”

At the time of said appointment, Dennis H. Kennedy was supervisor of the first ward of the city of Hudson, and he and David Ryan were holding the office of commissioners of excise, which they held under an appointment by the mayor of Hudson, made April 1, 1889, and Peter Lahr was also at that time commissioner of excise, and the term of each of said commissioners by their appointment would expire on the 1st day of May, 1892; each of the plaintiffs and persons so appointed by the order of April 4, 1892, qualified, filed their bond, and took the oath of office, and entered upon the discharge of their duties as commissioners of excise of Hudson, and were exercising the duties of said office on the thirtieth of April, at the time of the passage of chapter 401 of the Laws of 1892.

That act, which took effect immediately, changed in many important particulars the time or manner of appointment and the tenure of office of excise commissioners.

On the 23d day of July, 1892, Levi F. Longley, mayor of the city of Hudson, made and filed an order or appointment of the plaintiffs as commissioners of excise, in the words and figures following:

“ Mayor’s Office, Hudson, N. Y
“ By virtue of the power and authority in me vested, and pursuant to the statute in such case made and provided, I, Levi F. Long-ley, Mayor of the City of Hudson, do hereby appoint Dennis H. Kennedy, George Yan de Bogart and David R. Ryan, Commissioners of Excise in and for tlie city of Hudson, for the uuexpired term of three years, commencing on the 1st day of May, 1892.
“ Dated July 23d, 1892.
“ L. F. LONGLEY, Mayor.”

On the same day of the date of the appointment, the plaintiffs respectively took the oath of office, filed their bond, which was approved by the mayor, and entered upon or continued in the discharge of their duties as commissioners of excise of the city of Hudson, and were so exercising their duties as commissioners of excise on the 1st day of January, 1893.

On'the 31st day of December, 1892, the term of office of Levi F. Longley, as ihayor of the city of Hudson, expired, and on the 1st day of January, 1893, George G. Miller became mayor of the city of Hudson, and on the 2d day of January, 1893, he made and filed an appointment of the defendants, of which the following is a copy:

“ Mayor’s Office, Hudson, N. Y.
By virtue of the power and authority in me vested, and pursuant to the statute in such case made and provided, I, George G. Miller, Mayor of the City of Hudson, do hereby appoint Peter Lahr, Edward Ii. Carpenter and James Maloney, Jr., Commissioners of Excise in and for the city of Hudson, for a term expiring December 31st, 1894.
“ Dated January 2, 1893.
“GEORGE G. MILLER, Mayor»

On the same day the defendants severally took the oath of office, and severally gave and filed their bonds, approved by the mayor, conditioned for the faithful performance of their duties as commissioners of excise; the said defendants thereupon claiming to be legally appointed excise commissioners of the city of Hudson, and severally entitled to said office, entered upon the duties, and have ever since been claiming, and still are, to be commissionei’s of excise of said city, as are also the plaintiffs, under the appointment of Mayor Longley, dated April 4, 1892, and July 23, 1892.

The case discloses that each of the alleged boards of commissioners of excise, on or about the 25th day of April, 1893, published a notice required by law, for tlieir meeting on the fourth of May, for the purpose of granting licenses to such as might apply for licenses to sell liquor for the year 1893, and that pursuant to said notice, the plaintiffs and defendants, each severally claiming to be the legally appointed commissioners of excise for the city of Hudson, met for the purpose of acting as boards of commissioners of excise respectively, whereupon, and to settle said disputed claim, the .Attorney-General, on behalf of the State, and the respective parties to this controversy, make and file their submission under chapter 1279 of the Code above referred to.

Prior to, and at the time of the enactment of chapter 401 of the Laws of 1892, the commissioners of excise of the city of Hudson were appointed under and their tenure of office was fixed by the provisions of chapter 145 of the Laws of 1879. Section 2 of that act provides that the commissioners of excise in cities shall hold ■ their office for three years, and until others shall be appointed in their places, and shall receive a salary not to exceed $2,500 each year, to be fixed by the common council of said city, and shall be paid as other city officials are paid.”

Chapter 145 of the Laws of 1879 was repealed by chapter 401 of the- Laws of 1892, but section 2 of the last-mentioned act provides as follows: The term of office of every commissioner of excise now in office shall be the term for which he was elected or appointed, and the term of office of every commissioner of excise appointed prior to the expiration of the term of the mayor now in office, shall be for the term as now provided by law.”

The plaintiffs or relators in this action, as we have seen, were appointed on the first Monday of April, 1892, with a tenure of office to commence on the 1st day of May, 1892, and continue for the term of three years^ under the provision of chapter 145 of the Laws of 1879. They were, therefore, commissioners of excise appointed prior to the expiration of the term of the mayor then in office, and under the provisions of section 2 of chapter 401, their tenure shall be for a term as now provided by law.

If that construction of the act of 1892 is correct, then the officers appointed by the mayor on the 1st of April, 1892, would hold their offices under the law then in force for three years, from the 1st of May, 1892, and section 2 of chapter 401 of the Laws of 1892 would continue them in office during the period for which they were appointed.

In that view of the case no vacancy existed, either at the time of the appointment July twenty-third, by Mayor Longley, or at the time of the appointment January 2, 1893, by Mayor Miller, and neither of these appointments could divest the relators of an office with which they had been legally invested by a valid appointment, made on the first Monday of April, 1892.

We find nothing in the act of 1892 which in express terms authorized Mayor Longley to make the appointment of July twenty-third, and if the relators were required to stand upon that appointment alone, there would be great doubt as to its validity, and the title to office derived under that appointment wmuld at least be doubtful; but, as we have seen, the relators were appointed on the first of April, under a valid law then in force, and the act of the mayor in making that appointment was a valid act, and although the appointment was made to take effect on the first of the succeeding May, they were appointed under the provisions of law in force at the time of the order making the appointment, and are, therefore, exempt from that provision of section 5 of chapter 401 which provides that the term of office of excise commissioners appointed by the mayor of a city shall expire with the expiration of the term of office of the mayor, and the relators at the time of such appointment were invested with title to the office under the qualification of section 2 of chapter 401, “ as now provided by law.” (Goillotel v. The Mayor, Aldermen and Commonalty of the City of New York, 87 N. Y. 441.)

But as the appointment made April 4, 1892, was a valid appointment under the law as it then existed, such appointment, it seems to us, would be upheld by section 45 of chapter 401 of the Laws of 1892, which contains a saving clause as to the effect of the repeal by that act, and provides: “ Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed; but the repeal of a law, or any part of it, specified in such schedule, shall not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect under or by virtue of any law so repealed; but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such law had not been repealed.”

This saving clause leaves unaffected the appointment made by Mayor Longley on April 4, 1892, and reserves in the relators all the rights, powers and privileges conferred on them by that appointment. (Angel v. Town of Hume, 17 Hun, 374; Calhoun v. The Delhi & Middletown R. R. Co., 28 id. 379; Savings Bank v. The Town of Seneca Falls, 86 N. Y. 317; McCahill v. Hamilton, 20 Hun, 388.)

If we are right in our construction of these various statutes, the relators hold their position by a valid tenure under the appointment of April 4, 1892, and their rights to the office in controversy have not been impaired, either by the appointment made by Mayor Long-ley on the twenty-third of July, and their acceptance under that ■appointment, nor by the appointment of the defendants made by Mayor Miller on the 2d of January, 1893, on his accession to the ■office of mayor as the successor of Longley.

No such act of either of the mayors could operate as a removal of the relators from office, nor create a vacancy which said mayors, or either of them, would be authorized to fill; nor would the qualification of the relators under the ajjpointment made by Longley on July twenty-third operate as a resignation by the relators of that office which they at that time held, so as to produce a vacancy in such office.

"We are, therefore, clearly of the opinion that the relators are entitled to retain their position as commissioners of excise until the expiration of their three years’ term from the 1st of May, 1892.

The only remaining question is' whether the relator Kennedy was eligible to the office of commissioner of excise, he being at the time of his appointment a supervisor of the first ward of the city of Hudson.

Section 3 of chapter 401 of the Laws of 1892 provides: “ No person shall be eligible to the office of commissioner of excise who is a supervisor, justice of the peace, or town clerk of a town, or a president or trustee of an incorporated village, or engaged or interested in the sale or manufacture of strong or spirituous liquors, wine, ale or beer, or who is not a citizen of this State and a resident of the town or city for which he is elected or appointed.”

This section especially enumerates the disabilities which shall render an incumbent ineligible to the office of commissioner of excise. If the relator- Kennedy comes within any of these enumerated disabilities, then he would be, and is, ineligible to the office which he claims; but it will be observed by a careful reading of this section that the Legislature has not in express terms extended the disability to the supervisors of a ward in a city, and while all the reasons which would disqualify the supervisor of a town to act in that capacity, might be applicable to a supervisor of a ward, yet, in the absence of express statutory disability, a person otherwise eligible cannot be adjudged by the court disqualified, where the Legislature has failed to establish such disability. We must, therefore, hold that the relator Kennedy is not, by the terms of this act, disqualified from holding the position of commissioner of excise for the city of Hudson.

In The People ex rel. Furman v. Clute (50 N. Y. 451), the defendant was adjudged to be ineligible to the office of superintendent of the poor of the county of Schenectady, on the ground that he was supervisor of a ward in the city of Schenectady, where the language of the act was substantially identical with the language used in section 3 of chapter 401 of the Laws of 1892, but there was a marked difference between that case and this, as in that case the charter of the city of Schenectady, under which Clute held the office of supervisor, subjected the supervisor of a ward to the same disabilities as a supervisor of a town (Laws of 1862, chap. 385), and, therefore, by reason of the disability under the charter, the court held him ineligible to the office of superintendent of the poor.

We are, therefore, led to the conclusion that Kennedy was not, under the statute, ineligible to the office of commissioner of excise, and that the relators are, therefore, entitled to judgment affirming their title to the office of commissioners of excise of the city of Hudson against the defendants, with costs of this action.

Let judgment be entered accordingly.

Putnam and Herrick, JJ., concurred.

Judgment for relators affirming their title to the office of commissioners of excise of Hudson, with costs.


text:
    Martha C. Durfee, Respondent, v. The Johnstown, Gloversville and Kingsboro Horse Railroad, Appellant.

      When a verdict.is sustained by evidence — obligation of a railway corporation to the public where its road and franchise areleased to an individual.

    Upon the trial of an action brought to recover damages for personal injuries, testimony was introduced upon the trial by the plaintiff tending to show that the plaintiff, while she was attempting to alight from a car of the defendant corporation, was thrown to the ground and injured, by reason of the car being started before she had sufficient time to free herself from it. On the part of the defendant there was evidence that she had alighted from the car and was entirely separate from it before it started. This question of fact was submitted to the jury, which found for the plaintiff.

      Held, the evidence was sufficient to support the verdict.
    That whatever conclusion the court might reach thereon as an original proposition, it was not authorized to set aside such a verdict as against the evidence.
    A railway corporation cannot lease its road and franchise to an individual without the consent of the Legislature, in such wise as to relieve itself from its obligation to the public.
    Appeal by tlie defendant, the Johnstown, Gloversville and Kingsboro Horse Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 12th day of June, 1891, upon a verdict for $800 rendered at the Fulton County Circuit, and from an order made at the close of the trial denying the defendant’s motion for a new trial.

      P. P. Aníbal, for the appellant.

      J. A. Dennison, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff against the defendant for an alleged injury claimed to have been suffered by the plaintiff by reason of defendant’s alleged negligence in the management of its cars, by which plaintiff was injured. The complaint alleges that the defendant was a domestic corporation, owning and operating a horse railroad for the carriage of passengers and freight between the villages of Johnstown and Gloversville in the county of Fulton; that the plaintiff at the time of the alleged injury, was a passenger on the cars of the defendant, and had paid the usual fees and charges for transportation, and that while she was such passenger, by the carelessness and negligence of the defendant, its servants and agents, without any negligence on her part, she was severely injured. The answer admits that the defendant was a domestic corporation, with the corporate name of Johnstown, Grloversville and Kingsboro Horse Railroad Company, and the owner of the horse railroad between the villages of Johnstown and Grloversville.

The answer, for a second answer or defense, alleges that the horse railroad owned by the defendant was, at the time of the commencement of the action, and for more than three years prior thereto had been, operated, managed and controlled solely by Henry Stoller and Michael R. Van Sickler as lessees, who, for that time had been operating, managing, controlling and using said horse railroad for carrying j^assengers, and that said lessees were solely and exclusively liable for all damages by their negligence, or the negligence of their servants or agents, in operating said Johnstown and Grloversville railroad.

The defendant alleged in its answer contributory negligence on’ the part of the plaintiff tending to produce the injury.

On the trial the plaintiff introduced evidence tending to show that she was injured by being thrown to the ground while attempting to alight from the car of the defendant by reason of the car being started before she had sufficient time to free herself from it, and several witnesses were examined as to the circumstances under which the alleged injury was inflicted and tending' to support that theory.

On the part of the defendant there was evidence which the defendant claims tended to prove, and did prove, that the plaintiff alighted from the car, and was entirely separate from it before the car was started, and that contention seems to be supported by the testimony of several witnesses.

There was, therefore, such a clear conflict of evidence upon the subject of the cause of the injury as to make it a proper question to be submitted to, and passed upon by, the jury, and the jury having, under proper instructions from the court, passed upon that question and found in favor of the plaintiff, their verdict should be upheld, unless it should be found to be unsupported by the evidence, or against a clear and decided preponderance of evidence in favor of the defendant.

We think the evidence sufficient to support the verdict, and whatever conclusion the court might reach upon this evidence as an original proposition, we do not feel authorized to set aside the verdict as against the evidence.

The remaining question is, whether the defendant, by its lease to Stoller and Yan Sickler, can relieve itself from obligation to the traveling public for injuries inflicted by the negligent management of its railroad.

The case does not disclose that this railroad was leased with consent of or by any authority conferred upon it by the Legislature, and the lease was not executed to a railroad company

The law seems well settled that a railroad company cannot lease its road and franchise to an individual without the consent of the Legislature, so as to relieve it from its obligation to the public, and when a lease is effected to an individual the law seems to treat the lessee as the agent of the railroad company for the purpose of determining controversies between the public and such company. (Abbott v. Johnstown, Gloversville & Kingsboro R. R. Co., 80 N. Y. 27; Fisher v. The Metropolitan Elevated R. R. Co., etc., 34 Hun, 433; Woodruff v. The Erie Railway Co. and Jewett, as Receiver, 25 id. 246.)

.From the authorities, it would seem to follow that if the plaintiff -was injured by the operation of the railroad cars, or by the negligence of the person managing the same, although such person was employed by the lessee, still their negligence would, in law, be the negligence of the railroad company, and for injuries resulting from such negligence the railroad company is liable. The railroad company, a corporation organized under general laws, having leased its road without legislative authority, remained liable for injuries caused by the negligence of those operating the road.

This doctrine is not in conflict with the doctrine laid down in Woodruff v. The Erie Railway Company. In that case, the controverted question did not arise between the public and the railroad company, but was a dispute between the railroad company and the lessee, and the court held, that in such a controversy, the parties to the lease were estopped as against each other from denying the validity of their contract.

In Beveridge v. The New York Elevated R. R. Co. (112 N. Y. 1), the- question did not arise between the public and the railroad company, on a lease between it and an individual, but in that case one railroad company leased to another, as under the statute they may legally do.

The jury having passed upon the question of the negligence of the defendant’s agent, and the question of the freedom from negligence on the part of the plaintiff, and no exceptions being urged here to the ruling of the judge, either in admitting or rejecting evidence or to his charge, we see no valid reason for reversing this judgment.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    John A. Gordon, Respondent, v. Abram Becker and Others, Appellants.

      Illegal tax assessment — adjoining land of the same owner in each of two adjacent towns — question of residence — conflict of facts — liability of 'the assessors.

    In an action of trespass "brought against town assessors personally to recover damages for the seizure of the plaintiff’s property for the collection of an alleged illegal tax assessed upon land of the plaintiff situated in the assessors’ town, which adjoined a farm of the plaintiff in an adjoining town in which he claimed that he resided, there was a conflict of evidence as to which town the plaintiff resided in.

      jWeld, that such conflict must be settled by the jury;
    That the decision of the assessors upon the question of residence, and their consequent claim of jurisdiction, were not conclusive.
    Appeal by tlie defendants, Abram Becker and others, from a judgment of the County Court of Schoharie county, entered in the office of the clerk of that county on the 13th day of January, 1890, affirming, on appeal, a judgment of a Justice’s Court in favor of the plaintiff.

      A. B. Coons, for the appellants.

      Q. M. Palmer, for the respondent.
   Per Curiam :

This was'an action of trespass brought by the plaintiff against the defendants, who were acting as assessors for the town of Sharon, Schoharie county, and who, as such, assessed eighty acres of land belonging to the plaintiff, in the town of Sharon, the same being lands adjoining the farm of the plaintiff, located in the adjoining town of Carlisle, in which the plaintiff alleged that he resided, and under said assessment, the plaintiff was taxed for such eighty acres, in the town of Sharon • and a warrant issued to the collector of said town by the board of supervisors for the collection of such tax, under which the collector seized and sold the plaintiff’s property.

The defendants in their answer alleged that the assessment was made by virtue of their office as assessors, and that the land was properly assessed in the town of Sharon, and justified their acts as assessors.

On the trial the evidence disclosed that the plaintiff owned a farm in the town of Carlisle, the dwelling house of which was situated partly in Sharon and partly in Carlisle, in which the plaintiff resided; that he subsequently purchased the eighty acres on which the assessment was made in the -town of Sharon, and that he occupied it in connection .with his farm in Carlisle, except a small portion, which was rented to be worked on shares; that his alleged residence was in Carlisle, and that he voted in that town, and for several years bad held office therein.

On these facts the jury found that the plaintiff resided in the town of Carlisle, and that the eighty acres owned by him in the town of Sharon were occupied as a part of his adjoining farm in the town of Carlisle, and rendered a verdict in favor of the plaintiff for the value of the property taken, upon which the justice entered a judgment from which an appeal was taken to the County Court, where the judgment was affirmed.

The main question in this case is, whether the assessors of the town of Sharon, upon these facts, had any jurisdiction of the plaintiff or of the lands assessed by them, upon which they were called to exercise their quasi judicial functions in making this assessment ? As an original proposition, we are strongly inclined to the opinion, if we were permitted to examine and decide the question of fact as an original one, that they had such jurisdiction.

The facts that the line ran through the plaintiffs house; that a portion of the house occupied by him as a residence was in the town of Sharon, and that the premises purchased by plaintiff in Sharon were separated by a highway from the premises in Carlisle, left the question so much in doubt as to call upon the assessors to exercise some judgment in determining whether or not the land was assessable in Sharon, but as that question was submitted to the jury as a ■question of fact and passed upon by them, their finding, we think, within the decision referred to by the learned county, judge, should not be disturbed on this appeal.

The law seems well settled that in a disputed controversy like this, where there is any conflict of facts, that conflict must be settled by the jury. (Dorn v. Backer, 61 N. Y. 261.)

In that case it was held that where a farm, the whole of which is occupied by the owner, and which lies partly in each of two adjoining towns, is assessed by the assessors of the town in which the owner or occupant does not reside, the assessment and tax founded thereon were illegal and void, and the assessors were personally liable for damages resulting therefrom ; that the decision of the assessors upon the question of residence and their consequent jurisdiction, is not conclusive, but is open to review, and, where the evidence thereon is conflicting, it is a question of fact for the jury. The learned county judge felt constrained to follow that decision in affirming the judgment in this case.

"We think his conclusion under that case, and other authorities of similar character, was correct, and the judgment must be affirmed.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment of the Justice’s and County Court affirmed, with costs.


text:
    Samuel J. Haight and John W. Clark, Respondents, v. Dennis G. Littlefield and The Littlefield Stove Company, Appellants.

      Dedication of a public street — easements therein — effect of non-us&r — amendment to am answer at the close of the case — denial of a motion therefor by a referee— ground of objection to the motion — jurisdiction of a court of equity.

    Upon the trial of an action brought to obtain a mandatory injunction, commanding that certain obstructions be removed from a public street, it appeared that certain of the real property abutting upon the premises in question, waá originally conveyed by the executors of Stephen Tan Rensselaer to the defendant Littlefield, and was described in the conveyance thereof as bounded by a street of at least fifty feet wide, forming the southerly boundary thereof, which, street was thereby declared to be dedicated to the public as a street to the extent only of the northerly and westerly lines of the premises by said deed conveyed, and that thereafter other real estate on the south side of such street adjoining the first parcel, was conveyed by such executors to the defendant Littlefield, referring to such street as a street of fifty feet, including a strip of ten feet in width from the south side of the first parcel of land, which street was, by the parties to the second deed, dedicated and appropriated to the public for a public street forever, and that thereafter the plaintiffs derived title to a portion of said premises from one of the defendants.
    The complaint alleged that the street was open and unobstructed at the time of the delivery to the defendant Littlefield of the deeds of the abutting premises, and that the defendants had obstructed and were maintaining various, obstructions upon such street, which prevented the free enjoyment and use thereof by the plaintiffs.
    It also alleged, what was not denied by the answer, that the deeds prior to the deed to the plaintiffs, contained substantially the same description of the street, and that the land was described in such deeds as being fifty feet in width, and as Pleasant street.
    The referee found, upon sufficient evidence, that immediately upon the plaintiffs’ entering into possession of their property they erected thereon, and on or along the said street, extensive buildings for manufacturing purposes, and that the-obstruction thereof constituted an interference with the plaintiffs’ rights.
    The evidence did not show affirmatively any acceptance on the part of the public authorities of the dedication of the street.

      jBeld, that under all the circumstances the street became an appurtenant of the premises purchased by the plaintiffs, and as such they had a right, as against the defendants, to have the whole fifty feet remain open and unobstructed as a. way or street for the use of the premises purchased by them;
    That such a title to such a street is not affected by non-user unless loss of title-arising in some of the ways recognized by law, can be shown;
    That such a case is one of which a court of equity will take cognizance.

      The defendants on the trial, at the close of the case before the referee, moved to amend the answer by inserting a denial of the allegations in the complaint— that the deeds prior to the deed to the plaintiffs contained substantially the same description of the street as was contained in their deed, and that it was described in such deeds as being fifty feet in width, and as Pleasant street. This was objected to on the ground that the referee had no power to make such an amendment.
    The referee denied the motion, but stated no ground for such action.

      Held, that no error was committed by the denial of such motion for which the judgment could he reversed, as such an amendment would not have been in furtherance of justice;
    That, as the discretion of the referee was not erroneously exercised to the prejudice of the defendants, it should not be treated as a ground for reversal.
    Appeal by the defendants, Dennis G. Littlefield and the Little-field Stove Company, from a judgment of the Supreme Court, entered upon the report of a referee in the clerk’s office of the county of Albany on the 6th day of March, 1893, in favor of the plaintiffs, awarding them damages and restraining the defendants from maintaining obstructions in an alleged street known as Pleasant street, in the city of Albany.

      W. Froth'mghcwn, for the appellants.

      Isaac Imoson, for the respondents.
   Mayham, P. J.:

This is an appeal from a judgment, entered upon the report of a referee, in favor of the plaintiffs against the defendants for a mandatory injunction commanding and directing the defendants to remove certain fences, embankments, ditches and alleged obstructions from lands or premises described in the plaintiffs’ complaint as a strip or street fifty (50) feet wide, called Pleasant street, and from enjoining the defendants from interfering with or obstructing the free passage over the same by the plaintiffs, and from a judgment of five hundred dollars ($500) damages for alleged interference with such land or way. The plaintiffs derive title to premises adjoining the alleged street or way, by deed, dated the 15th of June, 1885, from the defendants Dennis G. Littlefield and wife.

The entire premises so conveyed to plaintiffs, together with the lands constituting the alleged street or way, originally belonged to the estate of Stephen Yan Rensselaer.

On tlie 23d of November, 1868, the executors and trustees named in the last will of Stephen Yan Rensselaer, conveyed to the defendant Dennis G. Littlefield, by deed, the same lands with others, which are now owned by the plaintiffs, bounding the lands so conveyed to the defendants, as described in said deed, by a “ street of at least fifty (50) feet wide, to form the southerly boundary of the said premises, being hereby declared to be dedicated to the public as streets to the extent only of the northerly and westerly lines of the premises hereby conveyed, the aforesaid described premises being the same as represented on a map hereto annexed.”

On the 13th of February, 1877, the defendants Dennis G. Little-field and wife executed to Henry C. Littlefield a deed whereby they conveyed to the said Henry 0. Littlefield the premises described in the deed to Dennis, substantially as therein described.

On the 26th of July, 1877, Henry C. Littlefield executed and delivered to the defendants “ the Littlefield Stove Company,” a deed of conveyance of the premises described in the conveyance of Dennis G., above referred to, substantially as therein described.

On the 1st of August, 1870, the executors of Stephen Yan Rens-selaer conveyed to Dennis G. Littlefield lands adjoining the lands mentioned and described in the first deed to Dennis G. Littlefield, but lying on the south side of the street described in the first-mentioned deed. In this conveyance, the street in question in this action is referred to in the following language: “ The street mentioned and described in the within conveyance as a street of fifty (50) feet, including a strip of ten (10) feet in width from the south side of the lot conveyed to said Dennis G. Littlefield, November 23d, 1868, is, by the parties hereto making and accepting this deed, dedicated and appropriated to the public for a public street forever, and is to extend of the same width and in continued lines easterly to Rroadway.”

The deed from Henry C. Littlefield to the Littlefield Stove Company described the street as a street of fifty (50) feet in width, and designated it as Pleasant street, and described the lands therein conveyed as being on the south line of Pleasant street and as being a portion of the premisés conveyed to Dennis G. Littlefield by the ■executors of Stephen Yan Rensselaer, dated August 1, 1870.

The complaint alleged that the strip of land of fifty (50) feet in width, designated as a street and as Pleasant street, was open and unobstructed, and was used as a way of passage and a highway by the plaintiffs and others to and from the premises adjoining the same, both on the northerly and southerly sides thereof, at the time of the execution and delivery to Dennis G. Littlefield of the two deeds of conveyance to him; and that from and by the deeds of conveyance, the strip of land described as a street of fifty feet wide, and as Pleasant street, became and was dedicated as a street or highway for the use of persons owning and occupying lands adjoining-the same on the northerly and southerly sides thereof, and that thereby the plaintiffs became the owners of an easement therein, of a right of way over the same for themselves, their employees, vehicles, teams, etc., to and from every part of the premises conveyed to them as abutting thereon.

The complaint also alleges that the defendants have constructed and are maintaining upon this street various fences and embankments and ditches, which it alleges obstruct and prevent the free enjoyment and use by the plaintiffs of the easement or way which the plaintiffs allege is a legal appurtenant to the premises purchased by them of the said Dennis G. Littlefield; and that the plaintiffs have suffered damages by reason of such obstruction; that they have no adequate remedy at law for the alleged interference and obstruction, and ask the equitable relief set forth in the complaint and awarded in the judgment.

The answer of the defendants denies most of the allegations in the complaint.

The first point urged by the learned counsel for the appellants as a ground for reversal of this judgment, is that the referee erred in not alloAving defendants to amend their answer on their application at the trial.

The allegations of the complaint were that the various deeds subsequent to the Yan Rensselaer deed contained substantially the same description of the street as those contained in the Yan Rens-selaer deed; and that they described the street as a street fifty (50) feet in width, and as Pleasant street. These allegations were not denied in the answer, and the defendants on the trial moved to amend the same by inserting a denial. The referee denied the motion to amend, and the defendants excepted.

The motion to amend was at the close of the case, and we are not px-epared to say that the refusal by the referee to allow the proposed amexxdment at that stage of the trial, was an ex-ror for which this judgment shoxxld be reversed, or that such amendmexxt woxxld have been “ in fui'tlxerance of justice.”

It is true that the objection was put upon the ground that the referee had ixo power to make such amendment, but the referee iix his decision denying the motion to amend, stated no ground. While by section 1018 of the Code of Civil Px-oeedure, the referee is invested substantially with all the powers of the com-t in the allowance or rejection of proposed amexxdxnents to pleadings, yet the exercise of that power rests in the sound judicial discx-etioxx of tlxe court ox-referee, and unless that discretion is erroneously exex-cised to the prejudice of the party asking for an amendment, the determination of the referee should not be tx-eated as ground of reversal.

We do not see that any injurious results followed to the defendants from the refusal of the refex-ee to allow the axnendment. . We are not referred to any authority by tlxe leax-ned counsel on either side bearing upon this question.

All the deeds of conveyance under and through which the plaintiffs derive their title, bound the land conveyed on this strip or piece of land, dedicated by the tex-ms of the original deed as a street, and known and described in some of the deeds as Pleasant street, and in the original deed from the trustees of Van Rensselaer it was described as a piece of land or street of fifty (50) feet in width, axxd the referee finds upon sufficient evidence, we think, to support sxxclx finding, that immediately upon the plaintiffs’ entex-ing into possession, they erected on the premises conveyed to them on or aloxxg the south line of this stx-eet, extensive buildings for manufacturing purposes. •

But it is insisted by the leax-ned counsel for the defendants that although the gx-antors in the Van Rensselaer deed designated axxd described this stx-ip of land fifty (50) feet wide, as a street dedicated to the public, yet, the public never having accepted or adopted the dedication, it never becaxne operative as to the public, axxd that the plaintiffs can, therefore, claim nothing under it.

It is quite true that the evidexxce does not affixmatively show an acceptance on the part of the public authorities, snch as is required to constitute it a public street, but, we think, within the authorities, that it became an appurtenant to the premises purchased by the plaintiffs, and that as such, the plaintiffs had a right as against the defendants, who succeed to the interest of Van Rensselaer, the original grantor, to have the whole fifty (SO) feet remain open and unobstructed for the use of the premises purchased by them as a way or street. (Story v. Railroad Co., 90 N. Y. 145 ; Child v. Chappell. 9 id. 255 ; Hills v. Miller, 3 Paige, 256 ; Trustees v. Cowen, 4 id. 510.)

The use of this street or way was, by the Yan Rensselaer conveyance and the maps constituting a part thereof, dedicated for the purposes of a street and way to the lands described in and conveyed by said deed, and the grantees and successors thereby acquired a right to the use of the fifty (50) feet and an easement over the same, and the whole thereof, which they may properly insist upon as appurtenant to the lands acquired by them. (Cox v. James, 45 N. Y. 557 ; Village of Olean, v. Steyner, 135 id. 341; White's Bank v. Nichols, 64 id. 73 ; Welsh v. Taylor, 134 id. 460.)

In the last case, the court, in discussing the effect of a grant somewhat like the one under which the plaintiffs claim, uses this language : “ A person who acquires title by a deed to an easement appurtenant to land, has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land.

“ Hence, his title is not affected by non-user, and unless others show against him some adverse possession, or loss of title, in some of the ways recognized by law, he may rely on the existence of his property, with full assurance that when the action arises for its use and enjoyment, he will find his rights therein absolutely unimpaired.”

The plaintiffs being, therefore, entitled to the free and uninterrupted use as a right of way of these fifty (50) feet sought to be dedicated by the original Yan Rensselaer deed, may maintain their action against the defendants, restraining them from permanently obstructing said right of way, and commanding them to remove such obstruction.

As the evidence establishes, and the referee finds, that such obstruction constitutes an interference with the plaintiffs’ rights, for which there seems to be no adequate remedy at law, the only action at law which could be brought by the plaintiffs would be an action for damages for obstructing the way, and thus impairing its usefulness as appurtenant to the plaintiffs’ premises. Such an action would not supply the plaintiffs with an adequate remedy for the injury sustained by encroachment upon the space previously allotted to plaintiffs by their deed as a way of ingress to and egress from their premises, as all that they could recover in an action at law would be the damages sustained up to the time of the commencement of the action, and their right of way would still remain obstructed, resulting in an irreparable injury to their property, unless the obstruction was removed, and its removal can only be decreed in a court of equity. (Baron v. Korn, 51 Hun, 402 ; 127 N. Y. 224.)

We are, therefore, clearly of the opinion that the case is one for the equitable cognizance of this court.

We have carefully examined the exceptions to the findings and conclusions of the referee by the defendants, and to his refusals to find on defendants’ request, and find none of those exceptions well taken, except the eleventh exception, which relates to the rights of the plaintiffs to recover damages for the alleged illegal interference with plaintiffs’ property rights.

We think that exception well taken and that the plaintiffs should not, under the proof in this case, recover pecuniary damages for the defendants’ alleged interference with their property.

We are, therefore, of the opinion that the judgment entered upon the report of the referee should be so modified as to strike out the recovery of five hundred dollars ($500), and, as modified, the decree should be affirmed, without costs of this appeal to either party as against the other.

Let an order of affirmance be entered according to this opinion.

Putnam and Herrick, JJ., concurred.

Judgment modified by striking out the recovery of $500, and, as modified, affirmed, without costs of this appeal to either party as against the other.


text:
    Lorinda Wilson, as Administratrix, etc., of William Wilson, Deceased, Appellant, v. The Hudson River Water Power and Paper Company, Respondent.

      Negligence — master and servant — improper me of suitable machinery by a fellow-servant.

    All who serve the same master, work under the same control, derive their authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants, who take the risk of each other’s negligence.
    A laborer employed by a paper manufacturing company was fatally injured through the improper setting in motion by the chemist of the company of incomplete machinery in a new addition to the company’s mill, which the laborer was engaged in completing.
    In an action brought by the laborer’s representative against the company to recover the damages resulting from his death, the evidence showed that the chemist was in the employ of the defendant in its manufacturing business, but there was no direct evidence that he had any authority or control over the machinery or over those whose duty it was to operate it; and it appeared that the defendant had in its employ a superintendent, who had general charge of its business and of the men in its employ.

      Held, that the chemist was the fellow-servant of the deceased laborer, and not the alter ego of the defendant company.
    It appeared that no inherent defect existed in the machinery which the deceased was engaged in completing, and that no harm could have come to him but for the improper setting of the machinery in motion while he was exposed to injury therefrom.

      Held, that a case was not presented of unsafe and improper machinery furnished by the employer, but rather a case of the improper use by a fellow-servant of machinery suitable and proper for the purpose for which it was intended, for which the employer was not liable.
    Appeal by the plaintiff, Lorinda Wilson, as administratrix, etc., of William Wilson, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Saratoga county on the 18th day of October, 1892, upon an order dismissing the complaint upon the merits, made at the close of the plaintiffs case on a trial at the Saratoga Circuit.
    The action was brought to recover the damages resulting from an alleged injury done to the plaintiff’s intestate, on the part of the defendant, in not furnishing a reasonably safe place and safe machinery in the defendant’s factory, where plaintiff’s intestate was employed as a laborer by the defendant.

      At the time of tlie injury complained of, the defendant had in process of construction an addition to its mill, and the intestate was engaged in working at the fixtures or machinery in the mill so in process of construction, and while so engaged was caught in a chest or vat, being constructed for mixing pulp by revolving shafts and arms, and was killed, and this action is prosecuted by his adminis-tratrix to recover the damages resulting from the killing.
    At the conclusion of the ease, the defendant moved to nonsuit the plaintiff, which motion was granted, and from the judgment entered upon that decision the plaintiff appealed.

      James A. Burnham and .Edgar T. Braohett, for the appellant.

      Ed/wm'd W. Douglas, for the respondent.
   Mayham, P. J.:

The plaintiff was nonsuited by the learned judge at the trial upon the ground that the negligence complained of was not negligence fairly imputable to the defendant, but was the result of negligence of a co-employee of the intestate in turning the water on the wheel and thus setting the machinery in motion at a time when the intestate w'as engaged, in a position where no harm could have come to him but from the starting of the machinery, and that the intestate was not proven to be free from contributory negligence.

The determination of the first question, upon which the learned judge placed his decision, must turn upon the question as to whether Griffin, the man who opened the gate and thus precipitated the water upon the wheel, setting the machinery in motion, was the alter ego of the defendant.

If he was, then his act was the act of the defendant, and it would be charged with negligence. If he was not, then his act would be that- of a co-employee for which the defendant would not be liable.

The' evidence shows that Griffin was the chemist in the employ of the defendant, in its manufacturing business, and there is no direct evidence that he had any authority or control over the machinery or those whose duty it was to operate it.

The defendant had in its employ a superintendent, who seemed to have general charge of its business and of the men in its employ, and the employees appear by the evidence to have had assigned to them their respective duties, and it nowhere appears that the company had invested Griffin with any general power or autho2-ity, either over the employees or the operation of the machinery in its mills.

Under these circumstances the evidence discloses that Griffin who, it must be assumed, was a co-employee with the deceased, carelessly or negligently, and without appealing to have any express authority or direction from the superintendent, set the machinery in motion by turning the water upon the wheel and thereby caused the death of the plaintiffs intestate.

He was, within the facts of this case, a co-employee and fellowrservant with the intestate. Against his negligent acts the intestate took the risk.

The rule seems settled that all who serve the same master, work under the same control, dei'ive their authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants, who take the risk of each other’s negligence. (Mele v. D. & H. C. Co., 39 N. Y. St. Repr. 153, 154.)

In this case the court held that “prima facie all servants of a common master employed in the railway service are fellow-servants, and neither has a cause of action for the negligence of another.” (Boldt v. R. R. Co., 18 N. Y. 432; Malone v. Hathaway, 64 id. 5; Vick v. R. R. Co., 95 id. 267; Mahoney v. N. Y. C. R. R. Co., 46 N. Y. St. Repr. 738-741; Webber v. Piper, 109 N. Y. 499.)

The machinery in the mill upon which plaintiffs intestate was engaged to woi’k was incomplete, and he was at the time of the accident engaged in completing it. No inherent defect existed in the machinery itself, and no harm could have come to him but for the improper setting of the machineiy in motion while he was exposed. It is not, therefore, a case of unsafe and improper machinery furnished by the employer to the employee, by which the employee is injured, but rather a case of the improper use by a fellow-servant of machinery suitable and proper for the purpose for wdiicli it was intended, and it was by the improper use of the machinery itself that the injury resulted to the deceased.

¥e are, therefore, of the opinion, that the decision of the learned judge was correct, and that the injury resulted, not from any negligence on the part of the defendant, but from the negligence or improper conduct of a fellow-servant.

The judgment should be affirmed, with costs.

Herrick, J., concurred.

Judgment affirmed, with costs.