author: Danforth, J..

text:
    Benjamin Griffey et al., Respondents, v. The New York Central Insurance Company, Appellant.
    A provision in a policy of fire insurance, entailing a forfeiture or limiting liability, should receive a strict construction; it may not be extended by interpretation so as to include a case not clearly within the words. If the words are of doubtful meaning, or susceptible of two interpretations, they should be construed to uphold rather than to avoid the policy.
    A policy of fire insurance contained a clause to the effect that if the insured property shall be sold or transferred, or any change take place in title or possession, “ or if this policy shall be assigned before a loss without the consent of the company indorsed thereon,” the policy shall be void. Held, that the clause simply prohibited an absolute assignment of the whole policy, and that a transfer of it by way of pledge or security for a special and temporary purpose — for instance, a transfer as collateral security for a debt — was not within the prohibition.

      Smith v. S. C. M. F. Ins. Co. (1 Hill, 497); Savage v. F. Ins. Co. (52 N. Y. 502); Ferree v. O. Ins. Co. (67 Penn. St. 373), distinguished.
    The policy contained a clause authorizing the company to terminate it at its option “ on giving notice to that effect, and refunding a ratable proportion of the premium for the unexpired time. ” The company notified the insured before a loss of its desire to cancel the policy, and asked to have the policy returned, promising, when this was done, “ to remit to them the return premium.” Feld, that this was not sufficient to cancel the policy; that the company had no right to require a return of the policy, or to require the insured to take any step in the matter; that notice of cancellation and actual payment or tender of the sum to be returned would alone suffice.
    Under a provision of a policy requiring the insured “ forthwith.” to give notice of loss, it is enough if he act in the matter with diligence, and give the notice without unnecessary delay.
    When, therefore, it appeared that the fire occurred August 30th; that a bank, to whom the policy had been transferred as collateral, gave notice of it on September 1st, and the insured also gave notice on or before September 4th; that one of the intermediate days was Sunday, and during the others the insured was busy with the adjusters of various insurance companies concerned in the loss, — Held, that a failure to comply with the provision was not shown as mátter of law; that at least it was a question of fact for the jury, as to whether due diligence was exercised
    (Submitted October 14, 1885 ;
    decided November 24, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1883, which denied a motion for a new trial, and directed judgment upon a verdict. (Mem. of decision below, 30 Hun, 299.)
    This was an action upon a policy of fire insurance issued on the 18th of December, 1878, by which plaintiffs were insured by the defendant against loss by fire, on certain described property. Plaintiffs also held policies of like character issued by other companies, to the amount, including the one in question, of $16,000. On the 26th of February, 1879, they delivered to the Lewisburg National Bank all the policies and a written instrument, of which, so far as is material, the following is a copy.
    “We hereby transfer the following insurance policies, amounting to 16,000, to the Lewisburg National Bank, as collateral security for claims said bank holds against us, and that in case of loss by fire, to any of our properties insured in the following companies, shall be payable to said Lewisburg National Bank, as their claim against us may appear,” naming the policies referred to. The consent of the defendant was not indorsed upon the policy, nor does it appear to have been given or asked for. The property was damaged by fire in August, 1879, and afterward, but before suit brought, the claims of the bank were paid in full by the plaintiffs, and the policies with the written transfer returned to them.
    The defendant alleged by its answer, 1. That the policy was canceled by it before the fire. 2. That it was assigned without its consent. 3. That notice of the fire and proofs of loss were not given in pursuance of the terms on which the policy was issued.

      The policy contained the following provisions:
    “ If the insured property be sold or transferred, or any change take place in title or possession, except by succession by reason of the death of the insured, whether by legal process or judicial decree, or voluntary transfer or conveyance, or if the property shall hereafter be incumbered by judgment or otherwise, or if this policy shall be assigned before a loss without the consent of the company indorsed hereon, then, and in every such case, this policy shall be void. This insurance may be terminated at any time at the request of the assured, in which case the company shall retain only the customary short rates for the time the policy has been in force. The insurance may also be terminated at any time at the option of the company on giving notice to that effect, and refunding a ratable proportion of the premium for the unexpired time of this policy. Persons sustaining loss or damage by fire shall forthwith give notice of said loss, and within thirty days thereafter deliver to the company a particular account of such loss, signed and sworn to by them,” etc., requiring what is commonly called “ Proofs of loss.”
    On defendant’s motion for nonsuit the trial judge decided that the first and second defenses were not maintained, and submitted the other to the jury, who found in favor of the plaintiffs.
    Further facts appear in the opinion.

      W. E. Hughitt for appellant.
    Upon the proofs, as matter of law, the plaintiffs did not comply with the conditions of the policy requiring notice of the loss to be given to the company “forthwith,” and the court erred in submitting that as a question for the jury. (Inmom v. W. F. Ins. Co.,11 Wend. 452; Craig v. Parkis, 40 N. Y. 181.) The assignment of the policy, without notice to or consent of the defendant, avoided the policy by its very terms. (Savage v. H. Ins. Co., 52 N. Y. 502; Smith v. S. Co. Ins. Co., 1 Hill, 497; 85 N. Y. 162; People v. Beigler, 1 H. & D. 133; Lazarus v. Connors, 19 Pick. 81; Cromwell v. B. Ins. Co., 44 N. Y. 42; 84 id. 572; 26 id. 68; 52 id. 502; Ferree v. Oxford Ins. Co., 67 Penn. 373.)

      Reynolds & Collins for respondents.
    The manner and means of terminating the insurance provided by the policy were not followed by the defendant. (Van Valkenburgh v. L. F. Co., 51 N. Y. 465.) Whether the notice was given “ forthwith” was purely one of fact for the jury. (Bennett v. L. Co. M. Ins. Co., 67 N. Y. 277 ; Justice v. Allen, 52 id. 328.) Unless, in terms, the policy forbids a partial transfer, no assignment or transfer which does not deprive the assignor of all interest in the property will avoid the policy. (Shearman v. N. Ins. Co., 2 Sweeney, 420; Hitchcock v. N. W. Ins. Co., 26 N. Y. 68.) So long as the insured retains such an interest that he may be a sufferer by the loss, the policy remains valid to protect that interest. (Hitchcock v. N. W. Ins. Co., 26 N. Y. 68; Fernandez v. G. W. Ins. Co., 3 Robt. 458 ; 17 N. Y. 615; 2 Hall [S. 0.], 372; 2 Duer, 64, 65, 66; Ellis v. Kreutzman, 27 Mo. 311; 1 Phillips on Ins., § 879; Wood on Ins., § 339 ; Lazarus v. C. Ins. Co., 5 Pick. 80; 2 Duer on Ins., §40; Arnold on Ins. 1249; Smith v. S. Co. M. Ins. Co., 1 Hill, 508; Ferree v. O. F. & L. Ins. Co., 67 Penn. 373.)
   Danforth, J..

It may be conceded that the defendants notified the insured before the fire, of a desire to cancel the policy, but there is no evidence that any portion of the unearned premium was paid back; on the contrary, they only proposed to do this after the policy should be returned by the insured.. They had no right to impose that condition, nor could they require the insured to take any step in the matter. The option to cancel was reserved, but to be exercised by “ notice, and refunding a ratable proportion of the premium for the unexpired time ” of the policy. What the defendants did was to ask the insured to return the policy for cancellation, promising in that case “to remit to them the return premium.” This was not enough. Notice of cancellation and actual payment or tender of the sum due could alone suffice. (Van Valken burgh v. Lenox Fire Ins. Co., 51 N. Y. 465.) Under the provision of the policy requiring notice of loss to be “ forthwith ” given, it was enough for the insured to act in that matter with diligence and without unnecessary delay. It was therefore properly left to the jury to say whether in view of all the circumstances of the case, the notice actually given was sufficient. It was not instantaneous, but the delay was brief. Among other things, it appeared that the fire occurred on the thirtieth of August. The bank gave notice of it on the first of September, and on or before the fourth of September the assured also notified the defendants of the fire and loss. Even this delay, was accounted for. Sunday intervened, and during the other days the assured was busy with the adjusters of different insurance companies concerned in the loss, and with matters con nected with the fire. The jury might properly, in view of these and other things in evidence, find that the delay was not unreasonable. The question, at least, was for them.

The other point made for the appellant rests upon the claim against “ assignment ” of the policy. It entails a forfeiture, and must, therefore, receive a strict construction. Hence no other meaning can be given to the language used, than a most rigid and literal interpretation permits, and as the condition is a limitation of liability, it cannot be extended by interpretation so as to include a case not clearly within the words. (Rann v. Home Ins. Co.,59 N. Y. 387). So if the words are of doubtful meaning, or susceptible of two fair interpretations, they should be construed to uphold rather than avoid the policy. (Hoffman v. AEtna Ins. Co., 32 N. Y. 405.) In the first place it is apparent that nothing but an effectual assignment or transfer will come within its terms. In this sense the policy was not transferred. Ho interest in the insured property was conveyed, but it all remained as before. In case of loss, therefore, the transferee could not recover, not only because it had suffered no loss and was not a party to the contract, but because the transfer of the policy was not accompanied with any interest in the subject of insurance. The clause in question, although of several members, is in itself single, and is aimed against the sale, or transfei', or any change in title or possession of the insured property, and the assignment of the policy, which it prohibits, is in connection with the events which affect the ownership of the things insured. They must be construed together, otherwise the words relating to the policy would have no meaning. Without them the assignment would be inoperative for any purpose. It would not render the policy void, but it would be of no value. If the property was burned the underwriters would be under no obligation to pay any one — not the assignee, for the property destroyed did not belong to him, so he incurred no damage, nor the assured, for he had parted with the contract of indemnity.

But if we take the prohibition as applying to the policy disconnected from the property, it will not work the result claimed by the appellant. An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one whole interest in an estate, or chattel, or other thing. In that sense the policy in question has not been assigned.” It with others was delivered to the creditor upon an agreement that the policies should stand as collateral security for certain claims held by it against the insured, and in case of loss to the property insured, they should “ be payable ” to the bank, as its claim against the insured should appear.” The assured did not part with the title. The transfer was not unconditional. They retained not only the whole insured property, but an interest in the policy. In any proceeding for its enforcement they would have been a necessary party (Simson v. Satterlee, 64 N. Y. 657; Johnson v. Hart, 3 Johns. Cas. 322; Conover v. Mut. Ins. Co., 1 N. Y. 290 ; Bard v. Poole, 12 N. Y. 495 ; Whitney v. M'Kinney, 7 Johns. Ch. 144; Field v. Mayor, etc., 6 N. Y. 179), and upon payment of the debt, entitled to what they in fact have had — a redelivery of the policy. The agreement under which they transferred it did not profess to vary in any respect the contract of insurance. It was at most a mere appointment of the bank to receive, and a direction to the insurers to pay to it the loss when, if at all, it should accrue. In other words it was an appropriation beforehand, to the payment of specific debts, of a portion of the money which might become due, by reason of the cause insured against, and the plaintiffs had as much interest in the policy after its pledge to the bank, as they had before. The money for which the insurers might become liable was to be applied to their use. The bank held it in trust as bailee, and not as owner, and until by an act of the assured some person, other than themselves, should stand in that situation, the prohibition against assignment could not apply, and the policy remained valid to protect their interests. (Hitchcock v. North Western Ins. Co., 26 N. Y. 68; Jackson v. Silvernail, 15 Johns. 277; Shearman v. Niagara F. Ins. Co., 2 Sweeny, 470; Lazarus v. Commonwealth Ins. Co., 5 Pick. 80.)

In Conover’s Case (supra) the charter of defendant provided that whenever the insured property shall be alienated by sale or otherwise, the policy shall thereupon be void,” and it was held that the words did not embrace a mortgage, since it creates but a lien or security, and does not transfer the title; and in Shearman’s Case (supra) the same rule was held to apply to a clause forbidding a transfer of the policy. To take away the cause of action in one case, and to render void the policy in the other, equally requires a transfer or alienation of the entire insurable interest.

It seems indeed to be well settled that so long as the insured retains such an interest that he may be a sufferer by the loss, the policy remains valid to that extent.

The cases relied upon by the appellant do not seem inconsistent with this conclusion. In Smith v. Saratoga Co. Mut. F. Ins. Co. (1 Hill, 497), there was not only an express and literal assignment of the policy, but of “ all rights and claims which might arise thereon.” Savage v. Howard Ins. Co. (52 N. Y. 502) related to a change of title to the insured property. Ferree v. Oxford Ins. Co. (67 Penn. 373) differs from the case at bar in several particulars, but one is enough. There the court call attention to the condition which includes in words not only an assignment of the whole policy, “ but of any interest in it,” and also found in other parts of the policy an express intention to prohibit assignments made as collateral security. The one before us prohibits an assignment of the policy, that is, as we must construe it, an absolute assignment of the whole; the others forbid not only such an assignment, but an assignment of any interest. These various and differing limitations would be entirely useless if they were not intended by insurers to distinguish between acts of the insured in the disposition of the policy as a whole, and its transfer by way oE pledge or mortgage fora special and temporary purpose. In many cases the distinction indicated by the papers referred to is material, and I see no ground upon which it can be. disregarded in this instance. Similar words have been held by other courts insufficient to include a transfer by way of pledge or security, and we find no reason to differ from them. (Ellis v. Kreutzinger, 27 Mo. 311 ; W. F. Ins. Co. v. Kelly, 32 Md. 421.) If there is difficulty in the question it is because the language chosen and employed by the insurers leave the matter in doubt, and to the benefit of that they are not entitled. (Herrman v. Mer. Ins. Co., 81 N. Y. 184.)

The judgment appealed from should be affirmed.

All concur, except Earl, J., dissenting.

Judgment affirmed.


source: Caselaw Access Project

author: Ruger, Ch. J.

license: Public Domain

text:
    Michael Mulry, Respondent, v. John S. C. Norton Ap et al., pellant.
    To give to a littoral proprietor title to land by accretion, the increase must be by such imperceptible degrees that, although persons are able to perceive from time to time that the land has encroached on the sea line, they could not perceive the progress at the time it was made.
    While the title of such a proprietor is liable to be lost by erosion or submergence, the erosion to effect that result must be accompanied by a transportation of the land beyond the owner’s boundary, and it may be returned by accretion, in which case the ownership temporarily lost may be regained; and so, land lost by submergence may be regained by relictian, unless the submergence has been followed by such a lapse of time as precludes the identity of the land from being established.
    If, after a submergence, the water disappears from the land either by its gradual retirement or the elevation of the land by natural or artificial means, the proprietorship returns to the original owner.
    No lapse of time during which the submergence has continued bars the right of the owner to enter upon the land reclaimed and assert his proprietorship when the identity can be established by reasonable marks, or by situation, extent of quantity and boundary on the firm land.
    And so if an island forms upon the land submerged, it belongs to the original owner. The sovereign succeeds to the ownership of such islands and formations only as are originally created and located in tide-ways outside of the boundaries of property which has been the subject of individual ownership.
    The owners of adjacent uplands are entitled to lands formed by accretion or reliction in. front of and contiguous to their property in certain pro- . portions according to the formation of their respective shore lines. However such formations may be commenced or continued, the right of one owner of the uplands to follow and appropriate them ceases when the formation passes the line of his coterminous neighbor.
    In an action wherein the question was as to the ownership of a portion of the ocean beach at Far Rockaway, Long Island, it was conceded that the beach in question was within the boundaries, and, with the exception of a lagoon now between it and the upland, is in the same shape as it was in 1685, when it was conveyed by its Indian owners to grantees under whom plaintiff claimed. Some three or four miles east of this land was an island named Long Beach, bounded on the east by an inlet from the ocean to Hampstead bay. No substantial change occurred up to 1835; from that time up to 1869 the beach from opposite the island to the west of plaintiff’s land underwent a succession of changes; it was overflowed and washed away, bars, shoals and islands were formed and were constantly undergoing changes. Portions of the beach in front of plaintiff’s lands were submerged, but at all times there were bars, shoals or islands. The inlet was removed to the west of plaintiff’s land, not by gradual progression, but by sudden, frequent and violent changes, in the end forming a continuous bar from Long Beach to a point west of plaintiff’s land. About 1869 the inlet to the west became closed up, and the original one adjoining Long Beach was reopened, leaving a continuous beach to the westward, with a narrow lagoon or cove inside of it running across plaintiff’s land and separating the beach from the mainland. Long Beach belonged to the town of Hempstead. Defendants claimed the right to the possession of the beach in front of plaintiff’s mainland under a lease from said town. Held, that the town acquired no title to the beach in question, but that the title 'thereto was in plaintiff.
    The complaint alleged, among other things, and it appeared that plaintiff was the owner of a hotel upon his premises resorted to by visitors for surf-bathing and sea air, which, required undisputed control of the beach in question, and prevented the exclusion of intruders by any substantial barriers; the beach he had leased to tenants, who maintained bathing-houses thereon. Defendants, claiming under said lease, had made repeated efforts to take possession of the beach, and threatened to oust plaintiff and his tenants, thus impairing the rental value of the property and occasioning serious damage; that defendants were not of sufficient pecuniary responsibility to respond in damages. Held, that a case was established authorizing the intervention of a court of equity to quiet the title and to restrain defendants from interfering with .plaintiffs possession.
    (Argued October 15, 1885 ;
    decided November 24, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 15, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 29 Hun, 660.)
    The complaint in this action alleged in substance that plaintiff is the owner in fee of certain premises at Far Rockaway, Queens county, upon which there is a hotel; that a portion of the premises are beach lands which plaintiff has let, with covenants of peaceable possession, to tenants who maintain thereon bathing-houses and other buildings necessary for surf-bathing, and plaintiff receives large rents therefrom, and the said beach-lands are of great value as a necessary appurtenance to his hotel. That the town of Hempstead, without any legal right or authority, has executed to defendant Horton a lease of said beach-lands, a one-third interest, in which lease said defendant has assigned to defendant Levy. That under the lease said defendants threaten and propose, and have made repeated efforts to take possession of the leased lands and to oust plaintiff and deprive him of the possession and use thereof, thereby inflicting great and irreparable damage upon him and his tenants. That defendants are pecuniarily irresponsible, etc.
    The judgment demanded is that the lease be declared void, and that defendants and all persons claiming under them be restrained from taking or attempting to take possession of said beach lands. The original conveyance under which plaintiff claims bounded the lands conveyed on the south by the Atlantic ocean.
    The facts appearing on the trial are substantially set forth in the opinion.

      William H. Dykman for appellant.
    In a case where no legal title is shown by either party, the party showing the prior possession in himself, or those through whom he claims, will be held to have the better right. Such prior possession is a sufficient title to enable a party to recover in ejectment against an intruder, and even against one whose claim of title is founded on a later possession. (Hunter v. Starin, 26 Hun, 529; Whitney v. Wright, 15 Wend. 171; Tyler on Eject. 72.) When plaintiff asked for an injunction to protect real estate, he assumed the burden of proving he was the fee owner. (Eldridge v. Hill, 2 Johns. Ch. 281; W. P. I. Co. v. Reymert, 45 N. Y. 703 ; Broiestedt v. S. S. R. Co., 55 id. 220 ; Nicoll v. Trustees, etc., 1 Johns. Ch. 166 ; High on Inj., § 460.) It was error to hold that spite of its submergence, the mainland proprietors still owned then* lands, now parcel of the ocean bed, and could hand down their title, and that whatever grew and rose high and dry on this part of the ocean bed was theirs. (Trustees, etc. v. Kirk, 84 N. Y. 215-8; 2 Blackst. Com. 262; In re Hull & S. R. Co., 5 M. & W. 327; Scratton v. Brown, 4 B. & C. 498; 3 Washb. on Heal Prop., 58.) As the ocean carried sand and soil and deposited it on the west end of Long Beach island, and it grew to the west and extended over this comparatively new ocean bed, the formation is alluvion. (Rex v. Lord Yarborough, 3 B. & C. 91; Woolrych’s Law of Waters, 56; Angell on Tide Waters [1st ed.], 58; Hale’s De Jure Maris, Hargrave’s Tracts, 14; Angelí on Tide Waters [2d ed.], 266; 2 Blackst. Com. *262; Emans v. Turnbull, 2 Johns. 322; 5 Hall’s Am. L. J. 190; Comyn’s Dig., title Prerogative, Derelict Lands; Washb. on Beal Prop. 58; Angelí on TideWaters [1st ed.], 71.) The test for title to land made by alluvion is contiguity. - This must be fatal to plaintiff’s claim, for the increase in question arose from the water little by little adjacent to Hempstead’s island, Long Beach, and separated from plaintiff’s land by navigable water. (Saulet v. Shepherd, 4 Wall. 502; Justinian’s Inst. 2, 1, 20; Justinian’s Dig. 41, 1,7, § 1; Angelí on Tide Water [2d‘ ed.], 249 ; 5 Hall’s Am. L. J. 40.) The findings of fact disclose no ground for relief by injunction. (Edw. on Inj. [1st Am. ed., 1822], 136, 137, IBS', Jerome v. Ross, 7 Johns. Ch. 315.) The cause of action was simple trespass, and in violation of the Constitution it was taken from the common-law courts. (Stevens v. Beekman, 1 Johns. Ch. 318; Gentil v. Arnold, 38 How. Pr. 94; Marshall v. Peters, 12 id. 218 ; Akril v. Selden, 1 Barb. 316; T. & B. R. Co. v. B., etc., R. Co., 86 N. Y. 107; McHenry v. Jewett, 90 id. 58; High on Inj., § 460.) Something lessening the future value of the easement must be shown to warrant the granting of an injunction. (R. S. 750, § 8.) Where the plaintiff and defendant show possession as here, the presumption is in favor of him whose possession was prior to the other. (Hunter v. Starin, 26 Hun, 529 ; 1 R. S. 744, § 3.)

      John E. Parsons for respondent.
    The beach in question did not grow by accretion to Long Beach. (Rex v. Lord Yarborough, 3 Barn. & Cres. 91; Bacon’s Abr., title Prerogative.) Land emerging from the sea within the bounds of the original owner belongs to him. (2 Blackst. Com. 262; Collis on the Statute of Sewers [A. D. 1622], 51; 7 Jac., per Cooke, & Foster Bol. Abr., Prerogative] Le Boy [ed. 1685], 168; Angelí on Tide Waters, 76, 77, 79, 80; Hargrave’s Law Tracts [Sir Matthew Hale’s De Jure Maris], 36, 37; Murphy v. Norton, 61 How. Pr. 197.) Possession of real estate is, prima fade evidence of the highest estate in the property, viz., a seizin in fee, and implies a right to possession. It presumes title. It is conclusive, except as against one who proves a better title. (3 Phillips on Ev. 595; Gerard’s Titles to Beal Estate [2d ed.], 642; Smith v. Lorillard, 10 Johns. 339; Jayne v. Price, 5 Taunt. 326 ; Sherry v. Frecking, 4 Duer, 452; Alexander v. Pendleton, 8 Cranch, 462; Ricard v. Williams, 7 Wheat. 59; Jackson v. Porter, Paine’s C. C. B. 457; Preston's Heirs v. Bowman, 6 Wheat. 580 ; Blunt v. Aiken,
      15 Wend. 522; Hill v. Draper, 10 Barb. 454; Dickinson v. Smith, 25 id. 102.) That equity shall exercise jurisdiction, all that is required is that plaintiff shall be in possession. (Lowndes v. Bettle, 33 L. J. Ch. 151; Stamford v. Hurlston, L. R., 9 Ch. App. ,116.) Plaintiff showed a right to relief in equity and upon various grounds. (Brown v. Brown, 1 Barb. Ch. 189-217; Am. Ins. Co. v. Fisk, 1 Paige, 90 ; Phillips v. Thompson, 1 Johns. Ch. 131; Nichol v. Town of Huntington, id. 166; Crary v. Smith; 2 N. Y. 60; Mayne v. Griswold, 3 Sandf. 463; Truscott v. King, 6 N. Y. 147; Watson v. Sutherland, 5 Wall. 74; Grant v. Crow, 47 Iowa, 632; Clarke v. J. R. R. Co., 44 Ind. 248; Livingston v. Livingston, 6 Johns. Ch. 497; Belknap v. Belknap, 2 id. 463; Heart v. Mayor, etc., 9 Wend. 571; Spear v. Cutler, 5 Barb. 486; Gilbert v. Arnold, 30 Md. 29; De Veney v. Gallagher, 20 N. J. Eq. 33; Kinder v. Jones, 17 Ves. 110 ; Thomas v. Oakley, 18 id. 184; Crockford v. Alexander, 15 id. 138; Mitchell v. Dors, 6 id. 147; Courthope v. Mappleden, 18 id. 290; Story’s Eq., §§ 916, 918, 928, and note 2; Southmayd v. McLaughlin, 9 C. E. Green, 181; Richardson v. Scott, 47 Miss. 236 ; 2 Waterman on Trespass, 571; Gibbs v. McFadden, 39 Iowa, 371; L. Fer. Co. v. L. I. & Fer. Co., 82 N. Y. 476 ; Corning v. Troy I. & N. Factory, 40 id. 191.) If the plaintiff can maintain the action on his possession; if he has made out title; if the claim of title by the defendant Norton fails,.it becomes unnecessary to consider any of the other questions presented. (3 R. S. [5th ed.] 30, § 167; Coke’s Cases, 4 Coke, 80; Leddon v. Senate, 13 East, 63; Barney v. Keith, 4 Wend. 502; Platt on Covenants, 40, 312; Tone v. Brace, 11 Paige, 566; Mayor, etc., v. Mabie, 13 N. Y. 151.)
   Ruger, Ch. J.

This action involves the title to certain beach lands on the ocean shore at Far Rockaway. No dispute arises over the boundaries of the plot, or the location of the beach, as being included within the description of the deeds under which plaintiff’s grantors formerly occupied the premises, but it is claimed that the earth or sand composing the beach has been so affected by the storms and tides of the ocean that its ownership was lost by the plaintiff’s grantors, and subsequent deposits, made within the same boundaries, were acquired by the owners of Long Beach, an island belonging to the town of Hempstead. This result is attempted to be supported under the rule governing the acquisition of real property by alluvion or accretion. The evidence tends to establish the following facts: That the beach in question is within the same boundaries, and, with the exception of a narrow lagoon running crosswise through it, is of the same form and shape now as it existed from the year 1685, when it was conveyed to the plaintiff’s remote grantors by its Indian owners, to about the year 1835. Between 1835 and 1869 the changes in the surface of the ground took place which it is claimed worked the transfer of the ownership. At the commencement of the process of change, Long Beach consisted of a small island lying southward of Hempstead bay, separated on the west from the heach in dispute by a navigable inlet called indifferently Hog Island, or East Boekaway Inlet, or Brockle Face Glut, and a succession of beaches, islands, shoals and channels, extending some four miles. This inlet was about half a mile broad and communicated directlyiwith the westerly end of Hempstead bay. To the west of the inlet a bar or beach known as Coot’s bar extended from the mainland south to a point opposite to Long Beach, forming the westerly shore of Hempstead bay, and from thence west a distance of about three miles until it reached the westerly line of the town of Hempstead. The beach to the westward of the inlet, during the period from 1835 to 1869, underwent a succession of changes which it is quite unimportant if not impossible, to follow in detail, but usually consisted of a-line or group of bars, shoals, islands and channels extending from the inlet to the shore of the mainland beyond the premises in dispute, but which were constantly undergoing physical changes by the influence of the laws to which they. were naturally subject. These bars, shoals and islands were from the operation of the tides and wind in filling the channels, separating them, occasionally joined together, and at one time by the removal of the inlet in question to the westward formed a continuous bar from Long Beach to a point west of the premises in dispute, and remained in that position for about three years. The removal of the inlet to the west was not uniformly effected by gradual progression, but frequently advanced in “ jumps ” of a quarter to a half a mile in distance, and frequently added or took away from the lands to which they were joined sections of beach covering half a mile or less in extent as the result of a single storm. During the period of time in question various inlets at different points upon this bar, were broken through from time to time, and were used by vessels trading in Hempstead bay until they were closed up by the action of the tide and wind, when other channels, by the operation of natural causes, would be opened in new places, and these openings would in turn become the channels through which vessels bound to and from Hempstead bay would pass.

About the year 1869 the inlets to the westward became closed up, and the original inlet adjoining Long Beach was reopened and has since become the sole channel of navigation for vessels entering the bay from the east. The process described finally resulted in attaching the beach in litigation to the mainland on the west, and forming a continuous beach about one thousand feet broad from such mainland to the inlet at Long Beach, being a distance of about four miles. This process also left a shallow and narrow lagoon or cove running inside of the beach in question from Hempstead bay to a point a little to the westward of the premises in dispute and separating the ocean beach proper from the mainland lying directly behind it.

In 1725 the formation of Coot’s bar was of so permanent a character that it became the subject of a grant from its owner, the town of Hempstead, to one Hicks, and from that time to the present the said Hicks and his heirs and grantees have occupied and enjoyed the beach lying between the original Hog Island inlet and the west line of the town of Hempstead and reaching within about eighteen hundred feet of the premises in dispute. Portions of this beach have at times been submerged or washed away, and it has at times been cut into by the formation of new inlets to Hempstead bay, but at all times there has been some beach lying above the ocean tides, blit outside the line of jiigh-water mark capable 'of occupation and enjoyment by its owners.

Under these circumstances the trial court refused to find that the extension of Long Beach to the westward was made by the process of accretion, and held as a question of law .that the defendant’s lessors, the town of Hempstead, did not acquire title to the land in dispute by that process, and we concur in the conclusion reached by it.

There seems to be but little conflict in the authorities or even between counsel in this case as to what constitutes alluvion or accretion. It was held in Rex v. Lord Yarborough (3 B. & C. 91) “that accretion is an increase by imperceptible degrees.” “ The lord of the manor claims when there is a gradual accession to land adjacent.” (Wash, on Real Prop. 58.) “ The test of what is gradual as distinguished from what is sudden seems to be that, though witnesses are able to perceive from time to time that the land has encroached on the sea line, it is enough if it was done so that they could not perceive the progress at the time it was made.” (Angell on Tide Waters [1st ed.], 71.) It was said in Emans v. Turnbull (2 Johns. 314) “ that, if the marine increase be by small and almost imperceptible degrees, it goes to the owner of the land; but if it be sudden and considerable it belongs to the sovereign.” (Citing 2 Blackst. Com. 261; Harg. Law Tracts, 28.) “ To acquire title to land by alluvion, it is necessary that its increase should be imperceptible.” (Halsey v. McCormick, 18 N. Y. 147.)

It would seem from these definitions that two insuperable objections exist to the claim of the appellant; one being that a large part of the formations, of which the beach in question now consists, was created anterior to the junction thereof with Long Beach and constituted property subject to acquisition and ownership by others prior to plaintiff’s claim; and secondly, that the mode of progress of Long Beach to the westward was frequently by sudden removals of the inlet, and the consequent junction of large and perceptible sections of beach to the easterly lands—as the result of a sudden and violent operation of the tides. We, therefore, think-the court below correctly held that the defendant did not acquire a legal right to the possession of the lands in question by his lease=from the town of Hempstead.

It is also claimed by the appellant that even if he has failed to establish title in himself to the premises, that the plaintiff still is not entitled to maintain this action because of defects in his own title. It is argued that the beach in question having been once cut off from the mainland and surrounded by navigable water, thereby became an island, which, like other formations of land in tide water, was the property of the State.

The evidence establishes a continuous chain of title to the premises in dispute from its native Indian owners down to the plaintiff, covering a period of two hundred years, and each conveyance bounding its grantee upon the Atlantic ocean. Under the law of this State such a description makes the line of high-water mark the boundary of the granted premises, but it also carries with it the liability of such a line to fluctuate by the action of the water. These lines of description for a period of one hundred and fifty years included the locus in dispute, and the same, with the uplands, was occupied and enjoyed by the plaintiff’s grantors and now remain the property of the plaintiff, unless the -title thereto has been lost to his grantors through the causes referred to.

It is undoubtedly true that the proprietorship of lands may be lost by erosion or submergence. The one consisting of a gradual eating away of the soil by the operation of currents or tides, and the other of its disappearance under the water and the formation of a navigable body over it. The plaintiff’s grantors have at all times since 1684 remained the owners and occupants of the mainland adjacent to the beach in dispute, and as such owners have been entitled to the rights which attend the title of littoral or riparian owners. ‘ ‘ They would be entitled to whatever should be gained from the sea by alluvion or dereliction, and their title was liable to be lost by the advance of high-water mark, bringing their lands within the ebb and flow of the tide.” (East Hampton v. Kirk, 84 N. Y. 218 ; 2 Blackst. Com. 262; In re Hull & Selby Ry., 5 Mees. & Weis. 327.) It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner, or enables another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner’s boundary to effect that result, or the submergence followfed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership temporarily lost will be regained.

When portions of the mainland have been gradually encroached upon by the ocean so that navigable channels have been extended thereover, the people, by virtue of their sovereignty over public highways, undoubtedly succeed to the control of such channels and the ownership of the land under them in case of its permanent acquisition by the sea. It is equally true, however, that when the water disappears from the land, either by its gradual retirement therefrom or the elevation of the land by avulsion or accretion, or even the exclusion of the water by artificial means, its proprietorship returns to the original riparian owners. (Angell on Tide Waters, 76, 77; Houck on Rivers, § 258.) Neither does the lapse of time during which the submergence continues bar the right of such owner- to enter upon the land -reclaimed, and assert his proprietorship. (Angell on Tide Waters, 77-80, and cases cited.) It is said in Hargraves’ Law Tracts (Sir Matthew Hale’s De Jure Maris), 36, 37: “If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it, or though the marks be defaced, yet if by situation and extent of quantity and bounding upon the firm land the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject does not lose his property, and accordingly it was held by Cooke and Foster, M. (7 Jac. C. B.), though the inundation continue forty years.” “ But if it be freely left again by the reflex and recess of the sea, the owner may have his land as before, if he can make it out where and what it was; for he cannot lose his propriety of the soil though it be for a time become part of the sea, and within the admiral jurisdiction while it so continues.” And again: “As touching islands arising in the sea or in the arms of creeks or havens thereof, the same rule holds which is before observed touching acquests by the reliction or recess of the sea, or such arms or creeks thereof. Of common right, and prima facie it is true they belong to the crown, but where the interest of such districts maris, or arm of the sea or creek or haven, doth in point of property belong to a subject, either by charter or prescription, the islands that happen within the precincts of such private propriety of a subject will belong to the subject according to the limits and extents of such propriety.” (See, also, Gould on Water, § 166.) A. case quite in point is referred to by the respondent’s counsel as arising in Delaware in 1815, decided by the Court of Common Pleas upon a learned opinion by Judge Wilson, a copy of which is attached to the plaintiff’s brief. The case does not seem to be elsewhere reported. It arose over the ownership of an island called Wilson’s Bar, which had been created by alluvion upon land formerly contained within the boundaries of an island called Little Tinnicum, but which at some time had been worn away by the ocean. The court say: “The right to the new island and also to land gained by alluvion or dereliction, all of which are governed by the same principle, follows the right to the soil which is covered by the water. Though the surface of the lower part of Little Tinnicum was destroyed by the force of the winds and the waves, and it was consequently overflowed by the water of the river, yet the owner did not lose the propriety of the remaining land covered by the water if it was regained either by natural or artificial means, it continued to belong to the original proprietor.” “ The earth deposited on it became his by the right of alluvion, and of course this island formed on it by such deposit became his. And though it probably has extended beyond the limits of the old island, the addition is plainly alluvion.”

It would seem also to follow as the necessary consequence of these rules that the existence of the lagoon between the plaintiff’s hotel property and the beach constitutes no obstruction to his proprietorship of the beach formation, however created, if located within the original boundaries of his possession. (Deerfield v. Arms, 17 Pick. 43.) It was held in the case of Railroad Co. v. Schurmeir (7 Wall. 272) that a sand bar in the Mississippi river divided from the mainland by a slough twenty-eight feet wide, and which at high water was entirely submerged, belonged to the riparian owner, although the acts of Congress made the river a public highway at the place in question. It is also said that “rocks and shoals lying along the margin of navigable fresh rivers belong to the riparian owners.” (Gould on Water, § 77.)

The evidence in the case and the findings of the trial court concur in establishing the fact that during the period of change hereinbefore mentioned portions of the beach in front of plaintiff’s premises became submerged, but at all times there existed upon or near such premises, shoals bars or islands, which afterward became the nucleus around which gathered the deposits now composing the land subject to litigation. It seems to us clear that the owners of this property did not lose their title thereto by reason of the changes described, and that the State has not acquired any property therein. The sovereign succeeds to the ownership of such islands and formations only as are originally created and located in tide-ways outside of the boundaries of property subject to individual ownership.

We are also of the opinion that the principles applicable to the apportionment of lands formed by accretion among the ownei’s of contiguous uplands is quite controlling as to the rights of the respective parties in this case. Such owners are entitled to lands made by accretion or reliction in front of their property and contiguous thereto in certain proportions according to the formation of their respective shore lines. (Houck on Rivers, § 162; 3 Wash, on Real Prop. 58; Angell on Tide Waters, 171.) However such accretions may be commenced or continued, the right of one owner of uplands to follow and appropriate them ceases when the formation passes laterally the line of his coterminous neighbor. A littoral proprietor, like a riparian proprietor, has a right to the water frontage belonging by nature to his land, although the only practical advantage of it may consist in the access thereby afforded him to the water for the purposes of using the right of navigation. This right is his only and exists by virtue and in respect of his riparian proprietorship.” (Gould on Water, § 149; Buccleueh v. Metropolitan Bd. of Works, L. R., 5 H. L. 418.)

The principles upon which the rights of littoral proprietors to lands reclaimed from the sea are determined have been frequently discussed in cases arising in our sister States, but those discussions are not important here, and the cases are referred to only for the purpose of showing that such reclamations are apportionable among the littoral owners according to the lateral lines of upland possessed by them. (Gould on Waters, §§ 162, 163, 164 and 165; Deerfield v. Arms, 17 Pick. 43; Wonson v. Wonson, 14 Allen, 85; Thornton v. Grant, 10 R. I. 477; Emerson v. Taylor, 9 Greenl. 44.) These authorities were cited and approved in O'Donnell v. Kelsey, 4 Sandf. 202; affirmed in this court, 10 N. Y. 412. See, also, Angell on Tide Waters, 258.)

It would seem to follow from the principles referred to that the owner of Long Beach could not, even if the process of its enlargement and extension was effected by accretion, claim beyond the point where such accessions began to be made adjacent to the property of adjoining owners, and as the line of each successive owner of uplands was reached in the process of extension a new obstacle to the appellant’s claim would seem to arise. This result would occur undoubtedly after passing Hog Island inlet as some of the land westerly thereof was originally solid beach, and occupied by the grantees of Hempstead before the extension of Long Beach.

Aside from those discussed no material objection was made to the judgment appealed from except that concerning the jurisdiction of a court of equity over actions of this character.

The circumstances of the case are peculiar, and we think within established principles entitle the plaintiff to the relief sought. He was the owner of a hotel upon the ocean beach greatly resorted to by visitors in the summer for the benefit of surf bathing and sea air, and which could be enjoyed by them advantageously only by the undisputed control of the beach in question by the owner of such hotel. The use and character of the property was such that intruders thereon could not be excluded by substantial barriers, and a remedy against them by an action of trespass would necessarily be of doubtful success, and probably afford an inadequate indemnity for the injuries inflicted. During a long period of time successive efforts have been made by the defendant and his lessors to obtain possession of the premises in dispute and occupy them to the exclusion of the plaintiff. Actions have been threatened against him and claims of title made, which constitute a serious annoyance to the owner and impairment of his ability to derive an adequate compensation for the use and rental of such property. The defendant Norton transferred an interest in his lease to the other defendant Levy in order to multiply the claimants to the beach, and the prospect of successive litigations in connection therewith. These annoyances had continued for a series of years and occasioned damage to the plaintiff’s rights of property which could not be -easily ascertained or adequately compensated for in an action at law. The evidence also tended to show that the defendant Levy was a person of little pecuniary responsibility and presumably unable to respond in damages for the injury his conduct was liable to inflict upon the plaintiff’s rights. Hnder similar circumstances the jurisdiction of a court of equity to interfere by injunction to quiet the title and prevent an injury for which no adequate remedy exists at law has been frequently exercised and approved by the courts. (Hilliard on Inj., chap. 10, § 1; Watson v. Sutherland, 5 Wall. 74; Livingston v. Livingston, 6 Johns. Ch. 497; Lacustrine Fertilizer Co. v. L. G. & F. Co., 82 N. Y. 476; Hart v. Mayor of Albany, 3 Paige, 213.)

We think this a case where the remedy by injunction was proper, and within the principles laid down in the cases cited. The judgment should, therefore, be affirmed.

All concur.

Judgment affirmed.


author: Danforth, J.

text:
    Thomas Stillman, Respondent, v. Mart S. Van Beuren, Impleaded, etc., Appellant,
    (Argued October 16, 1885 ;
    decided November 24, 1885.)
    In an action to foreclose a mortgage upon a leasehold interest, in which a receiver of rents accruing from an undertenant had been appointed, and wherein the original landlord claimed a preference for the amount of rent unpaid as fixed by the original lease, it appeared that by an agreement between her, her tenant and certain undertenants she consented, in consideration of the payment to her from rents accruing under a sublease of a less sum per annum than that fixed by her lease, that the residue of said rents might be appropriated for other purposes. Held, that she was only entitled to a preference to the amount fixed by said agreement; that, as but for it she would have been entitled to no portion of the money due under the sub-lease, she was bound by the conditions of the agreement.
    Appeal by defendant, Mary S. Van Beuren, from a judgment of the General Term of the Superior Court of the city of Rew York, entered upon an order made February 5, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 17 J. & S. 86.)
    This action was commenced in June, 1879, for the foreclosure of a mortgage given by the defendant, Christian F„ Dickel, to Edward Dickel, bearing date the 1st day of October, 1872, to secure the payment of $12,000 with interest, on the 1st day of October, 1874, and assigned to the plaintiff October 4, 1872. It recited a lease executed by the defendant 'Mary S. Van Beuren on the 1st of May, 1871, of lots numbers 128, 130, 132, on Thirteenth street in the city of New York, to said Christian for the term of ten years, at an annual rent of $2,000; a sublease by Christian to one Kain of the same premises 'for ten years from September 1, 1871; a sub-lease of the same by Kain to the board of supervisors of the county of New York, for ten years and eight months from September 1, 1871, at a yearly rent exceeding $6,000, and an assignment of .the last two leases by Kain to Christian, who for the purpose above mentioned assigned and transferred to said Edward Dickel the several lots on Thirteenth street, and all the mortgagor’s interest or right therein and the term of years yet to come, the three leases above described, and all right of the said Christian to the sums of money to become due for rent under the same. The complaint stated that on the 24th of December, 1873, Christian F. Dickel assigned these leases to the defendant, William C. Dickel, who leased the premises to the defendant, Charles W. Dickel,,for the term of five years and three months from July 1, 1876, at the yearly rent of $8,500, and without the consent of the plaintiff the lease from Kain to the supervisors was treated as void and a new lease in substitution thereof executed by Charles W. Dickel on the 1st of January, 1877, to the mayor, aldermen and common council of the city of New York, for the term of five years from that date, at the yearly rent as finally adjusted of $5,500; that on the 21st of March, 1877, this lease and the rents to accrue thereon, was assigned by Charles W. Dickel to the defendants, Edward and William Mitchell, upon an agreement in writing, in which, among others, Mrs. Van Beuren, William O. Dickel, Charles W. Dickel and the Messrs. Mitchell joined, to apply the rents thereafter received, among other things, to the extinguishment of the amount in arrear at any time for rent, taxes, etc., under the lease from Mrs. Van Beuren to Christian F. Dickel, “it being thereby agreed, however, that $1,500 per annum only from and after April 1, 1877, should be applied from the rents to be received by the Messrs. Mitchell, to the payment and on account of the rent thereafter to grow due to said Mary S. Van Beuren, under said lease from her to said Christian I’. Diekel.” One Howland and other persons were also parties to this agreement, and provision was made for the distribution of portions of the rents for their benefit; as to them no question now arises; that this agreement was executed with notice to the parties thereto of the mortgage and its assignment to the plaintiff ; that the whole amount of the mortgage is ,due and unpaid, the mortgaged premises an insufficient security for the same, and Christian F. Diekel and William 0. Diekel irresponsible.
    The complaint concedes the validity of the agreement to the extent that it provides for payment of rent to Mrs. Van Beuren, and taxes and assessments, but claims that it is void as to the residue. Judgment was asked that the plaintiff be declared entitled to the rents under said lease to the mayor, aldermen and commonalty of the city of Hew York, to be applied on account of the amount due on said bond and mortgage, after the payment of taxes, assessments and Croton-water rents on said premises, and the rent under said lease from said Mary S. Van Beuren, for the usual judgment of foreclosure and sale of the premises, “ and that the said Mary Van Beuren be enjoined from instituting or prosecuting any proceedings for the recovery of possession of the premises for the non-payment of rent,” and for a receiver “ of the mortgaged premises and of the rents, issues and profits thereof.”
    Mrs. Van Beuren asserted by answer that rent was due and unpaid by the lease to Christian to the amount of $2,700, and a right to institute proceedings for the recovery of the demised premises. On the 5th of September, 1879, the court at Special Term, after hearing the parties, appointed the Messrs. Mitchell “ receivers of the rents, issues and profits of the mortgaged premises, with the usual powers of receivers in such cases,” •and ordered that they, as such, “ apply the rents received, or to be received, to the extinguishment of the amount in arrear, or which may at any time be in arrear for rent, taxes, Croton water or assessments under lease of said premises to Christian F. Diekel until there shall be no more arrears of rent due the defendant, Mary S. Yan Beuren, under said lease from her, and until there shall be no arrears of taxes, assessments or Croton rents on said premises — but that $1,500 per annum only shall be applied from the rents to be received by said receivers to the payment of and on account of the rent due and to grow due from and after April 1,1877, to said Mary S. Yan Beuren under said lease from her to said Christian F. Dickel.”
    Upon hearing of the issues, the trial judge found substantially as alleged by the plaintiff, ordered judgment of foreclosure, and that the mortgaged premises be sold, subject to the said lease to the mayor, aldermen and commonalty of the city of New York. That the plaintiff is entitled to the rents since June 26, 1879, under said last-mentioned lease collected by the defendants, Edward Mitchell and William Mitchell, Jr., by virtue of said agreement and by the receivers appointed in this action, to be applied on account of the amount due on his bond and mortgage after the payment out of said rents of taxes, assessments and water rents on said premises, and the rent due under said lease from said Mary S. Yan Beuren, at the rate of $2,000 per year up to April 1,1877, but that $1,500 per annum only from and after April 1, 1877, should be applied from said rents to the payment of and on account of the rent due or to grow due after April 1, 1877, to said Mary S. Yan Beuren under said lease from her to Christian F. Dickel. The court refused to restrain Mrs. Yan Beuren. She appealed from the judgment entered in pursuance of this decision, so far as the same determines that the agreement dated March 21, 1877, inures to the benefit of the plaintiff, and so far as said judgment adjudges that said defendant, Mary S. Yan Beuren, is entitled to a preference to the extent only of $1,500 rent per annum, and that she is not entitled to $2,000 rent per annum of the mortgaged premises therein described.

      Edward Mitchell for appellant.
    When the paramount landlord of leasehold premises has been made a party defendant in an action by the mortgagee of a lease to foreclose his mortgage, and in such action the plaintiff has had a receiver of the rents appointed, the paramount landlord is entitled to a judgment for the payment by the receiver, out of the rents collected by him, of rent in arrear reserved under the original lease before any payment of such rents to the mortgagee. (Riggs v. Whitney, 15 Abb. Pr. 388; Howell v. Ripley, 10 Paige, 43.) When the paramount landlord has been made a party defendant in an action, as above stated, if the rents collected by the receiver are insufficient to pay the arrears of rent due to him, the landlord is entitled to a judgment for the payment of such arrears out of the proceeds of sale before such proceeds are to be applied on the mortgage' debt. (Catlin v. Grissler, 57 N. Y. 363.) The mortgage to the plaintiff did not vest in him the legal title to the leasehold premises. (Riggs v. Pursell, 66 N. Y. 200 ; McAdam on Landlord and Tenant [2d ed.], 101, and notes.) In fact and in law the Kain lease was void. (Boiler v. Mayor, etc., 8 J. & S. 523.) The owner of the equity of redemption of mortgaged premises is at law entitled to the rents and profits of the mortgaged premises until the purchaser under the decree becomes entitled to the possession of the premises. (Astor v. Turner, 11 Paige, 436; Mut. L. Ins. Co. v. Sage, 28 Hun, 595.) The mortgagee, as such, had no right at law or in equity to the rents to accrue under leases made subsequent in time to his mortgage. (MoKircher v. Hawley, 16 Johns. 289; Jones v. Clark, 20 id. 51, 52, 62, 63 ; Simon v. Saltus, 3 Denio, 214.) Even after foreclosure and possession by the mortgagee he cannot hold any tenant to the terms of a lease made subsequent to his mortgage. There is no privity of contract or estate in such „case. If the tenant should remain he would not thereby ratify the lease, but would be in as tenant from year to year. (Simon v. Saltus, 3 Denio, 214; Doe v. Bushnell, 8 Car. & P. 566.) There was no privity of contract or estate between the paramount landlord, Mrs. Van Beuren, and the mortgagee, or his assignee, the plaintiff Still-man. (Astor v. Hoyt, 5 Wend. 603 ; 2 Wash, on Real Prop, [ed. 1860] 479, § 48; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 id. 178.) The obligation to pay rent had not been released or extinguished. (People v. Dudley, 58 N. Y. 331;
      Finnegan v. Carraher, 47 id. 500.) When a receiver is appointed in a suit he is appointed for the benefit of such of the parties in the suit as it shall afterward appear were entitled to the fund in controversy. (Howell v. Ripley, 10 Paige, 43.) The right of the landlord to action for the rent or to re-enter is sufficient to render the payment by the tenant compulsory, and to render it a valid payment to and for the use of his landlord. (Peek v. Ingersoll, 7 N. Y. 528; Astor v. Le Amoreaux, 4 Sandf. 524.)

      David Thurston for respondent.
    The principal landlord has no-claim against a sub-tenant for rent due upon the principal lease; as between them, there is neither privity of contract nor privity of estate. (McFarlan v. Watson, 3 N. Y. 286 ; Taylor on Landl, and Ten., § 448.) The doctrine that a subtenant may pay the original landlord the rent due in the latter’s lease, and charge it against his immediate landlord, does not aid the appellant. (Peak v. Ingersoll, 7 N. Y. 528.) The plaintiff was entitled to have such a provision inserted in the judgment that out of the fund in the receiver’s hands all arrears of rent should be paid to appellant. (Catlin v. Grissler, 57 N. Y. 364.) Assuming that the plaintiff had no lien on these rents by virtue of a special agreement in his mortgage, he was still entitled to have the rents impounded by the court for his benefit, and a receiver appointed for the purpose. (Howell v. Ripley, 10 Paige, 43 ; Lofsky v. Maujer, 3 Sandf. Ch. 69 ; Post v. Dorr, 4 Edw. Ch. 412; Washington Life Ins. Co. v. Fleischman, 10 Hun, 117.)
   Danforth, J.

Between Mrs. Van Beuren, the original lessor, and the city of New York, the under-tenant of Christian F. Dickel, there was neither privity of estate nor privity of contract, and it was upon this principle that both courts decided against her. We find no error in their conclusion. Except for the agreement of March 21, 1877, Mrs. Van Beuren would have been entitled to no portion of the money becoming due under the lease from Dickel to the city of New York, and the appeal challenges only that portion of the judgment which in effect determines that she must abide by its conditions. The learned counsel for the appellant seems to give no force to this agreement, but puts his argument upon the general equity of the landlord to be paid from rent in the hands of a receiver before its distribution among other creditors. That equity is obvious. Bent reserved to the landlord must be paid as a condition to its continued receipt from an under-tenant. If the original lessor is not satisfied, the under-tenant may be dispossessed, and so rent ceases. But the original landlord may be satisfied in other ways than by a compliance with the terms of the lease ; and that, so far as the rents are concerned, is the case here. If we assume that under other circumstances she might have been entitled to be paid from the rents owing by the under-tenant; that upon sale of the leasehold interests the arrears due would have been retained for payment to her, it cannot be denied that she might waive this preference, and that her consent to the appropriation of those rents would be sufficient as against any subsequent or adverse claim by her.

It is also argued that the plaintiff as mortgagee had no lien upon the rents. That question hardly concerns the appellant. It was one of the terms of the agreement referred to, that after payment of the sums specified and the portion of rent to her, the rents should be re-assigned to Charles W. Dickel, by whom the lease had been transferred to the Messrs. Mitchell. Although a party to the action he makes no objection, and if he has any right it cannot be enforced by the appellant. So far as her rights are concerned in any question properly arising on this appeal, we think they were established by that agreement and that the judgment appealed from is in accordance with it. It is, therefore, unnecessary to consider the propositions submitted in her behalf, and which, it must be conceded, would have great force if that agreement had not been made.

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    The Oregon Steamship Company, Respondent, v. George K. Otis, Appellant.
    The provision of the Federal statutes (U. S. E. S., § 3963), prohibiting a contractor for carrying the mails between the United States and a foreign country from assigning his contract and declaring any assignment or transfer thereof void, does not, where the contractor is in fact an agent for another, operate to annul the agency or to vitiate his liability to the principal, so far at least, as money actually received by the former under the contract is concerned; and an action against him is maintainable by the principal to recover the same.
    The presumption is that letters, mailed to a person directed to him at ■ his place of residence, were received by him.
    Where a witness testifies that he sent letters to a person directed to him at his place of residence, held, that, in the absence of any proof or inquiry upon cross-examination, as to the mode of sending, it is to be presumed that they were mailed in the usual manner.
    The same presumption (in kind if not in degree) as to the receipt of letters applies to telegrams proved to have been delivered to a telegraph company for transmission, properly directed to the correspondent at his place of residence or where he is shown to have been at the time ; and where the correspondent is a witness in the case, and does not deny the receipt of the telegram, the presumption becomes strong and convincing,
    While the transcript of the message delivered to the person addressed is for some purposes, as between him and the sender, to be deemed the original, to make it so there must be competent proof that the alleged sender did actually send or authorize it to be sent.
    The primary evidence of this is the telegram itself delivered to the telegraph company. Where it appears this has been destroyed by the company, secondary evidence may be resorted to.
    Where it appeared that the original telegrams had been thus destroyed, and that the message received was in a cipher agreed upon between the parties, and the sender as a witness did not deny the authenticity of the telegrams, held, that the proof was sufficient.
    As to other telegrams claimed to have been sent by the same person, it was proved that the person receiving them subsequently mailed letters to the sender, which stated the receipt of the telegrams and substantially their contents. Held, that the letters called for a denial if the messages were not in fact sent, and the omission of such a denial, or of an explanation of his silence by the alleged sender when called as a witness, amounted to an admission that he did send them.
    Other telegrams, purporting to come from the same sender, contained directions to draw for specific sums of money. It was proved that drafts were drawn in accordance with the instructions, which were paid by the. drawee and credited to him; the correctness of the account he did not dispute. Held, that in the absence of denial, a prima faeie case was made of the genuineness of the dispatches which justified their receipt in evidence.
    (Argued October 19, 1885;
    decided November 24, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 22, 1883, which modified, and affirmed as modified, a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was brought to recover a balance of moneys in defendant’s hands, alleged to have been received by him on contracts with the United States government for the transportation of the mails from San Francisco to Portland, Oregon, which contracts plaintiff alleged, although entered into by defendant in his own name, were in fact made by him as agent for plaintiff.
    The facts, so far as material, are stated in the opinion.

      John R. Abney for appellant.
    There was error in admitting in evidence the telegrams upon the mere statement that the witness received them.' (Tabor v. Van Tassel, 87 N. Y. 643 ; Bullis v. Montgomery, 50 id. 359; Howley v. Whipple, 48 N. H. 487, 490; National Bk. v. National Bk., 7 W. Va. 544; Smith v. Easton, 54 Md. 138.) A party’s self-serving declarations cannot be put in evidence in his own favor. (2 Whart. on Ev., § 1101; 19 La. Ann. 91.) The acts done by one party after the completion of the contract, in furtherance of his understanding it, cannot bind the other party, nor are they admissible in aid of the construction of the contract. (Stockham v. Stockham, 32 Md. 196.) The test, whether a demand connected with an illegal transaction can be enforced at law, is, whether the plaintiff requires the aid of the illegal transaction to establish his case. (Armstrong v. Taber, 11 Wheat. 258 ; Ogden v. Barker, 18 Johns. 87; Seidenbender v. Charles, 4 S. & R. 150; Swan v. Scott, id. 155 ; Hipple v. Rice, 28 Penn. St. 406; Simpson v. Bloss, 4 Taunt. 246.) No claim or defense can be maintained that requires the aid of an illegal agreement of the party in support of his case. (Leake on Cent. 771 ; Thomson v. Thomson, 7 Ves. 470.) It makes no difference that all the illegal parts have been performed. (Hope v. Hope, 22 Beav. 351.) The government could not maintain an action on this contract against the plaintiff. (Cagin v. Lovell, 109 U. S. 194.) If an original agreement of partnership be disputed, it cannot be established in a court of law. (Leake on Cont. 777; Knowles v. Haughton, 11 Ves. 168; Ewing v. Osbaldwin, 2 M. & Cr. 80; Crosier v. Acer, 7 Pai. 137 ; Pratt v. Adams, id. 616.)

      George H. Adams for respondent.
    This court will not review the question whether Otis, when bidding for and taking the mail contract, was acting as the agent or in behalf of the plaintiff. (Pope v. Allen, 90 N. Y. 298.) It was competent to prove a former relation of principal and agent, not for'the purpose of proving a present or continuing similar relation, but “ for the purpose of aiding in the interpretation of the communications, written and oral, between the plaintiff and the defendant.” (Richards v. Millard, 56 N. Y. 574, 581.) Proof of the sending of a letter by mail raises the presumption of its receipt by the addressee, and for the same reasons telegrams are now held to be subject to the same rule. (Whart. on Ev., §§ 76, 617, 1128, and notes ; Trotter v. McLean, L. R., 13 Ch. Div. 574; Rosenthal v. Walker, 111 U. S. 193; U. S. v. Babcock, 3 Dill. 573; Breed v. Bank, 5 Cal. 235 ; Scott & Jarnagan on Telegraphs, §§ 340, 341; Allen’s Telegraph Oases, passim; Howley v. Whipple, 48 N. H. 487; Dunning v. Roberts, 35 Barb. 471; Trevor v. Woods, 36 N. Y. 307; Durkee v. Vermont R. R. Co., 28 Vt. 127.) The notice to produce was sufficient to authorize the admission of the telegrams, although it may have been presumed that the papers called for were in the possession of the telegraph company. (Burton v. Payne, 2 C. & P. 520.) This court will not review the determination of the referee as to the sufficiency of the testimony of loss or destruction of papers constituting best evidence, and the admission of secondary evidence. (Mason v. Libbey, 90 N. Y. 683.) The omission of Otis to show the facts as to the sending and receipt of the communications in question which were peculiarly within his own knowledge, and thus to repel the inference to be drawn from the plaintiff’s evidence, serves only to strengthen such inference. (Adams v. Davidson, 10 N. Y. 309 ; Wylde v. Northern R. R. Co., 53 id. 156, 164.) Under all the circumstances, and there being not a shadow of doubt that the papers objected to came from defendant, and the resistance to their reception being hardly commendable, the court should hold the appellant strictly to the grounds of his objection, and if the plaintiff was not called upon to prove that appellant actually “ wrote or sent” the identical exhibits read in evidence, but was required only to trace them actually or presumptively to the appellant, the objection should be disregarded. (McColloch v. Hoffman, 73 N. Y. 615.)
   Finch, J.

The referee has found that the defendant’s contract with the government to transport the mails between San Francisco and Portland, Oregon, though made in his own name as contractor, was in reality made by him as agent for and in behalf of the plaintiff company which actually performed the service; that the compensation paid him, as between himself and the plaintiff, belonged to the latter, except that out of it Otis was entitled to retain a commission for his agency; that he in fact retained and refused to pay over a much larger sum, for the conversion of which he was sued, with the result of a recovery against him. The evidence was sufficient to warrant the conclusion of the referee upon the facts; but assuming them as they have been found, the appellant seeks to defend upon the contention that his agreement of agency was void because in contravention of the Federal law, which makes it legally impossible for a contractor to sell or transfer or assign his contract for' the transportation of the mails. We do not think that fact could operate to annul the agency, or vitiate the liability to the plaintiff, so far as the money actually received was concerned. By section 3954 of the U. S. Revised Statutes it is made a misdemeanor for the bidder to refuse to enter into the contract and perform the contracted service. Otis did enter into the contract, and, as between him and the government, did perform the service and receive the -stipulated pay. By section 3963 it is provided that the contractor shall not assign or transfer his contract, and such assignment or transfer shall be void. Otis made no assignment or transfer. As between him and the government he remained contractor, and gave to nobody any right through or under him against the employer. That did not prevent him from holding the contract for the benefit of the company which performed the service, and agreeing to collect and hold the pay for it and as its property when received. That was the agreement which the referee found was made, and it violated neither the letter nor spirit of the law. The obvious aim of the enactment was to prevent a liability of the government upon the contract to. any person but the accepted bid: der. That object was accomplished. What became of the money when earned and paid was immaterial to the employer, and Otis might, as he did, put himself in the attitude of an agent for the defendant company as between them. This question does not appear by the record to have been specifically raised, and it is quite probable that the exceptions were too general and ambiguous to present it for review. But it seems to have been considered and discussed in the courts below, and so we have thought it best to dispose of it here.

But other and very serious questions were raised by objections taken to the admission in evidence of a large number of letters and telegrams. Many of these documents were important in their bearing upon the facts, and must have largely contributed to the ultimate result. They consisted of- three letters from Norris, plaintiffs agent and manager at San Francisco, to defendant Otis, and one from Otis to Norris; and then of a large number of telegrams; and the objections were that as to those purporting to be addressed to the defendant there was no competent evidence that he ever received the originals; and as to those purporting to have been signed by him, that there was no competent evidence that he ever wrote or sent them. Our consideration must be limited to these precise objections, and to the question as between sender and receiver.

Norris swears that he sent the three letters'written by him to Otis. In the absence of any proof to the contrary, or any inquiry as to the mode, we must understand this to mean that they were mailed in the usual manner. If there was doubt about that the attention of Norris should have,., been drawn to it, and the manner of transmission challenged. It would be extremely critical to deny to the form of expression used by the witness its ordinary and usual interpretation, because it might have been more precise and explicit, in a case where the party addressed is examined as a witness, and does not deny the receipt of the letters, although material to the issue. On such a state of facts the jury were authorized to believe that the three letters sent to Otis were received by him. The one letter sent by Otis to Norris was identified by the latter, who knew his correspondent’s handwriting, as appears by the deposition. Notice to produce the letters of Norris was given, and not being produced, copies of them were read in evidence.

But there is more difficulty about the telegrams. The originals were shown to have been destroyed by the telegraph company, so that a resort to secondary evidence became necessary. We shall first consider the proof as to those sent by Norris. It consisted merely of his statement that he sent the messages by telegraph to Otis, who resided in New York, directed to him at that city. Such direction appears upon the copies produced. And the first question is, whether a similar presumption of fact follows the delivery of a message, properly addressed, to the telegraph company for transmission, to that which follows the delivery of a letter to the post-office. The drift of authority gives an affirmative answer. (Gray on Telegraphs, § 136; Commonwealth v. Jeffries, 7 Allen, 548; Whart. on Ev., §76; State v. Hopkins, 50 Vt. 316; Scott & Jarnagin on Tel., § 345.) The presumption indulged is one of fact, and so, open to rebuttal and contradiction, and consists merely in the natural inference which may be drawn from the experienced certainty of transmission. The great bulk of letters sent by mail reach their destination, and equally so the great bulk of telegrams. A failure in either case is an exception; possible, but rare. The letters are transported by government officials acting under oath, and upon a system framed to secure regularity and precision: the telegrams by private corporations, whose success and prosperity depend largely upon the promptness and accuracy of the work, and are faithful under the incentive of interest. These companies perform a public service and are regulated to some extent by the public law. They are authorized to cross with their wires any waters within the limits of the State (Laws of 1845, chap. 243); to construct their lines along and upon the -public roads and highways (Laws of 1848, chap. 265); and upon and over the lands of individuals, paying the agreed or appraised compensation therefor (Laws of 1853, chap. 471); injury to their lines is made a misdemeanor (Laws of 1870, chap. 491); the companies are required to transmit all dispatches in the order of their receipt; to accept and forward them from connecting lines; the operators are exempt from military service and jury duty (Laws of 1861, chap. 215); and it is made a misdemeanor for any employe to divulge the nature or contents of a private telegram, or willfully refuse or neglect to transmit or deliver the same (Laws of 1867, chap. 871). There is thus impressed upon the telegraph service something of a public character, and thrown around it the guard and the obligations of the public law, and it seems to us reasonable to assimilate the rules of evidence founded upon transmission by mail to that of transmission by telegraph. It may be that the presumption of correct' delivery, agreeing in kind with that raised upon delivery to the post-office, should be deemed weaker in degree, but in view of the wide extension of telegraph facilities and of their increasing use in business correspondence, and the difficulty oí tracing a dispatch to its destination, we think it should be held that upon proof of delivery of the message for the purpose of transmission, properly addressed to the correspondent at his place of residence, or where he is shown to have been, a presumption of fact arises that the telegram reached its destination, sufficient at least to put the other party to his denial, and raise an issue to be determined. Here there was no denial, and the presumption, however weak at the outset, became strong and convincing. There is greater safety in conceding the existence of such a presumption of fact under a system like ours, in which the party addressed is always at liberty to testify, and if dead his representatives are protected against the evidence of his adversary as to personal transactions and communications.

We turn now to the telegrams alleged to have been sent by Otis. While the transcript delivered to the person addressed is for some purposes, as between him and the sender, deemed the original, it never can be so without competent proof that the alleged sender did actually send, or authorize to be sent, the dispatches in question. The primary and original evidence of that fact would be the telegram itself in the handwriting of the sender, or of an agent shown to have been duly authorized. But when it appears that the telegram has been destroyed by the company, secondary evidence of the essential fact may be given. The General Term have put great stress upon the circumstance that when on the witness stand the defendant did not dispute the authenticity of the telegrams, and thence reasoned that if improperly admitted at first, they became competent afterward. There is much of force in the argument, but we think there was some evidence of genuineness of a different character. Exhibit 4 is in an agreed cipher which identifies it with a certainty at least equal to that of a proved handwriting. Exhibits 8, 9 and 10 were not objected to. They refer to Ho. 7, asserting that it was received from Otis, and reciting its substantial contents. They are followed by Ho. 11. These two —7 and 11 —purport to have come from Otis, and their material point is a claim by him for salary in addition to commissions. How Ho. 14 and Ho. 20 are letters from Horris to Otis which he presumably received, and never disputed, either by an answer or on the witness stand. Those letters recite the receipt of Otis’ previous telegrams, claiming a salary •in addition to commissions, and paying that claim under protest by draft inclosed. If he had not sent these dispatches, the letters required of him a denial, or at least an explanation of his silence when called as a witness. He did neither, and hence the receipt of the letters and the omission to challenge their recitals amount to an admission that he did send Exhibits 7 and 11. No. 21 is verified by the letter of Otis, No. 22. Exhibits 5, 6,29, 30 and 31 purport to be directions from Otis to Norris to draw for specific sums of the mail pay. Their importance lies in their amounts as excluding a deduction for ' salary, or making that deduction. Putnam, who was cashier and book-keeper, testifies that defendant resided in New York city; would telegraph to Norris to draw for specific sums; that such drafts were drawn and paid, and the amounts entered to Otis’ credit in the books. In each case the payment of the draft would verify to Putnam the genuineness of Otis’ telegram to draw, and these telegrams Putnam delivered to Norris, who produced them. The credits on the books corresponding with the telegram amounts went into the account, the correctness of which Otis does not dispute, but only denies that he is liable at all. These facts furnish some evidence that Otis did send the telegrams in question. Exhibit 26 is .a refusal to pay a specific draft and is made immaterial by what follows. No. 27 was from Norris and verifies No. 23 as sent by Otis. There remain Exhibits 3, 15, 17, 18 and 28, covered by the objection, and these seem to us entirely immaterial, and bearing in no degree upon the questions litigated beyond what is sufficiently . established by other competent proof. There was thus some evidence presented to the court, without objection to its character when given, tending to prove that Otis did send the telegrams purporting to be signed by him. It was claimed afterward not to be competent, but so far as the case shows, it was the best evidence attainable, and no specific objection was made that there was better evidence, and no facts proved indicating it. The court held that a prima facie case was made of the genuineness of the dispatches as having emanated from Otis, and that being so, the. transcripts delivered to hi orris became admissible in the absence of any objection to their accuracy as copies, or to the correctness of their transmission. So far then as the telegrams were material, we think there was no error in their admission. That they were in truth authorized and genuine became in the end most thoroughly established by Otis’ omission to dispute them as a witness.

Some other questions of evidence were raised which we have examined, but deem it unnecessary to discuss.

The judgment should be affirmed, with costs.

A.11 concur.

Judgment affirmed.