author: By the Court.—Sedgwick, Oh. J. By the Court.—Sedgwick, Ch. J.

text:
    JOHN H. WATSON, Respondent, v. METROPOLITAN ELEVATED RAILWAY COMPANY et al., Appellants.

      Action for injunction and damages for construction and operation of railway in front of premises of plaintiff—-Easements of parties owning real estate on the line of streets after their opening—Suspension of injunction after award by commissioners to condemn the property and payment of the award.

    In this case the plaintiff acquired title to the property and easements from one Love, after defendants had taken the easements which plaintiff claims to be his property. Love was in possession and the owner of the premises at and before the time the railway was built, and he was entitled to the easement of light, air, access, etc., from the street as appurtenances. The street was opened under the Act of 1813, and the consequences of such opening were that the fee of the bed of the street vested in the city, and the . owners of the abutting lot had, appurtenant to such ownership, the easements, and in the absence of proof that this appurtenance had been extinguished, the presumption would be that it was attached to the lot as owned by Love, and when the defendants took a part of these easements, there was no presumption that they had given due compensation, and it was necessary that defendants should affirmatively allege and prove that they had given due compensation. In the absence of explanation the result of the testimony as given was, that when the plaintiff acquired title from Love, the defendants were wrongfully holding the easement.
    The finding of the court below, made at the request of the defendants, to the effect that defendants before the trial of this action instituted proceedings in the Supreme Court, pursuant to statute, for the condemnation of so much of the privilege, easement or other interest, in West Fifty-third street, as was taken, appropriated or interfered with by defendants, belonging to or claimed by the plaintiff and appurtenant to the lot and premises No. 121, West 53rd street, etc., is an admission that the defendants held their position in front of plaintiff’s premises in subordination to the right of plaintiff for compensation.
    In the absence of explanation, the result of the testimony as given would be, that when the plaintiff acquired title to the premises, the defendants were wrongfully holding the easement. The defendants were not entitled to a provision in the judgment, that the injunction given by it should cease to be operative when any award given in the condemnation proceedings had been paid as directed by statute. They had no absolute right to a provision for a contingency that would occur after the judgment should be given.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 6, 1890.
    Appeal from judgment entered upon findings made at special term.

      Davies & Rap alio, attorneys, and Edward S. Rapallo, and Edwin D. Worcester, Jr., of counsel, for appellants, argued :—
    I. The court erred in denying the defendants’ motion to dismiss the complaint, and in finding that he was entitled to easements for which he should receive compensation. The court has stated in the case of Pappenheim against these defendants that a serious question is presented as to the right to recover under such circumstances as those disclosed in the case at bar, where the plaintiff has “ acquired title to the premises, to which the easements are claimed to be appurtenant, three or four years after the construction and the commencement of the operation of the elevated railway,” and has failed to connect with the street opening proceeding in which the easements originated, or with the title of some one who, as owner of the premises, had the right to easements prior to the construction of the elevated railroad. In the case of Watson this question is especially brought to the attention of the court by the motion to nonsuit. The grounds stated are in effect that the plaintiff purchased after the road was built and in operation, and with full knowledge of the same; that the evidence failed to show that the railroad was constructed and put in operation there without the consent of the owner at the time of'the construction. The court in ruling upon the motion, says: It seems to me that the plaintiff presents himself in the attitude of one having a paper title to the premises in question, with evidence also of occupation. * * * Now, anything that happens between the grantor of the plaintiff in the way of acquiescence or the abandonment of his claim, that is, of what occurred during his possession and occupation, it would seem to me that that would be a matter to be shown by the defense. In the case at bar the evidence is that the plaintiff acquired title to the property in 1880, at which time defendants’ railway was constructed and the defendants were in possession of the street in front of the owner’s premises, with the consent of the city, in whom the title of the street had previously vested in trust. In considering the validity of the objection it should first be observed that this is an action in which the plaintiff must recover, if at all, by the strength of her own title and not by the weakness of that of the dedefendants. The land upon which the- defendants maintain and operate their railway has been found by the trial judge to belong, not to the plaintiff, but to the city of New York. The right to maintain and operate their railway has been granted them by the owner of the fee as fully as legislative and municipal authority could grant it. With this maintenance and operation the plaintiff attempts to interfere, upon the strength of a covenant made by the owner of the fee with his alleged predecessor in title. It is not a case of trespass upon land of which plaintiff is in possession. The defendants’ possession antedates his. The defendants’ possession began in 1879, and the plaintiff’s in 1880. It is the case of an attempted assertion of easements over land, as against one in possession of the land by authority of the owner of the fee. In such a case it is evident that the plaintiff must succeed, if at all, only by reason of the goodness of his title to the easements which he claims. His position is certainly no stronger than that of a plaintiff in an ejectment suit. He ought certainly to show that he owns the property which he seeks by injunction to compel the defendants to purchase. The easements here in question originated in the opening of the street in 1838, under the Act of 1813, and the payment of an assessment for the benefit of having the street remain open for street purposes by some one who then owned the lot. The reason for the existence of this easement is expressed in forcible and carefully chosen language by Chief Judge Huger in the Lahr Case (104 N. Y 268), and it has never been found necessary or desirable for any court to attempt to restate the doctrine in any other words than those there employed. The learned judge said: “We are of the opinion that no legal difference exists, with reference to the interest acquired by abutting owners in a public street, between that afforded by a title conferred under such a deed as Story had, or that acquired through a serious of mesne conveyances from the original owner, whose property had been taken by proceedings in invitum instituted by the municipality, under a public statute to acquire land for street purposes, which' statute provided that the land thus taken should be held ‘in trust, nevertheless, that the same be appropriated and kept open for or as part of a public street * * * forever in like manner as the other public streets * * * in the said city are and of right ought to be.’ Such proceedings created not only a valid trust in the city for the purposes expressed, which precluded it from authorizing any other use of the land acquired than that expressly described in the statute (Cooley on Const. Limitations, 331), but also constitute a contract between the public and the abutting owners severally, by which the liabilities, rights and interests of the respective parties are to be measured, and the enjoyment of their respective interests in the property (retained as well as acquired) regulated and determined. The covenant implied from the language of the statute, and the proceedings taken thereunder, was made with and intended for the benefit, among others, of abutting owners, and is a covenant which runs with the land, and inures to the advantage of each successive grantee as he succeeds to the title.” The proposition does not admit of argument, that in order to maintain this action upon the theory of the Lahr case, it was necessary for the plaintiff to show that he had “ succeeded to the title ” of the person at that time owning the lot; that he was one of the “ successive grantees ” of these premises; that his title was “ acquired through a series of mesne conveyances from the original owner.” In order for him to enforce the “ trust,” “ covenant,” or “ contract” referred to, he must put himself in privity with it. If he was to prove title to the alleged easements at all, he could do it only by connecting himself with a known source of title. He could not rely upon adverse possession as proof of title, as (he) might if title to land were in question, for the easements were not susceptible of possession, nor was their enjoyment ever adverse to any one, so that an action might have been maintained against her if it was wrongful. Burbank v. Fay, 65 N. Y. 57; Wheeler v. Clark, 58 Ib. 267. Any grantor of Watson may have acquired title to the premises themselves by adverse possession, and yet Watson may not be entitled to the full enjoyment of these easements, as against defendants, who are in possession before Watson. This essential fact could of course be shown by presumptive as well as by direct evidence, but in some manner it must have been made to appear, or the complaint should have been dismissed. There appears to arise no presumption of the existence of the conveyance from the owner in 1838 to Watson or to Watson’s grantor. The presumption of a conveyance which has been lost or for some other reason cannot be produced, is well known to the law, and the rules of law regarding the making of such presumptions are exceedingly well defined. The first requisite of such presumption is a great lapse of time. In Jackson v. Moore, 6 Cow. 706, the court said: “A grant of land will never be presumed unless the lapse of time is so great as to create the belief that it was actually made; or unless the facts and circumstances in the case show that the party to whom it is presumed to have been made was- legally or equitably entitled to it.” This statement is quoted and adopted in Demeyer v. Legg, 18 Barb. 22. In Schauber v. Jackson, 2 Wend. 13, Chancellor Walworth said: “ There are two kinds of presumption in favor of a grant or conveyance of real estate. The one is in favor of those who are entitled to a conveyance from trustees of others, in conformity to the trust, or in pursuance of some contract or agreement to give such conveyance * * * The other is in favor of a person who is in possession of property, or in the enjoyment of some privilege or easement under a claim of right; in which case, under certain circumstances and after a great lapse of time, a conveyance of the land or grant of the privilege or easement will be presumed, on the principle of quieting the title or possession.” The phrase, “a great lapse of time,” is technical and is always used in this connection. Russell v. Jackson, 22 Wend. 276; 1 Greenleaf on Evidence, § 46. Some of the times held sufficient to raise the presumption, are the following: Jackson v. Lunn, 3 Johns. Cas. 109.—35 years; Demeyer v. Legg, 18 Barb. 22.—66 years; Dutch Church v. Mott, 7 Paige, 77.—140 years; Van Dyck v. Van Bueren, 1 Cai. 84.—50 years; Jackson v. Murray, 7 Johns. 5.—120 years; Jackson v. McCall, 10 Ib. 377.—41 years; Jackson v. Matsdorf, 11 Ib. 90.—38 years; Jackson v. Moore, 13 Ib. 513.—32 years; Russell v. Jackson, 22 Wend. 276.—90 years. The above list of New York cases is very nearly complete. The courts have seldom been asked to presume a conveyance made since the recording acts went into operation, and, so far as is known to uss; never with success. See 1 Greenleaf on Evidence, 14th Ed., p. 63, note 4. The decisions are to the effect that such a presumption will arise only in support of a possession of at least twenty years’ duration. Jackson v. Moore, 6 Cow. 706, 723 ; Downing v. Ford, 9 Dana, 391; Anderson v. Smith, 2 Mack. 280. The evidence in this case does not tend to show any possession by the plaintiff prior to 1880, or about four years before the action was brought. There has been a complete failure on the part of the plaintiff to establish privity with 'the covenant or trust which he seeks to enforce. It is immaterial of what nature may have been any authority from the then owners of the easements in question, even though it consisted in a mere license, as soon as it became executed by the erection of a permanent structure for railroad purposes, worked an extinguishment pro tanto of the easements affected by the structure and its use. This is conclusively established by the decisions. 2 Washburn on Real Property, 284; Washburn on Easements, Chap. 5, Sec. 7; Cartwright v. Maplesden, 53 N. Y. 622; St. Vincent Orphan Asylum v. City of Troy, 76 Ib. 113; Dyer v. Sandford, 9 Metc. 395; Winter v. Brockwell, 8 East., 308; Morse v. Copeland, 2 Gray, 302. Therefore, the easements, if any, which passed to the plaintiff by the deed from his immediate grantor were those which such grantor had at that time, viz., easements which had been abridged, by the owner’s consent, to such" an extent as to permit of the construction and operation of the railway.
    II. The court erred in permitting a judgment to be entered enjoining the defendants from operating their railway upon the condition that defendants should pay for the property taken $12,000, and in refusing to direct that the injunction should become inoperative in case the defendants ' should pay the award of the commissioners in the condemnation proceedings which the court found had been commenced and was still pending. The court made a finding to the effect that such proceedings had been instituted and were still pending undetermined in the supreme court. The court was requested to so frame the decree that the proceedings might be continued and the injunction obviated by the payment of the award of the commissioners in those proceedings. The Court of Appeals in the case of Henderson v. The New York Central R. R. Co., in passing upon a similar decree in an equity action, decided that in the case of a decree containing an injunction which declared that such injunction should not be operative in case a certain sum found to be the value of the property taken was paid by the defendant, the payment of such sum found was not obligatory upon the defendant, but that the defendant, possessing the power of eminent domain, might exercise the statutory right irrespective of the finding end might obviate the injunction by acquiring the property in the method pointed out by the statutes.

      Edwin M. Felt, for respondent, argued :—
    I. The conveyance to plaintiff from Samuel Love and wife dated August 16, 1880, was a full warranty deed, and contained the following recital: “Being lot numbered 63, conveyed by James Bo we and Mary C., his wife, to the said Samuel Love, by deed dated December 18,1849, and recorded in the office of the Register of Deeds of the city, and county of New York, in Liber 533 of Conveyances at page 403, January 29th, 1850.” This shows that Love claimed to hold the premises by paper title since 1849. Love was also in possession and occupation of the lot prior to the building of the road in 1879. These findings, as requested.by the defendants, are as follows : Fourth, that on or about August 16th, 1880, after said railroad was erected and in operation, the plaintiff took a deed of the premises, No. 121 West 53d street, from Samuel Love and wife, who were in occupation thereof, for the consideration of $7,000, which he paid. Said premises were bounded in said deed by the side line of the street. Fifth, that said Love had been living in a frame house on said premises for several years prior to the date of said conveyance to the plaintiff, and renting part of said premises, but what title, if any, he had thereto is not proven. Now the law presumes the party in possession to be the owner. He is presumed to have the best title known to the law, namely, seizin in fee. Hill v. Draper, 10 Barb. 454; Bowen v. Bowen, 30
      N. Y. 519; Bogardus v. Trinity Church, 4 Sand. Ch. 633. The law presumes that Love’s title was good. Blunt v. Aiken, 15 Wend. 522. So that we have Love in possession several years before August, 1880, with a presumptively good title, and in addition his covenant in his deed to plaintiff that the premises he sold were the same premises which were conveyed to him by Rowe in December, 1849. The occupation of this street by the defendants, being pursuant to legislative grant or license, which only gave them what the public owned, entry under this license is presumed to have been in subordination to the rights of the -owner. Broistedt v. South Side R. R., 55 N. Y. 220. The facts in the above case were that the plaintiff purchased after the road was running and filed his bill to enjoin them on the ground that they were running over his property. The Court of Appeals sustained the injunction. The opinion of this court in Clover v. The Manhattan R’y Co., 51 Super. Ct. 1, on pages 12 and 13, sustain the theory that as long as these easements belonged to the abutting property on a street, an owner could recover the damages sustained since he became the owner; it says, “ It can make no difference at what time he became the owner of the •property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendant appropriated it or on the day before the commencement of the action.”
    II. The question who could maintain such an action as this against the defendants was fully raised and discussed in Story v. The N. Y. Elevated, 90 N. Y. 122. On pages 130 and 131 of that case the court will find that counsel contended for two propositions, which we understand were sustained by the court. 1st. The plaintiff as a mere abutting owner has an absolute right to protect the street in front of him for ordinary street uses. 2d. The interest of the abutting owner, his right to light and air and ventilation, and freedom of access, his exemption from annoyance is property, and it can only be taken from him by legal process and for just compensation. It being conceded in this case that 53d street was opened under the act of 1813, the plaintiffs deed and possession constitute him an abutting owner, and he can maintain such an action as the present one against any one who unlawfully deprives him of his property during the time he so. owns, irrespective of what it did to prior owners. In Glover v. Manhattan, 51 Super. Ct. 1, the defendants claimed that Grlover (who purchased after the road was built) could not recover as the damage was done before he purchased. In reply to this proposition Mr. Justice Ingraham says : “ The building of the road is not complained of, the use of the road before plaintiff purchased is not complained of, but the occupation and use of plaintiff’s property in the future is what the plaintiff asks the court to restrain, and for the use of such property since he purchased it, plaintiff asks compensation.” As this street was therefore opened under the Act of 1813 it was charged with the trust specified in the statute, which ensued not only to the benefit of the owner of the adjoining land at the time of the opening, but to every subsequent abutting owner. The only way for the defendants to have acquired these easements was either by purchase, or proceedings under the statute; they do not claim to have acquired them by either of these two methods ; had they done so it would have been a defence and their answer would have shown it. As they claim to have acquired them by legislative grant, and that could only give them what the public owned, their use of the street is presumed to be in subordination to the rights of the owner. Broistedt v. South Side R. R., 55 N. Y. 220 ; Pond v. Metropolitan Ry. Co., 112 Ib. 178 ; Hussuer v. Brooklyn City R. R., 114 Ib. 433.
   By the Court.—Sedgwick, Oh. J.

This is an action for an injunction against the defendants running their elevated railway in front of premises of plaintiff and for damages.

The only point that calls' for particular attention is based upon the fact, that the. plaintiff acquired title by conveyance from one Love, after the defendants had taken the easements, which the plaintiff claims to be his property. On the trial, and on this appeal,'the defendants claimed that there was no evidence that the railroad was constructed and put in operation there without the consent of the owner at the time of construction.

To this two answers may be made. The first is, that it appears that Love, the grantor of plaintiff, was in possession' of the premises at and before the time the railway was built, and that Love was then entitled, as owner of the lot, to the easements as appurtenances. This title would exist upon common law rules if there were not proof that the street had been opened under the act of 1813. The consequences of this opening were that the fee of the bed of the street-went to the city, and the owners of the abutting lots had, appurtenant to them, the easements. In the absence of proof that this appurtenance had been extinguished or conveyed, the presumption would be that it was attached to the lot, as owned by Love. When the defendants took part of these easements, when owned by Love, there was no presumption that they had given due compensation. They appeared to be trespassers; and to show that the contrary was the fact it was necessary for the defendants to affirmatively allege and prove that they had given due compensation. This seems to me to be strengthened by the second answer to the defendants’ proposition.

The second answer is, that the defendants, as found at their request before the trial of this action, instituted proceedings in the Supreme Court, pursuant to statute for the condemnation of so much of the privilege, easement or other interest in West Fifty-third street, as was taken, appropriated or interfered with by the construction and maintenance of their railroad belonging to or claimed by the plaintiff and appurtenant to the lot and premises No. 121 West Fifty-third street, etc. This is an admission that the railroad holds their position in front of plaintiff’s premises in subordination to the right of plaintiff to compensation. In the absence of explanation the result of the testimony, as given, would be that when the plaintiff acquired title, the defendants were wrongfully holding the easement.

The court below was justified in holding, that the defendant was not entitled to a provision in the judgment that the injunction given by it should cease to be operative, when any award given in the condemnation proceedings, already referred to, should be paid as directed by the statute. The defendants had no absolute right to a provision for a contingency that would occur after the judgment should be given. At that subsequent time the defendants' might assert and enjoy all the advantages given by the law with regard to the facts as they should then appear.

The judgment should be affirmed with costs.

Freedman J., concurred.

Same case.

Same term.

Appeal oy defendants from order denying their motion to permanently suspend the operation of the injunction given by the judgment.

Same counsel.

By the Court.—Sedgwick, Ch. J.

The judgment referred to, is the judgment that has just been affirmed.

The motion asked that the injunction be suspended permanently or perpetually. The ground of the motion was, that since the judgment an award had been made in proceedings taken to condemn the property of plaintiff, which was the easement that the court found in the judgment had been appropriated by the defendants, and that such award had been paid into court as directed by the statute.

There was no objection made by the plaintiff as to the regularity of the proceedings. The motion was resisted on two grounds. One was, that the judgment had adjudicated that the value of the property taken was greater than that awarded in the condemnation proceedings. The other was, that the judgment had adjudicated that the defendants were not entitled to a dissolution of the injunction upon payment of an award in condemnation proceedings.

It is true that for the purpose of determining when the injunction in the judgment, might, as a privilege to defendants, be put at an end, the court found the value of the easement taken. This, however, was to be the cpnsideration for which the plaintiff was to convey to the defendants the property. The substantial provision was that when the plaintiff ceased to own, and the defendants became owners, the injunction should not be continued further. The judgment did not intend that if the defendants became owners, on whatever terms, they should not enjoy the legal consequences of being owners.

I do not think that there was any adjudication in the action that, upon the payment of the award in the future, the defendants would not have a right that .the injunction be ended. The whole force of the refusal to find as requested by the defendants on that subject, was that in the then condition of the facts such a provision should not be made. The question was not raised as to what would be the rights of the defendants, after an award was in fact paid.

No objection was taken as. to the propriety of the remedy invoked, if the merits were with the defendants. There seems to be no objection to such relief being had upon motion.

In my judgment, if in fact the defendants have become the owners of that part of plaintiff’s easement which the injunction prevented them from further using, the plaintiff has ceased to have a right to an injunction. And the only question to be answered is, Have the defendants become such owners ?

The 18th section of the General Railroad Act, passed April 2, 1850, declares that “ on the payment or deposit by the company of the sums to be paid as compensation for the land, and for costs, expenses and counsel fees, as aforesaid, and as directed by said order, the company shall be entitled to enter upon, take possession and use the said land for the purposes of its incorporation during the continuance of its corporate existence, * * and all persons who have been made parties to the proceedings shall be divested and barred of all right, estate and interest in such real estate, during the corporate existence of the company.”

The order appealed from should be reversed and the motion should be granted. Neither side has adverted to the proper terms or conditions of such an order. Suggestions of both sides will be heard upon the settlement of the form of the order which is to be upon notice.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J. By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    MARY E. HUGHES, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Action for injunction and damages for construction and operation of railway in front of premises of plaintiff—Suspension of judgment after award by commissioners to condemnthe property and payment of the award.

    The head notes in this case are similar to those in the preceding case of Watson against the same defendants, except that in this case there was an outstanding mortgage upon the property of $7,000, that covered the easement in question, and this court held on appeal, that the judgment should be modified so as to provide that upon payment of the value of the easement taken the plaintiff should deliver to defendants a release from the mortgage.
    Before Sedgwick, Ch. J. and Freedman, J.
    Decided January 6, 1890.
    Appeal from judgment entered upon findings at special term.

      Davies & Rap alio, attorneys, and Edward S. Rapadlo and Edwin D. Worcester, Jr., of counsel, for appellants.

      Edwin M. Felt, for respondent.
   By the Court.—Sedgwick, Ch. J.

With a single exception the merits of this case are the same as those of Watson against the same defendants decided this term. The difference alluded to is, that in the present case it was proved that there was upon plaintiff’s premises, a mortgage in the sum of $7.000. In my opinion, there was no' objection to directing that upon the defendants’ paying -the sum estimated to be the value of the easement, in fee, that the plaintiff, beside conveying her estate, should furnish to the defendants a release of the property from the mortgage. Although the mortgagee had no interest in the rentals, the mortgage was an encumbrance upon that part of the plaintiff’s easements which defendants had appropriated. The judgment should be modified, so as to provide that upon payment of the value of the easement taken, the plaintiff should deliver to defendants a release from the mortgage. ■ 14o not think that this should affect the disposition of the costs upon the affirmance of the judgment.

The judgment is modified in the respect mentioned, and, as modified, affirmed with costs.

Freedman, J., concurred.

Same case.

Same term.

Appeal from an order denying defendants’ motion that the injunction in the judgment be perpetually or permanently suspended.

Same counsel.

By the Court.—Sedgwick, Ch. J.

The disposition of a similar appeal in the case of Watson against the same defendants should be made in this case. The order is to be reversed and the motion granted upon terms to be directed at the settlement of the order upon notice.

Freedman, J., concurred.


author: By the Couet.—Sedgwick, Oh. J.

text:
    LAWRENCE S. CASEY, Appellant, v. ELIZA DUNN, Respondent.

      Deed, construction of description in—Courses run in reference to streets opened in cities—Quasi-monuments—Adverse possession under statute avoiding deeds, what does not constitute—Practical location of boundary, what does not amount to—Deeds, what not competent on question of construction.

    Where in the conveyance of a lot in a city the property conveyed is described as part of a lot laid down on a certain map and designated thereon by a certain number, and is bounded in front by a street and in the rear by a lot designated on said map by a certain number, and on each side by lines running parallel to a certain other street to the rear boundary, each of such side lines being described as of a designated length which, however, is not sufficient to carry them to the rear boundary, the length given to the side lines must give way to their course as given, and the course must control the length.
    The adverse possession to render a deed made by one not in possession void under the statute, must be under claim of a specific title which is hostile to the title made by the deed claimed to be void. A claim under a deed which by its proper construction is not in conflict with the deed claimed to be void will not constitute such adverse possession within the statute.
    There can be no practical location of a boundary line to affect a title under a deed, when there is in fact no doubt as to the true lines, nor where the parties actually intended that a fence claimed to constitute the practical location should be built according to the true lines.
    Description contained in deeds made by persons other than the grantor in the deed, the description in which is the subject of litigation, are not competent as aiding in the construction of the description in the latter deed, the grantor in which at the time of the making of the deed owned the land in dispute and had the legal right to convey it.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 6, 1890.
    Appeal from judgment entered on a verdict for defendant as directed by the court, and from an order denying plaintiff’s motion for "a new trial made upon the minutes. *
    The locus in quo is shown on the diagram below :

    Extract from map entitled “ Map of Fairmount, Upper Morrisania, County of Westchester and State of New York, made by Andrew Findlay, surveyor, dated Westchester, June 26, 1850, and filed in the office of the Clerk of the County of Westchester at White Plains.”

      On October 24, 1867, Christopher Robley was the owner of the plot of ground bounded on above diagram by the lines D. C. E. and F. On that day he and his wife conveyed to Warren C. Demarest a plot of ground by the following description: “ All that certain piece or parcel of land situate, lying and being in the Town of West Farms, County of Westchester and State of New York, being part of the lot known and designated by the number seventy-nine (79) on a map entitled map of Fairmount, Upper Morrissania, County of Westchester and State of New York, made by Andrew Findley, Surveyor, dated Westchester, June 26, 1850, and filed in the office of the Clerk of the County of Westchester at White Plains.”
    The premises hereby conveyed being bounded as follows: “ Beginning at a point on the northwesterly side of Grove street, distant one hundred and seventeen feet eight inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street one hundred feet to lot No. 97 on said map, and thence southwesterly and parallel with Wood-ruff avenue one hundred and eight feet and ■ nine inches to lot number 80 on said map, and thence southwesterly along lot number 80 one hundred feet, and thence southeasterly and parallel with Wood-ruff avenue one hundred and eight feet and nine inches to the westerly side of Grove street, the point and place of beginning.”
    On October 28, 1867, Demarest and wife conveyed to William Mills a plot of ground. The deed, after containing the same reference to lot 79 as is contained in above deed, described the property conveyed as follows: “ Beginning at a point on the northwest- . erly side of Grove street, distant one hundred and sixty-seven feet eight inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street twenty-five feet, and thence northwesterly and parallel with Woodruff avenue, one hundred and eight feet and nine inches to lot 80 on said map, and thence southwesterly along lot 80, twenty-five feet, and thence southeasterly and parallel with Woodruff avenue, one hundred and eight feet and nine inches to the westerly side of Grove street, the point or place of beginning.”
    On November 4, 1867, Demarest and wife conveyed a plot to Matthew Mills. The deed contained the same.reference to lot 79 as is contained in above deeds, and described the property conveyed as follows: “The premises hereby conveyed being bounded and described as follows: Beginning at a point on the northwesterly side of Grove street distant one hundred and forty-two feet eight inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street twenty-five feet, and thence northwesterly and parallel with Woodruff avenue one hundred and eight feet nine inches to lot number 80 on said map, thence southwesterly along lot number 80, twenty-five feet, and thence southeasterly and parallel with Woodruff avenue one hundred and eight feet and nine inches to the westerly side of Grove street the point or place of beginning. Being part of the same premises which were conveyed to the said Warren 0. Demarest by Christopher Robley by deed, having date the twenty-fourth day of October, one thousand eight hundred and sixty-seven and recorded simultaneously herewith.”
    This plot was, on the first of January, 1878, conveyed by the same description by Matthew Mills to William Mills; and was on the 17th of July, 1883, conveyed by the heirs of William Mills by the same description to Lawrence S. Casey, the plaintiff. On June 9,1883, Martha E. Reynolds (in whom the title seems to have vested) and husband conveyed to Lawrence S. Casey, the plaintiff, the plot of ground conveyed by the above deed from Demarest and others to William Mills, by the description in that deed contained. This constitutes plaintiff’s chain of title.
    Defendant’s chain was as follows:
    On April 10, 1868, Demarest and wife conveyed a plot to Samuel W. Estren. The deed, after containing the same reference to lot 79 as is contained in the above deeds, described the property conveyed as follows : “ Beginning at a point on the northwesterly side of Grove street, distant one hundred and seventeen feet eight inches northwardly from the northwesterly corner of said Grove street and Woodruff avenue, running thence northeasterly along said Grove street twenty-five feet, thence on a line parallel with Woodruff avenue, one hundred and eight feet nine inches to lot No. 80 on said map, and thence southwesterly along lot No. 80, twenty-five feet, and thence southeasterly and parallel with Woodruff avenue, one hundred and eight feet nine inches to the westerly side of Grove street, the point or place of beginning.”
    Estren mortgaged this plot, by mortgage, dated April 21, 1871. The mortgage was foreclosed. On the foreclosure sale the Excelsior Savings Bank became the purchaser. The referee conveyed to the Savings Bank by deed, dated October 26, 1872. The Bank, by deed, dated July 1, 1873, conveyed to James Cassin; James Cas sin and wife, by deed dated June 10, 1874, conveyed to Michael Dugan; Michael Dugan, by deed, dated November 1, 1886, conveyed to Eliza Dunn, the defendant. The referee’s deed, and all the subsequent deeds, conveyed by the same description as is contained' in the above deed from Demarest and wife to Estren. This constitutes defendant’s chain of title.

      On the 24th of October, 1867, Demarest and wife conveyed to John Pritchard a plot of ground. The deed, after containing the same reference to lot 79 as is contained in the above deeds, described the property conveyed as follows : “The premises hereby conveyed being bounded and described as follows : beginning at a point on the northwesterly side of Grove street, distant one hundred and ninety-two feet eight inches northwesterly from the northwesterly corner of said Woodruff avenue and Grove street running thence northwesterly along Grove street, twenty-five feet, and thence northwesterly and parallel with Woodruff avenue, one hundred and eight feet and nine inches to lot No. 80 on said map, and thence southeasterly along lot number 80, twenty - five (25) feet, and thence southwesterly and parallel with Woodruff avenue one hundred and eight feet and nine inches to the westerly side of Grove street, the point and place of beginning.”
    The other facts sufficiently appear in the opinion.

      Shepard & Osborn, attorneys and of counsel, for appellant, argued:—
    I. Defendant’s motion to dismiss the complaint was properly denied. Possession is prima facie evidence of title. It was conceded on the trial that plaintiff and his grantors had been in possession of the land in litigation from 1869 to 1887, when the defendant intruded upon him and took possession thereof. Day v. Alverson, 9 Wend. 223; Smith v. Lorillard, 10 John. 338; Carlton v. Darcy, 90 N. Y. 573; 46 Super. 484; Mayor, etc., v. Carleton, 113 N. Y. 284. Admit, for the sake of argument, that Estren, prior to building the fence, had the paper title to the land in litigation. The defendant could not take advantage of that fact until she had connected herself withEstren’s title; no one but Estren or his grantees could say that plaintiff had not the true title, because the plaintiff and his grantors had been confirmed in the possession by Estren, and until he, or those who had his estate, turned him out, plaintiff had a good title against the world. Jackson v. Harder, 4 John. 202; Murphy v. Loomis, 26 Hun, 659; Christy v. Scott et al., 14 How. U. S. 292; Jackson v. Hazen, 2 John. 22; Trull v. Granger, 8 N. Y. 118.
    II. The defendant did not connect herself with the title of any person who had owned the land in litigation, and hence did not show any title thereto in herself, and was a mere trespasser. At the time of the execution of the several deeds in defendant’s chain of title, made after 1869, the land in litigation was part of a lot inclosed by a substantial fence and in possession of plaintiff and his grantors, under a claim of title adverse to that of the grantors in said deeds, therefore the said deeds were void. Ellwood v. Northrop, 106 N. Y. 173; Sands v. Hughes, 53 Ib. 296; 1 R. S. p. 739, § 147; 7th Ed. p. 2196; Code of Civil Procedure, § 370; Turner v. Baker, 64 Mo. 238; Terry v. Chandler, 16 N. Y. 356; Davis v. Townsend, 10 Barb. 341; Penn v. Lord Baltimore, 1 Vesey Sen. 444. Sneed v. Osborn, 25 Cal. 619; Blair v. Smith, 16 Mo. 273.
    III. —The court erred in excluding the deed from Demarest to Pritchard, because the making and delivery affords aid in the construction of the deeds to Estren and Matthew Mills. It is evident from the surrounding circumstances that in the deed from Christopher Robley to Demarest, there was a mistake in the call “ parallel with Woodruff avenue.” At that time the property in Robley’s possession was surrounded by substantial fences, one of which was along lot 97 and another parallel thereto at right angles to Grove street, and neither of them parallel to Woodruff avenue. It would have become manifest from the admission in evidence of the deed from Demarest to Pritchard that Demarest at the time of the conveyance to Estren did not own the land in litigation. Under a proper construction of the Pritchard deed the land conveyed thereby is marked by the lines O. N. D. C. and not 0. P. Z. C. on Plaintiff’s Exhibit 1. (1). The monument “ Lot 80” must control the call “parallel to Woodruff Ave,” it being a course. Wendell v. The People, supra. (2) The call “ part of lot 79 ” is very important. Rutherford v. Tracy, 48 Mo. 326. (3) The call “ thence 25 feet along lot 80” cannot be carried out if the call “ parallel to Woodruff” is allowed to prevail. (4) At the time of the conveyance Demarest owned no part of lot 97. The construction answering to the lands which the grantor owned should be taken to be the true one if possible. Greenleaf on Evidence, 12 Ed., § 301 ; Jackson v. Loomis, 19 John. 449; Lush v. Druse, 4 Wend. 313; Jackson v. Marsh, 6 Ib. 281 ; People v. Storm, 97 N. Y. 364. Length of time and adverse possession were not the prevailing grounds in Lush v. Druse. (5) The lines of long possession should control in a case of ambiguity. Preston’s Heirs v. Bomar, 6 Wheat. 580 ; Stone v. Clark, infra ; Hastings v. Clark, 36 Cal. 126. (6) Course is of no more importance of itself in the construction of a deed than distance. The circumstances of each case must determine. Preston’s Heirs v. Bomar, 6 Wheat. 580. In view of the facts in the case the call “ parallel to Woodruff Ave.” must be considered false description and rejected. The distance is correct. It follows that if the deed dated Oct. 24, 1867, to Pritchard is construed to convey the land O. N. D. C. that for the same reasons in the deed dated Oct. 28, 1867, from Demarest to William" Mills, the calls parallel to “Woodruff Ave.” must be rejected and the land conveyed be bounded westerly by a line drawn from L. to “ lot 80 ” at right angles to Grove street, and deed dated O. N. The same reasoning applies to the paralle to Nov. 4, 1867, from Demarest to Matthew Mills, and to all the deeds in plaintiff’s chain of title made after the last named deed, and their westerly lines must be held to run along the line H. I. and not parallel to Woodruff avenue. Therefore when Estern took his deed from Demarest, dated April 10, 1868, Demarest did not own the land in litigation and could not have conveyed it to Estren. To run these lines parallel to Woodruff avenue would be to abandon the long established lines of the fences (1853), and encroach on lot 97, (which Robley did not own) 9 feet 4 inches, and would conflict with the terms of the deed which called for a part of lot 79 only, and for no part of lot 97. The deed called for a line beginning at the corner of Grove street and lot 97, running parallel with Woodruff avenue to lot 80. This is an impossible line, as it would run into lot 97 and never reach lot 80. At this time lot 80 was a monument marked by a substantial fence. Wendell v. The People, 8 Wend. 183. The error in the deed from Christopher Robley to Demarest in the call “ parallel to Woodruff avenue ” is perpetuated in the deeds Demarest to Mathew Mills, Demarest to William Mills, and Demarest to Estern, and the excluded deed from Demarest to Pritchard. The four deeds make up exactly the quantity of land conveyed to Demarest by Christopher Robley. Meyer v. Boyd, Daily Register, June 15, 1889; 51 Hun, 291.
    IV. Under a proper, construction of the deeds from Demarest the common owner to Matthew Mills and Demarest to Estren the disputed line should have been held to run at right angles to Grove street, and not parallel with Woodruff avenue. Within the following cases the distance must control the course as the line is short and can be accurately measured. Danziger v. Boyd, 53 Super. Ct. 398 ; Higinbotham v. Stoddard, 72 N. Y. 94; Lovejoy v. Tietjen, 47 Hun, 321.
    Y. But if the court should be of the opinion that the “ distance ” (108 feet, 9 inches) and the “ monument ” (Lot 80) do not, of themselves control the course parallel with Woodruff avenue, yet the deeds are capable of two constructions, and practical location, in accordance with one construction is of great importance in determining the intention of the parties. Danziger v. Boyd, supra, 400; Ratcliffe v. Gray, 3 Keys, 513 and cases cited ; Stewart v. Patrick, 68 N. Y. 450 ; Kingsland v. The Mayor, 45 Hun, 198; Dend Barring v. Van Houten, 2 Zabriskie, 68; (25 years were required to make title by adverse possession) ; Stone v. Clark, 1 Met. 378.
    YI. The defendant is estopped to deny that the line was correctly located by Samuel W. Estren along the line, at right angles to Grove street. That line had been settled by agreement at least as early as 1869, and had been acquiesed in for more than 18 years. In the following cases practical location has been deemed conclusive, and the parties estopped though made under mistake. Location for 18 years, Jackson v. Ogden, 7 John, 238; 3 Keyes, Ct. of App. 513 ; Location for 19 years, Jackson v. Van Corlear, 11 John. 122. Location for 12 years, Jackson v. McConnell, 12 Wend. 422. The case of Sandford v. McDonnell, 53 Hun, 263, relied on by the defendant is not analogous to the case at bar. There appears to have been in that case no ambiguity or uncertainty in the deed. The survey was erroneous, not the construction of the deed. The line was acquiesced in five years only. Vosburgh v. Teator, 32 N. Y. 561 ; Cutler v. Callison, 72 Ill. 113.
    YII. The construction claimed by the plaintiff will work practical justice between the parties. The court should be astute to make such a construction. Jackson v. Ogden, supra, 240. The defendant, when she bought, was notified of plaintiff's claim by the fact that plaintiff was in adverse possession of the land. She cannot complain. Demarest was alive and acquiesced in the practical location and is bound, having acquiesced for such a long time. If plaintiff prevails, the lines are made at right angles with the street. There is land enough for all parties interested, and each gets what he bought. If defendant prevails she is allowed to keep 9 feet 4 inches of land for which she has paid nothing, and the rear line of her lot will be 34 feet 4 inches long, instead of 25 feet long, as called for in her deed, while plaintiff loses 9 feet 4 inches of land for which he has paid.
    Yin. The jury, from the circumstances, might have presumed a grant of the land in litigation from Estren or his grantees to the plaintiff or his grantors. Jackson v. McConnell, 19 Wend. 177 ; Miner v. Mayor, 37 Super. 189 ; Adams v. Rockwell, 16 Wend. 285.
    IX. The plaintiff showed title by adverse possession by himself and his grantors for more than 20 years prior to the commencement of the action.

      Meyer Butzel, attorney, and Joseph Fettretch of counsel, for respondent, argued :—
    I. The description in the respective deeds is in no way ambiguous, and Demarest, the original grantor of both parties, when he made the conveyances, had the land to answer the calls and boundaries of the respective pieces conveyed, and there is not the slightest difficulty in running the lines as specified in the respective deeds. This being so, we are bound, and must, in order to get at the intent of the parties to the conveyances in respect to the premises to be conveyed, look at the deeds themselves. Seaman v. Hogeboom, 21 Barb. 398 ; Hubbell v. McCulloch, 47 Ib. 287 ; Drew v. Swift, 46 N.

      Y. 204 ; Robinson v. Kine, 70 Ib. 154 ; Lawrence v. Palmer, 71 Ib. 607 ; Thayer v. Finton, 108 Ib. 397.
    II. As to any title in the plaintiff by adverse possession. The proofs do not show any of the elements of an adverse possession under the authorities. Cleveland v. Crawford, 7 Hun, 622 ; Seaman v. Hogeboom, 21 Barb. 398 ; Hubbell v. McCulloh, 47 Ib. 287 ; Crary v. Goodman, 22 N. Y. 170 ; Pope v. Banner, 74 Ib. 240.
    III. As to practical location. There was no disputed boundary and no fixing of a dividing line by agreement between the parties in interest. Baldwin v. Brown, 16 N. Y. 363-4; Vosburg v. Teator, 32 Ib. 568; Corning v. Troy Iron and Nail Co., 44 Ib. 595; Drew v. Swift, 46 Ib. 208; Robinson v. Phillips, 1 T. & C. 154; Sanford v. McDonald, 53 Hun, 265 and 266.
    IV. As to the suggestion of the plaintiff that from the time of the delivery of the deeds from Estren and his grantees to and including the one to the defendant herself, Mills and his successors and their grantees were in adverse possession, and consequently, that the deeds from Estren and his grantees were void, there is no proof of any entry •of Mills or any one else under a claim of title, by deed or otherwise, adverse to the true owner, and further says that the rule in such a case as this has been decided to be against the plaintiff’s contention. Crary v. Goodman, 22 N. Y. 170; Dawley v. Brown, 79 Ib. 390; Harris v. Oakley, 7 N. Y. Supplement, 232; Hallas v. Bell, 53 Barb. 248.
    V. As to the exceptions which have reference to the relations between the plaintiff and Mr. Pritchard, the owner of premises fifty feet away from the land owned by the plaintiff under the deed from Matthew Mills, it is not claimed by plaintiff that Mr. Pritchard ever had any interest in the land conveyed to either Estren or Matthew Mills, or in the lot immediately adjoining either, and it is submitted that the Justice was correct in his ruling.
    VI. Whether Demarest when he made the deeds to Estren and Mills was or was not the owner of lot 97 was a matter of no moment. To give the lands conveyed by Demarest to Estren and Mills did not require any part of lot 97, and so it was immaterial whether he owned it or not; it was not competent, material or relevant for any purpose within the issues in the case at bar, and did not tend to show that the deed from Demarest to Mills contained the locus in quo.

   By the Couet.—Sedgwick, Oh. J.

The action is in ejectment. The question in the case concerns the construction of the description in several deeds under which plaintiff claims. That description is “ Beginning at a point on the northwesterly side of Grove street, distant 142 feet 8 inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street 25 feet, and thence northwesterly and parallel with Woodruff avenue 108 feet 9 inches to lot No. 80 on said map ; thence southwesterly along lot No. 80, 25 feet and thence southeasterly and parallel with Woodruff avenue 108 feet 9 inches to the westerly side of Grove street, the point or place of beginning.”

If this description were applied to the land itself, it would appear that the lines said to be parallel to Woodruff avenue, if protracted no more than 108 feet 9 inches, would not reach lot No. 80, by 5 inches, if protracted those' five inches further they would reach lot No. 80. For this reason the plaintiff claims that those lines should in fact be run, not parallel to Woodruff avenue, but in such a a direction that at the end of 108 feet, 9 inches they would reach lot No. 80. If this position were right, then the plaintiff showed as against the defendant, title to the locus in quo.

The question is, did the grantors intend that the lines should not be parallel, or did they make a mistake as to the length of those lines that can be corrected by the other terms of the deed. There is no evidence that the lines were not meant to be parallel to Woodruff avenue. There is certainty in the expression and the lines can be applied to the land as it was owned at the time of the various deeds. It is equally certain that they meant that the lines should be extended to lot Number 80, and that the northern boundary should run along that lot. - It is the necessary inference from these certainties that there was a mistake in describing the length of the parallel lines 108 feet, 9 inches, and that it was intended that those lines should extend 109 feet 2 inches. The learned judge below was correct in his construction of the conveyances.

The plaintiff was not in such an adverse possession of the locus in quo, that certain deeds offered to show defendant’s title were void under the statute. To avoid a deed for such a reason it must appear that the adverse possession was under claim of a specific title, and that the specific title is hostile to the title made by the conveyances. In the present case, there was no other specific title claimed than under the deeds that have been construed. By their proper construction they were not in conflict with the conveyances claimed to be void.

The plaintiff did not show an adverse possession that, maintained for 20 years, makes title or presumption of title. The fence was not built until 1869. Nor was there any practical location, as it is called, of a boundary which would affect plaintiff’s title. In the first place, there was not, in fact, any doubt as to the true lines, although the parties may have erred as to the correct position of the lines. In the second place, from the testimony given, the parties actually intended that the fence should be built according to the true and valid positions of the lines.

It was argued by the learned, counsel for appellants, that from the lines contained in conveyances of neighboring property, some of which were in evidence, and some excluded, it was manifest that the lines in question were meant to be not parallel to Woodruff avenue, but at right angles with Grove street, for the reason that in that case the lines of the deeds, under which plaintiff claims, would agree in direction with the lines of the conveyances of the neighboring land. The argument is inefficacious, because the grantors of plaintiff had the legal power to convey their property as they saw fit to describe it, although that description might not be made under a system which others used for their property.

The judgment and order appealed from should be affirmed with costs.

Freedman, J., concurred.


author: By the Coubt.—Sedgwick, Ch. J.

text:
    In Re FREDERICK LINGSWEILER, Judgment Creditor, Appellant, v. CHARLES LINGSWEILER, Judgment Debtor, Respondent.

      Superseding order competently made, what not ground for—Order for examination of third party in supplementary proceedings, when return of execution not cause for superseding•

    Where an order has been competently made, it cannot be superseded by reason of events subsequently occurring unless they are such as change the rights of the parties in requiring an order different from that allowed, or would have called for another kind of disposition of the matter finally.
    The bare fact that after an order for the examination of a third party has been competently made in supplementary proceedings, the execution has been returned, it not appearing that it was returned satisfied, is not sufficient cause for superseding the order.
    Before Sedgwick, Ch. J., and Ingbaham, J.

      Decided January 6, 1890.
    Appeal by judgment creditor from an order vacating an order for the examination of a third person in proceedings supplementary to execution. The facts sufficiently appear in the opinion.

      James A. Donegan, attorney, and Henry Huffman Browne, of counsel, for appellant, argued:—
    The return of an execution unsatisfied after the making but before the service of an order for the examination of a third person in supplementary proceedings is not sufficient ground for vacating the order. Code Civ. Pro., §§ 2432, 2441; Gibson v. Haggerty, 37 N. Y. 555; Riddle & Bullard on Supplementary Proceedings (3 ed.), pp. 12, 13, 17. This proceeding is in part a substitute for the old creditor’s bill; this is well settled. Vide Webber v. Hobby, 13 How. 382; Barnes v. Morgan, 3 Hun, 703; Driggs v. Williams, 15 Abb. 477; Allen v. Starling, 26 How. 57; Sale v. Lawson, 4 Sandf. 718; Oar’s Case, 2 Abb. 257; Owen v. Dupignac, 9 Ib. 180. This being so, the ruling in the recent case of the Royer Wheel Co. v. Fielding, 31 Hun, 274, is in point.

      Cook & Schuck, attorneys, and Peter Cook of counsel, for respondent, cited :—

      Code Civil Procedure, §§ 2432, 2441, 416, 433; Riddle & Bullard on Supplementary Proceedings, p 108
   By the Coubt.—Sedgwick, Ch. J.

The judgment creditor obtained an order, under section 2441, Code Civil Procedure, for the examination of a' person averred to have in her possession property belonging to the execution debtor. The affidavits showed what at the time was the fact, that the execution had not been returned. Before the return-day of the order, the execution debtor, not the third person, moved that the order be vacated. The motion was granted. The ground of this disposition only appears in the recital of the order then made, as follows : “ and it now appearing that at the time of the service of copies of said affidavit and order, said execution had been returned, etc.”

In my opinion, to justify superseding the original order, it was necessary to prove that after it was allowed, something had occurred which changed the rights of the parties in requiring an order different, from that allowed, or which would have called for another kind of disposition of the matter finally. The mere fact of the return of the execution would not have called for another kind of order or for another kind of exercise of the power of the court. Code Civil Procedure, §§ 2447, 8, 9. If the execution had been returned satisfied, then the court would have been without power to direct the person examined to pay or to deliver. The respondent was bound to show this. There was no presumption of satisfaction. It was consistent with the recital that the execution had been returned partly unsatisfied.

As it does not appear by the record that the judgment debtor had been called into the proceeding by a notice required by the court, Code Civil Procedure, §§ 2441-2447, and was a party to it, there may be a doubt whether he had a right to make the motion below. This was not considered by the argument of the appeal, and is not passed upon.

The order should be reversed, and the motion denied, with $10 costs.

Ingkaham, J., concurred.


author: By the Court.—Freedman, J.

text:
    THOMAS MACKELLAR, Respondent, v. THOMAS FARRELL and THOMAS HAGAN, Appellants.

      Sureties on an undertaking given to stay proceedings on a judgment of foreclosure and salepending an appeal to general term, ivhen notrelievedfrom liability by proceedings taken to obtain, and the obtaining, a stay pending an appeal to the Court of Appeals.—Procuring the appointment of a person inplace of a receiver declining to act, when not violation of a stay.

    The sureties on an undertaking given to stay proceedings on an appeal to the general term from a judgment of foreclosure and sale, are not relieved from the liability thereby assumed by reason of an appeal taken from the affirmance of the judgment to the court of appeals and proceedings on the judgment below being stayed against the opposition of the respondent pending such appeal, pursuant to the provisions of law upon the giving of an undertaking under § 1331 of the Code of Civil Procedure.
    An order made under §1331 of the Code of Civil Procedure upon the application of the appellant against the opposition of the respondent fixing the amount of the undertaking to be given on the appeal to the court of appeals for the purpose of staying proceedings, giving the appellant fourteen days in which to file the undertaking, and staying proceedings in the meantime, does not amount to a novation and substitution of the undertaking given under the order in the place and stead of that given on the appeal to the general term.
    Neither the possibility that the mortgaged property may, or the fact that it actually has, pending the appeal to the court of appeals, so depreciated in value as that a sale thereof after affirmance by the court of appeals, produces a deficiency which would not have occurred if the property had been sold as soon after the general term judgment as With reasonable diligence it could have been, will not take the case out of the general rule governing the liability of sureties on undertakings given to stay proceedings on appeal from judgment. The possibility of such depreciation is one of the risks the sureties assumed.
    An application made pending a stay of proceedings under a judgment for the appointment of a person in place of a receiver who had been appointed before judgment but who had declined to act, is not a violation of the stay.
    Before Sedgwick, Oh. J., Feeedman and Ingbaham, JJ.

      Decided January 6, 1890.
    Appeal by defendants from a judgment entered upon a verdict directed against them at trial term..

      A judgment of foreclosure and sale having been rendered in an action pending between Thomas MacKellar, the plaintiff herein, and George W. Rogers, impleaded, with others, the defendants in order to enable Rogers to stay proceedings on the judgment pending an appeal to the general term, executed the undertaking on which this action is brought.
    The undertaking was given under §§ 1352 and 1331 of the Code of Civil Procedure, and provided, among other things, that, if the judgment should be affirmed or the appeal dismissed, the appellant would pay any deficiency that might occur on the sale in discharging the sum to pay which the sale was directed with interest, costs and all expenses chargeable against the proceeds of sale, not exceeding the sum mentioned in the undertaking.
    The judgment was affirmed at general term. Rogers appealed to the court of appeals, and in order to procure a stay pending the appeal moved on notice for an order fixing the amount of the undertaking to be given pursuant to above cited section 1331, and procured a stay of proceeding until the hearing and decision of . the motion. The motion was opposed by the plaintiff, but was granted and the amount fixed, and the appellants given fourteen days within which to file the undertaking—proceedings in the meantime being stayed. An undertaking was given pursuant to such order, and the proceedings on the judgment were thereby stayed pending the appeal to the court of appeals. The judgment was affirmed by the court of appeals, a sale was made and resulted in a deficiency, to recover which this action is brought.
    Other matters appear in the opinion.

      John C. Shaw, attorney, and E. J. Myers of counsel, for appellants, raises the following points :—

      I. The order of the special term providing for the stay pending the appeal to the court of appeals, upon the execution and filing of an undertaking in the sum of sixteen thousand two hundred and ninety-seven dollars and ninety-seven cents ($16,297.97), being made without notice to and consent of the sureties, discharged them from further liability on their undertaking, because it amounted to a novation in law, and a substitution of the new undertaking in the place and stead of the former undertaking,
    II. The order appointing a receiver after the undertaking on the appeal to the general term had been given was a violation of the stay, and operated to discharge the sureties. These propositions were supported by an extended argument; but no authorities were cited.

      George M. MacKellar, attorney and of counsel, for respondent, on the questions considered in the opinion, argued:—
    I. The plaintiff did not proceed to obtain the appointment of a receiver, contrary to the terms of the stay. The receiver was appointed March 31, 1885, before the action had been tried. The receiver appointed declining to act, application was made to have some person appointed in his place. The orders and the giving of the undertakings only stayed proceedings under the judgment. Code, §§ 1351— 1331.
    II. The undertaking given upon the appeal to the court of appeals was not a • substitute for the undertaking given by the defendants upon the appeal to the general term. In support of this counsel cited the cases referred to in the opinion.
   By the Court.—Freedman, J.

This action is brought upon an undertaking executed by the defondants and given npon an appeal taken to the general term from a judgment of foreclosure and sale in the action of MacKellar v. Rogers by the defendant in that action. The defendants here resist recovery upon the ground that after the affirmance of the judgment in MacKellar v. Rogers by the general term, the defendant in that action obtained a stay of proceedings, pending an appeal taken to the court of appeals from the judgment of affirmance upon giving an undertaking.

The defendants claim that the stay was obtained against their wishes, but it is equally true that it was obtained against the wishes of the plaintiff, for the latter opposed the granting of it as well as he could. The fact is that the stay was granted by the court on a special motion made for that purpose and opposed by the plaintiff.

The undertaking by the defendants was for the payment of any deficiency which should occur upon a sale of the mortgaged premises, not exceeding the sum of $2,500.

The understanding which constituted the basis for the stay complained of was to the like effect, except that it was to the amount of $16,297.97, and also covered the costs of the appeal to the court of appeals.

. The question, therefore, is whether the defendants, as sureties upon the first undertaking, upon the affirmance of the judgment by the general term, had such an absolute right to have the sale of the real estate under the judgment of foreclosure take place and to have the precise extent of their liability determined,' that the order of the special term providing for a stay pending the appeal to the court of appeals, upon the execution of the second undertaking, made without notice to or the consent of the defendants, discharged them from further liability on their undertaking, for the reason that the order amounted to a novation and a substitution of the new undertaking in the place and stead of the first undertaking.

In Burrall v. Vanderbilt, 6 Abb. 70, it was held that, when sureties join in an undertaking, they are presumed to know the legal effects of their act, and that one of those effects will probably be the release of the real estate of the debtor from the lien of the judgment; and that, consequently, the obtaining by the appellant, without notice to his sureties, of an order declaring the judgment secured on appeal, does not discharge the liability of the sureties, though the appellant was enabled thereby to convey away real estate to which, under the lien of the judgment, they had looked for their indemnity.

In Heebner v. Townsend, 8 Abb. 234, it was held, that the fact that the defendant had taken and perfected an appeal to the court of appeals from the judgment of affirmance, was no defence to an action by the respondent upon the undertaking given on the first appeal.

The authorities are numerous and uniform that the sureties upon the undertaking given on the first appeal are liable to the extent of their undertaking upon the affirmance of the judgment against their principal by the last court to which an appeal was taken. Smith v. Crouse, 24 Barb. 433; Letson v. Dodge, 61 Ib. 125; Gardner v. Barney, 24 How. 467; Richardson v. Kropf, 47 Ib. 286; affirmed, 60 N. Y. 634; Bennett v. Brown, 20 Ib. 99; Robinson v. Plympton, 25 Ib. 484; Humerton v. Hay, 65 Ib. 380; Church v. Simmons, 83 Ib. 261; Clute v. Knies, 102 Ib. 377.

The principle of the decisions is that the undertaking is a statutory one, that its form is prescribed by statute ; that the proper construction of the words of the statute must always prevail over the private intent of the sureties; and that by such construetion the affirmance mentioned in the undertaking means an affirmance by the legally constituted tribunal having final cognizance of the subject of the litigation.

Thus it has been held that the sureties remain bound if the judgment, though reversed by the court at general term, is afterwards carried by appeal to the court of appeals and there the reversal is reversed and the original judgment affirmed, and that it makes no difference that when the undertaking was executed there was no appeal to the court of appeals, but that the law under which the appeal was taken ■ was passed after the execution of the undertaking. Gardner v. Barney, 24 How. 467.

And in Horner v. Lyman, 2 Abb. Ct. App. Dec. 399; S. C. 4, Keyes, 237, it was held, that the obligation of the sureties in the undertaking is to be interpreted by the law as it exists at the time they are called on to perform it.

The only statutory provision which remains to be noticed is that, where an appeal is perfected to the court of appeals and security is given thereupon to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking given upon the preceding appeal until after the final determination of the appeal to the court of appeals. Code of Civ. Pro., § 1309. This is a recognition of continued liability.

For the reasons stated the sureties in this case had no right to a' sale within a reasonable time after the affirmance of the judgment by the general term, and the perfection of the appeal to the court of appeals by the appellant, by giving a new undertaking and procuring a stay thereon, did not amount to a novation and did not discharge them. So far as the point now under consideration is concerned, the law makes no distinction between different kinds of judgment, and it therefore can make no difference that, if the premises had been sold within a reasonable time after the 'affirmance of the judgment by the general term, they would have brought a sum sufficient to pay the amount of the judgment and the costs up to that time.

It has also been argued that the defendants are discharged because, after the giving of their undertaking, the respondent, contrary to the terms of the stay, obtained the appointment of a receiver of the mortgaged premises. The proof does not show that the appointment was in violation of the stay. A receiver was appointed before the trial of the issues and he subsequently declined to act. Application was then made after judgment to have some person appointed in his place. This involved no violation of the stay which only stayed proceedings under the judgment.

Upon a consideration of the whole case no exception can be found which constitutes ground for reversal.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and Ingbaham, J., concurred.


text:
    RICHARD G. BERFORD, Appellant, v. The NEW YORK IRON MINE, Impleaded, etc., Respondent.

      Amended and supplemental complaints, when not allowed to bring in facts arising after the commencement of the action—Dividends declared nunc pro tunc, when cause of action based thereon arises.

    Where a complaint does not state facts sufficient to constitute a cause of action, facts which did not exist at the time of the commencement of the action cannot be imported therein, either by an amended or supplemental complaint, so as to turn what is no cause of action at all into a good cause of action.
    A cause of action based on dividends declared does not arise until the dividends are in fact declared, although they are declared to have been made nunc pro tunc as of a previous date.
    Before Sedgwick, Ch. J., and Fbeedman, J.

      Decided January 6, 1890.
    Appeal from order denying plaintiff’s motion for leave to file and serve an amended and supplemental complaint.
    The action was brought, as appears by the original complaint, to, among other things, establish a lien in favor of the plaintiff upon the share of the assets and property of the New York Iron Mine, claimed to belong to one.Wetmore, as security for certain • notes made by him and held by plaintiff, and to compel the New York Iron Mine to declare a dividend and pay over the amount due on the notes.
    The New York Iron Mine demurred on the grounds, that the court had not jurisdiction of the subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained on both grounds, and interlocutory judgment was entered accordingly. From that judgment an appeal was taken to the general term, where it was affirmed.
    The court held, in substance, among other things, that it had no jurisdiction as against the New York Iron Mine to decree it to declare and pay such dividends as might appear on an accounting to be proper, and that the complaint did not state a cause of action as against the New York Iron Mine. (See 56 N. Y. Super. Ct. Rep. 236).
    After this the plaintiff moved as against the New York Iron Mine only for leave to file an amended and supplemental complaint setting forth in substance, that the New York Iron Mine had since the commencement of the action declared dividends on its capital stock from May 31,1877, to April 1, 1882, (a period anterior to the commencement of the action), and that of the dividends so declared there was a sum applicable to the payment of the notes held by plaintiff, sufficient to pay the same with interest, which sum was held by the New York Iron Mine in the city of New York, and praying, among other things, that he be decreed to have alien on the dividends declared upon the stock of said Wetmore, prior to the title of certain parties named, to the amount of said notes and interest thereon, and that the New York Iron Mine be decreed to pay such amount to him.

      Frank E. Smith, attorney and of counsel, for defendant, the New York Iron Mine, on the ques-. tions considered in the opinion, argued:—
    I. The judgment on the demurrers being still in full force establishes conclusively that the facts existing when the suit was begun constituted no cause of action against this defendant. An interlocutory judgment is the law of the case until it is reversed.
    II. The plaintiff, being entitled to no relief whatever upon his original complaint, cannot avail himself by supplemental complaint of matters happening subsequent to the beginning of the action. It is well settled that a plaintiff who has no cause of action at the time he brings his suit cannot, by a supplemental pleading, bolster up that suit with new matter occurring since it was begun. Candler v. Pettit, 1 Paige, 168; McCullough v. Colby, 4 Bosw. 603; Muller v. Earle, 37 N. Y. Super. Ct. (J. & S.), 388; Bostwick v. Menck, 4 Daly, 70; Holly v. Graf, 29 Hun, 443; Farmers’ Loan and Trust Co. v. Telegraph Company, 47 Ib. 315; Continental Construction Co. v. Vinal, 15 N. Y. St. Rep. 968; Bull v. Rothschild, 16 Civ. Pro. Rep. 356.

      Roger M. Sherman, attorney and of counsel, for plaintiff, on the questions considered in the opinion, argued:—

      I. The allowance of a supplemental complaint is almost a matter of course. Code Civ. Pro., § 544; Lathan v. Richards, 15 Hun, 129.
    II. Plaintiff had a status in a court having jurisdiction, to maintain an action to protect his rights against the conspiracy charged in the original complaint. Haddow v. Lundy, 59 N. Y. 326; Hagan v. Walker, 14 How. U. S. 34; McBurney v. Carson, 99 U. S. 570; Cases supra.

    III. The declaration of the dividends nunc pro tunc, as of dates prior to the commencement of this suit, shows in connection with the charges of the original complaint, not only that the cause of action for dividends really existed then, but that the dividends were improperly withheld by the wrongful act of the defendant. McBurney v. Carson, supra.

   By the Court.—Freedman, J.

The judgment on the demurrer which is still in force, determined that the facts set forth in the complaint and existing at that time, constitute no ' cause of action against the defendant. That being so, the plaintiff will not be permitted to file and serve a supplemental complaint setting up facts which did not exist at the time of the commencement of the action. Farmers’ Loan and Trust Co. v. United Lines Tel. Co., 47 Hun, 315.

Neither by amendment of the original complaint nor by supplemental complaint can facts which occurred after suit brought, be made a part of plaintiff’s case so as to turn what is no cause of action at all, into a good cause of action. McCullough v. Colby, 4 Bosw. 603; Muller v. Earle, 37 N. Y. Super. Ct. 388.

The cause of action now sought to be maintained by means of a change of the original complaint, only arose when the dividends were declared, and such declaration occurred long after the commencement of the action. The fact that the declaration, at the time it was made, is alleged to have been made “ nunc pro tunc as of the years 1877 to 1882,” can make no difference.

The reason already given being decisive, it is unnecessary to discuss any other question.

The order should be affirmed with ten dollars costs and disbursements.

Sedgwick, Oh.. J., concurred.


author: By the Court.—Ingraham, J.

text:
    S. CHARLES WELSH, as Executor, etc., Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY et al., Appellants.

      Inconsistent findings of fact or conclusions of law, effect of.

    In the case at bar the court found as a fact, that the construction and maintenance of the elevated railroad by defendants in front of the premises of plaintiff, has diminished the rental value of plaintiff’s premises, etc., etc. That the damages to the plaintiff for such diminution was the sum of $5,198. Held, onappeal, that this finding is sustained by the evidence, and that plaintiff is entitled to judgment against defendants for that sum.
    The court also found, at the request of defendant, as follows : “ Thirty-first The evidence does not establish any definite amount of damage for which any judgment can be rendered.” The defendants claimed that the latter finding is inconsistent with the former, and for that reason the judgment should be reversed. Held, that this 31st finding does not state a fact, and by section 1022 of the Code the decision of the court must state the facts found and the conclusions of law separately. As to what the evidence does or does not establish is a conclusion of law. The fact'as to the damage, and the amount of same, was found, and if the said 31st finding is of any effect at all, it is as a conclusion of law, and is clearly erroneous and cannot affect or overrule the correct conclusion of law afterwards stated, that plaintiff was entitled to judgment for the amount of damage found as a fact by the court. A judgment should not be reversed because of inconsistent conclusions of law when the judgment is in accordance with the correct conclusion of law upon the facts found.
    Before Freedman and Ingraham, JJ.

      Decided January 6, 1890.

      Appeal from judgment entered on decision of the court at special term.

      Davies and Rappalh, attorneys, and Samuel B. Rogers, of counsel, for appellants, argued :—
    The learned trial judge has found a fact inconsistent with any judgment for damages in the plaintiff’s favor. The finding in question is as follows: “ Thirty-first. The evidence does not establish any definite amount of damage for which any judgment can be rendered.” Notwithstanding this fact, the court has proceeded to find that, by the acts of the defendants, the plaintiff has suffered damage in the sum of $5,198, and that he is entitled to judgment against the defendants for this amount. Both the finding and the conclusion were duly excepted to. When two findings of fact are inconsistent, the appellant is entitled, in support of his exceptions to the conclusions of law, to have that taken as true which is the more favorable to himself. Bonnell v. Griswold, 89 N. Y. 122; Schwinger v. Raymond, 83 Ib. 192 ; Conselyea v. Blanchard, 103 Ib. 222, 231 ; Redfield v. Redfield, 110 Ib. 671 ; Green v: Roworth, 113 Ib. 462. This very principle has within a short time been applied by this general term in the case of Pappenheim v. Metropolitan Elevated R. Co. Its application to the present case must necessitate a reversal of the judgment for past damages. In Sedgwick on Damages, the learned author says, at p. 36 (7th Ed., p. 45) : “In all cases growing out of the non-performance of contracts, and in those of infringement of rights, or non-performance of duties created or imposed by law, in which there is no element of fraud, willful negligence, or malice, the compensation recoverable in damages consists solely of the direct pecuniary loss.” In Seventh Ward Bank v. N. Y. Elevated R. Co., 52 N. Y. Super. Ct. 412, Ingraham, J., writing the opinion of this general term, concurred in by Sedgwick, Oh. J., quotes the above words with approval, and continues as follows (pp. 416-417) : “It follows, therefore, that in an action where the recovery is limited to the damage to property, caused by the wrong complained of, and the amount of such damage does not appear, and there is no evidence from which such an amount can he ascertained, nominal damages only can be awarded. As was said in Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26 : where the loss is pecuniary and is present and actual and can be shown ; but no evidence is given to show its extent, or from which it can be inferred, the jury can allow nominal damages only.’ ” We submit that, the fact being as found, the learned trial judge erred in not awarding only nominal damages.

      G. Willett, Van Nest, attorney and of counsel, for respondent.
   By the Court.—Ingraham, J.

The court found, as a fact, that the trespass committed by the defendants has diminished the rental value of the plaintiff’s premises from the 16th day of March, 1882, to the time of the trial, and that the damages to the plaintiff for such diminution was the sum of $5,198.

This finding is sustained by the evidence and justifies the conclusion of law that the plaintiff is entitled to judgment against the defendants for that sum. The court also found at the request of the defendant as follows: “ Thirty-first: The evidence does not establish any definite amount of damage for which any judgment can be rendered.” And it is now claimed by the appellant that this finding is inconsistent with the findings before mentioned, and for that reason the judgment should be reversed. But it is clear, that this 31st finding does not state a fact. By section 1022 of the Code, the decision of the court on a trial without a jury must state the facts found and the conclusions of law separately. As to what the evidence does or does not establish is a conclusion and not a fact. The fact as to the amount of damage was found, and if the 31st finding above cited is of any effect at all, it is as a conclusion of law, and it is clearly erroneous, it cannot affect or overrule the correct conclusion of law, that the plaintiff was entitled to a judgment for the amount of the damage that the court finds, as a fact, was sustained by the plaintiff in consequence of the trespass.

No principle requires us to reverse a judgment because of inconsistent conclusions of law when the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.

The trial judge refused to • find, as a fact, that the plaintiff’s access to the premises had not been interfered with, stating as his reason therefor: “I refuse to so find as the plaintiff will not recover for interference with access.”

We think the facts justified such a refusal, and we cannot reverse the judgment because of the reason assigned by the trial judge for the refusal to find one of the defendants’ requests, especially where he has found the facts covered by the request, and such finding, as made, is sustained by the evidence.

Nor do we think that the terms on which the defendants can acquire the interests of the plaintiff in the easement should be modified. The condition that the injunction should not be operative on the payment of the value of the easement is for the benefit of the defendants. They are not bound to avail themselves of its provisions. The interest that the plaintiff has in the easement appropriated by the defendants is the right to use such easement for the unexpired term of the lease, and the court fixed the value of such use of the easement for such unexpired term and provided for a conveyance to the defendants.

It is not certain that plaintiff will accept a renewal of the lease or will have any interest in the easement after his present term has expired. The defendants cannot complain because the court fixed the value of the easement too low, or because the court refused to compel the defendants to pay for the value of the use of the easement for a future period, but left the rights of the parties to,be settled by a new action in case it should subsequently appear that a continuance of the trespass would cause future injury to the plaintiff’s rights.

These are the only exceptions which the appellants present to us as requiring a reversal of the judgment, and we think none of them well taken.

The judgment should, therefore, be affirmed with costs.

Fbeedman, J., concurred.


text:
    WILLIAM B. ROSS, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Action for injunction and damages for construction and operation of Elevated Railway in front of plaintiff’s premises—Gross-examination of witnesses, extent of, within discretion of court—Testimony of real estate expert as to values—Evidence of offers to purchase, incompetent.

    On the trial the plaintiff was a witness on the stand. After a lengthy cross-examination by defendants’ counsel to show that plaintiff had notice of the construction of the railroad, and took no proceedings against the company, and that he (plaintiff) had used the defendants’ road as a means of travel, the defendants’ counsel asked the plaintiff the following question. “And during all this time you were reserving your objections ? ” when the court interposed and said “you have gone far enough on that point, you can ask no more questions on these points,” to which the counsel for the defendants duly excepted. The court, on appeal, held, that the question was entirely irrelevant and immaterial. The examination of witness as to facts had been exhausted, and if counsel had desired to ask any further question he should have asked the same and taken the ruling of the court as to its admissibility. The extent to which such a cross-examination should be allowed is largely within the discretion of the court and such discretion was properly exercised in the refusal of the court to allow questions to be put that were absolutely immaterial; that did not tend to prove any issue of the pleadings, and that could not be asked for any other purpose than to waste time.
    A question was put to a real estate expert as to the value of plaintiff’s premises at any time since 1883, and prior to the construction of defendants’ structure. The witness answered, that the property at one time was valued as high as $30,000. “I submitted an offer to Mr. Ross of $30,000.” Defendants’ counsel moved to strike out the last statement of witness, that he had submitted an offer of $30,000 to Mr. Ross, as incompetent. The court denied the motion and counsel excepted. Held, that this testimony to prove a value was clearly incompetent, but the evidence of the value was competent, and this statement was simply a remark of the witness as a basis for the formation of his judgment, and was not incompetent in the connection it was given, nor did it in any way affect the result.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 6,1890.
    Appeal from judgment entered upon the decision of the court at special term.

      Davies & Rapallo, attorneys, and Edward S. Rapallo and Brainard Tolies of counsel, for appellants.

      Edwin M. Felt, for respondent.
   By the Court.—Ingraham, J.

An examination of the evidence has satisfied us that the amount awarded by the court as the damages sustained by the plaintiff caused by the trespass, and the amount fixed by the court as the value of the property in the street appropriated by the defendants, were not excessive.

•We are also of the opinion that the finding “that attached to the plaintiff’s premises above described as a part thereof, was an easement of light, air and access over said 53rd street and appurtenant thereto, in front of and adjoining said premises, of which easement the plaintiff has been dispossessed since July 16, 1868,” was sustained by the evidence.

- It was stipulated that 53rd street in front of the plaintiff’s premises was opened and laid out as a public street or highway, in the year 1838, under and by virtue of chap. 36, Laws of 1813. There was offered in evidence a conveyance of the premises to plaintiff, dated July 10,1868, and it appeared that the plaintiff had owned the premises and been in possession thereof continuously from that date, which was prior to the erection of the elevated railroad.

It thus appeared that by the opening of the street and its appropriation as a public street under the Act of 1813, that a contract was- created between the public and the abutting owners by which the street was to be kept open as a public street forever, and that thereby an easement was created appurtenant to the abutting premises which enured to the benefit of such abutting owners.

By the conveyance to the plaintiff of such abutting property such easement vested in him, and it appeared by the evidence that he entered into possession thereof and was enjoying such easement when the same was appropriated by defendants for the purpose of its railroad, and it is clear that such possession was sufficient to sustain an action for trespass.

The only remaining questions that require - examination are raised by exceptions taken by defendants to the admission of testimony and to the denial of a motion to strike out part of an answer.

After a lengthy cross-examination of the plaintiff to show that he had notice of the construction of the railroad and took no proceedings against the company, and that he had used the defendants’ road as a means of travel—between his residence and his place of business, "counsel for defendants asked the witness the following question: “ And during all this time you were reserving your objections ? ” when the court interposed and said, “ You have gone far enough on that point: you can ask no more questions on these points,” to which the counsel for the defendants duly excepted.

It is clear that the question was entirely irrelevant and immaterial. The operation of the plaintiff s mind at that time had nothing to do with any question before the court. The examination of the witness had been exhausted as to facts, and if Counsel for defendants had desired to ask any further question he should have asked the question and taken a ruling as to its admissibility.

There was not the slightest proof offered which tended to show that the defendants had relied upon the acquiescence of the plaintiff in-building its road, or that the plaintiff was in any way estopped from maintaining this action.

The extent to which such a cross-examination should be allowed is largely in the discretion of the court, and such discretion was properly exercised in refusing to allow questions to be put which were absolutely immaterial; which did not tend to prove any issue presented by the pleadings, and which could not be asked for any other purpose except to waste time.

The other exception relied on by defendants is to the denial of a motion to strike out a part of the answer to a question put to a real estate expert as to what was the market value of plaintiff’s primises at any time since 1883, and prior to the construction of the defendants’ structure.

The witness answered that that property was valued at one time as high as $30,000, and he had submitted an offer to Mr. Ross of $30,000. Defendants’ counsel moved to strike out the portion of the answer stating that he had submitted an offer of $30,000, which motion was denied.

That this testimony was incompetent to prove a value is clear, but the evidence as to the value of the property was competent, and this was simply a remark of the witness as a basis for forming his judgment. While it would not have be.en error to have excluded the testimony we do not think that it was incompetent in the connection in which it was given, or that the testimony in any way affected the result.

On the whole case we think that there are no exceptions that require a reversal of the judgment, and it should, therefore, be affirmed with costs.

Sedgwick, Oh. J., concurred.


author: By the Court.—Ingbaham, J.

text:
    BYAM K. STEVENS, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Action for injunction and damages for construction and operation of the Mevated Bailroad in front of plaintiff’s premises—Decision in the Abendroth Case, 54 Superior Court, 420, applied.

      Held, that it is immaterial for the purposes of this case whether the plaintiff had or had not any interest in the fee of Pearl street in front of and adjacent to his premises, and in regard to other objections taken by the counsel for the defendants on the trial of the case, that no error was committed that requires a reversal of the judgment.
    Before Sedgwick, Ch. J., and Ingraham J.

      Decided January 6, 1890.
    Appeal from judgment entered upon the decision of the court at special term.

      Davies & Rap alio, attorneys, and Edward S. Rapadlo and Samuel B. Rogers of counsel, for appellants.

      6r. Willett Van Nest, attorney and of counsel, for respondent.
   By the Court.—Ingbaham, J.

The decision of the general term of this court in the Abendroth Case, 54 Super. CL 420, is binding upon this court, and determines adversely to the defendants the question as to the right • of the plaintiff to maintain this action and to the. relief granted by the judgment, for it is there stated by Truax, J., that it was immaterial for the purposes of that case whether the plaintiff had or had not any interest in the fee of Pearl street in front of and adjacent to his premises, and in that opinion the chief judge concurred.

The other objections taken by counsel for the defendants have been examined, but we do not think that any error was committed that requires a reversal of the judgment.

The judgment appealed from is, therefore, affirmed with costs.

Sedgwick, Ch. J., concurred.