source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    Thomas Darlington, plaintiff and appellant, vs., The Mayor, &c. of the City of New York, defendants and respondents.
    The objection that a statute was not constitutionally passed by ayes and noes, | during the presence of the required number of members, must be set up by ■ answer; otherwise it is unavailable.
    (Before Barbour, Monell and Garvin, JJ.)
    Heard March 17, 1864;

    decided April 30, 1864.
    Appeal from a judgment dismissing the complaint. The plaintiff alleged in his complaint that, on the day and time hereafter mentioned, the plaintiff resided and was doing business in the city of Hew York, and the defendants were, and still are, a municipal corporation, charged by law with the preservation of the peace and order of the city of Hew York, and the protection of the property of its inhabitants. That on the 13th day of July, 1863, at the city of Hew York, and within the city and county of Hew York, the plaintiff was the owner, and was" possessed of, the ends and leaves of a covered mahogany extension table, then in the building known as number 1182 Broadway, in the said city of Hew York, and that, on or about the 13th day of July, 1863, in the said city and county of Hew York, a large assembly of persons, to this plaintiff unknown, constituting a mob, did unlawfully, riotously and tumultuously assemble together, to the disturbance of the public peace, and being so assembled, did then and there unlawfully, violently, and with force and violence of a mob, set fire to said building, containing the aforesaid property of this piaintiff, and by the acts of the said mob in so doing, the property of the said plaintiff, amounting in the whole to the value of fifteen dollars,, was totally destroyed. That the said loss and injury to the property of the plaintiff was caused by a mob or riot which arose in the said city and county of Hew York, on or about the 13th day of July, 1863, and continued throughout the said city for several days and nights thereafter.
    The plaintiff further alleged, that on the 28th day of July, 1863, and more than twenty days before the commencement of this action, the above mentioned claim of the plaintiff, upon which this action is founded, was duly presented in writing to the comptroller of the city of New York for adjustment and payment, and also that after the expiration of the said twenty days from the time of such first presentation of the said claim, and before the commencement of this action, a second demand in writing for the adjustment and payment was made, in behalf of the plaintiff,, upon the said comptroller, and that upon" such demand being made, the comptroller has neglected and refused, and still neglects and refuses, to make an adjustment or payment of the same.
    And the plaintiff averred that by reason of the matters and things hereinabove set forth, he had sustainedjóss and damage to the amount of fifteen dollars. He therefore demanded judg-° ment for the said damages in the sum of fifteen dollars, with interest thereon from the 14th day of July, 1863, besides the costs of this action.
    The answer was a denial of each and every allegation in the complaint contained, except the allegation of presentment of claim to the comptroller.
    The action came on for trial on the 1st day of February, 1864, before Hon. Jambs Moncrief, one of the justices of this court, and a jury. The defendants, upon the trial, admitted all the allegations in the complaint, excepting the ownership and value of the property.
    The plaintiff proved the destruction of the property, and its value, and rested.
    The defendants’ counsel thereupon moved for a dismissal of the complaint on the following grounds :

      First. That the act of the legislature, passed April 13,1855, entitled, “ An act to provide for compensating parties whose property may be destroyed in consequence of mob,s qr riots,” to be found in the session laws of 1855, does nqt appear to have been passed when a constitutional quorum of three fifths of the members elected to each house were present.

      Second. That the said act is unconstitutional and void for the reason that it violates that portion of section 6th of article 1st of the amended constitution of 1846, which declares that no person shall be deprived of his property without due process of law. '
    The judge granted the motion, and dismissed the complaint with costs, to which decision the plaintiff’s counsel duly excepted; And judgment of dismissal having been entered, the plaintiff appealed, uuw

      Thomas Darlington, appellant, in person.

      John K. Hackett, for the respondents.
   By the Court,

Monell, J.

The judgment in this case must be reversed under the authority of Davidson v. The Mayor, decided at this term, unless the objection, that it does not appear that the question on the final passage of the act was taken by ayes and noes, and entered on the journal, and that three fifths of all the members elected to either house, were present, was well taken.

In the view which I take of the question, it is not necessary to inquire whether the act of 1855 required the presence of three-fifths of the members elected to the legislature, at the time of its final passage. I assume that it did. The act of 1855 is a public act, and may be read in evidence from the volume printed under the direction of the secretary of state. (Laws, 1843, ch. 88.) It is not necessary to plead a public statute.

The objection that the act was not constitutionally passed, is not set up in the answer, and it seems to me it can be taken in no other way. The act of 1843 makes the printed volume evidence, and all a party, who claims a benefit under it need do, is to read it from the book, and the court is furnished with the evidence. If in its passage, the law has not received a constitutional vote, or for any other reason it has not been passed, with the prescribed forms, the objection must be proved, and if necessary to be proved, must be averred in the pleadings.

But I regard the question as settled by People v. Supervisors of Chenango, (8 N. 7. Rep. 317.) The supervisors were directed by mandamus to issue warrants for the collection of the tax provided by the 17th section of the act of April 16, 1851. Without setting up in their return to the mandamus any informality in the passage of the act, they undertook to claim on the argument that it did not appear that the act had received the assent of two thirds of the members elected to each branch of the legislature, as required by'§ 9 of article 1 of the constitution. Mr. Justice Willard, who delivered the opinion of the court, says, (p. 234 :) “ Where the objection to the validity of. a law springs out of the failure of the legislature to comply with the provisions of the constitution, which is not apparent upon the act itself, it should be distinctly set forth in the pleadings.” The act of 1847, which is relied on by the respondents, (Laws 1847, p. 276,) is declared in the case just referred to, to be directory merely, It is there said that it is not competent for the legislature to make the failure of its officers to append the proper certificate defeat the provisions of the constitution.” And in Purdy v. The People, (4 Hill, 384,) it is said the courts must look behind the printed statute book in some way, to ascertain whether this constitutional provision has been complied with, and that the certificate of the secretary of state cannot be considered as conclusive upon the question that the law was passed by a constitutional majority. Under our present system of pleading, every defense must be stated, or evidence cannot be given in support of it. To allow the objection to be taken in the case before us would work great injustice. Being a surprise to the plaintiff, he could not at the trial furnish proof to sustain the law. For it is now understood that upon an inspection of the journals of the senate and assembly, it appears that all the requirements of the constitution were complied with.

We think the defense should have been set up in the answer, and is unavailable without it.

The judgment should he reversed, and a new trial granted, with costs to abide the event.

Garvin, J. concurred.

Hew trial granted.

       Ante, p. 230.

         On appeal the above judgment was affirmed by the Court of Appeals. (See 31 N. T. Rep. 164)


text:
    The Hope Mutual Life Insurance Company, plaintiff and respondent, vs. Charles J. Taylor, defendant and respondent.
    1. Although a corporation can properly enforce only such contracts as are authorized by its charter, yet where third persons become interested by'dealing with the company in good faith, believing that a particular contract was made according !o its powers, every presumption and intendment is to be made in favor of the appropriate exercise of such powers, in the particular case.
    2. The defendant, by his promissory note promised, twelve months after date, or sooner, if required, to pay to the plaintiff or order a certain sum ($1000) or such assessment on the same as the trustees of the plaintiff (an insurance company) should find it necessary to impose, for the purpose of paying losses upon policies of insurance, agreeably to the terms of his subscription to a guaranty fund of such company. By the subscription paper so referred to, the subscribers agreed to contribute to a fund for the indemnity of persons insured by such company, as a security, in addition to expected profits, by their promissory notes, which were to be given upon condition that the same should be held by the company for the sole purpose of paying losses which should occur; and be had recourse to for any deficiency by being made subject to a pro rata assessment.

      Held that-such note not being strictly within authority given to the plaintiff by its act of incorporation, to receive notes or other securities for premiums in advance; in any action brought thereon by the company, before its dissolution, it was incumbent on the plaintiff to show that the note was not in fact at variance with the statute.
    3. The defendant, being one of the trustees of thb company, assisted in the passage of a resolution by them which authorized the raising of a guaranty fund “ upon such terms and conditions as were riot at variance with the charter and by-laws of the company.”

      JECeld that between him and creditors who gave credit to the company upon upon the strength of that resolution, it was to be presumed that the note conformed to the charter and by-laws of the company.

      4. Held, also, that the resolution, to which the defendant was a party, or of which' he had knowledge before giving his note, estopped him from urging want of authority, or non-conformity to the charter, as a defense to a creditor’s suit.
    5. Held, further, that an action upon the note could be sustained without the aid of the statute. That the general powers incident to all corporations and necessary to enable them to conduct their business, authorized them to receive such note, as forming a part of their guaranty fund; and that in the hands of a receiver of such corporation it was a valid security, for the benefit of its creditors.
    6. The statute of limitations begins to run, upon such a note; from the time of the making an assessment thereon and notice thereof to the maker.
    7. A foreign receiver cannot sue in his own name ás such in our courts. Hence an action upon such a note is properly brought, in this state, in the name of the company; notwithstanding such receiver has been appointed by the court in another state, in the exercise of its equity powers.
    (Before Moncbibf, Monem, and McCum, JJ.)
    Heard April 8, 1864;
    decided April 30, 1864.
    This case came before the court on exceptions, ordered to be heard in the first instance at the general term. The action was to recover the amount of a promissory noté, of which the following is a copy :
    “ Dollars, 1000.
    New York, 1st May, 1847.
    Twelve months after date, or sooner if required, I promise to pay to the Hope Mutual Life Insurance Company, of Stamford, Connecticut, or order, one thousand dollars, or such assessment on the same' as the trustees find it necessary to impose for the purpose of paying losses, agreeably to the terms of my subscription to" the guaranty fund of said Company, dated 19th April, 1847, for value received.
    C. J. Taylob.”
    The subscription paper referred to in the note, after reciting that “ Whereas it has been deemed advisable by ‘ The Hope Mutual Life Insurance Company/ of Stamford, Connecticut, to create a fund for the indemnity of persons insured by said company, as a security, in addition to expected profits,” provides that the subscribers thereto have agreed to contribute thereto, the amounts respectively set opposite their names, by giving their promissory notes, upon condition that the same shall be held by said company for the sole purpose of paying losses which shall accrue upon policies which shall he issued by said company, and shall not be used until the other funds in the hands of the company shall have been first applied ; that for any deficiency, the- notes should be subject to an assessment; that the indemnity fund should only be liable for losses upon policies ; that for such notes, the subscribers shall be entitled to six per cent interest; that whenever a surplus of capital of $25,000 shall be acquired, out of the profits of business, the indemnity shall cease, and the notes be returned. It being understood that the subscribers, in lieu of having such return, may absorb the amount of their notes in premiums of policies on their own lives, or lives of others procured through their agency.
    The plaintiffs were incorporated by the general assembly of Connecticut,'' in May, 1846, and were organized in September of that year by the election of trustees, ‘of whom the defendant was one. The 8th section of the act of incorporation provided that “ The company, for the better security of its dealers, naay receive, during the two first years after the passage of this act, notes or other securities for premiums, in advance, of persons intending to receive its polices, and may negotiate the same for the purpose only of paying claims against it in course of its dealings, upon such terms and conditions as may be provided for by the by-laws of said corporation.” * * * *
    Section thirteen provided that “ Persons giving notes or other securities in advance, according to section eight of this act, may be allowed therefor, not exceeding six per cent, in addition to any other profits they may be entitled to as members of this company.”
    On the. 26th of March, 1847, the trustees passed a resolution authorizing the raising a guaranty fund of from $15,000 to $50,000, upon such terms and conditions as were not at variance with the charter and by-laws of the company, and authorized the executive committee, to receive subscriptions. The defendant’s subscription and note were made pursuant to this resolution.
    In May, 1854, it was found that the company was entirely insolvent, all its assets, except the guaranty fund, having been exhausted, and there was a large outstanding indebtedness for losses and other debts. W. T. Minor was appointed by the Superior Court of Fairfield county, Connecticut, the receiver of the assets of the company, including the guaranty notes, and an assessment of seventy-five cents on the dollar was levied on the guaranty notes, of which the defendant received notice in December, 1854, or January, 1855.
    In September, 1849, the company made a report under oath to the comptroller of this state, in which it is stated that the company at that time possessed “a capital actually paid in and invested, unimpaired, together with premium notes, guaranty bonds and cash assetts,” of #208,528.48. This was made up as follows :
    Premium notes,............#17,150 29
    Guaranty bonds and notes,....... 83,000 00
    Seven per cent bonds and mortgages, . . . . 58,000 00
    Six “ “ ' .... 43,000 00
    Cash on hand, . ........... 7,378 19
    #208,528 48
    In May, 1850, the company, by its report, showed the net profits of its business to be #25,479.14, which' was made up as follows :
    Cash on hand,............' #5,813 84
    Premium notes,........... 14,149 41
    Due from agents,...........5,515 89
    #25,479 14
    The defendant’s counsel requested the judge to instruct the jury:
    1st. That the plaintiffs had no authority under their charter to raise the guaranty fund, or to take and hold the defendant’s note.
    2d. That the right of action upon the note was barred by the statute of limitations.

      3d. That the plaintiffs, having acquired a capital of $25,000 in 1850, the guaranty notes were discharged, and
    4th. The capital of the company, in 1849, amounting to $208,528.48, the guaranty fund was discharged, and the note had thenceforth no legal validity.
    The judge refused to instruct the jury as requested, and directed a verdict for the plaintiffs for the amount claimed. To which refusal and direction the defendant excepted.
    Judgment upon the verdict was suspended, and the exceptions were directed to he heard in the first instance at the general term.

      T. Smith, for the plaintiffs.

      A. H. Dana, for the defendant.
   By the Court,

Monell, J.

This action, although brought in the name of The Hope Mutual Life Insurance Company, is , in reality for the benefit of the creditors of that insolvent corporation. A court in Connecticut, of competent jurisdiction, has declared its insolvency, and passed all its assets into the hands of a receiver.

Upon an-examination of the statute under which the company was incorporated, I am inclined to the opinion that the note in suit is not strictly within the authority, given by tho 8th section of the act, to receive notes or other securities for premiums in advance ; and if the action had been brought by the company before its dissolution, I think they would have been obliged to show that the note was not in fact at variance with the statute. A corporation can enforce such contracts, only, as are authorized to be made by its charter. But where other persons have become interested, having dealt with the company in good faith, believing in their power to contract, every presumption and intendment is made in favor of such power, and its appropriate exercise. (Bissell v. The Michigan Southern and Northern Indiana Railroad Co., 22 N. Y. Rep. 258.)

The defendant was one of trustees of the company, and assisted in the passage of the resolution of the 26th of March, 1847, authorizing the raising of a guranty fund “ upon such terms and conditions as were not at variance with the charter' and by-laws of the company.” I think, as between the defendant and the creditors who were induced to give credit to the company upon the strength of that resolution, it is but fair to presume that the note was conformable to the charter and by-laws of the company. Such, in principle, is the decision in Ogden v. Andre, (4 Bosw. 583,) affirmed by the Court of Appeals in April, 1863. Besides, the resolution of the trustees, to which the defendant was a party, or had knowledge, before the giving of his note, must estop him from urging want of authority or non-conformity to the charter, as a defense to a creditor’s suit.

But the action can be sustained without the statute. The general powers incident to all corporations, and which are necessary to enable them to conduct their business, enabled them to receive the note in question, as forming a part of their guaranty fund, and in the hands of the receiver it was a valid security. (White, receiver, v. Haight, 16 N. Y. Rep. 310.)

As this view of the case has been so fully examined and clearly decided in our neighboring state of Connecticut, by its highest court, (Hope Mutual Life Insurance Co. v. Weed, 28 Conn. R. 51,) in a suit upon one of these guaranty notes, we may content ourselves by referring to the very able opinion of Ch. J. Strong in that case, as furnishing all the reasons necessary to sustain the verdict in this. Even were we inclined to differ with that eminent judge, which we are not, comity towards the judgment of the highest court of another state should conclude us.

Notice of the assessment upon the defendant’s note was given to the defendant in December, 1854, or January, 1855, from which time the statute of limitations began to run. The suit having been commenced in May, 1860, six years had not elapsed after the liability of the defendant was fixed.

The only remaining exceptions were to the third and fourth requests to instruct the jury.

The allegations that the company had realized a net profit of $25,000 in 1850, and that in 1849 the capital of the company, by their statement to the comptroller, amounted to $208,528.48, were not supported by proof. All except $5,813.84 cash in hand, of the $25,000 item, was made up of premium notes and sums due from agents, the greater part of which, according to the evidence, was worthless. And the larger item of capital in 1849, was made up of securities from which the company realized little or nothing. Besides, in making up these statements, the debit side for loss was wholly omitted, which would materially lessen the amounts.

The six per cent interest upon the defendant’s note became a debt against the company, and was entitled to its proportionate payments out of the assets which passed to the receiver. (Hope Life Insurance Company v. Weed, supra. Duncan v. Stanton, 30 Barb. 533.)

This action was properly brought in the name of the company. The receiver was appointed by the Connecticut court in the exercise of its equity powers, and not under any statute of the state. A foreign receiver cannot sue in his own name in our courts. (Booth v. Clark, 17 How. U. S. Rep. 322.)

I am of opinion that none of the exceptions were well taken, and that the plaintiff should have judgment upon the verdict.


author: Moncrief, J. Monell, J.

text:
    John S. Meyer, plaintiff and respondent, vs. James C. Hallock, defendant and appellant.
    1. A contract having been shown to have been once executed, the presumption of law, in the absence of any finding that it has been rescinded, is that it is still a subsisting agreement.
    2. A claim by one of two contracting parties that a departure from the contract by the other operated to cancel it, when the other denies that such an effect was produced, does not amount to a rescission.
    3. A rescission puts an end to the contract, in toto. After a contract has been rescinded a party cannot, of his own motion, proceed under it to finish a portion of the work agreed to be done by Mm, so as to acquire any rights under it.

      4. Upon a contract by one person to build nine houses, for another, the former, upon a refusal by the latter to permit him to build three of the houses, has a right to rescind and put an end to the contract; but if he elects to go on and finish the other six houses, he does not entirely rescind it.

      5. If the contractor, in such a case, continues a negotiation with the other party, for several months, while progressing with the work, he does not waive all right to abandon the contract as to the six houses.
    6. A party intending to abandon a contract while in fieri must act promptly and decidedly, on the very first discovery of a breach. If he negotiates with the other party, afterwards, and goes on with the work, he waives all right to abandon, for the breach complained of.
    7. An alteration of, or departure from, some of the terms of a contract does not per se operate as a rescission of the whole.
    8. Where work has been done under a special agreement between the parties which has not been rescinded, the party performing the same, cannot recover therefor, under a quantum meruit in disregard of such agreement.
    (Before Moncrtef, Moxell and McCvhk, JJ.)
    Heard April 13, 1864;
    decided April 30, 1864.
    This is an appeal from a judgment entered upon the report of a referee to whom it was referred to hear and determine the issues between the parties in this action.
    The action was for work, labor and services done and performed, and materials furnished, in and about the erection of nine buildings situated in 23d street in the city of New York, upon the allegation that the same were reasonably worth the sum of $15,343.91.
    The answer, inter alia, sets up that the work, labor and services done and performed, and the materials furnished by said plaintiff were done, performed and furnished under and in fulfillment of a certain written agreement dated 24th April, 1851, and not otherwise.
    The plaintiff, in his reply, admits the making of the written contract, “but upon information and belief denies that the work, labor and services done and performed, and the materials and other necessary things furnished and supplied, were done, performed, furnished or supplied under or by virtue of said contract.” He avers that he was always ready and willing to keep and perform the same, but that he was prevented from doing so by the defendant. For further reply he says that the defendant abandoned the contract, * * and refused to allow or permit the plaintiff to perform the same ; * * * that the acts and defaults of the defendant amounted to, and were, an abandonment of the said contract, * * * and that the work, labor, services and materials done, performed, furnished and supplied by the plaintiff were reasonably worth the sum claimed in his complaint, and that he was and is entitled to a reasonable compensation therefor, and is not bound by the said contract, the same having as aforesaid been abandoned by said defendant.”
    The referee found as matter of fact, among others, the following, viz: 1st. The making of the "said written contract. 2d. That subsequently thereto the defendant refused to permit the plaintiff to do the work specified by said contract, as to three of the houses mentioned therein. 3d. That after such refusal the plaintiff claimed and insisted that such refusal operated as a rescinding of the said contract, but the defendant claimed and insisted that it did not operate so to rescind said contract. 4th. That the plaintiff, after the refusal aforesaid, and without making' any new contract with the defendant, went on and concluded the work agreed to be done by him in the contract in respect to the (other six) houses mentioned ■therein. 5th. That this departure from the original contract was never waived. * * 9th.'That the work of' the plaintiff was in all respects done and performed as was agreed by the said contract.

    The referee 'also found as conclusions of law : 1st. That the contract of April 24th, 1851, was abandoned by the parties thereto. 2d. That the plaintiff is entitled to recover the reasonable value of the work and labor done, and materials furnished by him in and about the building of the six houses upon which he was permitted to do the work, &c. agreed to be done in said contract, without reference to the price specified in said contract. 3d. That in estimating the reasonable value of the work, labor and services and materials mentioned in the second above conclusion of law, the price mentioned in the contract cannot be resorted to, or made use of, as measuring or in any way controlling the extent of the plaintiff’s recovery, but only as evidence tending to show the reasonable value of such work, labor, services and materials. ® ® ® ® ® ®
    Judgment having been rendered in favor of the plaintiff, upon this report, "the defendant appealed.

      James C. Carter, for the appellant.

      J. J. Marvin, for the respondent.
   Moncrief, J.

The contract in question never was rescinded. The referee has not found as matter of fact that it was ; and in the absence of such a finding, a contract having been shown to have been executed, the presumption of law favors its existence as a subsisting agreement. (Fitt v. Cassanet, 4 M. & G. 898.)

Assuming the third finding of fact to be true, and there is an abundance of evidence to support it, there never was a rescission of the contract. Claiming and insisting on the part of the contracting parties, the one that a departure from the contract operated to cancel it, and the other denying that such an effect was produced thereby, is very far from what the law requires. If the plaintiff was right in his view, then he was at liberty to abandon the further prosecution of the work ; if it was rescinded, then the plaintiff could not of his own motion go on and finish a portion of the work ; if a rescission was made, it must have put an end to the contract in toto.

The reply of the plaintiff alleges an abandonment by the defendant; not that there was a rescission of the contract. There never was an abandonment of the contract in respect to the six houses erected by the plaintiff. The referee so finds in his 4th and 6 th findings of fact.

There can be no doubt that upon the defendant refusing to permit the plaintiff to build the nine houses specified in the contract, it was the privilege of the latter to have rescinded and put an end to the contract, but this he did not do; he elected to go on and finish the six houses, and therefore did not rescind. It was said in Lawrence v. Dale, (3 John. Ch. 23, aff. sub nom. McNeven v. Livingston, 17 John. 437,) “ If the law allows a party to abandon a contract while in fieri, he ought, at least, to act promptly and decidedly on the very first discovery of the breach. If he negotiates with' the party afterwards, and permits the work to go on, he certainly waives all right to abandon.”

The plaintiff continued .negotiation and discussion with the defendant during several months while progressing with the work ; this clearly was á waiver of all right to abandon the contract as to the six houses ; that the referee has found the fact that the departure from the contract in not building the other three houses was never waived, will not aid the plaintiff in his' claim for erecting the six houses.

The referee erred in finding as matter of la,w that the contract was abandoned by the parties thereto ; the facts as found by him will not sustain it; the law is well settled that an alteration of or departure from the terms of a contract does not, per se, operate as a rescission, of the whole.

If the findings of fact are to be taken as establishing that the plaintiff “ went on and concluded the work agreed to be done by him, and that the same was in all respects done and performed as was agreed by said contract as to the six houses, then it is asserted that there was no rescission of the contract as to those six houses ; and following the authority in 7 Wend. 121, (Koon v. Greenman, approved in McConihe v. The N. Y. and Erie R. R. Co., 20 N. Y. Rep. 495,) that “so far as the work was done under the special contract, the prices specified in it are, as a general rule, to be taken on the best evidence of the value of the work,” the second and third conclusions of law were also erroneous. The case referred to in Linningdale v. Livingston, (10 John. 36,) as admitting that the special agreement was proper evidence to lessen the quantum of the plaintiff’s damages, is to the same effect. It was proven in 10 John. (supra) that the parties said the price of the logs was to be the sum claimed by the plaintiff; the defendant refusing to permit the plaintiff to complete the contract, the former elected to rescind it and sued for the price agreed to he paid for the part performance.

The judgment must he reversed, and a new trial ordered, with costs to abide the event. The order of reference will be vacated and discharged, without prejudice, 'however, to either party moving for an order of reference, &c. &c.

Monell, J.

A contract can be rescinded only by the consent of all the parties to it. Such consent need ¿not be expressed. If either party without right claims to rescind, the other party need not object, and if he permit it to be rescinded it will be done by mutual consent. (2 Pars, on Gont. 190.) When the defendant refused to permit the plaintiff to complete the remaining three houses mentioned in the contract, and the plaintiff made no objection, I think it was a rescission of the contract by mutual consent. The right of the plaintiff then was to recover the contract price for the work already done, and such damages as he had sustained by th.e refusal of the defendant to have the contract fulfilled. The plaintiff could not go on, against the consent of the defendant, and do more work and claim to recover what it was reasonably worth.

All the cases to which we were referred by the plaintiff’s counsel, hold that after a rescission of a contract a party may recover, upon a quantum meruit, for work already done. The rescission puts an end to the contract, and it cannot be resorted to, to defeat a recovery. It is the same as if no express contract had been made. But none of the cases go so.far as to allow a recovery upon a quantum meruit, for work done after the contract is rescinded.

The case of James v. Cotton, (7 Bing. 266,) in many respects was like the one before us. There the plaintiff requested the defendant not to go on with the other fourteen houses, and he desisted. It was held this was a rescission of the contract by mutual consent, and the plaintiff was allowed to recover the amount advanced, on a count for money lent.

Regarding the contract at an end, at the time the defendant stopped the work, then the plaintiff can recover for work subsequently done, only upon a new contract, express or implied. There is no evidence of any express agreement; nor is there any for which one can reasonably be implied, and I am unable to find in the case any thing to' support a recovery hy the plaintiff.

If, however, any presumption in favor of the plaintiff arises from the partial performance of the contract, sufficient to imply a new agreement; or if the previous relations of the parties can be resorted to for such purpose, then the defendant is equally entitled to a presumption in his favor; and it will be presumed that he intended the plaintiff should go on under the old contract revived by the implied assent of both parties, the one to do the work and the other to pay according to the terms of the old contract.

If there was any implied assent by the defendant, (without which the plaintiff cannot recover,) it must be that he intended to incur no greater liability than he had previously been under, and he should not, in any event, be held further.

I think the referee clearly erred in the measure of damages allowed the plaintiff, and I therefore concur in reversing the judgment, and awarding a new trial, with costs to abide the event.

I also, think the order of reference should be vacated.

McCuw, J. dissented.

Order of reference vacated.


author: Garvin, J.

text:
    George St. T. Seabrook, plaintiff and appellant, vs. John Hecker, defendant and respondent.
    1. In an action to recover damages for losses by injuries to tbe plaintiff, caused by the falling upon his house, of a wall and oven which was in the course of . erection by an adjoining owner, on his own premises, by reason of negligence ■and carelessness in their construction, evidence was given tending to show that the wall had been cracking and settling for some days; that it was apprehended that such wall would not stand until finished; that they were pointed with mortar several times while being erected; that the arches cracked; and the foundation was not good; that the building was not strong enough to bear the weight of the oven; that the walls settled; and the building was anchored on one side only, when it ought to have been anchored on both.

      Meld, that there being evidence tending to show want of skill, as well as negligence and want of care, in the erection, on the part of the defendant, which led to injury of the plaintiff in his person and property, the case should have been submitted to the jury on the question of fact; and that the complaint was improperly dismissed, on the trial, for want of proof of negligence.
    2. If negligence and want of skill in an erection are averred in the complaint and proved on the trial, in such a case, that is all that is requisite to entitle the plaintiff to recover; provided he shows damage resulting to him by reason thereof.
    (Before Bakboub, Monblu and Garvin, JJ.)
    HearjL March —, 1864;
    decided April 30, 1864
    This action was brought by the plaintiff, to recover damages for his losses and injuries, sustained by the falling of a wall in course of erection by order of the defendant. On the trial of the cause, before Justice Moncrief and a jury, December 8th and 9th, 1863, it appeared that the plaintiff and the defendant were formerly occupants of adjoining premises. The plaintiff resided with his family in a wooden building in the rear of No. 114 Monroe street, where he carried on cigar making. The defendant occupied No. 58 Rutgers street, where he had a bakery. Prior to November 10, 1862, the defendant had commenced the erection of a stack of ovens, of brick, upon his lot, the rear wall of which stood almost immediately adjoining rear wall of the plaintiff’s house. On that day, the defendant’s building being then nearly completed, the rear portion of it fell upon the house of the plaintiff, causing" the alleged injuries, ■ to recover for which the action was brought. The plaintiff, upon the trial, adduced evidence tending to show the nature of the injury and loss sustained by him. He also called witnesses who testified as to the manner in which the erection of the building was planned and executed, and the probable causes of its fall. On the conclusion of the plaintiff's evidence, the defendant moved to dismiss the complaint, on the ground that the evidence failed to show legal negligence on the part of the defendant. The presiding judge granted the motion, and the plaintiff excepted.
    The plaintiff moved for a new trial, and the motion being denied, he appealed from the order made thereon, and from the judgment.
    P. G. Clark, for the appellant.
    I. The respondent is, primarily and apart from any negligence, responsible for all injury and damage suffered by the appellant, through the falling of the ovens. (See Hay v. Cohoes Company, 3 Barb. 42. S. C. 2 N. Y. Rep. 159. Tremain v. Cohoes Company, Id. 163. Lambert v. Bessey, Raymond’s Rep. 421.)
    II. Upon the conceded.facts and the testimony on the part of the plaintiff, it appears clearly that the ovens in question were negligently erected, and that the negligence is directly attributable to the respondent.
    III. There was, undoubtedly, evidence to go to the jury, and the judgment should be reversed, and a new trial ordered.

      Benj. Vaughan Abbott and William Curtis Noyes, for the respondent.
    I. The defendant was not liable for. the consequences of the disaster, unless he was chargeable with negligence in respect to the erection of his building. 1. A case like the present must be carefully distinguished from the ordinary actions for damages grounded upon an unlawful act. Where the act is unlawful, as in actions for libel, for assault and battery, and for other torts, no question as to the manner in which it was performed, enters into the existence of the right of action. The principle that the defendant must be held to have intended the natural consequences of his acts, and is liable for the damages resulting immediately from what he did, applies without qualification, depending upon the care or diligence with which the act was done.
    2. But where the act was lawful, the defendant is not holden for its consequences, unless he is legally chargeable with some fault or omission in respect to the manner in which' it was planned or executed.
    3. The law does not award damages for the consequences of a lawful act, performed in a lawful manner ; nor for injuries which result from accident, or which could not be prevented by ordinary human care. (Clark v. Foot, 8 John. 421. Panton v. Holland, 17 id. 92, 99. Livingston v. Adams, 8 Cowen, 175. Harvey v. Dunlop, Hill and D. 193. Williams v. N. Y. Central R. R. Co., 18 Barb. 222, 247. Ellis v. Duncan, 21 id. 230. Radcliff v. Mayor, &c. of Brooklyn, 4 Comst. 196, 200. O’Connell v. Strong, Dudley’s S. Car. R. 265. Sullivan v. Scripture, 3 Allen, Mass. 564. Hoffman v. Tuolumne Water Co. 10 Cal. R. 413. Higgins v. Barmon, 1 Jur. 217. Morgan v. Symonds, 1 id. 137. Aston v. Heaven, 2 Esp. 533. Crofts v. Waterhouse, 11 Moore, 133. S. C. 3 Bing. 319. Davis v. Saunders, 2 Chit. 639.)
    4. In other words, it is necessary, in order to create a liability for damages, that there should have been either an unlawful act, or some breach or omission of duty in the manner of performing the act, if lawful. (Roulston v. Clark, 3 E. D. Smith, 366. Platt v. Johnson, 15 John. 213. Hentz v. Long Island R. R. Co. 13 Barb. 646. City of Buffalo v. Holloway, 3 Seld. 493, 496. Gilbert v. Beach, 4 Duer, 423 ; reversed on a question of practice, 16 N. Y. Rep. 606. See also Vandenburgh v. Truax, 4 Denio, 464, and Lasala v. Holbrook, 4 Paige, 169.)
    5. No man is answerable in damages for the reasonable exercise of a right, when it is accompanied by a cautious regard for the rights of others, when there is no just ground for the charge of negligence or unskilfulness, and when the act is not done maliciously. (Panton v. Holland, 17 John. 92, 99.)
    6. Comyn says, an action upon the case “ does not lie for a reasonable use of my right, though it be to the annoyance of another; as if a man build a house, and make cellars upon his soil, whereby a house newly built in an adjoining soil falls down.” (Citing 1 Sid. 167. 2 Rol. 565, l. 5. 1 Com. Dig. title action upon the case for nuisance, C.)

    7. In Livingston v. Adams, (8 Cowen, 175,) the defendants, had erected a dam, which broke away and carried off the plaintiffs ’s dam, situated below. It was shown, however, that the defendants’ dam was huilt on a proper model, and was well and substantially done, and- due precautions taken to prevent leakage. The court held that the defendants were not liable for the injury done by the dam breaking away ; and that it made no difference that there might be shown to have been negligence in a particular part of the structure, provided it appeared that the weakness of that part did not contribute to the accident. To the same effect, as to the first point is, Lapham v. Curtis, (5 Ver. R. 371,) cited in Angell on Watercourses, section 336.
    8. See the remarks of Judge Bronson, in delivering the opinion in the Court of Appeals, in Radcliffe v. Mayor, &c. of Brooklyn, (4 N. Y. Rep. 195, 200.)
    9. The rules of law which apply to cases of excavations made by a land owner upon his own land, illustrate the principle that either an unlawful act or an unlawful manner of doing an act must appear, in order to give a right to damages.

      (a.) If the excavation causes the natural soil of the adjoining owner to cave in, this is said to give the latter a right to damages, irrespective of the manner in which the work was' conducted. But the reason is, that each land owner has an absolute right to the lateral support of the adjoining natural soil for his own. An excavation, although wholly within one’s own land, which causes the soil of the adjoining owner to fall in is wrongful. (Farrand v. Marshall, 21 Barb. 409, and

      cases cited. Foley v. Wyeth, 2 Allen, Mass. 131. See also Brown v. Robins, 4 Hurlst. & N. 186.)
    (6.) But if the injury caused by an excavation consists in the fall of buildings erected on the adjoining land, no such right to recover arises, unless upon proof of some neglect or breach of duty in the manner of excavating. For in the excavation itself no right of the adjoining proprietor is invaded. It was his own fault to build so near the dividing line that his improvement could' not be supported without the aid of the adjacent owner to desist or refrain from improving his own, for his benefit or security. (Bellows v. Sackett, 15 Barb. 96, 101. Panton v. Holland, 17 John. 92. Lasala v. Holbrook, 4 Paige, 169. Partridge v. Scott, 3 Mees. & W. 220, 228. Acton v. Blundell, 12 id. 352. Wyatt v. Harrison, 3 Barn. & Adolph. 871. Gayford v. Nicholls, 9 Exch. 702; S. C. 23 Law J. Exch. 205. Thurston v. Hancock, 12 Mass. R. 220, Foley v. Wyeth, 2 Allen, Mass. 131.)
    (c.) So, also, a landowner may make an excavatioñ upon his land, not immediately adjoining a public highway, and although he does not fence or guard it, is not liable, in general, to one who strays upon the land, and falls into such evcavation. (Hardcastle v. South Yorkshire Railway Co., 4 Hurlst. & N. 67. Howland v. Vincent, 10 Metc. 371. See also Cornwall v. Commissioners of Sewers, 30 Eng. L. & Eq. 548.)
    10. The rules which relate to the interruption of watercourses, furnish another illustration of the rule, that an unlawful act or unlawful manner of doing an act is necessary to raise a right to damages.

      (a.) The diversion of a stream of water,- by a proprietor of land over which it flows, to the injury of a proprietor below him, is said to be a good cause of action, irrespective of the necessity for doing it, or manner in which it was done. But this is because the lower proprietor has an absolute right to the use of the stream in his turn; hence the diversion is wrongful in itself. (Van Hoesen v. Coventry, 10 Barb. 518, and cases there cited. Newhall v. Ireson, 8 Cush. 595.)

      (b.) If, however, the facts proved do not amount to a diver

      sion oí the stream, but only to a use of it, the question then is as to the manner in which the upper proprietor used the water. The right of the lower proprietor to any redress depends upon his showing some fault or neglect of reasonable precaution on the part of the proprietor above, in the use of the stream. (Thomas v. Brackney, 17 Barb. 654.)

      (c.) So, also, the interruption of the underground sources of supply of water to a stream running through a neighbor’s land, or by digging ditches upon one’s own land, violates no absolute right of the neighboring proprietor, and therefore is no ground of action. (Ellis v. Duncan, 21 Barb. 230.)
    II. In a case like the present, in which the enterprise undertaken by the defendant is an ordinary use of his own property in the prosecution of a private business, involving no unusual peril or interference with the convenience of others, negligence consists in the omission of some precaution or care which a discreet and prudent man would usually exercise, in like circumstances, when the risk was wholly upon him. (Rochester White Lead Company v. City of Rochester, 3 Comst. 463. Mayor, &c. v. Bailey, 2 Denio, 433, 440. Vanderpool v. Husson, 28 Barb. 196. Congreve v. Morgan, 4 Duer, 439, 445. Vaughn v. Menlove, 3 Bing. New. Cas. 468. Cuyzer v. Taylor, 10 Gray, 274, 280. Sullivan v. Scripture, 3 Allen, Mass. 564. Durant v. Palmer, 5 Dutcher, 544, 547. Central R. R. Co. v. Moore, 4 Zabr. 824. Hoffman v. Tuolumne County Water Co., 10 Cal. R. 413. Wolf v. St. Louis Independent Water Co., Id. 541. Indiana Central Railroad Co. v. Hudelson, 13 Ind. R. 325, 329.)
    1. It would be an error to suppose that the rule of duty imposed by law in respect to the care to be taken in the management of one’s property, is the same in all the various enterprises undertaken. The general rule applying in ordinary cases is that above stated; that the party must take those precautions which a prudent man would ordinarily take under like circumstances. There are, however, cases in which, from special reasons, the law imposes upon the projector of an enterprise, a higher rule of duty or responsibility than this. These cases furnish no rule for determining the present one.
    2. Oases in which the act sued for amounted to a nuisance, require to be distinguished from the present. In that class of cases, although the thing done may be innocent in itself considered, it becomes unlawful by reason of its tendency, under the circumstances, to obstruct some public right, or create some annovqpce or disturbance to the comfort or peace of the neighborhood. It being thus unlawful, the party doing it is held responsible in damages, irrespective of his care or prudence in performing it. If he undertakes to do that which the law, foreseeing its. evil tendency under the circumstances forbids, he must be answerable for the injuries occasioned by his act. But this forms no real exception to the rule already commented upon ; the act being unlawful, not indeed in itself, but under the circumstances. A number of decisions are found in which the defendant has been held liable for damages, irrespective of his care or prudence, on the ground that his act was a nuisance.
    (a,.) See a case where a railroad company, by running cars and engines, ringing bells, &c. during public worship, disturbed and annoyed the congregation. (First Baptist Church v. Schenectady and Troy R. R. Co., 5 Barb. 79.) But the contrary view was, taken in First Baptist Church in Schenectady v. Schenectady and Troy R. R. Co., (6 Barb. 313.)
    (6.) Also cases where the defendant excavated or obstructed a highway without authority of law. (Congreve v. Smith, 18 N. Y. Rep. 79. Dygert v. Schenck, 23 Wend. 446. Ellis v. Sheffield Gas Consumer’s Co., 2 El. & B. 767. 18 Jur. 146. 23 Law J. (2 B.) 42. 22 Eng. L. and Eq. 198.)
    (c.) Also a case where a gas company suffered noxious and offensive substances to flow from their gas works into a stream, by which they were carried down upon the lands of the plaintiff below. (Carhart v. Auburn Gaslight Co., 22 Barb. 297.)

      (d.) The case of Hay v. Cohoes Company, (2 N. Y. Rep. 159,) was cited by the plaintiff upon, the argument of the motion to dismiss the complaint, as an authority for the position that the defendant was under • an absolute duty to make his, building strong enough to stand. That case really rests upon the ground that the acts intended by the defendants were a nuisance. It appears from, the report in 3 Barb. 42, that the facts were very different from a simple accident, The acts complained of were : 1. Cutting a canal across the street on which the plaintiff's house stood, and keeping it open for five months, obstructing his passage ; and 2, a practice of blasting rocks on land adjoining his, maintained from day to day, without adequate precaution to avoid injury, and in spite of injury happening. The case rests on the special responsibility imposed on the author of a nuisance, and is inapplicable to the present.
    3. There is a class of cases in which it is held that a carrier of passengers is under an absolute duty to provide a safe vehicle. If an accident happens from a defect in the carriage, he is liable, notwithstanding it" was well made, and of good materials, and careful servants were employed, and a prudent examination made. (Sharp v. Gray, 9 Bing. 457. 2 Moore & S. 621. Bremmer v. Williams, 1 Carr. & P. 414. Israel v. Clark, 4 Esp. 259.)
    4. In certain cases in which the enterprise or business undertaken by the .defendant is one of unusual peril or danger to the community, the rule of duty imposed is not limited to taking ordinary care, but extends to requiring extreme care, or all the precautions of which the nature of the case admits.

      (a,.) See cases where the defendants were engaged in selling or managing dangerous drugs. (Thomas v. Winchester, 2 Seld. 397. Tarrant v. Barnes, 11 C. B. 1 N. S. 553. 8 Jur. N. S. 868. 31 Law J. [C. P.] 137.)
    (b.) Also cases where the defendants were engaged in management of locomotives, steam engines, &c. (Fero v. Buffalo and State Line R. R. Co., 22 N. Y. Rep. 209. Hinds v. Barton, 25 id. 544. Cagger v. Taylor, 10 Gray, 274.)
    5. The grantee of a monopoly or franchise, of an exclusive-nature, has in some cases been deemed to hold the privilege, not upon a mere duty of prudence in the exercise of his right, but upon an absolute duty to exei'cise it in such a manner as not to injure others. Where this is seen to be the condition of his tenure, he will be held liable for injuries done, irrespective of the question whether he is chargeable with negligence. (See decision in Court of Errors, in Brown v. Mohawk and Hudson R. R.Co., How. App. Cas. 52, 65, 76 ; Robinson v. N. Y. & Erie R. R. Co., 27 Barb. 512.)
    6. The instances above cited are far from being all in which, for special reasons, the law imposes a special rule of duty or liability upon those who undertake an enterprise. But they are enough to show that the liability for damages in these cases rests upon the special duty and its violation. The present case presents no facts which raise any peculiar obligation. The defendant undertook to erect, upon his own land, a building for the purposes of a lawful business. What he intended and endeavored to do, and to procure to be done, was not a nuisance, nor an enterprise causing any unusual peril to the surrounding community, nor did it involve any peculiar reasons for responsibility. The ordinary rule of duty applies.
    7. The general rule as to what constitutes negligence was stated with great accuracy, by Justice Moncrief, at the trial, in assigning his reasons for granting the motion to nonsuit. It is " a violation of the obligation, which enjoins upon us due caution and care .in what we do. If the defendant selected competent and skillful persons to perform the work he wanted done, and if in the performance of that work they employed proper assistance and used the right kind of materials, then there was no violation of the obligation resting upon him.” (Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 266 ; Aff’d 4 Comst. 349. Carroll v. N. Y. and N. H. R. R. Co., 1 Duer, 571, 583 ; and 11 N. Y. Leg. Obs. 114. Congreve v. Morgan, 4 Duer, 439, 446. Ernst v. Hudson River R. R. Co., 24 How. Pr. 97.)
    III. The burden of proof to show negligence, was upon the plaintiff.
    1. Negligence being an essential fact to sustain the action, the duty to prove it affirmatively was upon the plaintiff. He could not ask the court to infer it, nor could he call upon the defendant to show himself free from negligence. (Congreve v.
      Morgan, 4 Duer, 439. Terry v. N. Y. Central R. R. Co., 22 Barb. 574. De Benedetti v. Manchin, 1 Hilt 213. Holbrook v. Utica and Schenectady R. R. Co., 12 N. Y. Rep. 236. Lehman v. City of Brooklyn, 29 Barb. 234. Indianapolis and Cincinnati R. R. Co. v. Means, 14 Ind. Rep. 30.)
    2. The presumption is, in respect to the acts of a party-prosecuting a lawful enterprise, and whose motives are not impeached, that all his acts in the prosecution of his design were performed with ordinary care. Negligence will not be presumed. (Lansing v. Stone, 37 Barb. 15. Abb. Pr. 199. Aldridge v. Great Western R. R. Co., 3 Mann. & Gr. 515. 4 Scott, N. R. 156.)
    3. The rule which has sometimes been suggested, that negligence is to be inferred from the mere occurrence of the disaster, has always been confined to actions against common carriers. (Terry v. N. Y. Central R. R. Co., 22 Barb. 574. Edgerton v. N. Y. and Harlem R. R. Co., 35 id. 389,)
    4. In ordinary cases, evidence of the mere happening of an accident is not enough to be left to the jury ; the plaintiff must give affirmative evidence to show the defendant’s negligence, or be nonsuited. (Hammock v. White, 11 Com. B. N. S. 588. 8 Jur. N. S. 796. 31 Law J., C. P. 129. 10 Weekly Rep. 230. 5 Law J., A. S. 676.)
    5. And to warrant a case being left to the jury, it is not enough that there may be some evidence of negligence ; a mere scintilla of evidence is not sufficient; but there must be proof of well defined negligence. (Toomey v. London and Brighton Railway Co., 3 Com. B., N. S. 146. 27 Law J., N. S., C. P. 39. Cornman v. Eastern Counties Railway Co., 4 Hurlst. & N. 781. 29 Law J., N. S., Exch. 94.)
    IY. The rule of evidence in these cases is that the defendant’s acts must be judged in the light of the circumstances under which he acted.
    1. It does not follow that because the jury, looking back at the circumstances of an accident, can see that some course of' conduct or precaution would have prevented it, therefore the defendant is liable for having failed to pursue that course, or for having omitted that precaution. To charge him, it should appear affirmatively that a prudent and cautious man, before the accident, and without the knowledge that it was about to occur, might have foreseen the danger, and provided adequate security against it. (Bowen v. N. Y. Central R. R. Co., 18 N. Y. Rep. 408.)
    2. There is no great difficulty in suggesting precautionary methods after the calamity has happened. The question is whether they ought to have occurred to the party before. (Per Nelson, Ch. J. in Brown v. Mohawk & Hudson R. R. Co., How. App. Cas. 52, 65.)
    Y. The evidence adduced by the plaintiff wholly failed to show that the defendant did not do, or cause to be done, all that a discreet and prudent man would ordinarily do in the erection of such a structure. There was no proof of carelessness or negligence on the part of the defendant; and, on the contrary, the evidence established sufficient care on his part, in selecting persons to do the work, in directing how it should be done, and in the choice of materials.
    1. It appeared that the defendant was the owner of a stack of ovens previously erected upon the same premises, under the superintendence of the same master mason, and which had stood safely. The new building was put up alongside this ; one of the new walls standing immediately against the wall of the old building, and the other new wall standing against the wall of a neighboring building occupied by one Briggs. The defendant directed the new building to be put up the same as the old one. This displays ample care and precaution in the plan or model adopted. As the old building had stood for years, without support from an adjoining wall, the defendant was justified in supposing that a new one supported by adjoining buildings on both sides, if built in the same manner with the old one, would stand.
    2. The defendant selected experienced and skillful persons to superintend and perform the work. The defendant's workmen are the plaintiff's experts ; and their capacity as well as integrity is vouched for by calling them as witnesses.

      3. The defendant furnished good materials for the work.

      4. The foundation was well built, upon suitable ground, and was found to be good on examination after the accident.
    5. The defendant is not chargeable with any inattention to the progress of the work. He attended at the premises daily, usually several times a day.
    6. The defendant is not chargeable with any undue or improper interference with the work as it proceeded. His directions in respect to it were confined to the expression of his desire that the men should make a good job ; that they should take time enough to do every thing well; and that they should make the new building like the old one.
    7. The building, while in course of erection, was inspected by the public officer appointed to inspect buildings in the city of Hew York, and no objection was suggested to the work. A prudent man would ordinarily rely on an official inspection of such character, as confirming the sufficiency of his precautions.
    8. There can be no doubt that the true cause of the disaster was the- unequal shrinking of the walls, in drying; arising from the fact that the wall on the side of the old building was dried rapidly by the heat of the ovens, while the opposite wall (next Briggs) was retarded in drying by wet weather. But this was a danger which all the witnesses agree was not fore-r seen, and it could not have been. The erection of a brick wall alongside of heated ovens, arising to the fourth story, must be too unusual to render it reasonable to expect that the defendant should have anticipated the effect.
    9. The only two grounds alleged by the counsel for the plaintiff, at the trial, in support of the charge of negligence viz : the adoption of a segment of a circle instead of a half circle for the arches on which the ovens rested ; and the omis* sion to insert tie-rods across the building; are untenable. As to the form of the arch, the defendant’s direction was to make the new building like the old one, This was a prudent plan, as has already been remarked. To charge him with negligence in respect to the adoption of a segment arch, it was necessary to show either that he had actual notice that the workmen were departing from the form of arch employed in the old building, or that the position of the arches was so conspicuous, and the difference between a half circle and the form of segment adopted, arid the danger of the departure, was so obvious that a person not specially conversant with mason work would have detected the error by such inspection as the defendant was accustomed to make. There was no scintilla of evidence to either point. In respect to the omission to insert tie-rods; (a.) There is no evidence that they were requisite. Tie-rods were inserted in the direction in which the building fell. The wall that fell was held by tie-rods. The object of inserting tie-rods across would only have been to sustain the side wall in case the support it received from the Briggs wall was insufficient. As toward Seabrook the tie-rods omitted were unnecessary, and there is no proof that the omission could have contributed to the accident.

      (b.) If it were conceded that inserting tie-rods across the building would have been a useful precaution against the fall of the rear wall, still this is not enough to charge the defendant. The plaintiff was bound to prove it to have been a practicable precaution under the circumstances, It is obvious that the anchors could not have been screwed on between the side wall and the Briggs wall. The only method possible suggested was that of drilling through the Briggs wall from the interior of his building. The plaintiff should have given some evidence that the structure of the Rriggs building was such that this could have been done, and that the defendant might, by reasonable endeavor, have obtained a license to do this. The court will not presume that the owner would have permitted his wall to be drilled through for such a purpose ; nor even that he was within the city, or otherwise within reach of an application by the defendant.
    VI. As the evidence showed that the defendant was free from fault, a verdict for the plaintiff would have been set aside. See Weldon v. Harlem R. R. Co., (5 Bosw. 376,) where a verdict against a railroad company, in an action for negligence of their driver in the management of a team of horses, in taking it through a public street after it had been detached from a car it had been drawing, was set aside, the testimony being uncontradicted, that the manner in which the team was managed was such as had been pursued by this and other similar companies for years without accident, and was considered by those engaged in such business as safe and discreet. See also, Scott v. Mayor, &c. of Manchester, (38 Eng. L. &. Eg. 477,) where it appeared that the defendants had, through their manager, ordered a certain work to be done to their gas pipes ; and that he had employed a conrpetent party of workmen to do the work; in the course of which one of the workmen was chipping a pipe, and a chip flew off and struck the plaintiff in the eye, and blinded him. It had been suggested to the manager that a screen ought to be erected, and after the accident this was done. A verdict for the plaintiff was set aside for want of proof of negligence on the part of the defendants. It was held that they must be presumed to have given orders to have the work done in a proper way; and that it did not appear that putting up a screen was the only way to avoid accident.
    See also the following cases in which, in actions for negligence, verdicts for the plaintiff have been set aside, or non-suits have been sustained, upon the ground that the circumstances proved did not amount to sufficient evidence of negligence to go to the jury. (Cotton v. Wood, 39 Law J. [C. P.] 333, 8 Com. B., N. S. Cornman v. Eastern Counties Railway Co., 4 Hurlst. and N. 781. 29 Law J., N. S., Exch. 94. Karl v. Maillard, 3 Bosw. 591. Latch v. Rummer Railway Co., 27 Law J., Exch. 155.)
    VII. The rule is well settled, that whenever the evidence adduced by the plaintiff is such that a verdict in his favor would be liable to be set aside, it is the duty of the court to direct a nonsuit. (Ernst v. Hudson River R. R. Co., 24 How. Pr. 97. Stuart v. Simpson, 1 Wend. 378. Pratt v. Hull, 13 John. 334. Demyer v. Souzer, 6 Wend. 436. Wilson v. Williams, 14 id. 146. Doane v. Eddy, 16 id. 523. Carpenter v. Smith, 10 Barb. 663. Moore v. Westervelt, 2 Duer, 59.)
   By the Court,

Garvin, J.

This action is brought to recover damages for losses sustained by the .plaintiff, and injuries received by him, in consequence of the falling of a wall and ovens being erected by the defendant. It is claimed and alleged by the plaintiff, that the erection was carelessly and negligently put up, and also to have been done in an unskillful and insecure manner.

Upon the trial, it appeared that on the 10th of November, 1862, the defendant was the owner of the lot and buildings, No. 58 Rutgers street, New York city, and that on that day, and previously thereto, the defendant had been erecting the stack of ovens on the rear of said lot, which stack was .not entirely completed ; that the erection fell and crushed in the house of the plaintiff, killing one of his children, and greatly injuring him, whereby the plaintiff suffered great personal and pecuniary damages ; that the erection went on under the defendant’s own personal supervision, and that the defendant gave directions in regard to the erection.

There was evidence given upon the trial, tending to show that the wall had been cracking and settling for about a week, and that there was an apprehension the walls would not stand till they were completed ; that the walls were pointed several times while in the course of construction; that the arches cracked; that the foundation was not good; and that the building was not strong enough to bear the weight of the ovens ; that the walls settled ; that the arches ought to have been a full half circle arch; that the building was only anchored one way ; that it ought to have been anchored both ways.

The justice who tried this case dismissed the complaint on the gro.und that no legal negligence was shown on the part of the defendant in the erection of the building in question; to which ruling the plaintiff excepted.

It can make no difference in this case, whether this action is regarded as an action upon the case for negligence and unskillfulness in the construction and putting up of the walls upon which the ovens were to stand, whereby the structure fell and caused the injury complained of, or as an action of trespass to recover for the damages set forth in the complaint. There being some evidence that the defendant directed the work, and supervised it, trespass would lie. (Hay v. The Cohoes Company, 3 Bart. 48, and cases there cited.) At least, the question should have been put to the jury on the facts, to say whether or not the defendant negligently and unskillfully constructed the work complained of.

In this case, negligence and want of skill in the erection was averred in the complaint, and proved upon the trial, which is all any of the oases I have been able to find require, to entitle' the plaintiff to recover, provided he shows that any damage resulted to him by reason thereof. This is well settled, upon authority. (Hay v. The Cohoes Company, 2 N. Y. Rep. 159.) A man who exercises proper care and skill “may do what he will with his own property, but he cannot rightfully enter or cast any thing on the land of another, unless he have a license from the owner, or an authority in law for doing the act; and the absence of a bad motive will not save him. (Radcliff’s Executors v. Mayor, &c. of Brooklyn, 4 N. Y. Rep. 199.) If, in cutting thorns, or in lopping a tree, the boughs fall, against his will, on his neighbor’s land, from which he removes them as soon as possible, he is a trespasser. Or if, in building his house, a piece of timber faff on the house of his neighbor, an action lies.

There is also a class of cases where a man must answer for the consequences of doing a lawful act in so negligent or unskillful a manner as to cause an injury to another, as in the case of Vaughan v. Menlove, (3 Bing. N. C. 468,) which is an extreme case. The defendant was held liable for so unskillfully constructing a hay-rick, that spontaneous ignition followed, and burned up the plaintiff’s cottage, which stood near by. Also where public officers constructed a culvert, to pass a stream of water, so unskillfully that it choked up, and thus caused injury to another. It was held they must answer in damages. (3 N. Y. Rep. 463.)

It is a general rule, and well settled upon authority, that a man must so use and enjoy his own property as not to injure the property of another. But it is also well settled that an act done under lawful authority, and in a proper manner, can never subject the party to an action, whatever the consequences may be. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care and still on his part. (4 N. Y. Rep. 200.)

No question arises here in regard to fault or negligence on the part of the plaintiff. There was'evidence tending to show want of still in the erection, and negligence and want of care therein, on tibe part of the defendant, by which the plaintiff was injured in his person and property. These principles are. all stated and approved by the Court of Appeals in Radcliff’s Executors v. Mayor of Brooklyn, (4 N. Y. Rep. 195.) Their application to this case is apparent. We think the case should have been submitted to the jury on the question of fact.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.


text:
    Richard C. Beamish, receiver, &c. plaintiff, vs. William Hoyt, defendant.
    1. The estate of tenant by the curtesy as it existed at common law, was not abrogated by the acts of 1848 and 1849, as amended in 1860 and 1862," for the more effectual protection of the property of married women.”
    2. Where a married woman, seised of real estate has issue of the marriage, born alive and dies without disposing of such property, and her husband survives her, he becomes entitled to an estate as tenant by the curtesy, which estate will pass to a receiver of his property appointed in supplementary proceedings, who may by virtue of such receivership recover-the rent due at the time of his appointment, as well as that accruing afterwards.
    (Before Monckiev, Mojíeli and McCura, JJ.)
    Heard April 18, 1864;
    decided April 30, 1864.)

      The plaintiff sues as receiver of William A. Hitchcock, a judgment debtor, to recover a quarter’s rent falling due May 1, 1863, of premises 188 West Eleventh street, to which Hitchcock was entitled as tenant by the curtesy. The premises in question were deeded to Mrs. Hitchcock in fee, in 1857 ; she had issue, born alive, which died shortly after; and she died in December, 1862, without making any disposition of the property by deed or will. She left her surviving her husband, the judgment debtor, and her father, the defendant; but left no surviving issue. At the time of her death, John Gr. Gfottisberger was tenant of the premises, under a written lease, which expired on May 1, 1863. On that day, the last quarter’s rent fell due, to wit, #125, which was paid into court. John Bancroft and others recovered a judgment against said Wm. A. Hitchcock and others, March 2, 1858, for #254.30, which is wholly unpaid ; the plaintiff was appointed receiver, in "supplementary proceedings on that judgment, by order dated January 18, 1863, and filed for record in the New York county clerk’s office, February 4, 1863. On the 21st day of May, 1863, the plaintiff, as receiver, commenced this action against G-ottisberger, claiming to collect such rent as part of the estate and interest of William A. Hitchcock, as tenant by the curtesy of the said premises, and as having been transferred to him by force of his appointment as such receiver. The defendant, William Hoyt, who is the father of Frances A. Hitchcock, applied to this court to be substituted, and was substituted as defendant in this action, in the place and stead of John Gfottisberger, claiming that the real estate of which his daughter, Mrs. Hitchcock,. died seised, ascended to him, and that he became seised thereof as an inheritance to him as her father, and that by the laws of this state the estate of a husband, as tenant by the curtesy, had been abolished. All the above facts were admitted, either in the pleadings or at the trial.
    The defendant moved to dismiss the complaint on the grounds:
    1st. That the judgment debtor had no interest in the premises as tenant by the curtesy.

      2d. That if he had, the judgment creditor’s remedy was by execution.
    3d. That the receiver could not take any rents accruing after his appointment.
    The motion was denied by the justice, and the defendant excepted.
    The justice directed a verdict for the plaintiff, and that the exceptions be first heard at the general term, and that the judgment, in the meanwhile, be suspended.
    The plaintiff now applied for judgment on the verdict.

      Addison Brown, for the plaintiff.
    I. Tenancy by the curtesy is not abolished by the married woman’s acts of 1848, 1849 and 1860, in those lands which she leaves at her death, undisposed of by deed or will.
    (a.) The statute is in derogation of the common law, and therefore must be strictly construed ; above all, it is not to be extended by implication beyond its expressed object—the benefit of married women. It empowers the married woman, personally, to hold, enjoy, and dispose of the property, independently of her husband, by deed or will. If she does not choose to avail herself of this power, the statute has no farther object or effect; the succession devolves, according to all the former rules of law, and the husband takes an estate by the curtesy, the same as before. (Ransom v. Nichols, 22 N. Y. Rep. 110. Hurd v. Cass, 9 Barb. 366. Vallance v. Bausch, 28 id. 633. Moore v. Jackson, N. Y. Supreme Court, 1st dist. gen. term, Feb. 1, 1864.)
    (b.) The language of the statute embraces real and personal property alike ; and the true construction of the statute has been authoritatively settled by the Court of Appeals, in Ransom v. Nichols, (22 N. Y. Rep. 110,) in favor of the husband’s rights, precisely as they before existed, as to property undisposed of by the wife.
    (c.) Where property was given to trustees for the sole and separate use of a married woman, with power of disposition and appointment by deed or will, the husband took an estate by the curtesy in equity, if no disposition of the estate was made by the wife. (1 Cruise Dig. V. 2, § 11. 4 Kent, 30, 31. Morgan v. Morgan, 5 Mad. Ch. 408. Follett v. Tyler, 14 Sim. 125.) In these cases there was no estate whatever in the husband during the wife’s life ; and they furnish a complete refutation of the defendant’s argument of the necessity of a vested initiate estate in the husband during the wife’s life. Such an estate is nowhere claimed to be one of the foundation elements of the husband’s estate after the wife’s death. (Litt. § 35. 4 Kent, 30. 1 Cruise VI. §§ 3, 4.)
    (d.) The statute was intended to do away with the circumlocution of just such settlements as the above, but not to modify the rights of heirs or the regularly succeeding interests after the wife’s death, where she does not avail herself of the powers conferred on her. The analogy is perfect between the cases arising under these statutes and the settlement above described. The purpose of both is the same, and they arc obviously to be determined on the same principles of construction, and with similar results.
    (e.) Since the case of Ransom v. Nichols, we cannot regard the construction of the act as properly an open question. And besides that case, all the decisions are one way and in our favor, except the opinion in Billings v. Baker, which was, in fact, extra judicial, and in no way necessary to the decision of the question before the court. Two of the justices disagreed as to that opinion, though they affirmed the order on other grounds.
    II. The husband, being tenant by the curtesy, had an estate for life in the premises in question ; this estate for life was, on February 4, 1863, transferred to the plaintiff by the order appointing him receiver, filed for record on that day. (Laws 1862, ch. 172, p. 343. Hoffman’s Provisional Remedies, 521. Porter v. Williams, 5 Seld. 148. Edmonston v. McLoud, 16 N. Y. Rep. 543.) The right to receive the accruing rents thenceforward during the debtor’s lifetime passed as an incident to the estate so transferred. Rent is an incident to the reversion, and passes with it. (2 Cruise, 338. Coke Litt. 215, b. 1 Inst. 143 a, 151 b. Demarest v. Willard,

      8 Cowen, 206. Birch v. Wright, 7 T. R. 378. Payn v. Beal, 4 Denio, 405, 410, and cases cited.)

    III. The plaintiff should have judgment upon the verdict, with costs.

      Robt. D. Holmes, for the defendant.
    I. The plaintiff gave no evidence of any fact showing that he was entitled to recover; the testimony given having been in reference to the appointment of the receiver.
    II. The real estate in question being the sole and separate estate of Mrs. Hitchcock, the same was not liable, nor was any part of it, for the debts of her husband, William A. Hitchcock ; but it is now sought to have it so applied. (Laws of 1860, p. 157, § 1.)
    III. The real estate above referred to, of which Frances A. Hitchcock, the daughter of the defendant, William Hoyt, died seised,, ascended to him, and he, on her death, became seised thereof as an inheritance to him, as her father. By the laws and statutes of this state, the estate of a husband as tenant by the curtesy has been abolished.
    IV. The receiver cannot maintain this action unless the judgment debtor, Hitchcock, previously to the death of Mrs. Hitchcock, had an inchoate right of tenancy by the curtesy. That right is made up of a series of incidents. (Laws of 1862, p. 343.) The necessity for the continuance of this right no longer exist. (Billings v. Baker, 28 Barb. 349.) It was the intention of the legislature to abolish the right, and its action was dictated by enlightenment and progress.
    V. Tenancy by the curtesy is a common law right; it has its inception in marriage and seisin ; it becomes an estate initiate and is born into being at the birth of living issue,- and it becomes matured, or an estate consummate, at the death of the wife. Each of these elements is necessary to its existence; for if there is no estate initiate,- there can be no estate consummate. This being so, what is the effect on the wife’s rights of the statute of 1862 ?
    1. She can sell her real estate; she can enter into any contract with reference to the same with like effect as if she were unmarried.
    2. She can “in like manner enter into such covenant or covenants' for title as are usual in conveyances of real estate when at common law she could not covenant except when joined with her husband.
    3. The statute, in giving her these privileges in contravention of the common law, creates new rights, and makes no distinction, as to their exercise, between her having a child or not having one. The rights conferred are co-existent with her life.
    4. She can devise her separate real estate as if a feme sole. Could she do these things if her huband’s tenancy were a cloud on the title ? If it exists consummate, it is such a cloud initiate.
    VI. It cannot be that if she does not devise nor sell, a right of tenancy by the curtesy comes into being at her death. ■ That would be a new estate ; not created by the common law, because it has no preliminary or inchoate existence.
    1. If the right does not exist at law, it does not exist at all in this state.
    2. It can only exist at law through all the necessary conditions precedent which prevailed previously to the statute. By the statute she “ continues” to hold her real estate as if she were a single woman. This right continues until her grantees or devisees take her lands.
    VII. If a devisor could cut off the right' of tenancy by the curtesy, it surely can be cut off by statute. (Roberts v. Dixwell, 1 Atk. 607. Hearle v. Greenbank, 3 id. 695, cited 28 Barb. 348. See also same case, pp. 349, 350, 351, 356, 365, 370, 378)
    VIII. If the right exists at all, it must exist in all the lands of the wife. It cannot exist as to one parcel and not as to another. It cannot exist and not exist. It cannot, if it has a legal existence, be defeated at the whim, speculative tendencies, necessities, or judgment of the wife. This would be turning each woman in the land, who possessed separate real estate, and was married, into an individual legislator, empowered to annul an existing legal right under the dictates of her sole will, or suffer the right to continue in existence through her passiveness. This would declare a vested right to be suspended by the mere gossamer thread of a woman’s caprice. (Id. p. 368.)
    IX. The right, if it exists, could be assigned by the husband, or it could be taken on execution for his debts. (Id. pp. 345, 348, 362.)
    X. The existence of .the right is inconsistent with the intention of the legislature, and with a fair construction of the language of the act of 1862, and utterly incompatible with its necessary legal effect.
    XI. The case of Vallance v. Bausch, (28 Barb. 633,) upon which the Supreme Court of this district leaned in Moore v. Jackson, was decided previously to the statute of 1862, upon which we rely. The former named case was as to the distribution of personal property, and the opinion as to tenancy by curtesy was obiter dictum.

    '• XII. Assuming, however, that William A. Hitchcock had an estate as tenant by the curtesy in the premises, then such estate is a legal estate, and not a mere charge or incumbrance on the land, and can be and could have been sold under an execution issued on the judgment which forms the basis of this action, and hence these proceedings were unnecessary. (Adair v. Lott, 3 Hill, 182. Schermerhorn v. Miller, 2 Cowen, 439.)
    XIII. No receiver can be appointed in proceedings supplementary to execution, of property levyable upon and saleable under execution. The policy of the law is to discourage litigation.
    XIV. The only title or claim of the receiver to the real estate of William A. Hitchcock, (assuming that he has an estate of tenancy by the curtesy,) and to the rents thereof, is by virtue of the order appointing him such receiver. It is insisted that real property does not pass to the receiver by such an order, but that an assignment was necessary, which the court could enforce, and hence the receiver has no title or claim to the real estate of the judgment debtor, nor to the rents thereof, and cannot maintain this action. (Chatauqua Co. Bank v. Risley, 19 N. Y. Rep. 374. Moak, receiver, v. Coats, 33 Barb. 498.)
    XV. The order giving the receiver liberty to sue, was an ex parte order, obtained at chambers, and is not binding on the defendant, It simply gives the receiver leave to sue, but cannot confer on him any power or authority beyond that contained in the order appointing him. And if such last named order does not invest the receiver with, the right to maintain this action, the order giving him liberty to sue cannot do so. The plaintiff was appointed receiver, January 28, 1863, and the order and bond filed February 4,1863, and the rent which this action is brought by the receiver to recover became due May 1, 1863, three months after the appointment of the receiver. A receiver, in supplementary proceedings, can only take the property of the judgment debtor in existence and belonging to him at the time of the appointment of the receiver, and not that which the debtor subsequently acquires, or which subsequently accrues to him \ as, for instance, the salary of an office not yet due. Therefore it is urged that rent not due at the time of the appointment of the receiver cannot be thus reached, (Graff, rec’r, v. Bonnett, N. Y. Transcript of Sept. 7th, 1863, Superior Court, opinion by Justice Bosworth. Campbell v. Genet, 2 Hilton, 295.)
   By the Court,

Monell, J.

Mrs. Hitchcock, the wife of the judgment debtor, was seised of the premises in question in 1857. She had issue of her marriage, born alive, and she died in 1862, without having disposed of her property by will or otherwise. This, by the common law, constituted an estate, as tenant by the curtesy, in her husband, initiate by the marriage, seizin and birth of a child, and consummate by her death.

It is claimed, however, that the acts of 1848,. 1849, as amended in 1860, 1862, for the more effectual protection of the property of married women, have abrogated the common law rule, and deprived the husband of an estate by the curtesy in all cases."

The acts referred to empower a married female to take and hold to her separate use, and convey and devise real and personal property, in the same manner and with like effect as if she were unmarried, and the same is not subject to the disposal of her husband, nor liable for his debts. There is nothing in the statute which in terms takes from the husband this estate by the curtesy. It is, therefore, by implication merely (in giving so hard a construction to the act as to deprive the husband of his estate) that it is sought to give such effect to the statute.

In the construction of all statutes, which are in derogation of a common law right, it is especially important to know the reasons which influenced the law makers, and to give no greater force or effect to the statute than it was clearly intended it should receive.

By the unity of the marriage condition, the personal estate of the wife, and the use of her real property belonged absolutely to her husband, was subject to his control and disposition, and was liable for his debts. This right and power of the husband could not be prevented from attaching by reason of the marriage relation, except by the intervention of trustees. Ante-nuptial contracts were protected and enforced by courts of. equity, and thus a married woman’s property could be secured to her, but in no other way.

The tendency for many years past has been to relax the rigor of the common law, and to remove much of the legal unity heretofore existing in husband and wife. As a further step towards ameliorating the legal condition of a married woman, and in view of the principles which have always governed courts of equity it is presumed that the legislature enacted the law in question. It enables a married woman, notwithstanding her coverture, to hold real and personal estate, and to dispose of it, without the right of interference or control by her husband. The power to hold and enjoy her' estate, and the power to dispose of it during her life, or by will to take effect upon her death, is clearly conferred by the statute, and the husband has no interest which he can claim during the life of "his wife, or which can be subjected to the payment of his debts. The manner of disposition of the estate by the wife is not prescribed by the statute. She may pass it by gift or grant, or by will.

# It cannot be disputed, I think, that it was the obvious intention of the legislature to secure to a married woman the absolute right to enjoy her property, with as absolute a right to dispose of it. The complete exercise of such latter right would necessarily deprive the husband of any estate or interest either during the life or after the death of the wife. But I cannot think it was-the intention to change the laws of inheritance, or the marital rights of the husband, unless it is done by the act of the wife. She has the power to do so. She may prevent the estate from descending to her heirs-at-law; but if she neither conveys during her life, nor devises by will, no one will pretend that the estate would not go, upon her decease, to her heirs-at-law.

An estate by the curtesy can only attach when there is a seisin in the wife of an estate which her issue may by possibility inherit as heir. (4 Kent’s Com. 27.) Hence, the estate being inheritable, the heir may be said to have an interest, which can only be destroyed by the a'ct of the mother. If she omits to act, and leaves the estate undisposed of at her death, it goes to the heir-at-law. Such inevitably being the result, then the acts of 1848-9, have merely conferred a power to hold and dispose, which can be exercised by the wife alone.

The right of the heir to inherit is a common law right, except so far as it has been changed by the statute of descents, and it is idle to suppose that it was intended to take away such right, where the estate was left otherwise undisposed of.

During the life of the wife the husband now has no estate or interest in her lands. Nor has the heir-at-law. Yet the latter may inherit. He inherits because the statute has not changed or annulled the common law rule of descent, and because the estate has not been disposed of by grant or will.

The relative right of the husband under the common law is the same. The estate .was one that the issue of his marriage might by possibilty inherit, and the tendency of the husband was initiate when issue was born. This initiate estate was liable to be defeated by the act of the wife ; but the omission of the wife to act could no more deprive the husband of his curtesy, than the heir of his inheritance.

The title of the act is significant: “An act for the more effectual protection of the property of married women.” It is to protect it in the wife, so that, during" her life, she may not be deprived of it by her husband. The act of 1848 gave no power to dispose by grant or will. The amendment of 1849 added that power. She may grant or devise it. If she does not one or the other, then upon her death all the common law rights attach ; the husband has his curtesy, and the heir-at-law has the fee in remainder.

In short, the acts of 1848-9 have conferred a right and a power upon a married woman, which she did not possess at the common law, which protects her in the enjoyment of her property, and enables her to dispose of it according to her wishes. In the language of Judge Denio, (White v. Wager, 25 N. Y. Rep. 333,) “ by assimilating the case of a wife to that of an unmarried woman, the legislature merely meant to say that she should have the same power as though she was not under the disability of coverture.” I cannot think any thing more was intended, or that it was designed to take from the husband any estate at common law, which the wife did not by her act deprive him of.

It was ingeniously argued by the defendant’s counsel that there could be no initiate estate, and without which there could be no estate at all. The estate was initiated at the birth of a child, as the child at that instant became heir, and might inherit. So the husband’s estate began; But both the inheritance of the child and the estate of the husband were subject to the power of disposition in the wife.

The act makes no distinction between real and personal property, and its protection is extended alike over both. All common law rights, which are not disturbed in respect to personal estate, are necssarily unaffected as regards real, and I am unable, therefore, to discover any difference between this case and Ransom, v. Nichols, (22 N. Y. Rep. 110.) No such distinction is suggested in that case. The plaintiff, as administrator of Mrs. Nichols, sued her husband to recover the amount of a note to Mrs. Nichols, as her separate estate, and which her husband had collected and given up. The court there say, in reference to the acts of 1848-9, that if the wife fails to make any disposition of her property, by sale during her life, or by will, to take effect upon her death, then the rules which prevailed before the statutes were enacted take effect, and the husband has all the rights given him by the common law, It was contended by counsel that in Ransom v. Nichols, the estate being personal, it passed to the husband as administrator under the Revised Statutes. It is immaterial whether the right to take was conferred by statute or by the common law. Either would be sufficient to make it perfect. Besides, in that case, the right of the husband to hold is recognized, either as an incident to the marital relation and flowing from it, or as an incident to his right of administration upon her estate.

In a recently reported case in the Supreme Court, (Jaycox v. Collins, 26 How. Pr. R. 496,) which involved the precise question we are now considering, it was held that the estate "by the curtesy has survived the acts of 1848-9. The review of all the cases in this state is so complete in Jaycox v. Collins that I do not deem it necessary to notice them here, except to say that the clear weight of authority is in favor of sustaining the estate.

My conclusion is, that Mrs. Hitchcock, having died without disposing of the property, her husband became entitled to an estate as tenant by the curtesy, which estate passed to the plaintiff .as receiver under the supplemental proceedings, entitling him to recover the rent due at the period of his appointment, and all rent accruing afterwards, until, his receivership ceases.

There being no other exceptions, I am of opinion that the plaintiff should have judgment upon the verdict.