author: Learned, P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of OTIS G. CLARK and Another, as Executors and Trustees of NICHOLAS S. VEDDER, Deceased.
    Will— interest on a legacy to one to whom the testator stands in loco parentis — what is covered by “income and profits” — conversion into realty — res aclgudicata— remaindermen, when not bound by a decree.

    One Vedder, who died in 1879, by his will, executed in 1867, gave his wife a life estate in all his property, and bequeathed certain legacies, among others one to Fanny A. Mann for $5,000, and one to Martha Mann for $3,000. By a codicil, executed in June, 1875, he canceled these bequests, and gave id place thereof a legacy of $8,000 to Ida A. Vedder. In September, 1875, Ida A. Vedder was apprenticed to the testator and his wife until she should arrive at eighteen years ■of age, by an indenture made with the American Female Guardian Society, which stated that it was intended that the said Ida should be taken, as far as practicable, into the family as an adopted child. She was then four years old, and was treated in accordance with the provisions of the indenture of apprenticeship during the testator’s life, and from the time of his death until the death of his widow, in June, 1890, she was educated and supported by the widow as a daughter. Ida A. Vedder had no estate of her own.
    Upon an appeal from a decree settling the accounts of the executors and trustees of the testator:

      Meld, that the legacy was not given to Ida A. Vedder for maintenance, and that she was not entitled to interest thereon during her minority.
    'That the fact that the income of the whole estate was given to the widow clearly showed the intention of the testator to be that the legacy should not bear interest, and that this view was sustained by the fact that the two legacies, in place of which the legacy was given to Ida A. Vedder, were given to sisters of the testator’s wife, who would not in any event be entitled to interest.

      The cases relative to claims of this nature reviewed.
    That a provision in a will giving to a widow for life the “ income ” and “ profits ” of all the testator’s estate did not entitle her to a premium realized by the executors upon a sale of the securities of the estate.*
    The will of the testator gave his executors power to sell his real estate, but did not direct them to do so. In 1880 a decree was entered in an action brought by the executors for a construction of the will, to which two grand-nephews and a grandniece of the testator, appellants here, were parties, which, among other things, adjudged that the whole estate must be treated as personal property, and also that two gifts to charitable and religious corporations were void so far as they exceeded one-half of the gross amount of the estate of the testator; that, in such excess, the widow was entitled to a life estate, and that after her death it passed to the next of kin. It appeared that the personal estate of the testator was sufficient to pay all the legacies, including the half to which such corporations were entitled.

      Held, that the said grand-nephews and grand-niece, claiming as heirs-at-law, were not concluded by said decree as to their rights in the real estate of the testator included in said excess.
    That said real estate undisposed of vested at once (subject to the life estate of the widow) in the heirs-at-law.
    That while it was doubtful whether the executors had power to sell said real estate, the heirs at-law by coming in and claiming the avails thereof ratified the sale. That the action of 1880, relating solely to the duties of the executors and probably unauthorized, since the will iriiposed no duties upon the executors in the way of a trust, did not affect the rights of the next of kin in the real estate comprised in the excess, nor in the avails of said real estate.
    That the decree, in any view, was valid for its own proper purpose and object, and only to that extent.
    Appeal by Simon F. Mann, as executor of tbe will of Nancy A. Y. Hartshorn, deceased, and late temporary administrator of her estate, from so much of a decree entered in the office of the surrogate of Rensselaer county on the 20th day of July, 1891, as directs and adjudges:

      First. That the representatives of the estate of Nancy A. Y. Hartshorn are not entitled to demand and receive the sum of $10,220.86, or any part thereof, as income and profits of the estate of the deceased testator which would go to the widow under the will of said testator.

      Second. That the expenses of administration, including the fees of executors and expenses of this accounting, amounting to the sum of $3,556.10, are not, nor is any part thereof, chargeable against that
    See Duelos v. Benner, post, page 428. portion of the estate in which the Troy Orphan Asylum and the trustees of the Troy Annual Conference are entitled to share, but are chargeable on and are to be paid out of the intestate estate of the said Tedder in which his widow and next of kin are entitled to share under the statute of distributions.

      Third. From the portion thereof which directs the distribution of the sum of $9,089 65, according to the proportions and sums as in said decree stated.

      Fourth. From so much thereof as adjudges and decrees that the expenses of administration and of the accounting, including the fees of executors, should be paid out of the intestate estate, and that no portion thereof should be charged upon the legacies bequeathed to the Troy Orphan Asylum and the trustees of the Troy Annual Conference.
    An appeal by said Mann, as executor as aforesaid, from so much of said decree as adjudges and decrees that the decree of the Surrogate’s Court in this matter, dated January 11, 1882, and the further decree in the same matter, dated February 25, 1889, were valid and effectual for the determination of the matters in said decrees pretended to be decided, and that such decrees were at the time of the entry of the decree appealed from in this matter, in full force and effect.
    An appeal by Ida A. Tedder (one of the legatees named in the last will and testament of Nicholas S. Tedder, deceased), by William Lord, her special guardian, from so much of said decree as directs and adjudges that Ida A. Tedder is not entitled to demand and receive from the estate of said deceased interest upon a certain legacy to her in said will of $8,000, from the death of testator to the death of Nancv A. Hartshorn ;,and, also, from so much of said decree as adjudges and decrees the ownership and distribution of the balance of $21,254.10, which is set forth in the summary statement in said decree.
    An appeal by Willard K. Brooks, Walter P. II. Brooks and Belle Smith from so much of said decree as adjudges and decrees that said Willard K. Brooks, Walter P. H. Brooks and Belle Smith are concluded and bound by the judgment of- the Supreme Court, mentioned in said decree, and are not entitled to share as heirs-at-law in that portion of the testator’s real estate as to which, according to the said judgment, the said Tedder died intestate, or in any part thereof; and, also, from so much of said decree as adjudges that the only next of kin of the said Tedder who are entitled to share in his estate are Gertrude Tan Alystyne, Gertrude Shufelt, Sarah Carpenter, Catharine Phillips, Eliza Luke, Mary Sagendorf, Peter Tan Guysling, Nicholas Tan Guysling and Daniel T. Brooks. And, also, from every portion and part of said decree by which any persons other than the said Willard K. Brooks, Walter P. H. Brooks and Belle Smith are adjudged to be entitled to the share or proportion of the real estate of said Nicholas S. Tedder, deceased, as to which he died intestate, which, under the statutes of this State, would have descended to the said Willard K Brooks, Walter P. H. Brooks and Belle Smith, as three of the heirs-at-law of the said Nicholas S. Tedder, deceased.

      Seymour Van Santmoord, for N. A. Tedder, appellant.

      Matthew Male, for Willard K. Brooks and others, appellants.

      Robert M. McGlellam,, for Simon F. Mann, as executor, appellant.

      Martín I. Townsend, for Otis G. Clark, executor, respondent.

      JEdwm A. King, for the Troy Orphan Asylum, respondent.

      John H. Peek, for the Troy Annual Conference, respondent.

      W. L. L. Sanders, for John E. Cary and others, respondents.

      Moratío G. Glen, for Catharine M. Phillips, respondent.
   Learned, P. J.:

This matter comes here by appeal from an accounting before the surrogate. There are three separate appeals and five separate respondents.

Ida A. Tedder appeals and claims interest on a legacy of $8,000 left to her.

Willard K. Brooks and others appeal. They claim certain interests in real estate as heirs-at-law, not next of kin, which estate has been sold.

Simon F. Mann, executor of the widow (who afterwards married one Hartshorn), and who was entitled to income, appeals, claiming tbe benefit of a certain increase in securities, and also as to the application of tbe costs.

Some of tbe respondents oppose all of these appeals, others all but. that of Willard K. Brooks and others.

First, as to the appeal of Ida S. Yedder:

The deceased died in 1879. By his will, executed July 25,1867,. he gave his wife a life estate, and, after her death, certain legacies, among them: Fourth. To Fanny A. Mann, $5,000. Ninth. To' Martha Mann, $3,000; with a contingent bequest to others.

By a codicil, executed June 5, 1875, be canceled these two' bequests, describing them, and then declared: “And in place and stead thereof, I give and bequeath the sum of eight thousand dollars,, being the sum of said two former bequests to my adopted daughter,, Ida A. Yedder.”

On the 11th of September, 1875, the testator and his wife executed an indenture with the American Female Guardian Society, by virtue of which said Ida was apprenticed to them till she was. eighteen. It was stated, however, therein, that it was intended that said Ida should be taken, as far as practicable, into the family as an. adopted child. She was then four years old. She was treated as an adopted child during the life of the testator. From his death down to the death of his widow, June 8, 1890, Ida was educated and supported by the widow as a daughter, and in correspondence with the situation in life of the said widow. It is not shown that Ida had any estate of her own except this legacy.

She now claims that it is presumed that the legacy was given for maintenance, and, therefore, that it draws interest from testator’s death.

The question in such cases is what did the testator intend, ascertained by what he said and the surrounding circumstances. When courts say that the testator must have been presumed to mean what he did not say, they are groping in the dark and making, instead of' construing, a will. This testator need not have given any legacy to Ida. He was at liberty, also, to say when the legacy which he did give should be paid. He was not obliged to say that she should have the interest meantime. And he did not say so. On the contrary, he gave all the income and profits of his estate to his widow (excepting such property as he had previously bequeathed to her absolutely). Therefore, he could not have intended that any of the income should be paid to Ida for maintenance. For, if interest on the legacy was to be paid to her for maintenance, it would have to be paid every year. It would be absurd to say that for the purpose of maintenance an accumulation of interest should be paid to Ida after the death of the widow. But the interest on the legacy could not be paid to Ida every year, because all the interest on the whole estate was to be paid to the widow. It is practically the same as if the will had directed the executors to set apart $8,000, to pay the interest thereon to the widow during her life, and at her death to pay the principal to Ida. It would hardly be presumed, under such a bequest, that the testator intended to give to Ida that which he had expressly given to the widow, viz., the interest. In the present case the testator gave to the widow for life all the income, including that arising from the $8,000, ultimately bequeathed to Ida. Thus he shut out the construction for which Ida contends.

Let us suppose that the testator had given the income of his whole estate to his widow for life, and after her death the whole estate to Ida. According to the argument urged on us, as the testator stood in the place of a parent to Ida, the legacy was for maintenance. Therefore, she must have the interest on the bequest from his death. Hence, the widow would have no income whatever. That is but pressing the rale contended for to its legitimate result. If Ida can deprive the widow of a part, why not of the whole income % For it is the right to interest, not to principal, which is asserted.

Again, by the will, two legacies were to be given to the testator’s wife’s sisters, amounting to $8,000. Certainly these legacies did not carry interest, even by the most violent presumption which could be indulged in. And, therefore, unquestionably, there was, under the will, no deduction to be made from the income of the widow to pay interest on these legacies. The codicil only cancels these legacies and gives “ the sum of said two former bequests ” to Ida. Hence, she would not receive any more than those legacies, and, clearly, would not be entitled to interest.

Again, although the codicil is dated a short time prior to the indenture of adoption, yet the codicil speaks of Ida as my adopted daughter.” It is reasonable to suppose that the arrangement carried out by the indenture had already been made at least verbally. And at any rate, long before the will and codicil took effect, tlie indenture of nominal apprenticeship, but practical adoption, had been executed by the testator and by his wife. He had a right, then, to expect that Ida, who must have been about eight at his death, would, at least, till she was eighteen, the age mentioned in the indenture, be cared for by the widow, who was herself.a party to the indenture. ( Van Bramer v. Hoffman, 2 Johns. Cases, 200.) Such expectations, if he had them, were fully realized. Ida must have been nineteen at the death of the widow, and up to that time she had been maintained and educated as a daughter. If a father gives his property to his widow for her life with remainder to his children, it must be supposed that the children would be supported by the widow. And that is the thought which the testator must have had in this case.

These views leave us no reason to doubt what the testator, in fact, intended. It is urged, however, on behalf of Ida, that an established rule of construction compels us to disregard his plain intention, and to assume that he meant something else. As is said in Thorn v. Garner (113 N. Y., 202), there are certain facts which the courts have agreed are equivalent to an express direction in the will to •pay interest, because from such facts the courts will presume an intention on the part of the testator to have it paid.” In Bradner v. Faulkner (12 N. Y., 472) it was said that in the absence of express ■direction the intent of the testator to authorize the payment of interest should clearly appear.

The case of Cooke v. Meeker (36 N. Y., 15), held' that where the •testator gave a sum of money to a trustee, in trust, to invest in bond and mortgage, and apply the income to the use of his grand-daughter during her natural life, the grand-daughter was entitled to the •interest from the testator’s death. That is a case quite different from the 'present. • The legacy was expressly for use during life. The ■opinion contains numerous English cases on this point. In Brown v. Knapp (19 N. Y., 136), the will was as follows : “ I give, devise and bequeath to my grandson * * * the sum of $3,000, and direct my executor * * * to pay to him the said sum when he ■shall attain the age of twenty-one years.” There was a gift over, if he should die before twenty-one. The residue, after legacies, was given to bis son. It was beld tbat tbis legacy carried interest; the grandson being about seven at the testator’s death. Here there was a distinct setting apart of $3,000; no provision as to what should be done with the income; and the time of paying over was at maturity. It was inferred that the infant was to have the benefit during his minority.

In Keating v. Bruns (3 Dem., 234), property was given to trustees to pay the income to an adopted daughter. It was held that she ought to have the income during the year succeeding the testator’s death. The will provided for the disposition of the principal fund after the death of the beneficiary. Rut it does not appear that the income was disposed of in any way except for the use of the beneficiary.

In Neder v. Zimmer (6 Dem., 180), the gift was of money in a savings bank to three children, each to have his share when he arrived at twenty-one. It was held that the children were severally entitled to the interest.

Now, without citing other cases, it will be seen that the principle seems to be applied when it is in harmony with, or not in violation of, the provisions of the will. The cases cited were unlike the present. And we think that the principle does not apply. (Lyon v. Indust. Assn., 52 Hun, 359.) The surrogate was right.

The next question we consider is that presented by the executor of the widow. The personal securities held by the executors of the testator were sold by them after the death of the widow. A premium of $8,659.63 was received therefor in excess of the premium at which securities had been charged in the previous decree of 1882. Her executors claim this as income to which the widow was entitled.

The will rather tautologically gives the wife “ the income of all my other estate, both real and personal,” and again in the same item “ the profits of all my other estate, both real and personal.” Rut there is no difference in the meaning of the words. In the next item he gives, after his wife’s death, “the income and profits” of $10,000 to Anna Yan Geysling during her life, using thus the same language. Then he disposes of the whole of his estate. This use of the words- “ income and profits ” is only due to the lawyer-like fondness for using several words where one is sufficient. If the executors had not sold the real estate, and if the real estate had increased in value during the widows’s life she would not have been entitled to the increase. So with personal property. This question is carefully discussed and fully settled in Matter of Gerry (103 N. Y., 445). We think that the use of the word “profits” in these items of the will has no additional meaning to the words construed in that case. The decision of the surrogate was correct.

The remaining question is that on the appeal of Willard 3L Brooks and others, grand-nephews and a grand-neice of the testator. It has been held in an action in this court that the gifts, after the death of the widow, to the Troy Orphan Asylum and the Troy Conference, under the statutes of the State, were void, so far as they exceed one-half the testator’s estate; and that as to such portion, the deceased died intestate except as to the widow’s life estate. (Laws I860,, chap. 360.) No dispute is made as to the law in this respect. These appellants claim nothing as to the personal estate. (2 R. S., m. p. 96, § 75.) But they claim, as heirs-at-law, their share of the real. (1 R. S., 752, §§ 8, 9.) The personal estate was enough to pay all the legacies, including the half to which the aforesaid corporations are entitled.

There was in the will an authority, but not a direction, to sell real estate. N or is the purpose of such authority expressed in the will. It could only be for the purposes of the will. (Wood v. Cone, 7 Paige, 471.) There vras no purpose of the will for which such sale was needed. There was, therefore, no conversion of the real into personal property. A discretionary power produces no such effect. (White v. Howard, 46 N. Y., 162; Chamberlain v. Chamberlain, 43 id., 431; Chamberlain v. Taylor, 105 id., 185.) The real estate (subject to the life interest therein of the widow), so far as it was undisposed of, vested at once in the heirs-at-law. The gift of the income to the widow gave her a life estate in the land. (1 R. S., m. p. 727 § 47) She was not the mere beneficiary of a trust in respect to the land, but had the estate. And the undisposed of remainder vested in the heirs-at-law. It may be doubted whether the power of sale existed in respect to this land as to which the testator made no devise. (1 R. S., m. p: 730, § 67; 734, § 102; Chamberlain v. Taylor, ut supra.) It is not necessary to decide that question here; since these heirs-at-law by coming in and claiming a share of the avails practically ratify the sale of the ■executors. But we are satisfied that these heirs are entitled to their share of the avails, unless they are deprived thereof by a previous decision of the court. An action was heretofore brought by the executors for the construction of the will. To that action these heirs-at-law were parties. In the judgment entered in that action June 11, 1880, it was, among other things, adjudged that the will provided for the conversion of the real into personal property, and that the whole estate must be considered and treated as personal property. The next of kin of the testator now claim that that judgment establishes their right to this undisposed of share of the estate, and estops these heirs from their legal rights.

Now that action was solely for the instruction and aid of the executors. So far as this share of the real estate was concerned, they had no duties under the will, for it was not disposed of thereby. "We have seen that it is even doubtful whether this power of sale extended so far.

In Rathbone v. Hooney (58 N. Y., 463) there had been a foreclosure to which one Mr. Brown was a party defendant. Mrs. Brown held an interest in the estate as trustee for Maria Rathbone’s life, and also in her own right as remainderman, and she had executed a mortgage. Her own estate she could mortgage; the trust estate she could not. It was held that, though the judgment in foreclosure cut off her own estate, it did not cut off the trust estate. The court said that “ that judgment was final for its own proper purpose and object, and no further; ” and that Mrs. Brown “was not bound to set up her claim as trustee, when made a party to the foreclosure, in the absence of any averment in the complaint in respect to that interest or claim, that it was subject to the mortgage.”

The proper object of such a suit has been passed upon — Bailey v. Briggs (56 N. Y., 407); Dill v. Wisner (88 id., 153) and lately, by this General Term, in Avery v. Mabey, December, 1891. It •can be maintained when the executors have some duty in the way of a trust. As to the real estate now in question the executors had none.

And it will be seen that the judgment is general in its terms, stating that the “ excess ” over one-half of the gross amount of the estate goes to the next of kin. It is not questioned that this is correct as to the personal property. And nothing appears in that judgment as to the amount of either real or personal.

There is no doubt as to the rule of res adgudieata. The only question is, whether, in such an action as that above mentioned, brought for the construction of the will in respect to the duties of the executors, these heirs-at-law are bound by the statement that the “ excess ” goes to the next of kin. On the whole consideration of the question we are of opinion that they are not.

Some question is made as to the discretion of the surrogate in charging executors’ fees and expenses of accounting. He directed that these items should not be'charged against the portion of the estate in which the Troy Orphan Asylum and the Troy Conference were entitled to share, but against that portion in which the widow and next of kin are entitled to share. As we have taken the view that the avails of the real estate go to the heirs-at-law, there must be a modification of the surrogate’s decree after an ascertainment by him of the amount of those avails. This may render a new adjustment of costs necessary, since the heirs have not been heard upon that point. Ve think it best, therefore, to say nothing upon the question of costs.

The decree must be affirmed,'except so far as it adjudges that the avails of the real estate be distributed among the next of kin, in . which respect it must be reversed and the matter sent back to the surrogate to ascertain the amount of such avails and to provide for the payment thereof among the heirs. The question of the charging the costs and executors’ fees will, of course, be open to such readjustment as the surrogate may make in view of these new interests.

The appellants, Brooks and others, will be entitled to costs of this appeal against the next of kin and the executor of the widow.

The respondents, the Troy Orphan Asylum, the Troy Conference and executors, will be entitled to costs of this appeal against Ida A. Tedder.

The respondent Clark, executor, will be entitled to costs of this appeal out of the estate.

This order may be settled Before Mayham, J.

Mayham and Putnam, JJ., concurred.

Decree affirmed, except so far as it adjudges avails of real estate to next of kin, in which respect it is reversed and matter sent back to surrogate to ascertain of such avails and to provide for payment of same among tlie lieirs. The question of the charging the costs and disbursements must, therefore, be left open for readjustment. The appellants, Brooks et al., are entitled to costs of this appeal against the next of kin and the widow. The Troy*Orphan Asylum and the Troy Conference are entitled to costs of this appeal against Ida A. Tedder. Clark, trustee, etc., is entitled to costs of this .appeal out of the estate.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM COLLINS, Respondent, v. J. BARTLETT HYDORN and Another, Appellants, Impleaded with Others, Defendants.

      Bes adjudicate/, —where the same person, in different capacities, is plaintiff in two actions in which the issues, facts and, defendants a/re the same — a judgment in one action concludes him in the other.

    In 1887 one Wiswall began an action, as a judgment-creditor, to set aside as fraudulent certain transfers of property made by Elisha Hydorn. About the same time one Collins, as a judgment-creditor of Hydorn, began a similar action for a similar purpose. While said actions were pending Wiswall made an assignment to Collins 'for the benefit of his creditors. Collins, having been substituted as plaintiff, continued, as such assignee, the action begun by Wiswall. ,, The defendants were the same in both actions.
    Collins’ action, as assignee, was tried and was finally decided in the Court of Appeals in favor of the defendants.
    Upon the trial of the action brought by Collins, individually:

      Held, that as both actions depended upon the same facts, were against the same persons and for the same purpose, the judgment against Collins, as assignee, was res adjudicata and decisive as to his rights in this action brought by him individually.
    'That Collins, as assignee for the creditors of Wiswall, was bound to contest Wiswall’s action to the best of his ability, and that presumably having done so he could not be allowed to retry the same issues in his own action.
    Appeal by the defendants, J. Bartlett Hydorn and' Hattie W. Hydorn, from a judgment, entered in the office of the clerk of the county of Rensselaer on the 9th day of June, 1891, adjudging certain conveyances to have been made with intent to hinder, delay and defraud the creditors of one Elisha W. Hydorn, declaring them void; appointing a receiver to sell the real estate thus fraudulently conveyed; directing its sale and an accounting of the rents and profits, after a trial at the Rensselaer Circuit before the court and a jury, the jury having been subsequently dismissed by the court, which toolc the case for consideration and thereafter rendered its decision directing the judgment above mentioned.

      C. D. Hudson and G. E. Patterson, for the appellants.

      G. B. Wellington, for the respondent.
   Learned, P. J.:

This is an appeal by two of the defendants from a judgment on . the decision of the Special Term. The action was brought to set aside certain transfers of real estate as fraudulent and void as against the creditors of Elisha W. Hydorn. The important question in this ease is whether the matter is res adjudÁcata in favor of these two defendants.

One George W. Wiswall, about the time of the commencement of the above-entitled action, commenced an action against the same defendants for the purpose of setting _ aside these same conveyances on the same ground, viz., that they were fraudulent as to creditors. Pending that action the plaintiff Wiswall made an assignment to this present plaintiff Collins for the benefit of Wis-wall’s creditors. Afterwards that action came on to be tried before the Special Term, and was decided by that court in March, 1890. In that action the court held, as matter of fact, that the conveyances from Elisha W. Hydorn were made for a good, valuable and sufficient consideration, and without any intent to defraud; that they were received by J. Bartlett Hydorn without any intent to defraud the creditors of Elisha; that the conveyances of J. Bartlett Hydorn, through Gilbert M. Greer to Hattie M. Hydorn, were made for a good, valuable and sufficient consideration, and without any intent to. defraud the creditors of Elisha; and that they were received by her without such intent and without any knowledge of any intent to defraud on the part of her grantor. These findings are directly upon the very issues involved in this present case. That case was appealed to the General Term and was there examined, and the judgment was there affirmed November, 1890. (Collins v. Hydorn, 31 N. Y. St. Rep., 575.) It wás appealed to the Court of Appeals and was there affirmed.

This present action was commenced in January, 1887, by plaintiff as a judgment-creditor in his own right; the other action about the same time. It is claimed by defendant that Collins was not only the assignee of "Wiswall, but that as a creditor of Wiswall he was beneficially interested in the action after the assignment to him for the benefit of creditors. On this point there seems to be no proof. The defendants make two claims on the subject of res adjudioata. First, that all the creditors of Elisha W. Hydorn are privies, through their debtor, to the transaction by which the conveyances were made to the present appellants, and, therefore, are bound through him by the judgment rendered in the case of Collins, assignee. Second, that at least Collins, having been an actual party to that judgment, is bound thereby.

On the second point the plaintiff urges that the decision against him in his representative capacity does not bind him in his own right.

We pass over the first point. In considering the second we may suppose that Wiswall, instead of making an assignment for the benefit of creditors to Collins, had sold absolutely to Collins the judgment against Hydorn and the pending action.

If Collins, then, as assignee of Wiswall (though not for the benefit of creditors), had carried through that litigation, and had been defeated on the very points now at issue, viz., the fraudulent nature of the trahsactions, would not that judgment have concluded him in the present action ? It seems to us that it certainly would. As between Collins and these defendants it would have decided the questions of fact. And to permit him to litigate these questions again would be contrary to settled doctrine and unjust. To show how strong the rule is, we need only cite Griffin v. Long Island Railroad Company (102 N. Y., 449) and cases mentioned in the opinion.

Of course, Collins might have been defeated in the former action on some other ground, as, for instance, that Wiswall was not a judgment-creditor, or that his debt had been paid. But there is no such escape here. The very questions of fraudulent conveyances in all their particularity were passed upon and the judgment was affirmed in both appellate courts.

Now, the only question is, can this general and most excellent rule be evaded on the ground that Collins, in the one suit, was assignee for creditors; in tbe other, was creditor himself. "What difference does this make ? He was under the highest obligation to contest the matter in the other action to the best of his ability. We must presume he did so. If he did not, then certainly he stands in a very unfavorable light here. Then, if he has tried these questions once and has been unsuccessful, ought he to be allowed to experiment with some other tribunal, and thus set up one judge against another % He has had his day in court. The two actions were pending at the same time. It would seem that both might have been tried when one was. The same plaintiff controlled both.

When Wiswall assigned to Collins, and Collins was substituted, it was not necessary that he should add the word “ assignee ” to his name. And if he did so, that act did not make the litigation any the less his own.

In Bates v. Stanton (1 Duer, 87) the court, speaking of the rule which makes a prior judgment conclusive, says: “ It is a mistake to suppose that the term ‘ parties ’ * * * is restricted to those ■who are parties upon the record. On the contrary, it includes all who have a direct interest in the subject-matter of the suit; a right to make a defense or control the proceedings.” Applying that language to this case, we see that Collins was not only a party upon the record of the former judgment, but that he had a right to control the proceedings therein.

Of course, it is easy to suggest a case in which the former adjudication might have depended solely xxpon the representative character of the party, and in which, therefore, 'there could be no decision as to a right or a liability in a character not representative. Such is Hall v. Richardson (22 Hun, 444). But nothing of that kind exists here. This plaintiff was not defeated in the former action for any defect in his right to bring the action. He was defeated because facts were decided which would defeat the present action. Therefore, the controversy is res adjudicata.

Some cases are cited which are supposed to hold a contrary view. (Jackson v. Mills, 13 Johns., 463.) The question of res adjudicata did not arise in that case. Nor did it arise in Sinclair v. Jackson (8 Cow., 565), nor in Jackson v. Hoffman (9 id., 271). The question was not involved in Rathbone v. Hooney (58 N. Y., 463). The court held that the plaintiff’s title was consistent with the foreclosure suit, and that the “ validity of the mortgage, as a mortgage of the trust estate, was not, and could not, have been adjudged in the foreclosure suit.” If this is so, then there was no res adgudieata. It is true that the court afterwards makes an obiter remark, at page 4(i'T, that a judgment against a party sued as an individual is not an estoppel in a subsequent action in which he sues or is sued in another capacity or character, citing the cases just above mentioned, none of which have any reference to the question of res actjudieata.

How different the facts of that case are from those of the present will appear on examination. The court says : “ The plaintiff was entitled to the judgment rendered (that is, the judgment in the foreclosure suit) wholly irrespective of that question.” That is, the validity of the Brown mortgage as a charge on the trust estate. Now, could it be said, in this case, that the defendants in the former action were entitled to the judgment rendered, irrespective of the question of fraud in their conveyances, the question now in dispute ? Clearly not. They obtained their judgment by establishing against this plaintiff that the conveyances were not fraudulent. He ought not to try the facts again.

The remark of the court, above cited, may sometimes be true. At any rate, it does not apply to the present case. It is probably true where the second litigation involves rights or liabilities growing •out of the new capacity. For instance, if A sued on a note and was ■defeated on the ground that it did not belong to him, he probably might afterwards sue as A, executor, etc., and prove that it belonged to him as executor.

But the question here is whether one who has sued simply as assignee and has been defeated, for the reasons stated in this case, can sue again in his own name, and can harass the defendants by ^compelling them again to defend their conveyances. "We think not.

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

Mayham and Kellogg, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.


author: Mayham, J.:

text:
    ADAM KLOCK and HIRAM ALLEN, Appellants, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      1lailroad fences — where a railroad owns the adjoining lands — easement over them of an adjoining proprietor — a natural hwrrier — what excuses the railroad from fencing.

    One Klock owned a farm on the north side of the Mohawk river, through which a railroad ran, and in connection with which the railroad company was maintaining a farm crossing at grade so that Klock could reach his lands on that side of the railroad which bordered on the river. In 1878 Klock sold to the railroad 'the piece of land lying between its road-way and the river, and by the deed the railroad covenanted to maintain said crossing in order that Klock might reach an island in the river belonging to him, which was south of and nearly opposite the premises conveyed to the railroad. The railroad continued to maintain a fence on its north side, nearest the residue of the Klock farm, but there was no fence upon the south side, between its road-way and the piece purchased by it of Klock, nor any fence along the river bank. At the farm crossing there was a gate. After this sale to the railroad a servant of ■ Klock went, by said farm crossing, over the lands of the railroad to the bank of the river, and called the cows of Klock, which had been driven through the river to the island for pasture. The cows returned, and about the time they reached the farm crossing on the side of the railroad an express train came by, frightening the cows, some of which ran upon the track and were killed.
    An action was brought to recover the damages occasioned thereby, on the trial of which the complaint was dismissed, the court refusing to submit to the jury the question of the railroad’s negligence, or that of its duty to maintain a fence under chapter 140 of the Laws of 1850, as amended by section 8 of chapter 282 of the Laws of 1854.

      Held, error.
    That, by said statutes, the railroad was required to maintain fences along the sides of its track in order to protect itself from the consequences of injuries to cattle, even though it owned the adjoining lands.
    That, as a general rule, the statute does not require a railroad to also maintain an exterior fence between its lands outside of, but adjoining, its railroad lands and the lands of adjoining owners.
    That the facts of this case were not such that the court could hold, as matter of law, that the railroad was excused for its failure to maintain fences along the • sides of its track, by the provision of section 8, which states that a railroad need not fence, “ except when such fence is necessary to prevent horses, cattle, sheep and hogs from getting on the track of the railroad from the lands adjoining the same.”
    That the question whether the Mohawk river was such a natural barrier between said island and the lands of the railroad as freed the latter from its statutory duty to fence should have been submitted to the jury under proper instructions.

      Appeal by the plaintiffs, Amos Klock and Hiram Allen, from a judgment of the Supreme Court, entered in the clerk’s office of the county of Montgomery on the 10th day of Marehj 1891, dismissing the complaint on the merits, with costs, after a trial at the Montgomery Circuit before the court and a jury.
    The action was brought by the plaintiffs to recover the value of four cows belonging to plaintiffs, which were killed on the defendant’s railroad track by a train of cars.
    The plaintiff Hiram Allen was a part owner of the cows injured on the defendant’s road, and worked the farm of his co-plaintiff Klock, who was the other part owner of the cows in question.

      O. S. KIogIc, for the appellants.

      O. D. .Prescott, for the resjiondent.
   Mayham, J.:

Prior to September 3, 1813, the plaintiff Klock was the owner and occupant of a farm on the north side of the Mohawk river in the county of Montgomery, through which the defendant’s railroad, road-way and track passed. On that day Klock conveyed to the defendant a strip of land lying between the road-way and the river, in an oblong form of about seven and one-fourtli acres. Previous to such conveyance the defendants had maintained a farm crossing at grade across the railroad for the convenience of the Klock farm.

In the deed from Klock to the defendant it was provided that the defendant should maintain the crossing over its road to enable the defendant’s grantor to pass to and from an island of about eight acres owned by him in the river and lying opposite the land granted to the defendant.

The width of the land conveyed to the defendant from the farm crossing to the northerly bank of the river was a distance of about one hundred and fifty to one hundred and seventy-five feet, and the distance from the northerly bank of the river, opposite the farm crossing, to the island, was about three hundred and fifty feet, so that the distance from the crossing to the island was about five hundred and twenty-five feet, and the land conveyed by Klock to the defendant was bounded on the south by the north shore of the river, between which' and the railroad the defendant maintained no fence, but on tbe north side of the railroad, and between it and the Klock farm, a fence was maintained. East and west of the farm ■crossing, and at the crossing, there was a gate. The island was used for meadow in the summer and pasturage in the fall after the hay ■crop was harvested.

On the morning of the twenty-third of September, the plaintiffs, by their servants, drove thirty-five cows belonging to the plaintiffs across this farm crossing and through the north branch of the river to the island, and, at about four o’clock in the afternoon of that day, one of the plaintiff’s (Klock) employees opened the gate on the north side of the railroad and passed down to the river, and standing upon its north bank on the defendant’s land called the cows, and they came from the island; and as twelve of the cows came upon the north bank of the river, on defendant’s land, he was notified of an approaching express train coming from the wrest on defendant’s railroad, when he ran to the railroad, followed by the cows, where he tried to signal the train and also to prevent the cows from going upon the track, but failed in accomplishing either, and four of the cows passed upon the track and were hit by the locomotive and killed.

On the trial, at the conclusion of the plaintiffs’ evidence establishing these facts, the defendant moved the court to nonsuit the plaintiffs. The plaintiffs insisted upon submitting to the jury the question of defendant’s negligence, also the freedom of plaintiffs from contributory negligence, and also the question of defendant’s liability for not constructing a fence -as required by the statute. The court declined to submit the question to the jury and granted a nonsuit.

The principal and, perhaps, the controlling question in this case is whether the defendant is liable for failing to fence its railroad track as required under the provisions of the general railroad act. (Chap. 140 of the Laws of 1850, as amended by § 8 of chap. 282 of the Laws of 1854.) That section provides as follows: “ Every railroad corporation * * * shall * * * erect, and thereafter maintain fences on the sides of their roads, of the height and strength of a division fence as required by law, with openings, or gates or bars therein at the farm crossings of such railroad for the use of the proprietors of the lands adjoining such railroads. * * * And so long as such fences * * * shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damage wbieb shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs thereon* * * * but no railroad corporation shall be required to fence the sides of its roads, except when such fence is necessary to prevent horses, cattle, sheep and hogs from getting on the track of the railroad from the lands adjoining the same.”

Two questions may arise in construing this statute as applicable-to this case. First. Is the defendant by this statute required to fence its railroad track against the adjoining land of the company* so that the cattle trespassing upon it, and straying thence upon the railroad track, where they are injured, shall be paid for by the company ? Second. Is the railroad company liable for not maintaining exterior line fences along its land not used for railroad purposes* but not divided from its railroad by fences along its track ?

The language employed by the legislature in imposing this obligation on railroad companies seems clearly to indicate where the fence required by statute shall be located and maintained — “they shall * * * erect and thereafter maintain fences on the sides of their road,” etc. If that language is strictly followed, a company could not excuse itself by purchasing a large tract of land lying along their track and maintaining an exterior line of such tract* and. at long distance therefrom a division fence between it and adjacent owners.

It is true that, if such exterior fence furnished a complete barrier to any approach to the track by the animals named in the statute, the company would be excused from constructing a fence along the track under the concluding portion of the eighth section above quoted. In Kelver v. The New York, Chicago and St. Louis Railroad Company (35 N. Y. St. Rep., 673) it was held that the liability of the railroad company for animals killed by the car’s, where the railroad was not fenced upon the sides of the tracks, did not arise out of any negligence of the company, but out of the failure to comply with the provisions of the statute. This decision was affirmed by the Court of Appeals in 126 New York, 365. In that case the cattle of the plaintiff strayed from his farm across the unfenced railroad of another company, and then upon the railroad of the defendant, which was also without fences along the sides of its track, and the defendant was held to be liable for the loss suffered by reason of injury to the cattle'. In this case the court hold that, although the cattle, after leaving plaintiff’s (Klock) premises, passed over other intervening lands before reaching the defendant’s railroad, track, still, as there was no intervening barrier to prevent them from reaching the defendant’s railroad, the defendant was not excused from the statutory obligation to maintain a fence along the side of' its track. To the same effect is Shepard v. Buffalo, New York and Erie Railroad Company (35 N. Y., 641). From this examination of the wording of the statute, and the decisions construing the same, we are led to the conclusion that the first inquiry above propounded must be answered in the affirmative, and that the defendant in this case was required, in order to protect itself from the consequences of injury to cattle, to construct fences along the sides of its tracks, even though the company owns the adjoining lands, unless, there is some other physical barrier, either artificial or natural, upon which they can safely rely as a substitute for such fences. (See, also, Rhodes v. R. R. Co., 5 Hun, 344, and Brady v. R. R. Co., 1 id., 378.) This conclusion substantially answers the second question propounded above in the negative.

That a railroad company is not bound to maintain an exterior line fence between its lands outside of, but adjoining, its railroad lands, and the lands of adjoining owners. Unless the manner in which the plaintiffs used this crossing, or the particular circumstances of this case take it out of the general rule, and, as matter of law, to exonerate the defendants from liability, the case should have been given to the jury.

But it is insisted, on the part of the defendant, that the Mohawk river is a sufficient natural barrier between the plaintiff’s island and the railroad to relieve the defendant from its statutory duty of maintaining a fence along the side of the railroad track as to this plaintiff,, and that this case comes within the principle of the rule laid down in Schermerhorn v. Hudson River Railroad Company (38 N. Y., 103) and Dalan v. The Newburgh, Dutchess and Connecticut Railroad Company (120 id., 571). In Schermerhorn v. Hudson River Railroad Company (supra) it was held that the railroad company was not bound to fence its road along the banks of the river, or where it runs through channels of the river separated from the river by islands. But that decision seems to have been put upon tlie ground that, by the charter of the railroad corporation (§ 24 of chap. 216, Laws of 1846), which relieves the company from any obligation to maintain a fence, “when the said railroad is constructed in the river,” the company is exonerated. In Dolan v. Railroad Company (supra) the plaintiff’s team was driven by his servant on a narrow strip of land between a mill and the railroad track, and the team was standing partly on this strip and partly on the land of the railroad company, and was left by the driver, when it escaped on to the railroad track and was hit by a train of cars and killed. The track was fenced along the railroad either way from the mill, and the distance from the platform of the mill to the lands of the ■ railroad was four feet and ten inches, and the majority of the court held that, under the last clause of section 8 of chapter 282 of Laws of 1854, it was error for the trial court to refuse to hold that the railroad company was not required to fence its road at this point, upon the theory that the mill and the fences on either side, along the road, constituted a sufficient barrier to prevent animals from going upon the track, and brought the case within the provisions of the above section of the statute, which, is as follows: “ But no railroad corporation shall be required to fence the sides of its roads except when such fence is necessary to protect horses, cattle, skeej) and liogs from getting on to the track of the railroad from the lands adjoining the same.”

But it is further urged by the defendant that the Mohawk river is a navigable river, and was a sufficient natural barrier, and that the court will take judicial notice of that fact.

In People v. The Canal Appraisers (33 N. Y., 461), Davis, J., in delivering the opinion of the court, says: “ It is assumed, and may be taken as conceded, that the Mohawk river is one of the navigable rivers of the State, and, perhaps, the court may take judicial notice of the fact that it is so.” In support of respondent’s contention it is urged that as division fences are not required by statute on the line of navigable rivers, between riparian owners, by analogy, they cannot be required along the side of railroad tracks when a navigable river is so located as to constitute a barrier to prevent cattle from going upon railroads. That does not necessarily follow. No such exception is made in the statute. In Shepard v. Buffalo, New York and Erie Railroad Compamy (35 N. Y., 646), Peckham, J., says: The statute quoted was probably aimed at rivers or lakes through whose borders the railroads might run and where fences would be unnecessary, or, in other cases, where high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle.”

In the case at bar we think the court was not authorized, as matter of law, to determine that such natural obstructions existed as to render it unnecessary for the defendant to construct the statutory fence along the sides of its road. ' That was a fact to be determined by the jury, under proper instructions from the court.

This case differs from the case of Potter v. New York Central and Hudson River Railroad Company (60 Hun, 314). In that case the railroad company ownefi land adjoining its tracks, between which and the tracks there was no load fence, and the lessee tethered his horse upon it, the horse broke loose, wandered upon the track and was injured by being frightened by one of the defendant’s trains. The question arose between the tenant of the defendant, who leased the defendant’s land, and the defendant, when there was no1 road fence •dividing it from the track. No'principle, under such circumstances, would, as between the lessor and lessee, make the former liable to the latter. We do not see that this ease conflicts with the cases above cited, but depends upon an entirely different principle.

On the whole, we think this case should have been submitted to the jury, and that the nonsuit was error.

Judgment is reversed, new trial ordered, costs to abide event.

Learned, P. J., concurred; Kellogg, J., not acting.

Judgment reversed and new trial granted, costs to abide event.


author: Learned, R. J.:

text:
    EDWARD STREEVER, Appellant, v. BETSEY BIRCH, Respondent.

      Civil damage aet — action by the employer of an infaAit — loss of services is not an . ‘ ‘ injury ” to “ propes'ty. ”
    In an action brought under the civil damage act (Laws of 1873, chap. 616), it appeared that in January, 1890, the plaintiff made a verbal contract with a minor, aged seventeen, named Tappan, for his services, the plaintiff agreeing to provide Tappan with board, clothing, medical attendance and care in case of sickness, and to give him $100 when he became of age. While in the plaintiff’s service Tappan, on December 25,1890, became intoxicated at a hotel owned by the defendant, and known to her to be used for the sale of intoxicating liquors, and while thus intoxicated fell down in the road and was frozen. In pursuance of his agreement the plaintiff furnished medical attendance to Tappan, who was incapacitated for work for a period of two months.
    The plaintiff thereafter brought an action to recover for loss of services and for expenses incurred; upon his opening on the trial of which the complaint was dismissed:

      Held,, that the plaintiff, the employer, was not, by the intoxication of Tappan, injured in his “property” within the meaning of section 1 of said act of 1873. That the contract between plaintiff and Tappan, an infant, was not enforceable by the former upon the ground of necessaries furnished, for the reason that the doctrine of infancy does not apply to executory contracts.
    That the rule that infancy is a defense, personal to the infant, had no application, there being in the case no question of a defense to a contract.
    That the onus was upon the plaintiff to show that he had property in his agreement with Tappan and that it was injured.
    That as an infant cannot be compelled to perform specifically his contract for services, the fact that plaintiff furnished Tappan necessaries did not make the contract binding or constitute it property.
    Appeal by the plaintiff Edward Streever from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on.the 30th day of October, 1891, dismissing the complaint, on the merits, with costs, after a trial at the Saratoga Circuit before the court and a jury.

      Edgcvr T. Braelbett, for the appellant.

      James W. Vei'beeh, for the respondent.
   Learned, R. J.:

This is an appeal from a judgment on a dismissal of the complaint upon plaintiff’s opening and offer of proof. The facts material are as follows: In January, 1890, plaintiff made a verbal contract with one James Tappan, then a minor seventeen years old, that Tappan should live with plaintiff and render him services, and as compensation he should provide Tappan with board, clothing, medical attendance and care in case of sickness, and shoúld give him $100 when he became twenty-one years of age. Under that agreement Tappan worked from January 25,1890, to December 25,1890. On the last day the defendant owned a hotel, known to her to be-used for the sale of intoxicating liquors; and the lessee or his agent sold Tappan intoxicating liquor. He became intoxicated; fell in the road and was seriously frozen. Tappan, being thus injured, was cared for by the plaintiff and provided with medical attendance, in pursuance of said agreement, to the extent of $216. Neither plaintiff nor Tappan had repudiated the said verbal agreement. In consequence of Tappan’s injury he was incapacitated from rendering services to plaintiff for two months. The circumstances of the sale (as plaintiff 'offered to prove them), were such as to entitle plaintiff (if entitled to anything), to punitive damages against defendant.

The sole question is whether, under what is called the civil damage act, the' plaintiff has a cause of action.

Chapter 616 of the Laws of 18J3, section 1, leaving out the words which are not material here, is as follows: “ Every employer who shall be injured in person, property or means of support in consequence of the intoxication of any person, shall have a right of action against any person who shall, by selling intoxicating liquors, have caused the intoxication of such person.” The remainder of the section makes the owner of the -building, having knowledge, etc., liable with the person selling.

The plaintiff was an employer of Tappan. The question is whether plaintiff was injured in property by Tappan’s intoxication. Eor it is plain that he was not injured in person or in means of support. No cause of action exists in his favor by common law. (Volans v. Owen, 11 N. Y., 526.) The case of Neu v. McKechie (95 N. Y., 632), cited by plaintiff, was one of injury to means of support, and, therefore, throws no light on the present case.

The plaintiff’s first position is that the agreement between him and Tappan was for necessaries, and, therefore, valid. It is true that when an infant has no parent or guardian who is able to furnish what is necessary, he is liable for necessaries furnished him.1 (Kline v. L' Amoreux, 2 Paige, 419.) It does not appear whether Tappan had such parent or guardian. JBut assume that he had none. Then he is liable-to pay for necessaries furnished him at his request. But that principle does not mean that the executory contract in regard to such necessaries is binding. (Beardsley v. Hotchkiss, 96 N. Y., 201.) This was shown in Baum v. Stone (12 Week. Dig., 353), where it is said that the seller may recovei’, “ not because of the force of the contract fixing the price, but because an infant is bound in law to pay the reasonable worth of necessaries.” Thus in this case the plaintiff may have a good claim against Tappan for the reasonable worth of necessaries furnished him; but the contract by which Tappan was to do such and such work therefor' is not binding. In the case last cited the infant lived with and worked for defendant for several years before coming of age. It was held that whatever had’ been the contract between them, the infant was entitled to recover the value of his services after deducting the value of the necessaries furnished. (See Whitmarsh v. Hall, 3 Denio, 375.) Hence in the present case Tappan might recover from plaintiff the value of services, less necessaries furnished, without regard to the alleged contract between them. The contract, then, was no more binding because it was for necessaries, and the plaintiff could not enforce it upon that ground.

Second. The plaintiff insists that infancy is a defense personal to the infant, and, therefore, that this defendant cannot set it up. That statement of the principle is rather broad. "We may quote from Beardsley v. Hotchkiss (ut supra): “As to contracts purely executory it must be shown that the infant ratified them after he became of age before they can be enforced against him. As to contracts executed, such as deeds of land or conveyances of personal property, they will generally be deemed to be ratified * * * unless they be disaffirmed by the infant before he arrives at age or within a reasonable time thereafter. She (the infant) did not dis-affirm the contract in her lifetime, and left it in full force at her death.” Of course, if the infant has ratified or has failed to disaffirm, as above particularized, at age, others cannot treat the contract as void. In the present case Tappan is still a minor and has not ratified, and cannot ratify, or fail to disaffirm as above stated.

Furthermore, it is not here' a question of defense to a contract. The plaintiff claims property as to which he says he has been injured. Then he must show the property. If lie has no title to the property, he cannot recover for the injury. What, then, is the property of the plaintiff which he says, lias been injured? Not the care and medical attendance which he has kindly afforded Tappan. Because, as we have seen already, Tappan is liable to pay the value of this. Not the value of board and clothing which he has furnished. Foi’,, as above shown, that can be set off against any claim which Tappan might make for compensation for services. The only property which he can claim is the right- to ■ Tappan’s services, of which he avers that he has been deprived for two months. Then the question must arise, had he a valid title’to those services ? We have already seen in the case of Baum v. Stone, that while the plaintiff is entitled to compensation for necessaries' furnished, he is not entitled to enforce as valid the specific contract made in relation thereto. That is, Tappan is not legally bound to render those services for the necessaries furnished. If he renders services, he is entitled to their value. If he receives necessaries, he is bound to pay their value. But the contract of service to be paid by necessaries and $100 is not binding. Hence the plaintiff has no property therein. When Tappan shall arrive at twenty-one the plaintiff’s rights will be simply to be paid for board, clothing, medical care, etc., and his liability will be to pay Tappan what his services were worth. How can Tappan’s intoxication affect that matter ? (See Medbury v. Watrous, 7 Hill, 110.) We cannot see, therefore, that the plaintiff has been injured in property. For property must be something which one legally owns, not that to which he has only a moral claim or which another person will probably permit him to have.

This view seems conclusive of the case. But another point is urged, viz., that, irrespective of Tappan’s infancy, the contract was void by the statute of frauds, and, therefore, the plaintiff cannot recover. The plaintiff’s answer to this is similar to what was above insisted, viz., that no one but the parties and privies to a contract can take advantage of this statute. Now, it is undoubtedly true that the parties to a contract void by the statute of frauds, may perform it if they choose; and that when they shall have performed it no one ’ else can allege its invalidity. The plaintiff also urges that where ■one party lias been, prevented, from performing sucli a void contract by the fraudulent act of some third person, such third person is liable for damages caused by his act. (Rice v. Manley, 66 N. Y., 82, and similar cases.)

If this were an action against the defendant at common law for ■damages occasioned by some fraudulent act, by which defendant had prevented Tappan from performing his contract, there would 'be more analogy with the cases cited. But plaintiff has no cause of .action at common law. And his statutory action is limited to injury to property. Take this word in its broadest meaning, as including things in possession and things in action. Then, what are things in .action or dioses in action. “Rights to receive or recover a debt, or money or damages for breach of contract, or for tort connected with ■ contract.” (Bouvier’s Law Diet., under “ Property” and “ Choses in Action.”) If we turn to the Code (§ 3343j for definitions of its ■ own use of the words, we find: “An 1 injury to property ’ is an action.■able act whereby the estate of another is lessened, other than a personal injury or the breach of a contract.” The word £ property ’ includes real and personal property.” “ The words personal property 5 include money, chattels, things in action and evidences of debt.”

Certainly the plaintiff was not injured as to any property in possession. Was he injured as to any chose in action? Not unless he had a legal claim, and he had none.

There is sometimes a cause of action where there is no injury to property; as, for instance, in slander and the like. But the statutory cause of action is confined to injury to property; person and means -of support not being now in question. And we are of opinion that the plaintiff had no property which was injured.

The judgment should be affirmed, with costs.

Mayham, J., concurred; Kellogg, J., not acting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent, v. SAMUEL COOK, Assessor of the Village of Bath-on-the-Hudson, and Member of the Board of Grievances of said Village, and Others, Members of said Board, Appellants.

      Amendment — to a writ of certiorari, returnable at a wrong place.

    The proceedings upon a writ of certiorari, issued under chapter 269 of the Laws of 1880, to review an assessment, were regular, except that the writ was made returnable at the office of the clerk of the county, instead of at Special Term, as is required by section 2 of said act.
    The defendants appeared specially and took this objection, and then answered on the merits.

      Reid, that the court had power to amend the writ and the order granting it.
    That the provisions of section 10, title 5, chapter 7, part 8 of the Kevised Statutes, giving the court power'to amend special proceedings pending in court, were not repealed by title 1 of chapter 8 of the Code of Civil Procedure.
    Appeals by the defendants, Samuel Cook, Assessor of the Tillage of Bath-on-the-IIudson, and Member of the Board of Grievances of said village and John S. Knight, Daniel Layden, Levi Mochrie, A. E. Roberts, William Southwell and^ Charles A. Bailey, members of said Board of Grievances, from an order of the Supreme Court, entered in the office of the clerk of the county of Rensselaer on the 13th day of November, 1891, denying a motion to quash a writ of certiorari, issued to review the-proceedings of said board and of said assessor, in assessing the value of the relator’s railroad and depot in said village; and from an order, entered in said clerk’s office on the 12th day of November, 1891, granting the relator’s motion to amend, nunc fro imne, said writ of certiorari, and the order allowing it, by directing said writ to require the respondents to make return thereto at a Special Term named, and by inserting in said writ itself a direction requiring the respondents to certify and return, at said last-mentioned Special Term, all the matters required in the writ first issued.

      Henry A. King, for the appellants.

      R. A. Parmenter, for the respondent.
   Mayham, J.:

The relator applied, at tbe August Special Term, 1891, for an order allowing a writ of certiorari to issue to review tbe assessment made by tbe respondents, as assessors of tbe village of Bath, upon tbe relator’s railroad, the double track of which runs through that village, and in which depot buildings are located. On such application an order was granted, and a writ of certiorari was issued pursuant thereto. That writ was made returnable at the Rensselaer county clerk’s office, and not at a Special Term of this court, as required by chapter 269 of the Laws of 1880.

The respondents appeared specially, and, in their answer, first objected to the validity of the writ on the ground that the same was not returnable at Special Term as required by statute. The respondents who thus appeared then answered to the merits of the writ. The relator thereupon moved to amend the writ nunc pro tum,c, which motion was granted. The respondents, at the same time, moved to quash the writ on the ground that is was not made returnable at a Special Term of the court, and was, therefore, unauthorized and void, which motion was denied; from both of which orders the defendants appeal.

The principal, and, perhaps, the only important question presented on these appeals, is whether the writ and order allowing the same are amendable. At the time the defendants raised the question of the regularity of this writ by the answer, the time limited by chapter 269 of the Laws of 1880 for bringing a certiorari had expired, and the relator’s opportunity to review this assessment was lost, unless the court could relieve by the allowance of an amendment. That fact furnishes a good reason for the exercise of the discretion of the court in granting the amendment, if the power to do so existed in the court. On the part of the relator it is insisted that that power existed in and was properly exercised by the court. That the court acquired jurisdiction of the parties and subject-matter by the petition, and that any subsequent error in the exercise of its powers did not divest it of the jurisdiction thus acquired. If this mistake had occurred in the prosecution of an action instead of a special proceeding, there would be little doubt of the power of the court to order a correction mmc pro tunc under the provisions of section 723 of the Code of Civil Procedure. In Kibbe v. Wet more (31 Hun, 424), the court ordered an attachment, which had been issued on the ground of the defendant’s non-résidence, to be amended, inserting therein, as grounds for its issuance, the fraudulent acts of defendant in disposing of his property. In Gaylord v. The Board of Supervisorsaof Schoharie County (MS. opinion by Judge Learned), this court allowed an order to be entered, nunc pro tunc, on appeal, when no order had been made and entered at Special Term on the allowance of an alternative mcmdamus. In Tobin v. Cary (34 Hun, 431), the court directed the guardian ad litem to acknowledge his consent to serve, as required by section 472 of the Code of Civil Procedure, and file the same with the judgment-roll, and directed the. clerk to hie and attach the same to the judgment-roll with the same force and effect as if it had been filed with the judgment-roll.

In Murphy v. Hall (38 Hun, 528), on a motion to vacate an order for the publication of a summons and vacate an attachment issued in the action on the ground that the affidavit appeared to have been sworn to in the city of New York before a notary public of the county of Albany, the court held that it was evidently a clerical error which did not prejudice the defendant nor affect a substantial right, and that an amendment should be allowed under section 723 of the Code of Civil Procedure. In Bohlen v. Elevated Railroad (121 N. Y., 546), the court allowed an. amendment of an ambiguity in the findings of the trial court which was plainly the result of inadvertence, and held that the power to grant such amendment was not limited to the term in which the judgment was rendered. The appellant cites a line of authorities holding that in special statutory proceedings the statutory direction must be substantially complied with or the proceedings will not be effectual. That rule is sound and cannot be questioned. Put I have found no case holding that where, by the preliminary steps taken, the court had acquired jurisdiction, it cannot amend any technical defect or error in the proceedings, where the proceedings taken by the parties fail to comply with the provisions of the statute, so as to make them conformable to such provisions, when substantial justice will be promoted thereby, if such amendment is applied for before final judgment or order upon the merits.

By section 10 of title 5, chapter 7, part 3 of. the Revised Statutes the power of the court to amend proceedings pending in it is extended to and embraces special proceedings. While the provisions of title 1 of chapter 8 of the Code of Civil Procedure relating to .amendments seem to relate chiefly to actions and special proceedings, are not expressly referred to except in section 728 of that title, yet the provisions of the Revised Statutes above referréd to do not seem to be either in express terms or by implication repealed by that title. In People ex rel. Herkimer and Mohawk Railroad Company v. The Assessors of Herkimer (6 N. Y. Civ. Pro. Rep., 297), a writ of certiorari, issued under chapter 269, Laws.of 1880, was held at Special Term to be amendable.

While the question is not free from doubt, we are of the opinion that the Special Term had power to order the amendment in this case; and if the power existed, it was a proper case for its exercise, and that the order granting the amendment should be affirmed. That being so, it follows, as a necessary consequence, that the motion to quash the certiorari was properly denied. Both orders are affirmed. But as these appeals arose out of a mistake on the part <of the relator we think no costs should be allowed on this appeal. Section 6 of chapter 269, Laws of 1880, protects the appellant from liability for costs in this appeal.

Learned, P. J., and Putnam, J., concurred.

Order affirmed, without costs.


author: LeabNED, P. J.: MayhaM, J.

text:
    WILLIAM H. TOWNSEND, Appellant, v. WINSLOW M. BELL and Another, Respondents.

      ;Water-courses — pollution thereof — rights of a riparian owner in a stream,— injunction — damages need not he shown — great injury to the defendant is not • material — motive of plaintiff in purchasing.

    Tlie firm of Henry Bell & Sons, in 1886, began to operate a plusli factory upon a stream which, ran ly premises, lower down on the stream, consisting of about twenty square rods, which, in 1887, were purchased by one Townsend. The stream derived its water from two brooks, the waters of one of which were impure and were led by the firm around a dam upon their premises which had been built before their occupation, while the waters of the clearer brook were received in the dam. The firm used colors in the process of manufacture which, passing into the stream daily, and seriously discolored and contaminated it at and along Townsend’s premises. His premises were rough land and were not occupied. He had paid for them at public-sale $2,210, but upon the trial the court found their value to be $100. It also found that he was not damaged by the contamination of the stream. There was evidence tending to show that the price ■of $2,210 was obtained because Townsend thought he would like to get the premises in order to rent them to the firm. The court found that the firm’s use of the water of the stream was reasonable and necessary and dismissed the complaint.

      Held, error.
    That, upon the question of pollution, it was no defense to the firm that one of the brooks which formed the stream was impure and contributed to the result.
    That while the riparian owner above was entitled to a reasonable use of the water for domestic, agricultural and manufacturing purposes, the owner below was entitled to receive the water in its natural purity, although it might be somewhat diminished in quantity.
    That the law interferes by injunction in such cases to prevent frequent actions for damages.
    That one need not show damages in order to entitle him to an injunction in such a case.
    That great injury to the defendant is not á ground for refusing such an injunction. That it was immaterial that when Townsend bought his lot the mill of the firm was in operation, and that it made no difference whether the injured party came to the nuisance or the nuisance came to him.
    That the motive of Townsend in purchasing, e. g., to annoy the firm, was not important and the court could not consider it.
    (JYIayham, J., dissenting.)
    Appeal by the plaintiff "William H. Townsend from a judgment entered in the office of the clerk of the county of Ulster on the 7th day of May, 1891, dismissing the complaint, with costs, after a trial by the court, without a jury at the Ulster Circuit.
    The court found as facts:

      First. That the defendants own and operate a plush factory, situate on a certain stream near Milton, in the town of Marlborough, Ulster county.

      Second. That the plaintiff is the owner of about twenty rods of barren, unproductive, uncultivated and unoccupied land, situate on said stream, below the defendant’s factory; that he purchased said land after the defendant’s factory had been in full operation for a considerable time, using the stream for the same purpose and to the same extent as at the commencement of this action; that he paid $2,210 therefor, and' that the actual value thereof does not exceed $100.

      Thvrd. That in operating said factory the defendants occasionally discharge into said stream colored water from their rinsing vats, whereby the water becomes colored, and in that condition flows, at such times, through the said land of said plaintiff.

      Fourth. That such discharge is necessary to the convenient and successful operation of said factory, and that the defendants are greatly benefited by such use of said stream.

      Fifth. That the said stream is not put to any use by the plaintiff; that the value of his land is not materially affected, and the plaintiff has not been, is not now, and is not likely to be in any way injuriously affected by such use of said stream by the defendants.

      Sixth. That said' use of said stream by the defendants is, under the circumstances of this case, reasonable and in no way harms plaintiff.
    It also found that the plaintiff was owner of a stream at Milton, Ulster county, below lands owned and occupied by defendants as a factory for manufacture of plush goods.
    There was also evidence given upon the trial to the effect that the plaintiffs, Henry Bell & Sons, bought these premises in 1886; that the defendant purchased his in 1887; that there was. a dam upon the premises which had been built before the firm commenced to occupy; and that the object of Townsend in bidding for his lot $2,210 was to get possession of the premises in order to rent it to the Bell’s, who bid against him at the sale thereof.

      George F. Reynolds and J. Newton Fiero, for the appellant.

      John J. Idnson, for the respondents.
   LeabNED, P. J.:

The plaintiff is the owner of a lot at Milton, on a stream emptying into the Hudson river. The defendants own and occupy land upon the stream just above the plaintiff, having a mill for the manufacture of plush. In that manufacture different colors are used; and from time to time water is discharged into the stream colored by the dyes used in the manufacture. The tubs in which the colors are used for dying are run off into the brook. There are eleven or twelve tubs. Tbe cause of tlie daily discoloration is mostly tbe rinsing of tbe goods after they have been dyed. This occurs twice a day. Tlie effect of tliis is to greatly discolor tbe water as it runs past plaintiff’s premises. Different colors, pink, red and green appear. Tbe colof of tbe water is seen upon ducks which go into tbe stream. Bottles of tbe water taken from, tbe stream below the defendant’s manufactory were produced on tbe argument of the appeal, showing much discoloration and flocculent matter, which subsided into a sediment when the bottles were allowed to stand still. If the bottles presented on the argument contained fair samples of the water (and the testimony shows how tbe samples were taken) no one would be willing to use the water for any domestic or culinary purpose. The fact of such discoloration is hardly disputed, and is found by the court.

The court found that the plaintiff’s property is barren and unproductive ; that he paid therefor $2,210, and that it is worth not over one hundred dollars; that the discharge of this colored water is necessary to the convenient and successful use of the factory; that the plaintiff does not put the stream to any use, and is not likely to be injuriously affected by this use of defendants; that their use is reasonable and does not harm plaintiff.

Something is said on defendants’ behalf to the effect that the stream is also polluted from other causes. It appears that two streams unite ábove plaintiff’s property. One from the south-west is pure and clear. The other from the north-west is said to be made impure by cess-pools and the like of the village of Milton. The defendants, therefore, carried the water of this latter stream around the pond and discharged it below their factory. For they found that pure water was needed for their work. But it is not a defense to defendants that others also pollute the stream. (Chipman v. Palmer, 71 N. Y., 56.)

It seems to us that in the defendant’s argument they have not observed the distinction between the use of the water of a stream and the extent of such use, permissible to all riparian owners, and the defiling or polluting the water so as to make it foul where it passes through land of riparian owners below.

It is undoubtedly true that tbe riparian owner has a right to a reasonable use of the water, although this may cause some injury to tbe owner below. For instance, using a stream for domestic purposes or for watering cattle is permissible, although, this may diminish the amount received by other riparian owners. So, too, the use for propelling machinery is permissible although this may also diminish the amount which flows beyond. (Bullard v. Saratoga Victory Mfg. Co., 77 N. Y., 525.) These uses are all reasonable as to the quantity of water which will probably be detained. So, in Prentice v. Geiger (9 Hun, 350; affirmed, 74 N. Y., 341), an action was brought to recover damages because the plaintiff averred the saw-dust from defendant’s mill filled up plaintiffs mill-pond. The plaintiff had a verdict. Some question arose as to a presumptive right to throw saw-dust into the stream. The jury found that defendant’s use was unreasonable, and this was sustained on appeal. It will be seen that the injury complained of was not the pollution of the water by foul substances, but the' filling of plaintiffs pond. So that the remarks of the court have little reference to a case like the present where actual pollution is charged. The use of water to drive machinery is a very different thing from the discharge of polluted water into a stream. The owner who only uses the stream to drive his machinery or water his cattle lets the water go on to the next riparian owner in the same healthful condition in which it was received. But he who pollutes it with foul matter deprives the next owner of his right..

But it may be said that the watering of cattle in a stream tends, to pollute it and even that the flow of water through a mill-wheel might have that effect. But these are trivial and incidental matters. They are practically of no moment and are only indirect effects of a proper use of the stream. Still more, perhaps, the washing of sheep in a stream might pollute it. But that is only an occasional occurrence, necessary and proper in agriculture and temporary in its effect upon the water. It is entirely unlike the acts of the defendants.

The question, then, is whether a riparian owner may lawfully discharge, day after day, foul and discolored water so great in quantity that it pollutes the stream as it passes through the land of the owner below. "We think not. Such owner is entitled to have the stream in its natural purity. Chipman v. Palmer (ut supra) was a case of the pollution of a stream. (See Duke of Buccleugh v. Cowan, 5 Macph., 214.) The doctrine is asserted in Crossley & Sons v.

Lightowler (5 L. R., 3 Eq., 279), where it was even held that a riparian owner having a right (i. <?., by prescription) to discharge-foul water into the stream, if he sells land on the bank cannot continue to pour refuse into the water in front of the land sold, even though the water be not in actual use by the purchaser.

To the same effect is Pennington v. Brinsop Hall Coal Company (L. R., 5 Chan. Div., 769). The plaintiff claimed the right to enjoy the stream in its purity. The defendants pumped water into it. containing deleterious matters. But they claimed that if they were restrained they would have to close their colliery at a loss of £190,000, while the injury to plaintiff was not more than £100 a year, yet the injunction was granted. It seems to us clear, on principle and on precedent, that a riparian owner has a right to restrain the systematic pollution of the stream by one who is above him. Injunction is the common remedy against a nuisance. The reason is that otherwise there would be frequent actions for damages, and, further, that the remedy by common-law action is not adequate. It would be utterly inadequate in a case like the present; and it always must be where the nuisance has been, and will in the future be, continuous. But it is urged by defendants that no actual damages to plaintiff is shown. The cases hold that this is not necessary to support an injunction in such instances. The plaintiff’s right is interfered with. Unless stopped the interference may grow into a right by prescription. (Brickett v. Morris, L. R., 1 Scotch App., 47; Crossley & Sons v. Lightowler, ut supra; Pennington v. Brinsop Hall Coal Co., ut supra; Clinton v. Myers, 46 N. Y., 520; Crooker v. Bragg, 10 Wend., 260.) The same is held in Harrop v. Hirst (L. R., 4 Ex., 43) in an action brought by one of the public against a riparian owner who interfered with the supply of water. To a similar effect: Busch v. New York, Lackawanna and Western Railroad Company (34 N. Y. St. Rep., 7); Smith v. Rochester (38 Hun,. 612), where numerous authorities are cited (affirmed 104 N. Y., 674) Webb v. Portland Manufacturing Company (3 Sum., 189). And as somewhat similar, Allaire v. Whitney (1 Hill, 482).

Again it is said by defendants that great damages would be caused to them by this injunction. But they have no right to interfere with plaintiff’s right in order to make money for themselves. A similar claim had no effect in the Pennington case above cited. It is urged, that plaintiff bought the land when defendant’s mill was already in operation. That is immaterial. Defendants could not prevent the vendor from selling his land, with all its rights, by insisting that every purchaser knew of the existing nuisance. It matters not whether the injured party comes to the nuisance, or the nuisance comes to him.

Further, it is alleged that plaintiff’s motive in purchasing the land was bad. That is immaterial. “ Courts have no power to deny to a party his legal right, because it disapproves his motives for insisting upon it.” (Clinton v. Myers, ut supra.) The plaintiff had a right to buy the land, whatever his motives were. When he became the owner he took all the rights of an owner. One of these was to have the water of the stream unpolluted. Whether or not he uses the land now is immaterial. If he should desire to make any use of the stream requiring (as defendant’s use does) pure water, he could not safely make any expenditure until he should have stopped this pollution. If he cannot prevent it, he will be unable to use the stream for any purpose requiring pure water. Therefore, it is not necessary for him to show actual damage or actual use of the stream.’

The complaint asks for damages as well as for an injunction. We cannot determine the amount of damages.

The judgment should be reversed, a new trial granted, costs to abide the event.

Kellogg, J., concurred.

MayhaM, J.

(dissenting):

This action was prosecuted by the appellant against the respondents to procure a perpetual injunction restraining the defendants from polluting a stream of water which passes over the defendants’ land and is used by them, in passing at the factory, in the process of manufacturing plush, and is thereby at times colored by the dyes used by the defendants in coloring their goods, and in that colored condition the water of such stream flows over and across the lands of the plaintiff, which are situate below the factory of the defendants on the same. The stream of water in controversy is formed by the junction of two small streams above the defendants’ factory supplying a small dam or pond used by the defendants in running their factory. The plaintiff’s premises, across which this stream flows after leaving the factory of the defendants, consists of a narrow strip of uncultivated land, lying between the defendants’ premises and the Hudson River Railroad, which was purchased by the jflaintiffs long after the defendants had used this for manufacturing purposes, and had discharged into it refuse dyes in the same manner "as that of which the plaintiff complains.

The plaintiff purchased these premises at auction, paying therefor the sum of $2,210, but the trial court found that its present value did not exceed one hundred dollars. The trial court dismissed the plaintiff’s complaint, with costs.

The learned trial judge found that, in operating their factory, the defendants occasionally discharged into this stream colored water from their rinsing vats, whereby the water became colored, and in that condition flowed through the lands of the plaintiff.

That such discharge is necessary to the convenient and successful operation of such factory, and that the defendants are greatly benefited by such use of the stream.

That this stream is not put. to any use by the plaintiff, and the value of his lands are not materially affected, and the plaintiff has not been, and is not now, and is not likely to be, in any way injuriously affected by such use of the water of this stream by the defendants; and that such use of the stream by the defendants was, under the circumstances of this case, reasonable,' and in no way harms the plaintiff.

The plaintiff excepted to each finding of fact of the learned judge separately on the ground that there is no evidence to support it; also to certain refusals to find, as requested by the plaintiff, and to his conclusions of law.

Whether or not the plaintiff had a right, by this action, to perpetually enjoin the defendants from the use of this water, in the manner indicated, seems to depend upon the question whether such use was, under the circumstances, a reasonable use of this stream by the defendants. This reasonable use must not impair the just right of other riparian owners who are also entitled, in like manner, to reasonable use of the stream, without any unreasonable impairment in quantity or quality. The rule upon this subject, which seems to be deducible from the adjudged eases, is stated by Angelí on Water Courses as follows: “It is clearly the duty of riparian proprietors, upon a water-course, to refrain from erecting upon its banks any works which render the water unwholesome or offensive.” (Angelí on Water Courses, § 136.) But the application of this rule does not prevent the owner of land, over which a stream of running water flows, from the reasonable use of the same for agricultural, domestic, mechanical or manufacturing purposes, even though such use may, in some slight degree, lessen the quantity or deteriorate the quality of the water which flows from his to his adjoining neighbor’s land.

The exact extent to which the use of a riparian owner may diminish the quantity or impair the quality of water flowing upon the lands of an owner below is, within the authorities, difficult to-determine, and its determination, it seems to me, must depend upon the circumstances of each particular case ; and while a gross and palpable violation of the rights of riparian owners, lower on the stream, would furnish a clear right of action for damages, and perhaps a ground for equitable interference by injunction, still, if the rule were carried to the extent that slight diminution of quantity or slight-deterioration of quality furnished in all cases a right of action, the ordinary use of running streams would be greatly diminished and the owners of lands through which they flow be deprived of much of their value. In Honsee v. Hammond (39 Barb., 95), Miller, J.,, in laying down the rule upon this subject uses this language:' “Although they (defendants in that case) had the right to use the water for all legitimate and proper purposes, they were not authorized to injure the owner on the stream below.”

In Merrifield v. Worcester (110 Mass., 219), it was held that the-natural right of a riparian proprietor to have the water of a stream descend to him in a pure state, fit to be used for the various purposes to which he may have occasion to apply it, must yield to the-equal rights of those who happen to be above him on the stream. “ Their use of the stream for mill purposes, for irrigation, watering cattle and the manifold purposes for which they may lawfully use it, will tend to render the water more or less impure. Cultivating' and fertilizing the lands bordering on the stream, and in which are its sources; their occupation, by farm-houses and other erections,, will unavoidably cause impurities to be carried into tlie stream. As the lands are subdivided and their occupation and use become multifarious, these causes will be rendered more operative and their effects more perceptible. The water may thus be rendered unfit for many uses for which it had before been suitable; but so far as that' condition results only from reasonable use of the stream in accordance with the common right, the lower riparian proprietor has no remedy.” That rule seems substantially to have been adopted in this State. In Bullard v. Saratoga Victory Manufacturing Company (77 N. Y., 525), the cóurt'lays down the rule as follows: “ The maxim agua currit et debet currere ut currere solebat, prescribes the general rule in réspect.to rúnning streams, but it is to be interpreted and applied in connection with another rule which is well settled; that each riparian owner has aright to a reasonable use of the water. * * * Injury to one proprietor in consequence of the use of the water by another is not an invariable test of the right of such use; ” and after giving instances, illustrating the rule and exceptions, the court adds : “ The question of reasonable use most frequently arises between mill owners on streams which afford a power available for the propulsion of machinery. The maxim that water should be allowed to flow, as it is wont to flow, if strictly construed and applied, would prevent the use of such streams for manufacturing purposes. * * * The question of reasonable use is ordinarily a question of fact to be determined upon a consideration of all the circumstances.”

The learned trial court, which, in the first instance, was charged with the duty of determining this question of fact, has expressly found that the defendants’ use of the stream is, under the circumstances, reasonable, and in no way harms the plaintiff. In reaching this conclusion he might properly take into account and give due weight to the fact that the defendants had established their plant and were conducting their business in a manner that made their use of the stream in this way an apparent necessity at the time of the purchase of the plaintiff’s premises by him, especially when the relief sought by the plaintiff would tend to a complete destruction of the defendants’ business.

The injury which the plaintiff has or will sustain, by reason of the acts of the defendants complained of in this action, bears no comparison to that which would be inflicted upon the defendants by the granting of a perpetual injunction ; and while the law will not sanction a wrong or protect a wrong-doer in its commission, even though the injury inflicted is slight and the advantage to the wrongdoer is large (Corning v. Troy Iron and Nail Factory, 40 N. Y., 204), yet the process of injunction, as said by the learned trial judge, should always be applied with caution, and only when there is established a clear right to such relief and the apparent danger is imminent. Equity employs the process of injunction to prevent an irrejiai’able injury only. (Drake v. R. R. Co., I Barb., 508.)

In McLaury v. Hart (121 N. Y., 636); Morgan v. City of Binghamton (102 id., 500); Purdy v. Manhattan Elevated Railroad (36 N. Y. St. Rep., 43) it was held that, in order to give the plaintiff a right to injunctive relief, it is necessary to establish a substantial injury, and not merely a technical wrong calling for nominal damages, and this whether the injury be single or continuous, and whether it be the subject of only one or of successive actions.

In McLaury v. Hart (supra), Finch, J., says: “ Equity wields the powerful process of injunction to prevent irreparable injury.” In the case at bar the court has found that the jflaintiff is in no way harmed by the defendants’ use of this water. Whether this court, as an original question, would have reached the same conclusion is unnecessary to inquire here. It is quite manifest that the plaintiff has suffered no irreparable injury, nor does it appear from the evidence that any such injury is imminent. But it is urged by the plaintiff that if the injunction is not granted restraining the defendants from this use of the water of this stream there is danger of the continued use in this manner ripening into a prescriptive right in favor of the defendants. If this were so, we do not think that a sufficient reason for granting an injunction under the circumstances of this case. If the plaintiff’s legal rights are invaded, their assertion and establishment in an action at law would effectually prevent the attaching of a prescriptive right to this use of the water and protect the plaintiff from any such apprehended consequence.

I am, for the reasons stated, led to conclude that the plaintiff’s complaint was properly dismissed.

Judgment reversed, new trial granted, costs to abide event.