author: By the Court.—Sedgwick, J.

text:
    WILLIAM R. CARNES, Plaintiff and Respondent, v. GEORGE W. PLATT, Impleaded, etc., Defendant and Appellant.
    I. EJECTMENT.
    1. ’ Costs of former trial, not taxable.

      (a.) Opon a new trial, under § 37, title 1, chap. 5, part 3, 2?. 8., providing that the court in which judgment shall be rendered in an action of ejectment, shall within three years thereafter, upon the application of the party against whom the same was rendered, and upon payment of all costs and damages recovered thereby, vacate such judgment and grant a new trial, the party in whose favor such new trial is granted, can not, upon recovery of a judgment thereon, tax as part of his costs the costs for proceedings had before the granting of the order for a new trial.

    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1876.
    Appeal from order affirming taxation of costs.
    This action was brought to eject the defendant from certain property in the city of New York.
    The following proceedings have been had in the action:
    First.—A trial before Mr. Justice Barbour. Verdict for defendant.
    Appeal to the general term. Judgment reversed, with costs to abide the event.
    Second.—A trial before Mr. Chief Justice Robertson. Verdict for plaintiff.
    Appeal to the general term. Judgment affirmed.
    Appeal to the court of appeals. Judgment reversed, with, costs to abide the event.

      Third.—A trial before Mr. Justice Sedgwick. Verdict for plaintiff.
    Appeal to the general term Judgment affirmed.
    Appeal to the court of appeals. Judgment affirmed.
    Fourth.—An order under 2 It. 8. 309, § 37, granting a new trial herein, and vacating the judgments previously entered, the defendant Platt having paid all the costs recovered by the plaintiff herein.
    Fifth.—A trial before Mr. Justice Freedman. Verdict for defendant.
    The defendant, after the last trial, presented his bill of costs to the clerk of this court for adjustment, including in the bill all of defendant’s costs and all of his disbursements incurred in all of the proceedings herein.
    The clerk refused to allow the defendant any costs, except those for proceedings after the order granting a new trial, and no disbursements except those incidental to the new trial.
    The costs taxed by the clerk were as follows :
    “ Costs on Fourth Trial.

    Costs after New Trial granted and
    before New Trial ............... $25 00
    Term Fees, Five Terms............ 50 00
    Trial Fee......................... 30 00
    Allowance by order............... 500 00
    $1,340 00
    “ Disbursements.

    Witness Fees, Fourth Trial........ $5 50
    Clerk entering Judgment, Fourth
    Trial........................ 1 00
    Transcript and Filing, Fourth Trial 11
    Sheriff returning Execution, Fourth
    Trial............................ 69
    Stenographer’s Minutes, Fourth Trial..'.......................... 10 80”

      From this taxation defendant appealed to the special term, when it was affirmed, and he now ap peals to the general term.

      Edward S. Clinch, attorney and of counsel for appellant, urged :
    I. The defendant having finally succeeded, is entitled to recover his entire costs in the suit from its commencement down to, and including the entry of judgment on the verdict rendered at the fourth and last trial (Carvey v. Rider, 2 Cow. 617 ; Meule v. Goddard, 5 B. & Ald. 766; David v. Harring, 1 St. 300; Burchall v. Bellamy, 5 Burr. 2693).
    II. The terms “ that the costs shall abide the event of the suit, has been construed to mean that the party who finally succeeds, is entitled to his costs upon all the previous trials, whether he failed or succeeded in them, if those costs were directed to abide the event of the suit (Carvey v. Rider, supra; Meule v. Goddard, Id.; 4 Chitty's Gen. Practice, 89; 1 Paine and Duer's Practice, 585).
    III. An “event”—from the Latin “evenire” to come out or from—is a thing which happens from or follows, a cause, and they are called “events,” because they come out of a cause (Burrill's Law Dict., "Eventus"). The event, in an action of ejectment, is the recovery by the plaintiff, or the maintenance by the defendant, of possession of the property which is the subject of the action. In this action the event has been the final success of the defendant in maintaining possession.
    • IY. The reason urged on the argument at the special term why the defendant should not recover the costs of proceedings before the order of January 28, 1875, granting a new trial herein, that such order was made on the payment by defendant of plaintiffs costs, as a condition precedent to such new trial,is not sound, because the defendant does not ask to be paid the plaintiffs costs, but asks that his costs which are distinct from plaintiffs, be allotted him. The payment of costs prior to a second trial in ejectment bears no analogy to the payment of costs as a condition of granting a motion, for the costs in the latter case are imposed as a penalty, as it were, for some erroneous proceeding, or as a condition of receiving a favor, while in the former it is imposed to invoke from the unsuccessful party, some evidence of good faith in the continuance of the litigation, and on the payment of them the new trial is a matter of right. At common law, the action of ejectment was a mere possessory action, and concluded no one, either as to the title or possession, except as to the time between the day of the demise and the recovery. Even the party against whom the judgment was rendered was at liberty , to bring a new action, and again litigate as to the possession as often as he pleased (Tyler on Ejectment. 632 ; Ainslie v. The Mayor, 1 Barb. 168). To prevent this constant litigation, and to provide for the settlement of titles to real estate, after a reasonable number of opportunities to the interested parties to prove title, the rule of the common law was changed by the revised Statutes, and evidence of good faith was required of the unsuccessful party before being allowed again to litigate his title. There is no provision of the statute from which any inference can be drawn that the costs for proceedings before a new trial can not be collected, and in the absence of such provision the court should not make a rule which, while the last trial may result in a judgment in favor of the party paying the costs, prevents the recovery by the party of the compensation for his trouble provided by the Code in the way of costs, and even the disbursements necessarily made by him in the preparation of his cause for trial. The court should rather see that compíete restitution was made to the finally successful party.

      William G. Sterling, attorney, ,and Daniel T. Walden, of counsel for respondent, urged:
    I. The defendant paid the costs of the previous proceedings as a condition to obtaining the new trial, and, as those have all been awarded and paid to plaintiff, the defendant can not now recover them (Slocum v. Lansing, 3 Denio, 259 ; Linacre v. Lush, 3 Wend. 305).
    II. The effect of the order granting the new trial under the statute, is to strike out all the proceedings in the action to and including the judgment, leaving the issue to be tried again. So that whoever succeeds on the trial recovers costs only for the proceedings from the time the new trial is ordered. Were this not so, the case might result in the absurdity of giving to the plaintiff a second time the costs of services for which he had once been paid. If the plaintiff had had a verdict on the new trial, would the defendant concede that he should recover all the costs again from the beginning; if not, why should defendant on his success ?
    III. Formerly a judgment in ejectment did not determine the right of property, and either party when unsucessful might bring in a new ejectment to recover the possession, and ejectments might thus be indefinitely repeated, until a Court of Equity afforded relief by restraining further litigation. The Revised Statutes in making the judgment conclusive as to title saved the necessity of applying to a court of equity, and provided a mode by which the unsuccessful party, if dissatisfied, may still be indulged with a further trial (2 Paine and Duer, Pr. 517 ; 3 R. S. (2d. Ed.) 709, Revisor’s notes; Bates v. Stearns, 23 Wend. 483, Cower, J., 2 R. S. [2d. Ed.] § 42; 3 R. S. [5th Ed.] § 35). This history of the provisions as to new trial shows that the recovery of costs must be confined to the proceedings subsequent to the order granting the new trial.
   By the Court.—Sedgwick, J.

The counsel for the defendant, places the defendant’s right to costs upon directions made upon certain appeals, that costs were to abide the event; and he urges that the event referred to was the determination of the action finally, even after the defendant had voluntarily paid the costs under the statute. I do not see that such construction should be given to those directions. The event referred to was the first final judgment to be given, which when made, so far as the proceedings up to that event are concerned, was conclusive of the parties rights. So that, in fact, when the clerk taxed costs, if the question was open as to who should have costs, before the order giving the new trial, the first final judgment of the .court of appeals was to be considered, and had determined that the plaintiff was entitled to the costs of the proceedings up to that time.

Beyond this, however, I am of opinion that the section of the Revised Statutes under which the new trial was granted, provide that the payment of costs by the unsuccessful party shall be a final disposition of the question of costs for former proceedings. The new trials contemplated by the Statute take the place of the new actions of ejectment that before the Statute might have been brought. Although new actions might be brought, they could not result in the unsuccessful party in the first action recovering his costs of that action. The first action was a final adjudication for all purposes, so far as the questions in issue were concerned. . From the proper construction of the Statute, and on general principles, when costs are given to one party, the opposite party has no right to costs for the same proceedings. If the position of the appellant is correct, the Statute provides that in certain contingencies in actions for ejectment both sides may have costs for a part of the proceedings.

The order appealed from should be affirmed, with ten dollars costs, and disbursements to be taxed.

Monell, Ch. J,, concurred.


source: Caselaw Access Project

license: Public Domain

text:
    ELIZABETH S. BREVOORT, Plaintiff and Appellant, v. HEHRY L. BREVOORT, Defendant and Respondent.
    i. pleading.
    1. ASS WEE.

      (a.) Ownership, when not necessary to be pleaded affirmatively.

    1. In an action of trover, defendant need not plead as an affirmative defense that he owned the property at the commencement of the action, nor show the source of, or mode by which he acquired, his title. A general denial of plaintiff's ownership suffices.
    (6.) Gift, title by.

      1. Where the strongest phrase in the pleading is “that the plaintiff relinquished all ownership ” in the property, without any averment that defendant thereupon took possession as owner, no defense is set up.

      (a) So held in an action by wife against the husband, the property in question being gifts made by him to her, when the answer alleged that the plaintiff violently threw the property from her, declaring that she returned it to defendant; that she would not keep it; and that she relinquished all ownership in it; and that defendfant then took back the property as she desired, and kept possession of it.
    2. Demurrer to answer.

      (a). Judgment on overruling a demurrer to an answer which does not go in bar of the whole cause of action, what improper.

    1. An order directing that defendant have judgment in the action in his favor, and a judgment entered therein adjudging that the complaint be dismissed, are erroneous.

    1. Appeal. Such erroneous order and judgment will be reversed on appeal.
    1. Semble. There should only be an interlocutory order and judgment, simply overruling the demurrer, and perhaps adjudging the answer so far as it extends to be a good defense.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Appeal from order overruling demurrer to a separate defense, and from judgment thereon in favor of defendant.
    The complaint was for the conversion by the defendant of certain personal property, part of which were several diamond rings.
    The answer set up as to these rings a separate defense, and averred : ‘ ‘ That the said plaintiff, while in a room in his father’s house, took from her finger the engagement-ring, which this defendant had given her, and from her ears a pair of diamond ear-rings, the gift of this defendant, and from her pocket-book a small amount of money, given her by this defendant, and threw all said articles violently on the bed, saying she would not keep anything which was received from the defendant or his family, but returned them all to him. This defendant tried to induce said plaintiff to resume the possession of said rings, but she, in an insulting manner, repeated her remarks that she would not keep anything received from him, his family, or intimate friends; that she would not keep them, and relinquished all ownership therein. This defendant then took, as she desired, his gifts to her, back again, and kept possession of them. That said engagement-ring and said ear-rings are the articles claimed by plaintiff, and by defendant admitted to be in his possession.”
    The plaintiff demurred to this defense on the ground that it did not state facts sufficient to constitute a defense.
    The order entered was, that the demurrer be overruled and that the defendant have judgment in said action in his favor. Judgment was entered, that the defendant havejudgment, that the.plain tiff’s complaint be dismissed. The appeal is from the order and from the judgment.

      Thomas M. Wheeler, attorney, and of counsel for appellant, urged :
    I .If Mr. Justice Speir is right in his opinion that the facts stated in the second defense constitute a defense, then the order should have been one overruling the demurrer. The order made gives the defendant judgment in the action. This is erroneous. By the Code, sec. 168, the facts set forth in the answer are deemed to be denied, and these issues of fact, as well as the issues formed by the denial of the allegations of the complaint, must be tried.
    II. The order being erroneous, the judgment founded on this order is erroneous.
    III. The second defense relates only to the diamond ring and ear-rings mentioned in the complaint and that leaves all the issues formed by the first defense, in regard to the other articles mentioned in the complaint to be tried. The second defense is that the plaintiff gave to the defendant the diamond ring and ear-rings. The only question is whether the allegations contained therein constitute such a. gift. The allegations are that the plaintiff, while in a state which induced the belief that she was out of her mind, and while in a violent passion, threw the things upon the bed, and said she would have nothing more to do with them, and returned them to the defendant. This certainly is not enough to constitute a voluntary gift, and as it does not, the demurrer should be sustained.

      Van Winkle, Candler & Jay, attorneys, and John E. Parsons, of counsel for respondent, urged:
    I. The defense demurred to alleges that the plaintiff made an absolute return to the defendant of the articles admitted to be in his possession, characterized by the most positive expression of her intention to have nothing more to do with them. This not only puts in issue the ownership of the particular articles, but claims the property in them to be in the defendant, and to have been received by him by transfer from the plaintiff, and the only question is whether a wife can make a gift to her husband of articles of personal property.
    II. Absolute judgment was, by the defendant, entered upon the order overruling the demurrer. This was not authorized by the order, but the remedy to obtain relief was by motion, not by appeal. The defendant was entitled to have the demurrer overruled, and to judgment for costs. This the order directed, and it can not be disturbed. The judgment roll shows added a postea assuming to give absolute judgment for the defendant. The postea is signed by no one, and of itself has no legal effect. If it were not suitable to enter the judgment in that form, the matter should have been suggested to the defendant’s attorneys, and if they insisted upon their practice, application should have been made to the special term; though Wightman v. Shankland (18 How. Pr. 79), assumes that final judgment is proper.
   By the Court.—Sedgwick, J.

The allegations of the second defense have no special value in taking issue upon the complaint. Under general denials the defendant could have put in evidence all facts relative to the ownership or conversion of the property. The plaintiff, however, demurred, and the question mooted was, whether the answer sufficiently averred that the defendant was owner of. the rings, at the beginning of the action, by gift from the plaintiff.

To take issue upon the plaintiff’s ownership, it was immaterial to allege the former relations of the parties, or the manner in which the plaintiff obtained the rings, if she were the owner, or the manner in which the defendant obtained them if he were the owner, or who was the owner if she was not, or the talk of the parties on any material or immaterial matters, or the manner of either party at any stage of the quarrel. The defense intermingles these matters, using words in a colloquial sense in such manner that the allegations are equivocal, and the rule should be applied that that construction should be adopted which is most unfavorable to the pleader.

There are, I think, two fatal defects. The first is, that all the special averments may be true, and yet when the action was begun the allegation of the complaint that the plaintiff was owner may have been true. There is nothing equivalent to an allegation that the defendant remained the owner from the time of the plaintiff’s gift to him down to the bringing of the action. Second. It does not appear by the answer that the rings were delivered by the plaintiff to the defendant as a gift, or that he took them as such. Delivery and acceptance are as necessary to a parol gift as to a deed of gift. The gift “ must be the mutual consent and concurrent will of both parties” (2 Kent's Comm. marg. p. 438). There are matters of evidence in the answer as to a gift, but they require the construetion of a jury before their effect can be ascertained. There is no averment that the plaintiff intended to give or to transfer the title, or that the defendant accepted the gifts. Both are necessary to show that the title was devolved from the plaintiff upon the defendant. There are words of legal and certain meaning which would imply all this, but the answer does not use them. The strongest phrase is, that the plaintiff “relinquished all ownership.” GKve.-to this the most meaning that may be, there is no averment connected therewith that the defendant thereupon took possession as owner. The answer says, “ This defendant then took, as she desired, his gifts to her, back again, and kept possession of them.” This is descriptive of certain things that he did, which may have all been done, and yet he have had no purpose of becoming the owner.

On the merits I think the demurrer should have been sustained.

The order entered directed “ that the defendant have judgment in said action in his favor,” and the judgment adjudged “ that the plaintiff’s complaint be dismissed.”

When the defendant’s plea goes to bar the action, if the plaintiff demur to it, and the demurrer is determined in favor of the plea, judgment of nil capiat should be entered, notwithstanding there may be also one or more issues of fact, because upon the whole it appears that the plaintiff has no cause of action (2 Tidd’s Pr. marg. p.741; Cooke v. Sayer, 2 Burr. 754). In this case the issue made by the demurrer related to a part only of the property in dispute. As to the other part, the matters settled by the demurrer determined nothing. At the most, there should have been .interlocutory judgment to stand upon the record until all the issues had been tried, when final judgment on the whole case should be entered.

If such an interlocutory judgment had been entered in favor of defendant, it seems to me it would have been conclusive at all subsequent stages of the action as to the existence of the facts set out in the pleading demurred to (Cutler v. Wright, 22 N. Y. 478, opinion of Judge Davies), or at least of such facts as were not involved in the issues of fact (Id. 482, opinion of Judge Seeder). “If there are other issues involving the same facts, they are not affected by the demurrer.” (1 Chitty on Plead. 662). In the present case, the issues of fact made outside of the one raised by the separate defense that has been considered, do not involve any matter examined upon the demurrer, excepting, perhaps, an allegation in the first defense that the defendant denied that he had converted any of the articles claimed by the plaintiff. But as to the earrings, this would be immaterial, it being otherwise determined that the defendant owned them. Therefore, to enable the plaintiff to show that in fact she owned the ear-rings, the demurrer and the judgment against her upon it should be removed from the record by her procuring leave to withdraw the demurrer.

I am of opinion that the order and judgment appealed from should be reversed with costs to appellant, to abide the event of the action.

Mohell, Ch. J., concurred.


text:
    GEORGE H. MERCER, Plaintiff and Respondent, v. FRANCIS VOSE, Defendant and Appellant.
    i. evidence.
    1. Witness as to value, examination op.

      (а) Must preliminarily be shown (if so required in proper time by the party against whom the witness is called) to be acquainted with the value of like property, services, &c., with that as to which they are to testify.
    (5) Striking out testimony. If such preliminary proof has not been so required, the testimony of the witness as to value can not be stricken out on the ground that it has not been given.
    1. In such case the burden rests on the party against whom the witness is called to show his disqualification.
    (б) In answer to a question, “Do you know the value of the services of an agent whose duties a/re confidential and embrace such duties as you know that plaintiff performed during the period you have testified to ? ” the witness said, “ I can state what I know as to persons doing the same; leave the confidential out, and I should say yes.” He then, under objection, testified to the value.

      Held, no error.

      a. His answer is as to the value of services irrespective of their confidential character.

      b. The fact that they were confidential did not lessen their value.

      (d) Witness preliminarily stating that he did not profess to be an expert.

    1. This does not disqualify him as a witness to value if sufficient facts appeared to show that he was competent,
    n. PRACTICE.
    1. Conduct op tbial.

      Beferee reserving Ms decision on objections to evidence, and receiving the evidence subject to the reservation, when not cause for reversal.

    1. It is not, when the evidence thus received is either relevant or not calculated to injure the objecting party.

      Before Monell, Ch. J.,and Sedgwick J.

      Decided December 6, 1875.
    Appeal from judgment entered on report of referee.

      Theron G. Strong for appellant.

      Osborn E. Bright for respondent.
   By the Court.—Sedgwick, J.

An examination of the testimony convinces me that there was sufficient to support the referees finding that the plaintiff performed services for the defendant, under a special agreement, from August, 1871 to November, 1871, and performed further services from November, 1871, to March, 1873, under the implied promise that he Was to be paid what the services were reasonably worth. Indeed, the answer of the defendant negatives the position that all the plaintiff’s services were done under the special agreement of August 17, 1871.

I also am of opinion that there was no error in the allowance of testimony as to the value of services which calls for a reversal of the judgment. Undoubtedly in this state, witnesses may be called to give opinions as to the value of labor and services. (See cases in Digest, under opinions of witnesses in title Evidence.) They must be shown preliminarily, if objection be taken in time, to be acquainted with prices paid in other cases for services of a like kind. In the present case an apparent difficulty would be, that the services were of a peculiar kind, and probably not of the same kind with others as to which witnesses might have knowledge. This was, however, a matter of fact, and if witnesses swore to sufficient to permit their opinions as to value, the defendant’s rights were to be preserved by cross-examination to weaken the force of the direct examination. I think, that in general, the witnesses swore to enough to entitle the plaintiff to claim that the referee should deem the witnesses qualified to testify as to value.

There is a special reason why the objection to plaintiff’s competency as a witness as to value should be disregarded. He was allowed in the first instance to testify without objection, and the exception is to the referee not granting a motion to strike out his evidence. If the objection had been taken in time, it might have been obviated; and not having been taken in due time, the burden was upon the defendant, at least, to make it appear affirmatively that the witness was disqualified (41 N. Y. R. 349). I do not think enough was shown to make it the duty of the referee to strike out the evidence.

Again, in the case of another witness on the same point, Mr. Studwell, it is particularly objected that he testified to the enquiry if he knew the value of the services of an agent whose duties were confidential, &c., that “ I can state what I know as to persons doing the same; leave the confidential out and I should say, yes, I should know”—yet was permitted afterwards, upon objection, to answer as to the value of services which in the question were stated to have been confidential. I think it appears that the answer last given was made upon the former qualification of the witnesses statement that he knew the value of the services which were to be valued, irrespective of their being confidential, and the fact that they were confidential did not lessen the value.

Another special objection was founded upon one of the witnesses as to value saying preliminarily that he did not profess to be an expert; and it is urged that it is conclusive. I do not think it is, for the reason that that was a matter of opinion of law and fact to be first decided by the referee ; and if the facts appeared to show that he was ¿ompetent, the referee should, as he did, disregard the witness’s opinion.

I think we are justified in looking closely into the merits of the objections to the testimony as to value, inasmuch as from the referee’s finding, it is evident that he made a most judicious use of this class of the evidence, and did not yield to the high estimates of value made by the witnesses.

The referee, in several instances, reserved a decision upon objections made by defendant’s counsel. It is claimed that this is error. The defendant can not be injured by considering that the referee made a ruling which entitled him to an exception, as if to the admission of illegal testimony. In each case the testimony was either relevant or not calculated to injure the defendant.

There were other less important exceptions argued, and as to them, it is unnecessary to say more than that, after examining them, they were not well taken.

Judgment affirmed with costs.

Monell, Ch. J., concurred.


author: By the Court.—Sedgwick J.

text:
    AUGUSTA WILLNER, Plaintiff and Appellant, v. JOHN H. MORRELL, Defendant and Respondent.
    I. CONSTRUCTION OF INSTRUMENT.
    1. Redemption clause, effect of.

      (a) When contained in an instrument in form of a bill of sale of personal property, it only gives a right of redemption ; it does not reserve the right of possession to the party making the instrument, but the party to whom it is made is entitled to possession against the maher.

    H. CONTRACT.
    1. Special clauses in the heading to a receipt.

      (a) When the receipt is not given untihsome time after the transactions evidenced by it have occurred, and it nowhere appears that the receiptee, or the party claiming under him at the time of the giving of the receipt, assented to the special clauses, such special clauses will not constitute a cont/t'act although they in form purport to be 'such.
    III. WAREHOUSEMEN RECEIPTS.
    Special clauses.

      (a) The heading to a receipt contained the following clauses among- others : “No goods delivered without a written order, or presentation of original receipt.” “ Q-oods will not be delivered to any person unless identified and authorized to receive the same.”
    Held,
    that upon the demand by a vendee of the party who stored the goods, the original receipt being present, and he being accompanied by the person who in the matter of the storage acted for the party who stored the goods, and who was there to identify the person making the demand as being the vendee, the above clauses did not warrant a refusal to deliver.
    1. It was unnecessary to produce a written order.

    IV. PERSONAL PROPERTY.
    1. Contract not running with it.

      (a) Where an owner makes a contract with his bailee whereby the bailor is not bound to deliver the property except on the written order of such owner, the bailee can not justify a refusal to deliver to a person succeeding to the ownership on the ground of non-presentation of a written order of such former owner.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Appeal from judgment.
    The action was to recover the possession of certain house furniture. The complaint set out the instrument under which the plaintiff claimed possession. The instrument was, in its form, a bill of sale of the property, ending : “This sale is made on this express condition, that I shall have the right to redeem the above described property at any time within one year,” upon payment of a specified sum of money, and it was executed by the then owner of the property.
    The answer averred that under the bill of sale, above described, the plaintiff did not become immediately entitled to the possession of the property, and further, that before the bill of sale was executed, the then owner had stored the furniture with the defendant ,who was a public store-house man, and that by the terms of the contract of storage he was not bound to deliver the property until the storage receipt given by defendant was returned to him; and the answer further denied that the property was wrongfully detained by the defendant.
    The action was tried by the court, a jury being waived. It appeared by plaintiff’s case that the then owner directed a person to have the property stored with the defendant, and it was so stored ; but at the time, no storage receipt was given, or special contract of storage made. The owner afterwards, in consideration of a past indebtedness, made and delivered to the plaintiff the bill of sale above set out. A few weeks after this, the plaintiff, in company with the person who had acted for the owner in storing the property, went to the defendant at his store-house, showed the bill of sale to him, and demanded a delivery of the property to her. The defendant then delivered to the person accompanying the plaintiff a paper called the storage receipt. It was headed by several special clauses. Among them were, “Ho goods delivered without a written order or presentation of original receipt.” “ Goods will not be delivered to any person unless fully identified and authorized to receive them.” There followed a simple receipt of the goods, as from the owner, signed by the defendant.
    This paper was then handed to the plaintiff. The defendant in answer to plaintiff’s demand, said he could not give up the furniture without an order from Miss Woodward, who had signed the bill of sale. He further said that if Miss Woodward should come to take possession of the furniture, he would notify the plaintiff, and the plaintiff assented to this.
    On the plaintiff’s case, the court dismissed the complaint, on the grounds that under the contract of storage the defendant was not bound to deliver the furniture to any one, except by the written order of Miss Woodward, in whose name and on whose account they were stored, and that the defendant, by his refusal to deliver the property to the plaintiff, did not wrongfully detain it.

      George E. King for plaintiff and appellant.

      D. Mc Mahon for defendant and respondent.
   By the Court.—Sedgwick J.

The bill of sale did not reserve to the party making it the right of possession, but gave her a right of redemption. All else was given to the plaintiff, and she was entitled to the possession against the defendant.

The defendant’s claim to withhold possession is not valid. It is placed upon the terms of the contract of storage, as contained in a storage receipt made by defendant. But the facts show that the furniture had been stored for more than two weeks before the defendant presented the special receipt, and its terms no where appear to have been assented to by the owner or her agent. Again, the defendant attempted to impose the special terms upon the general contract of storage, for the first time, on the occasion of the plaintiff’s demand, for then first was the receipt of storage produced. Again, the receipt as drawn by him did not in its terms justify his refusal. The form of the receipt was such as to make it at least doubtful whether the special clauses were a part of any contract, or anything more than notice to the party storing goods. Under any circumstances, there would have to be evidence of assent to their provisions, and there was none in this case. But these clauses did not require absolutely a written order. They required either a written order (to be made by whom is not specified) or presentation of the original receipt. In this case the written receipt had been just presented by the defendant, and was there when the demand was made. The person with the plaintiff was the one who had made the delivery to the defendant, and was there to identify the plaintiff as the vendee named in the bill of sale. The defendant made no request to examine into the genuineness of the bill of sale.

If the former owner had at the time of storage made an agreement that the defendant was not bound to deliver except upon the written order of that owner, it would not justify the defendant in refusing to deliver to a person succeeding to the ownership until such a written order was procured. It was not a lien, It had no relation to the fact of title or ownership. Under no circumstances, was the defendant authorized to deliver to one not entitled to possession. The law gives him reasonable time to inquire if the party demanding the property is entitled to possession (Ball v. Liney, 48 N. Y. 6; McEntee v. New Jersey Steam Co., 45 N. Y. 34). At the most, it is an agreement by the party assenting to it, a breach of which is without damage. In case of well founded doubt as to who is the owner, the bailee can bring his action in the nature of an action of interpleader (Ball v. Liney, supra), but for his convenience, or even for his interest, he should not be permitted to keep the owner’s right dependent upon the action of a party who has ceased to have any interest to give the written order.

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

Monell, Ch. J., concurred.


text:
    LEMUEL B. CLARK, Plaintiff and Respondent, v. ISAAC J. GEERY and HENRY B. SCHOLES, Executors of Will of ISAAC GEERY, Deceased, and WALTER L. LIVINGSTON, Receiver, Impleaded, etc.
    I. PLEADING.
    1. Evidence undeb.

      (a) Proving invalidity qf an assignment of a claim.

    1. A simple denial of an averment in the complaint that the claim or demand has been duly assigned to the plaintiff, will not let in evidence to establish that the assignment is invalid.
    tt FORECLOSURE.
    1. Intebest oe subsequent menob.

      (a) When rejection of evidence to show the nature of his interest is not error.

    1. When the existence of his lien and his right to dispute on the trial the amount claimed to be due on the prior lien are not disputed, and the trial of the issues joined resulted in determining the amount due thereon.
    IH. RECEIVER.
    1. Right oe, in deeense oe an action.

      (a) It is doubtful whether when he and the person for whose benefit he was appointed, and whose interests alone he defends, are both parties to the action, he can insist on a defense not insisted on by the party for whose benefit he was appointed.
    IV. EVIDENCE.
    1. Pabticulab issue.

      (a) Party in interest. Issue as to whether plaintiff, an attorney, or a third party against whom defendant has a defense, is the real party in interest.
    1. The action being for a foreclosure of a mortgage, evidence that the plaintiff, while acting as attorney for one W. G., to whom the mortgagor had conveyed the mortgaged property, in an action brought against him by the executors of I. G. (defendants in the foreclosure suit),, affecting the title to the mortgaged property, and which suit resulted in a judgment directing W. G. to convey to W. L. (also a defendant in the foreclosure action), as receiver for the executors of I. G., the mortgaged premises, took an assignment of the mortgage; and that while W. G. was the owner of the equity, one W., his son-in-law, had made payments on the B. & M. on his behalf, then ceased and put the mortgagee off, and finally told the mortgagee that the plaintiff had the money, appointing with him a time tó go and see the plaintiff, and that W. and the mortgagee went to the plaintiff, who paid the consideration, and took the assignment, is not sufficient to establish that the assignment was taken for the benefit of W. G., or to put the plaintiff on explanation.

    V. APPEAL.
    1. Costs on.

      (a) Error below, what will not deprive respondent of costs.

    1. An error of calculation, such as giving interest on interest to which the attention of the court below was not called, will not.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Appeal from judgment.

      Mr. Rice for defendants and appellants.

      F. J. Fithian for plaintiff and respondent.
   By the Court.—Sedgwick, J.

The complaint averred that a certain bond secured by mortgage had been made to one Hillenbrand; that the latter had assigned them to the plaintiff, and demanded the usual judgment of foreclosure.

The answer of the executors who appealed, made certain admissions, but denied that Hillenbrand had assigned the bond and mortgage to the plaintiff, and alleged that the bond and mortgage had been fully paid. Such were the issues made between the plaintiff and executors. The plaintiff did not dispute the existence of a lien, in favor of the executors, upon the surplus, and. the executors did not dispute that the mortgage in question was a prior lien.

On the trial, the executors offered certain evidence as tending to show that the assignment was invalid, as against them, and as showing the nature of the interest of the executors. The offer was properly overruled, because the only issue as to the assignment was whether it, in fact, had been made as stated in the complaint, and because the trial of the issues that were made resulted in determining what was due upon the mortgage, which made it unimportant to show the nature of the executor’s interest. It would have been proper to show such interest if the plaintiff had claimed that the executors had no right to dispute on the trial the amount claimed to be due to the plaintiff upon the bond and mortgage.

An examination of the case shows that the other appellant, Walter L. Livingston, receiver, did not appear upon the trial, but as he united in exceptions to the referee’s report, and no objection was made to his being heard upon the argument of the appeal, we may consider the exception, in the light of the issues made by him.

His answer, stating its substance favorably to him, was that the mortgagor had conveyed the property to William Geery ; that in an action brought by the executors named above, William Geery had been adjudged to convey the property to the defendant Livingston, as receiver; that while this action was pending, the assignment was made to the plaintiff, who was the attorney of William Geery, for the use and benefit of William Geery, if, in fact, the assignment was made.. There was also a general denial of the allegations of the complaint, except as admitted by the answer, and a further allegation that if the mortgage was made, it had been fully paid.

On the trial it appears that the executors offered in evidence the judgment-roll of the action, referred to in the answer of Walter L. Livingston, Receiver. It does not appear that any such offer was made in behalf of the Receiver; but if it had been made, the judgment should not be reversed on that account. If the judgment-roll had gone in evidence, it is said that there would be proof that the plaintiff took the assignment while he was attorney in that action for William Greery, who was the owner of the equity of redemption, and that the object of the action was to declare that the executors had an equitable lien upon William Greery’s interest in the premises, and that judgment to that effect was given in favor of the executors. The evidence offered was relevant, in my opinion, to the defense that the assignment was for the use and benefit of William Greery. If we could see that the admission of the testimony would have supported a judgment that the assignment was for the use and benefit of William Greery, it would be doubtful that there should be a new trial, because so far as the record shows, the only interest of Livingston as receiver was to defend the claim of the executors, to satisfy their demand out of the proceeds of the premises (see Bostwick v. Menck, 40 N. Y. 383). So far as that was concerned, the executors defended for themselves, and made no defense of the kind now considered. I am, however, of the opinion that if the fact had appeared that plaintiff, Clark, was at the time the mortgage was assigned to him, the attorney of William Greery, the learned judge would not have been justified, upon the whole evidence, in finding that the assignment was for the use and benefit of William Greery. The only other facts in evidence on this point were, that while Greery was the owner of the equity of redemption, one Webster, his son-in-law, made payments on the bond in his behalf ; then ceased to make further payments, and put the mortgagee off from time to time; then said to the mortgagee that the plaintiff here, Mr. Clark, had the money, appointing with the mortgagee a time when he should see Mr. Clark ; that he went with Mr. Webster, and then Mr. Clark paid the consideration and took the assignment. Such testimony may create a surmise—a question—but is not strong enough to show that the money did not belong to Mr. Clark, or to put him upon explanation. Any different conclusion would be based upon the testimony, hearsay, as to the plaintiff, that Webster said Mr. Clark would pay the money, after construing that vague expression to mean that Q-eery had the money, but Mr. Clark would pay it over. The receiver, on this appeal, therefore fails to show that the exclusion of the testimony would have affected the result, or rather that if the testimony had been received, a judgment upon this issue in favor of the defense should have been sustained (Tallman v. Bresler, 58 N. Y. 123).

There was no defense, upon the pleadings that the plaintiff bought the bond and mortgage, with the intent, to put them in suit.

The learned judge, in computing the amount due, inadvertently gave interest upon interest. This arose from there being put in evidence a sum, which plaintiff paid for the mortgage, which included the principal and interest then due, and interest was calculated upon this gross sum. The judgment should be modified by deducting forty-three dollars and twenty-six cents, the amount of the error. This mistake, however, should not in this case (§ 306 of the Code, Tallman v. Bresler, supra) result in the respondent being deprived of costs. It might have been different if the attention of the judge had been pointed more specifically to the mistake.

I am of opinion that the judgment, when modified as directed, should be affirmed with costs to the respondent.

Monell, Ch, J., concurred.


author: By the Court.—Monell, Ch. J.

text:
    THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Plaintiffs and Respondents, v. THE NEW YORK AND STATEN ISLAND FERRY COMPANY, AND THE NORTH SHORE STATEN ISLAND FERRY COMPANY, Defendants and Appellants.
    NEW YORK FERRIES.
    The mayor, aldermen, and commonalty of the city of New York own the exclusive right of the ferry franchise in and about the island of New York.
    Such right is not confined to ferries established at the time of the Montgomerie charter, but extends to and includes all other ferries which the corporation might thereafter establish from Manhattan or New York Island to any of the opposite shores (Benson v. The Mayor, &c., 10 Bard. 223; The People v. The Mayor, &c., 33 Barb. 102; Milhan v. Sharp, 27 N. Y. 619).
    Benson v. The Mayor, &c. (supra), does not determine the question in respect to future ferries, but the right which that case held to be a vested right in the city, in respect to the established ferries continued and attached to all that were at any time afterwards established.
    Any ferry operated and conducted from any part of the island to any opposite shore without the license of the corporation, is unlawful.
    The Department of Docks have received no power from the legislature to grant a ferry license.
    The status and powers of the Department of Docks are fully considered and reviewed in the opinion of the court.

      Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal from an order continuing an injunction.
    The action is to restrain the defendants, The New York and Staten Island Ferry Company, from conducting and running a ferry from New York to Staten Island ; and from using for such purpose any property of the plaintiffs leased to the defendants, The North Shore Staten Island Ferry Company, and to restrain the defendants, the said North Shore Staten Island Ferry Company, from further permitting or consenting to such use of said leased property.
    The complaint alleges that under the plaintiff’s ancient charters, it. was given and granted “unto the mayor, aldermen, and commonalty of the said city of New York, and their successors forever, that the common council of the said city, for the time being, or the major part of them, (but no other person or persons whomsoever, without the consent, grant, or license of the said common council of the said city, for the time being, or the major part of them), from to time, and at all times hereafter, shall and may have the sole, full, and whole power and authority of settling, appointing, establishing, ordering, and directing, and shall and may settle, appoint, establish, order, and direct such and so many ferrys around Manhattan Island (now New York Island), for carrying and transporting people, horses, cattle, goods, and chattels from the said island of Manhattan to Nassau Island, and from thence back to Manhattan ; and also from the said island of Manhattan to any of the opposite shores all around the same island, in such and so many places as the said common council, or the major part of them, shall think fit. Who have hereby likewise full power to let, set, or otherwise dispose of, all or any of such ferries, to any person or persons whomsoever ; ” and the rents, issues, profits, ferriages, fees, and other advantages arising and accruing from all and every such ferries, were thereby fully and freely, for the said crown, its heirs and successors, given and granted unto the mayor, aldermen, and commonalty of the city of New York aforesaid and to their successors forever, to have, take, hold, and enjoy the same to their own use, without being accountable to the said crown, its heirs or successors for the same or any part thereof. It is then further alleged that the defendants, or either of them, have not received from, nor has there ever been granted or leased to or conferred upon said defendants, The New York and Staten Island Ferry Company, and The North Shore Staten Island Ferry Company, or either of them, by the said board of aldermen of these plaintiffs, or the major part of them, or by any board, department, officer, or officers of these plaintiffs, any franchise, right, or privilege to run a ferry between said New York Island or any part thereof, and any point or points upon any shore around said Island ; nor have said board of aldermen, or .any board, department, officer, or officers of these plaintiffs settled, appointed, established, ordered, and directed any ferry from said New York Island to any point or points upon any shore around said island to be carried on, run or conducted by said defendants, The New York and Staten Island Ferry Company, and The North Shore Staten Island Ferry Company, or either of them; nor have these plaintiffs, or the said board of aldermen, or the-major part of them, or any board, department, officer, or officers of these plaintiffs let, sold, or otherwise disposed of any such ferry or ferry franchises, or any rents, issues, profits, ferriages, fees, or other advantages arising or accruing from any such ferry, to the said defendant, The New York and Staten Island Ferry Company, or to the defendant, The North Shore Staten Island Ferry Company.
    It is then further alleged that the said defendant, The New York and Staten Island Ferry Company, without lawful authority for so doing, are conducting and running a ferry from a point on the island of New York, at the foot of Whitehall street, in the city of New York, to a point on the easterly shore of Staten Island, near the foot of Canal street, in the village of Edge water, and known as Stapleton Landing, and by means of said ferry are carrying and transporting people, goods, and chattels from said New York Island to said point on Staten Island, and from said point on Staten Island back to said New York Island, and are receiving and taking to their own use, rents, issues, profits, ferriages, fees, and other advantages arising and accruing from said ferry.
    It is then further alleged, that the defendants claim that by an instrument of lease between the plaintiffs and The North Shore Staten Island Ferry Company, made in March, 1874, the plaintiffs leased to said company, for two years, Pier No. 1, East Biver, etc.
    That the Department of Docks, one of the departments of the city government, at the time of making the aforesaid lease, claimed to have and exercise the power of making such lease, and did resolve that the said The North Shore Staten Island Ferry Company be granted a lease of said property, provided the company should deliver its written agreement to occupy said premises only for ferry purposes. Such agreement was delivered.
    That subsequently the said Department executed the lease upon those terms, but in the name of the plaintiffs. It was provided in the lease that the demise was subject to all ordinances of the plaintiffs, then in force, or which might thereafter be adopted by them, and all laws of the state.

      The lease provided, and The North Shore Staten Island Ferry Company therein and thereby agreed with the plaintiffs, that if they, the said North Shore Staten Island Ferry Company, should at any time during the term mentioned in said instrument in any manner, directly or indirectly, grant or demise the premises or any part thereof, thereby granted and demised to any person or persons whomsoever, or in any way charge or incumber the same without the leave and consent of these plaintiffs first had and obtained in writing, and executed in due form of law, that in such case the said instrument and all conditions, agreements, stipulations, and provisions therein contained should cease, determine, and be utterly void, anything therein contained to the contrary notwithstanding.
    The rights and premises demised are as follows: ‘ ‘All that certain pier known as number one, East River, and the eighty-one and one-half feet of bulkhead, situate lying and being between said pier and the westerly side of the small pier located between piers number one and two, and also the westerly half of said small pier, which said wharf property is located in the city and county of New York, and described upon a map or diagram hereto annexed, and colored red, which said map or diagram is to be taken and considered a part of this indenture: the said premises hereby granted and demised to be used only for ferry purposes ; and the said parties of the first part hereby authorize the said parties of the second part, their successors or assigns, to enter upon the said premises, and take possession of the same at the time herein designated, and for the purpose herein set forth, and to hold and enjoy the same, subject to all the ordinances of the mayor, aldermen, and the commonalty of the city of New York, now in force, or which may hereafter be adopted by the said mayor, aldermen and commonalty, and all laws of the State of New York.”
    The complaint further alleged that the plaintiffs had not, in writing, given their leave and consent, that the said North Shore Staten Island Ferry Company might in any manner, directly or indirectly, grant and demise the premises or any part thereof, to any person or persons, or in any way charge or incumber the same.
    It is then alleged that the defendant, The New York and Staten Island Ferry Company, is now using the said premises for the purpose of conducting a ferry therefrom to Staten Island, and that the defendant, The North Shore and Staten Island Ferry Company, are permitting such use.
    In the answer of the defendants, it is alleged, that in January, 1875, the defendant, The North Shore Staten Island Ferry Company, duly obtained from the Department of Docks, a written permission or consent to sub-let to The New York and Staten Island Ferry Company, a portion of the said demised premises, for the use and purpose that said company might run a ferry to and from New York and Staten Island, for the transportation of passengers, goods, &c., and that thereupon said defendant duly leased, in accordance with the permission or consent of said department a portion of the premises to the latter company.
    The lease to The North Shore and Staten Island Ferry Company, although purporting to be in the name of the plaintiffs, is witnessed and executed as follows :
    “ In witness whereof, the said The Deparíment of Docks has caused these presents to be executed, in conformity with its by-laws, by the president, treasurer, and secretary of the said department, for and in behalf of the said mayor, aldermen, and commonalty of the city of New York, and the said party of the second part has caused its corporate seal to be hereunto affixed and these presents to be_ subscribed by its president, treasurer and secretary, the day and year first above written.
    “ WM. P. YAN AYEN,
    “N. S. S. I. Ferry Co. ) President.
    Seal. | W. H. PENDLETON.
    Secretary and Treas.
    “The word ‘part’ on the 23d line, 6th page, interlined before execution.
    “JACOB A. WESTERYELT,
    ‘ ‘ Witness: President.
    WM. W. BURNHAM. W. BUDD,
    Treasurer.
    Department of Docks)
    Seal. Í EUGENE F. LYNCH,
    Secretary.”
    The permission to sub-let is contained in the following:
    “At a'meeting of the board governing this department, held this day, the following resolution was adopted : Resolved, that permission be and the same
    is hereby granted to the North Shore Staten Island Ferry Company, lessee of ferry premises foot of Whitehall street, E. R., to sub-let a portion of the same to the New York and Staten Island Ferry Company, to be used by said last mentioned company conjointly with said lessees in the business of transporting passengers and freight between Staten Island and New York.
    “ Yery Respectfully,
    “ EUGENE F. LYNCH,
    “ Secretary.”
    A motion to continue the preliminary injunction ■pendente lite was granted at special term.
    The defendants appealed.

      S. S. Harris for appellant.

      William C. Whitney, corporation counsel, and H. E. and J. D. Davies, for respondents.
   By the Court.—Monell, Ch. J.

The appellants claim th franchise in question under one or other, or both, of the following propositions.

First. That there is no exclusive right of ferriage in the plaintiffs ; but that as to any ferry not in being at the granting of its ancient charters, the right is common to all citizens ; or,

Second. That the lease and permission of the Department of Docks vested the right of ferriage in the defendants.

A brief examination of the several charters under which the plaintiffs claim the exclusive right of ferriage will suffice to establish such right.

Dongan’s charter (1686) was a general grant of liberties, privileges, franchises, rights, royalties, free customs, jurisdictions, and immunities, with a special confirmation of one ferry which had then been established.

The Cornbury charter (1808) granted to the mayor, &c., full and free leave, &c., to establish and maintain one or more ferry or ferries, as they shall from time to time see fit, between the city and the adjoining shore of Long Island.

But the Montgomerie charter (1780) was a grant (§ 15 Valentine's Laws, 227) and confirmation to the mayor, aldermen, and commonalty of the city of Hew York, and their successors forever, “ of the sole, full, and whole power and authority of setting, appointing, establishing, ordering, and directing . . . such and so many ferries around Manhattan Island, alias Hew York Island, for carrying and transporting people,” &c., from said island to any of the opposite shores, all around the same island, in such and so many places, as the common council should think fit, granting to the said mayor, &c., all the rents, issues, profits, ferriages, fees, and other advantages arising and accruing from all such ferries.

And by the 3?th section of the same charter (p. 243) there is a further grant and confirmation of the ferries then established, and “ all other ferries now and hereafter to be erected and established all around the island,” with the fees, ferriages and perquisites of the same.

There is also (§40) a covenant to the mayor, &c., and their successors, of quiet and peaceable enjoyment of all the granted privileges, immunities, and franchises.

The plain and explicit language of those grants admits of no doubt that the mayor, &c., of New York became vested with all the rights which then resided in the crown in the several franchises granted; and it is equally clear that the grant was of all ferries then existing or thereafter to be established.

It is a question, however, whether the crown could grant to a municipality a right which, so far as it is a public right, belonged to the people.

The sovereign power was at the time of those charters, in the crown ; and as there was nothing in magna charta to qualify or restrict the power of the sovereign in respect to it, the grant was complete, and divested the people of any right which they could claim the enjoyment of. The sovereign will was paramount, unrestricted, irresponsible to the people, and the rights of the people were subservient to it.

That a different and much less power resides in the sovereignty of the state of a republic, affords no reason for confining or abridging the powers of the sovereignty of Great Britain. The former is limited by organic laws, in and by which, the people, having parted with only a portion of their own sovereignty, have thrown around themselves limitations and restrictions for their own security and protection.

The provision of our state " constitution, that the people, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state (Art. 1, § 11) contains in words the principle which clothed the sovereignty of Great Britain with a similar right when the ancient charters were granted and which covered not only property in lands, but in all other things, corporeal and incorporeal, which did not belong directly to the people.

I do not think it necessary to further pursue the inquiry whether a ferry franchise could be the subject of an exclusive grant. It is too palpable, and has received sanction and assent too long, to be open to question now.

I do not intend by this to say that the city has acquired under her charters so exclusive a right to establish ferries that there can not be any interference with it by the legislature. That question will be briefly discussed further on. But I do mean, that until deprived of such exclusive right by some competent power, the city was granted the sole and exclusive use of the franchise of ferries, and was entitled to maintain or license them for its sole benefit and emolument.

These several ancient charters, and especially the charters of Dongan and Montgomerie, were recognized and adopted throughout the whole of the colonial government, and have been frequently ratified and confirmed by subsequent legislation. More especially the Montgomerie charter, which, as Chancellor Kent says (Kent's Notes on Charter, 212, N. 19), is the charter upon the foundation of which the city of Kew York is at present governed.

The long, frequent, and uninterrupted use of the franchise by the corporate authorities, their, until now, unquestioned right to the exclusive use and enjoyment of it, with its perquisites and emoluments ; and the implied, if not actual, sanction of legislatures, the courts, and the people, establish a right, even independent of these charters, which should not lightly be set aside.

The sanction of the legislature is found in the enactment that the charters known as the Pongan and Montgomerie charters, so far as they are in force, shall continue and remain in full force, and shall not be construed as repealed, modified, or in any manner affected (Act 1853, chap. 217, § 54).

The courts have upheld the plaintiff’s claim to the franchise in the following cases : Benson v. The Mayor, 10 Barb. 223 ; The People v. The Mayor, &c., 32 Barb. 102; Milhau v. Sharp, 27 N. Y. R. 619.

The conclusion, therefore, must inevitably be, that the plaintiff owns the exclusive right of the ferry franchise in and about the island of New York, and that such right is not confined to ferries established at the time of the Montgomerie charter, but extends to and includes all other ferries which the corporation might thereafter establish from Manhattan or New York Island to any of the opposite shores. I am aware that Benson v. The Mayor, &c. (supra) does not determine this question in respect to future ferries, It was not necessary in that case that it should ; but for reasons which will be found in the discussion hereafter of the second proposition, the future as well as the present was covered by the charter, so that the right which Benson *. The Mayor held to be a vested right in the city, in respect to the established ferries; continued and attached to all that were at any time afterwards established.

It follows from this view of the law that any ferry operated and conducted from any part of the island to any opposite shore, without the license of the plaintiff, is unlawful.

The second proposition is perhaps of more difficulty. Part of it involves considerations and questions of which the decisions are not uniform, and upon which a reasonable doubt attaches.

The defendant, The ¡North Shore Staten Island Perry Company, claim the franchise under a lease or license from the Department of Docks, one of the departments of the city government,—and the other defendants justify under the written permission of the same department.

Two questions arise under this proposition: The one involves the powers of the Department, and the other the competency of the legislature to grant the power if it exists.

The Department of Docks was constituted under the Act of 1871, which is amendatory of an act to re organize the local government of the city of ¡New York (Laws 1871, chap. 574).

Section 6 of the act defines the powers of the Department. The board is to be appointed by the mayor, and they were to possess such powers and perform such duties as should be established and defined by the commissioners of the sinking fund of the city. The Department is then given exclusive “ charge and control ... of all the wharf property belonging to the corporation . . . including all the wharfs, piers, bulkheads, and structures thereon, and waters adjacent thereto, and all the slips, basins, docks, water fronts, land under water and structures thereon, and the appurtenances, easements, uses, reversions, and rights belonging thereto, which are now owned or possessed by the said corporation.” Power is also given to lease any of the above mentioned property.

The Act of 1873 (chap. 335) continues the Department with its powers, and by section 26, it is made a department of the city government. The powers thus defined and expressly given are sufficiently comprehensive, as was said in Hoeft v. Seaman (38 Sup'r Ct. R. 66), to extend over the dock property of the city, and over the slips, basins, and adjacent waters; and includes the power to grant leases of such property.

If, therefore, the lease to the North Shore Staten Island Ferry Company had been of the pier, slip, or basin for any commercial purpose, or for a purpose connected with the ordinary use of such structures or spaces, and not extending beyond such ordinary use, it would have been within the powers of the Dock Department, and not an invasion of any vested right of the corporation. Such a power over the described property may be said to be expressly given, although the use to which the lessee may put the premises is not defined or limited. But, as was held in Hoeft v. Seaman (supra), the power of the Department over waters adjacent to the piers or wharfs is subservient to the public use, and if given in excess of the public right to use such waters, it would be invalid.

It is a well settled principle in the construction of statutes that the authority it confers can not be stretched or extended beyond the intent; and where the language is clear, the letter of the statute will indicate the intent. This is especially so where conferred powers are named and described in the statute. In such a case no power can or will be implied, except, perhaps, such as may be necessary for the exercise of those expressly given. To that extent only will the statute be enlarged to let in incidental or implied powers.

The lease of the Dock Department to the North Shore Staten Island Ferry Company is of one of the piers and part of the bulkhead belonging to the city. Had that been the extent of the demise, it would probably have been within the competency of the Department to have made it It would have given the lessees the right to use the pier and bulkhead for any purpose connected with the commercial use of such property and its adjacent waters, with the single limitation that it was not so far exclusive as to interfere with the public use of the navigable waters about it.

But the demise declares that the premises granted are to be used only for ferry purposes, and authority is given to the lessees or grantees ‘ ‘ to enter upon the said premises and take possession of the same . . for the purpose herein set forth.” If this was not in express terms a grant of a ferry, it was at least a license to the ferry company to use the pier and bulkhead in operating a ferry from the shores of the city to surrounding territory, which the company had done since the demise was made, without any other grant or license whatever.

Hot only is the ferry franchise not named among the objects over which the Bock Department is given control, but it is not even an incident or appurtenant to any of them. Such a franchise is property, having a distinct and separate entity, capable of being granted, demised, and enjoyed, and of being dissevered from other property; and it may exist without the coincidence of ownership of the riparian right.

Of course a landing-place at each terminus of a ferry is essential to its beneficial use; but the landing places and ferry franchise are so far separate property that the one may belong to the riparian owner, and the other to the sovereignty of the state, or a municipal corporation, or an individual.

This distinction of property is recognized in Doty v. Gorham (5 Pick. 487), and in Chambers v. Furey (1 Yeates’ Reports, 16), where it was held that the owner of a ferry over a navigable stream had no right to land or receive freight on the adjoining banks, even though the landing place was a public highway, without the owner’s consent. It was there said the dedication of ground for the purpose of a public road gave no right to use it for the other purpose. This doctrine was after-wards recognized in Cooper v. Smith (9 Serg. & Rawle, 26). This, however, is probably not the rule in England, if the ferry landing is a public highway. It was so held in Petre v. Kendall (6 Barnw. & Cress, 703), where the King’s Bench said the owner of a ferry need not have the property in the soil on either side. It was sufficient that the landing place was a public highway.

The same distinction is preserved in our statute in relation to the regulation of ferries (1 R. S.-526), which requires the grant or license to be given to the owner of the land through which the highway adjoining a ferry shall run, unless upon notice he shall fail to apply for it.

It will be seen, therefore, that a ferry or a ferry franchise does not depend upon or require .a conjunction of ownership of the ferry and the land. A right of ferriage may, and frequently does, exist independently of the ownership of the adjoining land, and, as such is separate property, capable of a separate grant.

It is true that to ferry is a right properly appertaining to the soil, and attaches to the riparian proprietor, of which he can not be deprived except by the right of eminent domain.

But it has never been questioned, that the state, the sovereign power in which resides the original and ultimate property in all lands, could, in the exercise of its right of eminent domain, by making just compensation, condemn to the use of a public ferry the land of the riparian owner. The private grants or licenses of ferries made by the legislature under its right of eminent domain, are found in the statute book by the hundred, and the provisions of the Revised Statutes before referred to, for acquiring a landing-place, was enacted under the same right of eminent domain.

If, therefore, the several reasons which have been fur-Dished, establish so complete a separation between the ownership of the riparian proprietor, and. the ownership of a ferry franchise, that they may be owned, and. possessed, as separate property, it must follow that the franchise is not a necessary incident or appurtenant to the land, and whatever may be the right or interest of the riparian owner—short, perhaps, of an exclusive and vested right—it may be made to yield to the power of the state in the exercise of its right of eminent domain.

Under this state of the law, the powers of the Dock Department over the pier and wharf property of the city may be exercised with out interfering with the other and separate property of the city, and leases may be made for the use of piers or wharfs and the adjacent waters within, and for the general commercial purpose of such property, without divesting the city of any of its right and title to any of its ferry franchises or other-property.

It is clear that there was no express power—and none can be implied—given to the Dock Department to license a ferry. Its functions were at an end when it leased the pier and bulkhead. It could not extend, directly nor indirectly, nor by implication, the use of the structure to a purpose that would interfere with the enjoyment of any public or private right.

The language used by the legislature, in prescribing the powers of the Dock Department might very easily have included a power to grant ferry licenses, and given it in express and unmistakable terms. That would have settléd the question of the intent of the legislature, and left only the question of the competency of that body to take from the corporation, as an entirety, its right over the franchise, and bestow it upon one of the arms or agencies of the city government.

But ferries are not mentioned in the statute; and it is not to be presumed that the legislature intended by any implication, or by any meaning which the law may give to such words as appurtenances, easements, uses and rights belonging thereto,” to confer a power beyond that which is appurtenant to a dock or wharf, or an easement oy use connected therewith, of which a ferry is neither.

The intention of the legislature is also to be found in subjecting the Dock Department to some—and in respect to ferries, to a sufficient extent to the supervisory or directory power of the commissioners of the sinking fund (§§ 1, 2, Laws of 1871, ch. 738).

Prior to the act of 1871, the commissioners of the sinking fund had by statute and city ordinance (ch. 876, Laws of 1869, § 8; ch. 9, Revised Ordinances, § 28), charge of all the city property, including ferries ; and it must be presumed that it was in view of such custody or authority over the ferries, that the legislature guarded against the implication of any power over them in the Dock Department.

Having reached the conclusion that the legislature has not given to the Dock Department a power to grant a ferry license, it is not necessary to examine or discuss the question which was so largely discussed on the argument as to how far the legislature could or can divest the corporation of its exclusive right of ferriage.

hi or do I think the question is fairly, if at all, presented in this case.

Even assuming that the power claimed had been given to the Dock Department, it would not be a divesting of the corporation of any of its property, unless it can be claimed that such department was created without the consent or ratification of the city. But I think enough has been done by the city under the act constituting that Department- to show its consent to and acceptance of the act.

The Department of Docks is made a department of the city government. It is one of the agencies through and by which the functions of that particular department of the city government are performed. And as all the functions of a municipal government must be performed through and by agencies, there can be no reason why the legislature may not create such agencies, especially if it is done with the consent and sanction of the city.

I am not prepared, except in those cases where rights are protected by constitutional provisions, to concur in the views expressed in Benson v. The Mayor (supra), that a municipality can possess a vested right in a property of this character, or that it can not be divested by the legislature. Certainly the force of that decision has been considerately examined and discussed in Darlington v. The Mayor, &c. (31 N. Y. R. 164), and in The People v. The Mayor (33 Barb. 102). Indeed, Benson v. The Mayor, &c., did not hold that the vested rights of the city in ferries extended beyond those already established ; and the learned judge said that the question of the right to establish new ferries by a legislative grant was not then before the court, and it was not passed upon.

But I do not propose to examine the question.

A remaining objection is, that the plaintiffs do not show such an injury resulting, or likely to result, to the city by the operating and continuing the ferry, as is required to be shown under section 319 of the Code. Such section is to the effect that it must appear by the complaint that the commission or continuance of the act sought to be restrained will produce injury to the plaintiff.

The allegation in the complaint is that the defendants, the New York and Staten Island Ferry Company, are conducting and running the ferry, and that the other defendants, the North Shore Staten Island Ferry Company, are unlawfully inciting and permitting such use of the property of the plaintiffs “ to the damage of the plaintiffs in their rights and property.” And also that the former company is receiving and taking to their own use the “rents, issues, and profits, ferriages, fees, and other advantages arising and accruing from such ferry.”

These allegations are, perhaps, a little too general, but I think them sufficient as a pleading; and if they are not, may be amended so as to be made to conform to the facts.

The damage to the plaintiffs is the loss of the emolument it is entitled to receive from the ferry, either in ferry or license fees. As owner of the franchise, the ferry could, probably, be operated by the city, and the fees and income would go into the city treasury. Or it might grant a license, and receive the license fee. If, therefore, the city is deprived of either, or of any part, of this emolument by the unlawful usurpation of the franchise by the defendants, it would .be a sufficient injury to authorize the restraint.

It certainly is as full, both in the form and substance of the allegation, as in Fellows v. Heermans, cited in the opinion of the court in Erie Railway Co. v. Ramsey (45 N. Y. R. 645).

It is no sufficient answer to this, that the lease by the Department of Docks reserved a certain rent payable to the city. As the city repudiates the act of the Department, the rent reserved can not be taken tq satisfy the damages which the city may claim by reason of the unauthorized act of the defendants. Ñor is it an answer that as the city has not as yet established a ferry at or from the point occupied by the defendants, it can not sustain an injury by the usurpation of the defendants. It is enough that the defendants are using the city property, and depriving the latter of an emolument which it is entitled to receive, and which it would receive if the license had emanated from the city.

My conclusion is, that the order appealed from should be affirmed, with costs and disbursements to be taxed.

Curtis, J., concurred.


text:
    THE TRIBUNE ASSOCIATION, Plaintiff and Respondent, v. A. BURDETTE SMITH, DEFENDANT AND APPELLANT.
    POSTPONEMENT OF TRIAL.
    An exception to a decision denying a motion to postpone a trial, is available upon an appeal from the judgment in the case (Gregg *. Howe, 37 Sup’r Ot. R. 430).
    All the facts sworn to that were urged upon the motion, as also all the facts stated orally to the court, upon and in opposition to the motion, are evidence for the consideration of the court on appeal, and are clearly admissible.
    The party objecting to the postponement of the trial, can require all such statements of facts to be put into the form of an affidavit, and he is not bound to accept them otherwise, if he insists upon their verification.
    But if oral and unverified statements of counsel are not objected to because they are not in writing, and verified, and such statements are not contradicted, they are competent as evidence, and are entitled to the same credence as if embodied in an affidavit.
    Where there is a conflict in the proofs before the court below, upon such a motion, the judge is as competent, and better able, to determine the facts than the court on appeal can be, and his decision, like the verdict of a jury, will not be disturbed.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 3 1876,

      Appeal from a judgment.
    Upon the call of the action for trial at the jury term, the defendant moved the postponement of the trial. He read several affidavits showing the absence of a material witness.
    Affidavits in opposition were read by the plaintiffs, and their counsel also made certain oral statements, which, as the case states, “were uncontradicted by the defendant.”
    The court denied the motion to postpone. The defendant, after having excepted to the decision of the court, withdrew from the trial, and the plaintiffs took an inquest.
    The defendant made a case containing the proofs that were before the court upon the motion to postpone the trial, the decision of the court thereupon, and his exception.
    He also appealed from the judgment.

      W. M. Rosenblatt for appellant.

      C. D. Adams for respondents.
   By the Court.—Monell, Ch. J.

We held, in Gregg v. Howe (37 Sup'r Ct. R. 420), that an exception to a decision denying a motion to postpone a trial, was available upon an appeal from the judgment. The appellant has brought himself within that decision, and is, therefore, entitled to be heard.

In the case referred to, the court had before it, in hearing the appeal, only the affidavit of the moving party ; and as that was prima facie sufficient, and there were no circumstances of suspicion appearing, we thought that the judge at the trial term ought to have granted the motion. It did not appear what facts, if any, were stated or verified in opposition to the motion; and in the absence of such facts appearing in the case, we were bound to assume that nothing was stated in opposition. But as we felt authorized to believe that the court did not arbitrarily dispose of the motion, but had some foundation of fact for its decision to rest upon, and that the omission of such facts from the case was probably the result of accident or an insufficient appreciation of the importance of inserting them, we deemed it. proper to direct attention to the subject, and suggested that care should be taken to see that the case contained all the facts before the court when the decision was made.

The suggestion has been adopted in the case now before us, and we are put in possession of all the facts sworn to, or orally stated to the court, upon and in opposition to the motion.

The appellant objects to the oral statement made by counsel, and claims that as it was not made under oath, it should not have been received as evidence.

We strongly intimated in Gregg v. Howe, that such statements were clearly admissible, and we now affirm that position.

It is always competent to require such statements to be put into the form of an affidavit, and no one is bound to accept them otherwise if he insists upon the right to require them to be sworn to. But if oral and unverified statements of counsel are not objected to on the ground that they are not in ’writing and verified, and are not contradicted, they are not only competent as evidence to oppose an application of this nature, but are entitled to the same credence.

I have examined the facts the learned judge had before him when he denied the defendant’s motion, and I am satisfied he committed no error.

It appears that the first postponement was in February, for a fortnight, to enable defendant to get ready for trial. The cause was called again in March, and the defendant expressed his desire to amend his answer, and the trial was put off. A motion to amend was granted, but on terms unsatisfactory to the defendant, and he appealed from the order. When the cause was called on May 10, the pendency of the appeal, after an ineffectual attempt to obtain a stay of proceedings at special term, was made the objection to going to trial, and the court overruled it. The next day the same objection was re-stated, with the additional reason, that the defendant’s counsel was elsewhere engaged. The objections were again overruled, and the cause held for trial when reached on the day calendar. On the 12th, the defendant’s attorney made affidavit of the absence of a material witness, whose absence he had discovered only on the previous day. And the defendant, in an affidavit of May 11, stated that he had that day made inquiry, and had ascertained that his witness had been absent two weeks in North Carolina.

A most essential element in an application to postpone a trial is to show diligence in procuring the attendance of witnesses. No such diligence was shown by the defendant in this case. Suitable vigilance would have procured the witness’s conditional examination or his attendance.

To vary the reasons for a postponement on different days very naturally raises a doubt of the good faith of the application, and will frequently be deemed sufficient to defeat the motion.

Apparently, the absent witness was not brought in as a ground for postponement until a last resort. The pendency of the appeal and the absence of counsel, had on consecutive days been ineffectual, and then at the last moment, an affidavit, which lacked showing due diligence, was pressed into the defendant’s service.

Where there is conflict in the proofs before the court below, the judge is quite as competent to determine the facts, and better able than the court in banc can be. And Ms decision as to the facts, like the verdict of a jury, will not be disturbed.

I am satisfied the learned judge in this case came to a correct conclusion, and committed no error in denying the defendant’s motion.

The judgment appealed from should be affirmed.

Curtis, J., concurred.