author: Mati-iam, P. J".:

text:
    THE CITY OF SCHENECTADY, Respondent, v. THE TRUSTEES OF UNION COLLEGE, Appellant.

      Municipal corporations —asphalt pavement — assessment at street intersections — due pi'ocess of law — work done by another corporation for a city — stipulation by a paving compar *o repair.

    The trustees of Union College owned land in the city of Schenectady, through which were laid out Union avenue and Gillespie street, and dedicated them to the public, and the dedication was accepted. These streets extended from the north to Union street, which ran east and west. The trustees also owned lots, one on the corner of Union avenue and Union street and one on the corner of Gillespie street and Union street.
    The city, having paved Union street with asphalt pavement, assessed against the defendant a part of the expense for the work done on Union street in front of Union avenue and Gillespie street; the expense for one of these spaces constituting half the width of Union avenue, where it intersected Union street, and for the other constituting one-half of Gillespie street, where it intersected Union street.
    Thereafter the city brought an action to recover of the trustees the cost of the pavement of the two pieces of land lying at the street intersections, under the provisions of the charter, which provided that where the city was forced to do the work the street superintendent should keep an account of the cost, and should return this to the common council, whose audit thereof should be final and conclusive; and further, that the city was authorized to sue for this amount, and that the account duly certified should be “ sufficient presumptive evidence ” to entitle the city to recover.
    Meld, that if the charter had stopped at the words providing that the audit of the common council should be “ final and conclusive,” it would have been open to the criticism that no hearing was given the taxpayer; but that the further statement that the account should be “sufficient presumptive evidence,” left the taxpayer the power to overcome that presumption, and if beaten upon this issue upon a trial he could not then claim that his property had been taken without due process of law.
    That where the charter gave a city power to pave streets, it might pave with asphalt or in any other substantial manner.
    Where paving was done by the city, it was required by the charter to he done by or under the direction of the superintendent of streets.

      Held, that if done under his direction the actual work might be done by an asphalt pavement company.
    The asphalt company agreed to do the work in such a substantial manner that no. repairs should he required for five years after its completion, and that in case any repairs became necessary during that time the company would make them without charge.
    Held, that this amounted only to a guaranty of the quality of the work, and was not an independent obligation.

      People ex rel. Hall v. Maher (56 Hun, 81) distinguished.
    That the spaces at the street intersections were properly assessed against the trustees as they owned them, being the owners of the lots behind these spaces, and having, by dedication, parted only with the title to the middle of the street,, for the purposes of the public easement.
    (Herrick, J., dissenting.)
    Appeal by the defendant, the Trusteeá of Union College, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Schenectady on the 8th day of March, 1892, upon a recovery by the plaintiff, after a trial before a referee.
    The action was brought to recover the cost of |>avingwith asphalt a part of a street in the city of Schenectady, known as Union street, which ran in an easterly and westerly dii’ection, and was intersected by Union avenue and Gillespie street from the north.
    • i?. J. London, for the appellant.

      A. P. Strong, for the respondent.
   Mati-iam, P. J".:

The case shows that the defendant originally owned the land in Schenectady, which now constitutes Union avenue and Gillespie street in that city, and dedicated the same to the public, and the plaintiff accepted such dedication and adopted said land as public streets.

After such dedication and adoption, Union street was paved by the plaintiff, with asphalt, and a portion of the expense of the pavement was assessed, by the common council of the plaintiff, for the two lots, of which the half of Union avenue was one, and the half of Gillespie street was the other, in the same manner as if they were private property, and the question upon this appeal brings up for review the validity of that assessment.

This work of paving these streets was done by contract, pursuant to a resolution of the common council of the plaintiff, and the superintendent of streets certified the amount of costs and expenses of this improvement, as to each of the defendant’s intersecting street lots, for this work done in front of them respectively, at the rate of the sum fixed in the contract, and paid by the plaintiff to the contractor or for making such improvement. The city paid the contractor, and the common council, by resolution, directed the city attorney to prosecute, in the name of the city, for the sum or assessment not paid by the defendant at a given date.

The defendant failed to pay the amounts audited by the common council, as the same were certified by the superintendent of streets, at the time fixed; this action was commenced, and from the judgment recovered by the plaintiff in this action the defendant appeals.

The appellant objects that, in levying this tax or assessment upon the property of the defendant, no opportunity was given it for a hearing before any board or officer, and insists that the enforcement of the same, by judgment, tends to deprive the defendant of its property without due process of law, and in that respect violates the Constitution, and that the assessment was, therefore, void.

The proceedings of the city government which led up to the making of this improvement do not seem to be in controversy on this appeal; so that we may start our investigation with the proceedings of the common council in levying or assessing, and enforcing this tax.

The plaintiff, in fixing the liability of the defendant, and in the enforcement of the same, assumes to proceed under the provisions of section 48 of title 7 of chapter 62, Laws of 1873, amending the charter of the city of Schenectady (chap. 385, Laws of 1862), that section provides as follows:

If the owner or occupant of any lot or building affected by any such ordinance shall fail to comply with the requirements thereof, the common council shall cause the same to be done by or under the direction of the said superintendent for and at the cost and expense of such owner or occupant.
“The said superintendent shall keep an account of such cost and expense, which shall include the cost of survey, and shall certify to the correctness of the same and return it to the common council within thirty days after the completion of the work.
The common council shall audit and allow such account at such sum as it shall deem proper, and which shall be final and conclusive ; and it shall be lawful for said city to sue for and recover from such owner or occupant, or his legal representatives, the sum so audited and allowed, with interest at the rate of one per cent per month from the time of the audit and allowance of such account, in an action for money paid and expended for such owner or occupant by the said city; and the said account, with the certificate of the city clerk thereon, of the amount so audited and allowed thereon, shall be sufficient presumptive evidence to entitle the plaintiff to recover in such action.”

The appellant’s contention is that this provision fails to provide the property owner with any opportunity to be heard on the question of the amount or validity of the assessment, and makes the same, in express terms, final and conclusive.

We cannot agree with the learned counsel for the appellant in this contention. If the statute had stopped with the provision that the assessment u shall be final and conclusive,” there -would be great force in his position upon that point, or if it had confined the collection of this tax to a proceeding in rem, or if the plaintiff had sought to enforce the tax under the provisions of section 49 of this act, which provides for a sale of the premises, in reference to which the tax is assessed, then we are not prepared to say that the position taken by the appellant might not be upheld.

But we are relieved in this case from the determination of that, question, as the defendant is invited by the plaintiff into a tribunal where the assessment is, by this statute, made only presumptive evidence of the validity or correctness of the tax; and where the whole case is open to the objections and litigations of the defendant on the trial of the action, it cannot, we think, be said that the judgment in such action, if enforced against the defendant’s property, would be taking the same without due process of law.

While it is, doubtless, the duty of the courts to sedulously guard the right of the citizen from invasion, without due process of law, it is at the same time equally incumbent on the courts to uphold the constitutionality of acts of the legislature, unless the same are brought plainly within the constitutional prohibition.

This rule is elementary and has been recently adverted to and enforced by the highest court of this State.

In Sweet v. The City of Syracuse (129 N. Y., 329), O’Brien, J., quotes, with approbation, the language of Ruger, Ch. J., in People ex rel. Killeen v. Angle (109 id., 567), as follows: “ Within settled rules it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the Constitution before the court can be justified in pronouncing it’an unauthorized expression of the legislative will.

If the act and the Constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the courts to give them such construction.”

We see no difficulty in this case in giving that constitutional provision its fullest effect and finding guaranteed to the defendant in an action prosecuted under section 48 of title 7 of this charter, the due process of law guaranteed by the Constitution. The law provided a method by which the defendant could have its day in court, and by the prosecution of this action it is furnished that opportunity to be heard of which it has availed itself by its defense.

In Stuart v. Palmer (74 N. Y., 183), which was an action to set aside an assessment as a cloud upon title, which was made by the act a specific lien upon the land, and no provision was contained in the act for the collection of the tax by action as in this case, nor did the act provide for notice of any kind to the land owner, and the assessment was held void, but that as its invalidity was so palpable and apparent on the face of the proceedings it constituted no cloud upon the title. But it will be observed that in that statute no action was provided for as in this, and no notice of any kind was authorized by the act.

In Stuart v. Palmer {supra) the court held in broad and most unequivocal terms, that the legislature has no power in itself and can confer no power upon any subordinate department of the government to arbitrarily seize the property of the citizen or impose upon him a tax without due process of law, and on proper notice to, and opportunity by, the citizen to be heard before some proper tribunal.

But the learned judge in that ease says: The legislature may prescribe the kind of notice, and the mode in which it shall be given,” and in the same case, in defining what is meant in the Constitution by due process of law, the learned judge uses this language: It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard and to defend, enforce and protect his rights.”

If, therefore, in the action prosecuted against the defendant for the collection of this tax, the certificate of the superintendent of streets, and the audit of the common council, and their apportionment of the assessment against the defendant constitute only presumptive or prima facie evidence against the defendant in this action, it was within the power of the defendant to overcome that presumption,- either as to the regularity or amount of the assessment in this action, and if beaten in that contest it cannot claim that its property is taken by taxation without duo* process of law.

But it is further insisted by the appellant that the common council exceeded its authority in passing a resolution that these streets should be paved with asphalt pavement.

It must be conceded that the common council of a city is a creation of the statute, and has only such powers as are contened on it by that instrument. The power conferred on the common couxxcil in reference to the subject of the pavement of the streets is contained in section 42 of chapter 62 of the Laws of 1813 of the charter, and is in these words (amending § 8, tit. 7, chap. 385, Laws of 1862): “ The common council shall have power, from time to time, to adopt ordinances directing and requiring any of the streets, highways, lanes, alleys, walks and squares in said city or any part of either of them to be graded, paved, flagged, macadamized, planked or covered with broken stone or gravel, or regraded, repaved or reflagged at the expense of the owners or occxxpants of the lots and buildings lying upon the street, highway, lane or alley where such work shall be required to be done; axxd may in like manner direct and require the altering and repaix’iug of the same; and said common council shall prescribe the time and manner in which such woixk shall be done, and which work shall be done under the superintendence and direction of the superintendent of streets.”

The complaint alleged the taking by the plaintiff of the various steps by the common council to authorize the paving of these streets and charge the defendant with the payment for the same, most of which were not put in issue by the answer, and we are only called upon to consider such questions as are raised by the exceptions to the referee’s findings and conclusions and discussed on this appeal.

Under the provisions above quoted the common council was authorized by ordinance to provide for the pavement of the streets of this city. This authority carried with it the power to direct by ordinance the kind of pavement to be used, and prescribed no limit to any particular kind of pavement. The charter conferred upon the common council the exercise of a discretion so long as it kept within the general designation of “ pavement.”

In the Matter of Phillips (60 N. Y., 22), the court held that "to pave is to cover with stones or brick or other substantial material, so as to make a level or convenient surface for horses,” etc., and that the difference in the material could not change the character or general identity of the work as embraced in the generic term,"pave.”

So the laying of a cross-walk comes within the general designation of paving. (Matter of Petition of Burke, 62 N. Y., 224.) So paving is held to be a more comprehensive word than flagging; it includes flagging, as well as other modes of making a smooth surface for streets and sidewalks. (Matter of Burmeister, 76 N. Y., 181.) It follows that when the legislature conferred on the common council the power to cause the street of the city to be graded and paved, they conferred upon them the power of adopting such material in that work as ordinarily might be regarded as proper for that purpose.

But it is insisted by the appellant that if this ordinance was valid, yet its provisions were not complied with, and that for that reason the plaintiff could not properly recover in this action. The first objection urged upon this point is that the work was not done in accordance with the provisions of section 48 of the charter, in that the work was done by the contract with the asphalt company, and not done by or under the direction of the superintendent of streets. Section 6 of the ordinance provides that ££ it will be the duty of the Superintendent of Streets, immediately after the expiration of such time (30 days), to cause the work to be done.” .

Section 2 of the agreement between the asphalt company and the common council provides that the work shall be done in accordance with the terms of said ordinance, and that the same shall be done under the supervision and direction of the superintendent of streets of said city. While this work was not done by the superintendent of streets, it seems to have been done under his direction, and conies clearly within the letter, and, we think, the spirit of the charter in that respect. When the lot owners failed, for thirty days, to do this work, it became the duty of the common council to cause the work to be done, which any such owner or occupant had failed to do, at the cost and expense of such owner or occupant.

It is true that they were required to cause this work to be done within the terms of the charter, by or under the direction of the superintendent of streets; but the fact that it was done under a contract under his direction ,does not, in itself, violate the terms of the charter or the provisions of the ordinance of the common council. The charter, by section 48 of the act above cited, provides that the work shall be done by or under the direction of the superintendent of streets, and the disjunctive form of connecting the methods of the performance of the work makes either allowable, and the complaint is not, therefore, defective in alleging that the work was done under his direction.

It is also objected that the notice required to be published by section 61 of the charter must be deemed as duly and properly given, as that is so alleged in the complaint and does not appear to be denied in the answer, and there was no such modification of the ordinance, after the giving of the notice, as would invalidate or destroy the effect of the notice.

It is true that every requirement having the semblance of benefit to the owner must be strictly complied with. (Newell v. Wheeler, 48 N. Y., 486-490.) But we think that we have shown that the work was, in fact, done under the direction of the superintendent of streets in compliance with the provisions of the charter. Nor do we think that the pavement provided for by the ordinance under consideration comes within the provision of section 34 of the charter relating to ordinary repairs.

It is also urged on this appeal that the contract imposed upon the property owners the burden of paying for keeping this pavement in repair for five years, and that the contract was, therefore, in excess of the power conferred in the common council in reference to paving streets.

In the People ex rel. Hall v. Maher (56 Hun, 81) the common council passed an ordinance requiring. the board of contract and apportionment to require the contractor to agree to keep a pavement of granite block, to be laid by the contractor, in repair for seven years. The charter provided that the repairing of all streets paved with granite block should be a charge upon the city, and not on abutting property owners, and the court held that such a provision in a contract for laying granite block pavement was unauthorized and tended to increase the burdens of abutting owners, and the contract was set aside as illegal.

If this contract is subject to the same objection it should share the same fate, if the objection was properly raised in the court below. The referee was not asked to find, and did not find, that this provision in the contract increased the expense of the work or enhanced the amount of the assessment.

But this question was evidently raised and discussed in the court below, and is, I think, fairly here, for -adjudication. But I am inclined to concur in the views of the learned referee, that this case is substantially different in some of its essential particulars from that of the People ex rel. Hall v. Maher (supra). In that case there was an express contract to keep in repair for seven years. In this case the clause referred to in the contract had reference solely to the substantial character of the work performed and materials used in the performance of the contract.

The provision to which objection is made reads as follows :

The pai’ty of the second part hereby covenants and agrees that it will do all the work required by such ordinance, and this contract, in such good and substantial manner that no repairs thereto shall be required for the term of five years after its completion.”

If the contract had stopped here it would hardly be claimed that the contract went further than the ordinance, and was anything more than a guarantee that the work should conform to the requirements of the ordinance, and no one would doubt the power of the common council to prescribe the quality of the work to be done by an ordinance; and yet if the contract had stopped there it can hardly be doubted that the contractor would be liable to the city to keep and make good to the city the conditions of the warranty that no repairs thereto shall be required in five years after its completion.

The covenant, therefore, to keep in repair for five years is not an independent obligation, but only a guarantee of the quality of the work contracted to be done. In this respect we think it essentially different from the contract under consideration in People ex rel. Hall v. Maher (supra), and that this case does not come under the condemnation of that decision.

"We are, therefore, inclined to the opinion that there was a substantial compliance with the provisions of the charter by the common council in the construction of the pavement in question, and that the provisions of the charter under which they proceeded are not unconstitutional. Nor do we see any error in the admission or rejection of evidence by the referee for which this judgment should be reversed. The remaining and, perhaps, most difficult question in this case is as to the liability of the defendant to assessment for' the paving of corner lots.

The defendant was originally the owner of all of these lands, including the lands by it dedicated to and accepted by the plaintiff for public streets. If this dedication and acceptance is to be considered as absolutely divesting the defendant of title or interest in the lands dedicated, and investing the plaintiff with the absolute title in fee of the streets, then it would be difficult to see how the defendant can be said to be abutting owners of these corner lots.

But if the abutting owners of these streets on either side are deemed to own to the center of the street, subject only to the easement of the public, for the purpose of a street, then such abutting owners become abutting owners of these corner lots, and are liable, as such, for this local improvement.

The fact that no legislation has been directly enacted to meet this question which has often been raised, and yet does not appear to have been judicially settled in this State, leads to the conclusion stated by the learned referee, as follows: “ It may justly be said that the charter was enacted in view of the presumption that each owner’s title and ownership extends to the center of the intersecting streets.”

We are inclined, therefore, to the conclusion, that for the purpose of this local improvement the defendant was an abutting owner, to the corner lots for which this assessment was made. We see no error in this case for which this judgment should be reversed, and the judgment must be affirmed, with costs.

Putnam, J., concurred; Herrick, J., dissented.

Judgment affirmed, with costs.

       As amended by chapter 62 of the Laws of 1878.

       Added by chapter 97 of the Laws of 1889,


source: Caselaw Access Project

author: Mayham, R. J.:

license: Public Domain

text:
    RICHARD D. ROBENS, Respondent, v. CHARLES R. BARRETT, Appellant, Impleaded with Others. Defendants.

      Injunction — in an action in the nature of ejectment — enjoining the renoval by a contract vendee of carp with which a pond is stocked.

    In an action brought by Richard D. Robens against two persons named Hillman, and against Charles R. Barrett, to recover the possession of premises which Robens had contracted to sell to William L. Hillman, Robens obtained a perpetual injunction against all the defendants restraining them from removing certain German carp from a pond on the premises.
    The complaint set up the contract of sale with Hillman and his default, and alleged that the other defendants had, or claimed to have, an interest in the premises. It also alleged that there was a pond on the premises in which the defendants had placed German carp, and that, as an inducement to plaintiff to refrain from enforcing his contract rights, the defendants agreed to sell the carp when matured and apply the proceeds to the payment of the purchase-price of the land; that they were removing the fish to another place, and that without them the premises were not worth the sum due him.
    The answer of the defendants Hillman alleged that no pond existed when they bought the premises; that they had constructed it by a dam; and they denied that the agreement set forth in the complaint with reference to the carp had been made.
    The answer of Barrett alleged that he himself had placed the carp in the pond, and had removed some of them as he had a right to do. He also denied the alleged agreement as to the carp or that he wrongfully withheld possession of the premises.
    Upon Barrett’s appeal from a judgment for the plaintiff in the action, ana from an order denying a motion to dissolve the injunction:
    Held, that the injunction relating to the -fish was improperly granted.
    That as to Barrett the complaint established no cause of action in ejectment.
    That the complaint did not show that the carp were a part of the realty, or that their removal was waste or would cause irreparable injury.

      Tliat flsli which, the owner could reclaim wore his own property, while, if they existed in a wild state, they belonged to no one.
    That, even if the title to the iisli could have been shown to be in dispute the plaintiff would have had his action at law, and could not go into equity and obtain the extraordinary remedy of an injunction.
    Appeal by the defendant Charles R. Barrett from a judgment of the Supreme Court, entered in the office of the clerk of Saratoga county on the 30th day of December, 1891, for the recovery by the plaintiff of certain premises, and containing an injunction restraining the defendants from interfering with or removing certain German carp from a pond on the premises, with notice of an intention to bring up for review upon the appeal an order denying a motion to dissolve a temporary injunction of a similar nature, and making the injunction perpetual.
    The action was tried before the court at the Saratoga Circuit.

      W. B. French, for the appellant.

      J. W. Orame, for the respondent.
   Mayham, R. J.:

This is an appeal from a judgment in favor of the plaintiff for the recovery of the possession of the real estate described in the complaint, and also granting a perpetual injunction against the defendants, restraining them from the removal of fish from a pond on the premises so recovered.

The complaint in this action alleged that the plaintiff was the owner in fee of the land described in the complaint, and that on the 7th day of March, 1881, he entered into a contract in writing with the defendant "William H. Hillman for the sale of such premises to him at a sum specified in the contract to be paid as therein specified, and giving the purchaser the right to immediate possession, with condition that on default by the purchaser, in the payment of the purchase-price or performance of any of the covenants contained in the contract, he would deliver to the plaintiff the possession of the premises. The complaint also alleged that the purchaser, the defendant William H. Hillman, went into possession under such contract, and that before the commencement of the action the purchaser made default in payment, and was, at the time of the commencement of the action, unlawfully withholding the possession of said premises from the plaintiff.

The complaint also alleges that the other defendants in this action have, or claim to have, some interest in the premises sought to be recovered. The complaint also alleges that there is upon the premises a large pond of water, in which the defendants have placed a large quantity of fish, called German carp, and that as an inducement for the plaintiff to forbear from enforcing his rights under the contract, the defendants agreed that as soon as said fish became of marketable size the same should be sold, and the proceeds thereof applied on the payment of the money due on the land contract, and the complaint alleges that in violation of that agreement the defendants are removing said fish to other premises, and that the premises, without such fish, are not worth the sum due on the contract, and the complaint asks for a perpetual injunction enjoining and restraining the defendants from removing such fish.

Upon this complaint and affidavits, served with it, a temporary injunction was obtained restraining the removal of the fish from the pond on the premises in question.

The answer of the defendants “William L. and Walter W. Hillman allege, in substance, that, at the time of making the contract, there was no pond-on the premises contracted to be sold, and that since the contract they, with the other defendants, had constructed a dam across a stream on said land by which the pond thereon was created. They also allege in their answer that the contract mentioned in the plaintiff’s complaint had been mutually abandoned by the parties thereto, so far as the time of payment was concerned, and the time of making the payment was, by such agreement, extended until April 1, 1892, and so much longer as the parties shall then agree.

The answer also alleges a payment at the time of such extension agreement. The answer also denies that, as a consideration for, or an inducement to, the plaintiff to extend the time of payment, that they would sell the fish in said pond and apply the proceeds in payment of the money due on the land contract.

The defendant Charles R. Barrett admits that he has an interest in the pond of water on the premises mentioned in the complaint, and that he has placed therein a large quantity of valuable fish, called German carp, and that he has removed some of such fish to an adjoining pond, as he had (as he alleges) a lawful right to do.

He denies that he wrongfully withholds the possession of the premises, and that he ever agreed to apply the proceeds of'the sale of the fish upon the land contract as an inducement for an extension of the time of payment of the plaintiff.

On these pleadings and the affidavits used by the plaintiff in procuring the temporary injunction, and the affidavits prepared and served on a motion to dissolve the same, it was stipulated that a motion to dissolve should stand over and be heard by the judge who should try the issue in the case; and the same accordingly came on with the trial, at which time said motion was made and denied, and on the hearing of the action, upon the merits, the judgment and relief demanded in the complaint was granted, and from that judgment and decree, as well as from the order denying the motion to dissolve the injunction, the defendant Charles R. Barrett alone appeals.

While the recovery of the possession of the real estate, agreed to be sold by the plaintiff to the defendant William L. Hillman, was a proper subject of recovery in this action, after default in the payment of the contract-price, we do not see upon what principle an action for an injunction restraining the taking of fish from this jjond ca.n be maintained, either as an independent action or as an adjunct of the action of ejectment, and it is from the judgment and decree enjoining the defendant Barrett from removing the fish and the recovery of costs against him that he appeals.

The action of ejectment is not prosecuted against him, on the ground that he is in possession solely or jointly with the other' defendants and wrongfully withholding the same from the plaintiff, and the complaint, as to him, would be entirely insufficient to authorize a recovery in ejectment.

The complaint sets up the contract with William L. Hillman for the purchase of this land, and alleges his default and charges that he is in possession and wrongfully withholding the same.

The complaint does not show, nor does the evidence establish that the removal of fish placed in this dam was a part of the real estate contracted by the plaintiff to the defendant William L. Hillman, or that their removal by the defendant Barrett was waste or irreparable injury to the freehold.

The case shows that the defendant Barrett assisted the defendant Morgan Hillman, one of the defendants, in constructing the dam, and that Barrett stocked the same with fish. The fish, under such circumstances, while the property was in the possession of the defendant Hillman, were clearly the private property of the defendant Barrett, if so far reclaimed as to be within his control, and if unreclaimed, and in their wild state, and not within the control or dominion of Barrett, then they were feres natures. creatures in which no one could claim or maintain any valid title.

It is quite true, that had the subject of the injunction been a barn upon the premises, at the time of making the contract of purchase, or windows ip the house, or shelves or drawers in a store, the vendor, after default, could prevent their removal by the vendee or a stranger, on the ground that their removal would be a waste or destruction of the freehold. (Tabor v. Robinson, 36 Barb., 483.) But this would not be so of sheep upon the premises, doves in a dove-house or fowls in a hen-house," placed there by the purchaser, and which, by carol, cage or house, were within the dominion of the person placing them on the premises, and the same, we think, is true of German carp enclosed and propogated in a private pond.

In Fleet v. Hegeman (14 Wend. R., 42), it was held that oysters planted by an individual, in. a bed clearly designated and marked, in a bay or arm of the sea, which is a common fishery, are the property of him who plants them. And the same doctrine was repeated in Decker v. Fisher (4 Barb., 592), and to the same effect, Lowndes v. Dickerson (34 id., 586), also in Post v. Kreischer (103 N. Y., 110), and these cases hold that interference with the owner’s right is a trespass for which an action of trespass will lie.

That being so, an injunction would not lie to restrain its removal, even if the title was in dispute, or concededly in the plaintiff. In that case, trespass, or an action at law to recover the value of the property taken, or replevin, an action to recover the possession of personal property wrongfully taken or detained, would be the proper remedy.

The extraordinary power of a court of equity could not be invoked in such case for the reason that the party has an adequate remedy at law.

This rule is too familiar to require citation of authorities. It is. not sufficient to authorize the remedy by injunction, that the violation of a naked legal right is threatened, there must be some special ground of jurisdiction, and when the injunction is the final relief sought, the facts entitling the plaintiff to it must be averred in the complaint, and proved.

We think that neither of these essential requisites exists in this case, and that the judgment and decree for an injunction, as to the defendant Barrett, should be reversed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment and decree against Barrett reversed.


author: Mayham, P. J.:

text:
    ABRAM P. ZOLLER, Respondent, v. DAYTON S. KELLOGG, Appellant.

      Amendment of pleadings — complaint for damages changed to one for specific performance — definite allegations and pr’oof required in an action for specific performance.

    Dayton S. Kellogg agreed to sell to Abram P. Zoller, who agreed to buy it, a village lot, and Kellogg, in consideration of the sale, agreed to work a road which led along the side of a hill to the lot so that the road could be used without danger; to make the road, which was then in process of construction, fifty feet wide, of uniform grade and nearly uniform width; to straighten the brow of the hill in front of the premises, and to do these acts as soon as the same could be done; and also to continue the road westward to a certain bridge, and to complete this latter part of the work by December, 1882.
    Zoller, alleging that Kellogg did not perform these acts, brought an action upon the contract, claiming $1,000 damages for its breach, and demanded judgment for that sum and costs, and nothing else.
    The answer denied the allegations of the complaint, and also alleged performance.
    On the trial of this action Zoller moved to amend the complaint so as to make the ' action one in equity to compel a specific performance of the contract, and the referee, to whom the action had been referred, notwithstanding the objections, that it changed the nature of the action, and was a surprise to the defendant, allowed the amendment.
    Upon an appeal by the defendant from a judgment in plaintiff's favor decreeing specific performance by the defendant:

      JHeld, that the referee had no power to allow the amendment.
    That it was not, within the meaning of section 723 of the Code of Civil Procedure,
    “ material to the case” in an action on contract.
    That it introduced a new cause of action, and changed the nature of the pending action.

      That it might be doubted whether specific performance of the contract could be decreed in any event, because the complaint and contract were indefinite as to the amount of work to be done and as to the manner in which it should be performed.
    That great accuracy and precision, both in averment and proof, were required in actions for specific performance.
    Appeal by tbe defendant Dayton S. Kellogg from a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery on the 12th day of August, 1889, decreeing, in favor of the plaintiff, the specific performance by the defendant of an agreement, made by him with respect to certain land contracted to be sold by the defendant to the plaintiff, with costs, after a trial before a referee.
    It appeared from the complaint that its demand of judgment was for. money only.

      George E. Phillips and A. J. Nellis, for the appellant.

      John D. Wendell, for the respondent.
   Mayham, P. J.:

The original complaint in this action was for an alleged breach of contract set out in the complaint, and asked to recover damages for such breach.

The original answer was a denial, and also an alleged performance of the contract. The issue thus framed was duly referred by consent and stipulation of the parties to a referee to hear and determine.

On the appearance before the referee for the trial of the action the attorneys for the plaintiff moved to amend his complaint so as to change the action, from one at law to recover damages, to one in equity to compel a specific performance of the contract. This motion was opposed by the defendant’s attorney, who specifically objected that the proposed amendment changed the jiature of the action, and that the referee had no power to allow an amendment of that character on the trial; also the further objection that the defendant was surprised "by such amendment.

The referee overruled the objection, to which ruling the defendant duly excepted.

The defendant then moved to amend his answer, which motion was granted. The trial proceeded upon the amended issue thus framed, and the plaintiff had a decree of specific performance, with costs against the defendant. The controversy in this case arises out of a transaction between the parties, wherein the defendant contracted to sell, and the plaintiff to purchase, a village lot located on Prospect Hill, in the village of Port Plain, in which contract of sale the defendant agreed as follows: “ The said party of the first part, in consideration of the sale of said lot, agrees to work the street or dug-way road along the side of said Prospect Hill to the lots conveyed, so that the same may be used to pass up and down the same without any danger; to make said road or street, now under process of construction, fifty feet in width, of uniform grade, and nearly a uniform width; also to straighten the brow of the hill in front of premises already conveyed as soon as the same can be done; to continue westward to a point opposite the iron creek bridge, and complete the latter part of said work by December 1st, 1882.”

The theory of the plaintiff in amending the complaint was, doubtless, to obtain a decree compelling the defendant to specifically perform the provisions of the contract above quoted, although the proposed amendment does not in all respects follow the language of the contract.

The first and perhaps the principal contention of the appellant on this appeal is that the referee had no power to grant this amendment at the trial.

The powers of a referee, in amending pleadings at the trial, are the same as those possessed by the court at the trial. (Code of Civil Procedure § 1013.)

The power of the court to amend pleadings at the trial is given and prescribed by section 723 of the Code of Civil Procedure as follows: “ The court may upon the trial * * * amend any process, pleading or other proceedings * * * by inserting an allegation material to the case.”

The demand for judgment is now an essential part of the complaint, and one of the statutory requirements of what the complaint must contain. Section 481 of the Code provides that: The complaint must contain, * * * 3d, a demand of the judgment to which the plaintiff supposes himself entitled.” It is true that by section'723 of the Code the referee, vested with all the powers of the court in that respect, could, on the motion of the plaintiff, amend the complaint “ by inserting any allegation material to tlie case.” Was this change of tbe form of action from one at law, to an action in equity, tbe insertion of an allegation material to tbe case? We think not. Tbe case as presented by tbe original complaint-was one for tbe recovery of money for an alleged breach of contract. Tbe amendment was not one essential or material to that case. It was not necessary to enable tbe plaintiff to recover tbe money claimed, but rather to enable tbe plaintiff to recover on another kind of action in another case. “ Not tbe case to recover money but a case for tbe performance of work.” In this view of tbe case, amended as not authorized by tbe section of tbe Code referred to, even if tbe evidence bad been taken in tbe case and bad disclosed real ground for equitable relief, tbe court would not have been authorized under tbe succeeding clause of section 723 to so amend tbe pleading as to make it conform to tbe proof, because by that clause of tbe section an amendment can only be made “ when the amendment does not change substantially tbe claim or defense.”

Here tbe claim would be entirely changed from a claim for a money demand to that of tbe performance of labor in a specific performance of tbe contract. So that upon any fair construction of this section we are unable to find tbe power conferred upon tbe court to change an action at law, for tbe recovery of money, to one in equity for a specific performance. In Sleeman v. Hotchkiss et al. (36 N. Y. St. Rep., 540) tbe original complaint was for equitable relief to have a contract canceled and compel tbe transfer of certain stocks. On the trial tbe plaintiff ascertained that be could not recover on his complaint, and tbe trial was suspended and leave granted to him to move at Special Term to amend, which he did asking to substitute a cause of action strictly legal, and tbe motion was denied for tbe reason that this was an attempt to change the. cause of action which could not be done under tbe Code, tbe court having no power to permit such change, and this ruling was upheld by the General Term of this court sitting in the first department.

In Cumber v. Schoenfeld (34 N. Y. St. Rep., 770), it was held that the court had not the power on tbe trial to change, by amendment, a complaint from one for malicious prosecution to one of false imprisonment, and tbe court, in discussing that question, say: That it is improper to permit, at the trial, a new cause of action to be introduced into the complaint, is apparent upon the terms of the Code as well as by the uniform course of adjudication. (Code of Civ. Pro., § 723; Price v. Brown, 98 N. Y., 388, 389; Reeder v. Sayre, 70 id., 181,” and several other cases.)

It is true that in the case of Wademan v. The Albany and Susquehanna Railroad Company (51 N. Y., 569), it was held that the trial court did not commit an error in an action for a specific performance in allowing pecuniary damages instead of decreeing such performance; but, in that case, damages were claimed in the complaint, and the court, in discussing the question, says that the court will sometimes give damages when asked, where specific performance cannot be decreed. So, too, in Lawrence v. Saratoga Lake Railroad Company (36 Hun, 468), this court held that when a specific performance could not be decreed, the court could award damages, and when the vendee claims performance, and the vendor is unable to make complete performance, the vendee is allowed to have all he can get, with compensation for the deficiency. But these cases proceed upon the theory that part of the equitable relief claimed is pecuniary damages, and no amendments qf the complaints were asked for or required.

"We are of opinion, therefore, that the learned referee, in granting this amendment, exceeded his powers, and that its allowance was error.

There is also great force in the suggestion made by the appellant, that the complaint is too general and indefinite in its terms to enable the court to require a specific performance of the agreement, and that that vice also inheres, in the contract itself, just what work is required to be performed and in what manner, and when it is to be performed is not specified either in the contract or the complaint as amended; and this, in part, grows out of the fact that defendant appeal’s to have been at work, in excavating, at the time of, and since the commencement of this actidn.

How much the judgment entered upon the amended complaint requires the defendant to do is quite uncertain, and the complaint and. the decree would furnish no real and accurate guide for the defendant in performing the work, which, by the decree, he is commanded to do.

Great accuracy and precision in averment and proof are required in an action for specific performance, which does not seem to have-been adopted in this case.

I am, therefore, of the opinion that the decree should be reversed,, the referee discharged and a new trial granted, costs to abide-the event.

Putnam and Herrick, JJ., concurred.

Decree reversed, referee discharged, new trial granted, costs to abide event.


author: Matham, P. J.:

text:
    In the Matter of the Probate of the Will of PATRICK DONLON, Deceased.

      Surrogate’s Court — power to open a decree for sufficient cause — service of a citation, issued and addressed to an infant, upon a mother who was insane.

    The will of Michael Donlon, relating only to real estate, was presented for probate by his executor, and was admitted to probate in proceedings in which citations were served upon infant heirs-at-law, aged, respectively, five and seven years, by delivering copies to their -mother, the widow Ellen Donlon, and to the infants. Ellen Donlon was, at the time of such service, insane, although she had not been, and never has been, judicially declared to be insane. A special guardian was appointed for the infants at the time, and subsequently Michael Finn was appointed general guardian, for the infants, who, within a year of the time of probate, petitioned the court to open the probate of the will upon the ground that Ellen Donlon was not, at the time of the service of the citations upon her for the infants, a person competent to protect their interests.
    From an order granting the application the executor appealed Held, that the order was properly made.
    That, under subdivision 6 of section 2481 of the Code of Civil Procedure, the surrogate had power for “sufficient cause” to open a decree, and that the service of a citation upon a person non compos mentis, for whom no next friend had been appointed, was sufficient cause for the exercise of the power to open the decree and grant a new trial.
    Appeal by William E. Donlon, as executor of Patrick Donlon, deceased, and by John Donlon, an infant and a beneficiary under the will of Patrick Donlon, severally, from an order of the Surrogate’s Court of the county of Saratoga, entered in its office on the 27th day of January, 1892, opening and setting aside a decree of the court, entered, on the 30th day of January, 1891, admitting to probate the -will of Patrick Donlon, and excusing the default of Michael Finn, general guardian of John Donlon and Michael Donlon, infant children and only heirs-at-law of the deceased, and upon their filing contesting allegations ordering a trial of the issues framed thereby, with notice that the appellants would bring up for review upon the appeal the rulings of the surrogate, made upon the preliminary objections to the sufficiency of the petition.
    The infant petitioners were aged about five and seven years, respectively.

      J. L. Henning, for the ajypellants.

      J. W. Houghton, for the respondent.
   Matham, P. J.:

The default of the petitioners was excused, and the decree admitting the will to probate opened solely upon the allegations of the verified petition of the petitioners. The petition shows that the will related to real estate, and it does not appear by the petition of the respondent, or by the affidavits used in opposition thereto, that any personal property was bequeathed in the will.

The will was admitted to probate on the 9th day of February, 1891, and the petition of the respondent to set aside the probate was filed January 4, 1892.

While it appears that the petition in this case was filed within one year from the time of the probate of the will, yet, as the will is not one of personal property, the probate could not be revoked by the surrogate under the provisions of sections 2647 and 2648 of the Code of Civil Procedure, as those sections only relate to wills of personal property.

The power of the surrogate to vacate the decree of probate must, therefore, be found, if it exists in this case, in the provisions of section 2481 of the Code. Subdivision 6 of that section provides that “A surrogate in court, or out of court, as the case requires, has power to open, vacate, modify or set aside or to enter, as of a former time, a decree or order of his court; or to grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like ease, and in the same manner as a court of record and of general jurisdiction exercises the same power.’ ”

The same subdivision gives this court on appeal the same powers as the surrogate, and requires that his determination shall be reviewed by this court as if an original application was made in this court.

This brings us to the consideration of the question whether the petition in this case, when read in the light of the evidence offered by the appellant, furnishes sufficient facts to require this court acting upon it to set aside the decree admitting this will to probate.

The petition discloses that all the parties entitled to notice of the propounding of this will for probate were duly cited. That the infants, although not personally in attendance at the time. of the probate, were duly represented by guardian ad litem appointed by the surrogate.

But it is also alleged that the widow of the deceased and the mother of these infants was, at the time of such service and probate, and still is, a person of unsound mind and incapable of understanding and protecting her rights and that of her infant children.

This allegation does not seem to be in any way controverted by the appellant, and must be regarded as established on this appeal. I am of the opinion that the service of a citation upon a person concededly non compos mentis, and for whom no next friend or representative is appointed by the court would be “ sufficient cause,” under section 2481 of the Code of Civil Procedure, to authorize the surrogate to open the decree in this case for the probate of the will in question and to grant a new trial therein.

It is true that the widow of the testator has not, so far as appears in this case, been judicially declared incompetent, but as that fact now appears that she is incompetent, and as she did not appear at the hearing, it would be the duty of the surrogate to appoint a competent and responsible party to appear for her in such proceeding pursuant to the provisions of section 2530 of the Code of Civil Procedure. .

The whole policy of the law is that persons not competent to protect their own interest in legal proceedings prosecuted against them, or affecting their personal or property rights, must have their day in court through a competent representative, and that right has been denied or at least was not enjoyed by the widow in this ease, and it was to guard against the injustice that might result to an incompetent party, that the power was given to the surrogate by section 2481 to open, vacate, modify or set aside a decree for sufficient cause.

We think the order appealed from should be affirmed, with costs.

Putnam and Herrick, <TJ\, concurred.

Order affirmed, with costs.


text:
    WALTER R. HYMAN, Appellant, v. THE CENTRAL VERMONT RAILROAD COMPANY, Respondent.

      Common ca/rriers — connecting lines — delivery of a trunk to one of them — liability for its loss.

    B. Hyman, having purchased of the Central Vermont Bailroad Company a ticket from Norwood to Moira, at the same time checked his trunk from Norwood to Tupper’s Lake, on the Northern Adirondack Bailroad, which latter road connected with the Central Vermont Bailroad Company at Moira, where there is a union station and only one baggageman for both roads.
    The trunk arrived at Moira in the afternoon and was placed in the common baggage-room to be forwarded to Tupper’s Lake on the next day, but the next night the depot burned up and the trunk was destroyed. In an action brought by Hyman, in a Justice’s Court, against the Central Vermont Bailroad Company to recover for its loss, a judgment was rendered in his favor, but was reversed on appeal.
    Upon an appeal by him from the judgment of reversal.

      Held, that the Central Vermont Bailroad Company was liable, under section 48 of chapter 565 of the Laws of 1890, as a common carrier for a trunk to be transported to any place on a connecting line.
    That, although not liable upon the check as a contract, it was bound to deliver the trunk to the connecting line for further transportation, and to free itself from liability must establish the fact of such delivery.
    That, upon the facts, no such unequivocal act of delivery to the Northern Adirondack Bailroad was shown as would charge that road with liability and relieve the defendant.
    Appeal by tbe plaintiff Walter R. Hyman from a judgment of tbe County Court of St. Lawrence county, entered in the office of tbe clerk of said county on the 28th day of May, 1892, reversing a judgment rendered by a justice of the peace in favor of the plaintiff for S171.50 and costs.

      N. M. Claflin, for the appellant.

      Louis Hasbrouck, for the respondent.
   Mayham, P. J.:

Appeal from a judgment of the St. Lawrence County Court, reversing a judgment of a Justiee Court in favor of the plaintiff. The defendant is a railroad company owning or controlling a railroad for the transportation of passengers between a station called Norwood and one on the same road called Moira, at which latter station the Northern Adirondack Railroad connected with that of the defendant’s. At Norwood, plaintiff purchased a passenger ticket to Moira, and, at the same time, took a check for his trunk from Norwood to Tupper’s Lake, a station beyond Moira on the Northern Adirondack. The baggage-station at Moira, on the defendant’s road, is a union station used by that road and the Northern Adirondack Railroad Company, jointly, at which station the baggagemaster of the two companies is the same person.

The plaintiff’s trunk was carried, on this check, from Norwood to Moira on the defendant’s train, and on its arrival at the latter place was taken by the common agent of these companies and placed in this baggage-room, in the place where the baggage was usually placed which was to be forwarded on the Northern Adirondack Railroad. This was about four o’clock on Saturday, September twenth-sixth. On the next night, Sunday, September twenty-seventh, the station and baggage-room at Moira, with this trunk and its contents, were destroyed by fire.

On these facts the justice gave judgment for the plaintiff, which was, on appeal, upon questions of law only, reversed by the St. Lawrence County Court, and from that judgment of reversal the nlaintiff appeals to this court.

The defendant is a common carrier of passengers and baggage, and as such is liable for baggage of passengers, which it assumes to carry, for all loss or destruction, except by the act of Cod or public enemies.

Having taken the baggage in its possession for transportation, it assumed the burden, in order to relieve itself from liability for loss, of showing that it discharged that duty by delivering it at its point of destination, or delivering it to the succeeding earner to be so delivered.

Section 48 of chapter 565 of the Laws of 1890, provides that: Every railroad corporation doing business in this State * * * shall be liable, as a common earner, for the transportation of passengers or delivery of freight received by it to be transported to any place on the line of a connecting road,” etc. And also provides for the liability to them of connecting lines for losses which may be suffered on such lines.

If, therefore, we could treat this check as a contract on the part of the defendant to deliver this baggage at Tupper’s Lake, then the liability of the defendant could not be questioned. But it was held in Isaacson v. New York Central and Hudson River RailroaCompany (94 N. Y., 278) that the baggage check is not regarded as a contract on the part of the carrier which issues it,’ but simply a means of identification of the baggage at the^end of the route.

But if we are not at liberty to regard this check as a contract on the part of the defendant to deliver this baggage at Tupper’s Lake, then it was a contract to deliver to the connecting line to be transported thither, and the defendant must establish such delivery before it can be relieved from the obligation of its undertaking as a common carrier.

The check indicated upon its face that the baggage was to'be carried to Tupper’s Lake, and made it the plain duty of the defendant to forward it by the Northern Adirondack Railroad to that point. This it could not do without a delivery to that road. (Rawson v. Holland, 59 N. Y., 611; Jennings v. Grand Trunk R. R. Co., 127 id., 445.) No such delivery was in this case shown. To constitute such delivery there should be some act of the carrier so that if it was discharged the succeeding line would be charged with the care and custody of the goods.

Goold v. Chapin (20 N. Y., 264). In this case the court say: “No owner can be supjiosed to have an agent to superintend each transhipment of his goods, * * * and if the responsibility of each carrier is not continued until delivery in fact to the next carrier, or at least until the first carrier, by some act clearly indicating his purpose, terminates his relation as carrier, we shall greatly diminish the security and convenience of those whose property is necessarily abandoned to others.”

We see nothing in the act of the agent indicating that he had transferred this baggage from the custody of the defendant to the Northern Adirondack Railroad, and there is no such unequivocal act of transfer as would charge that company if the action had been prosecuted against it. In this class of bailment the security of the public can only be conserved by holding the first carrier to such unequivocal acts of transfer of possession to a succeeding line as will make it possible for the owner of goods to charge such succeeding line before the first carrier should be released from its obligation.

We think the learned.county judge erred in holding that this trunk was delivered to the Northern Adirondack Railroad Company by the defendant.

The judgment of the County Court should be reversed and that of the justice affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment of County Court reversed, with costs, and that of the justice affirmed.


author: Putnam, J.:

text:
    THE HOWE’S CAVE ASSOCIATION, Appellant, v. PETER HOUCK, Respondent.

      Landlord and tenant — removal of buildings erected for the purposes of trade— a stipulation that the lessor should pay for buildings in case he failed to renew the lease.

    The Howe’s Cave Association, in May, 1869, leased a lot of land for the term of ten years to Jacob F. Van Wagenen, who went into possession thereof, and subsequently erected frame buildings thereon, which he used for a store and a dwelling. The lease provided that the lessor might, at its option, renew the lease for another term of ten years, but that if it refused to renew it should pay Van Wagenen the value of the buildings then upon the premises.
    In May, 1879, the lessor renewed the lease, in writing, and in December, 1890, Van Wagenen assigned the lease to Peter Houck, who took and remained in possession of the premises, and when the second term of ten years was about to elapse threatened to remove the buildings from the land, whereupon the lessor brought an action to determine the title to the buildings and to prevent their removal.

      Upon an ax>peal by tlie lessor from a judgment in sucli action in favor of the defendant:

      Ileld, that the tenant was entitled to remove the buildings which had been erected ' for trade purposes.
    That the lease did not compel him to erect them, and their erection could not, therefore, be deemed a species of rent.
    That the clause in the lease compelling the lessor to extend the lease, or buy the building’s if the lease was not extended, did not transfer the title of the buildings to the lessor in case the latter elected to renew the lease, but, on the contrary, left the tenant after the renewal with the rights of any ordinary tenant.
    Appeal by the plaintiff, the Howe’s Cave Association, from a judgment of the Supreme Court, entered, after trial before the court at the Schoharie Circuit, in the office of the clerk of the county of Schoharie on the 17th day of March, 1S92, dismissing the complaint, dissolving an. injunction, directing a judgment for defendant for $1,000 and interest, being the value of certain buildings in question in the action, or in the alternative giving the defendant the right to remove the buildings within thirty days after- failure to pay $1,000 'and interest, and, further, in case of non-payment, awarding damages sustained by reason of the injunction in an amount to be thereafter determined.
    The action was brought to obtain an adjudication that certain buildings standing upon land which had been leased by the plaintiff belonged to the plaintiff, and an injunction preventing the defendant from interfering with or removing them.
    Upon the trial of the action it appeared that the original lessee was Jacob F. Yan Wagenen, who, in December, 1890, assigned the lease to Peter Houck, the present defendant, who took and remained in possession of the premises at the time of the commencement of the action.

      J. G. PunMe and William O. lamont, for the appellant.

      J. 8. Pindar and G. M. Palmer, for the respondent.
   Putnam, J.:

The plaintiff, on May 13, 1869, by written lease, demised to defendant’s assignor the lot described in the complaint for ten years, the lease containing the following clause, viz.:

“ It is also expressly stipulated and agreed between the parties hereto that the party of the first part or their assigns, may, at their •option, continue this lease for another term of ten years to the party •of the second part, his heirs or assigns, but if the said party of the first, or their assigns, shall decline so to continue the lease, then the said party of the first part, or their assigns, shall be held liable to pay the said party of the second part, his heirs, executors, administrators or assigns, the value of the buildings which shall be upon the premises at that time, which value shall be determined by competent mechanics, and such payment so made shall entitle the party •of the first part or their assigns to said buildings forever.”

The lessee afterwards erected buildings on said jiremises for the purposes of trade, although the lease contained no covenant obliging him so to do. At the end of the ten years the lease was extended by a writing indorsed thereon, signed by the plaintiff and defendant’s •assignor, as follows, viz.:

“It is hereby mutually agreed, in consideration within mentioned, to extend the time of this lease ten years in addition as provided herein.
“Dated May 1, 1879.
“ THE HOWE’S GAYE ASSOCIATION.'
“ J. H. Ramdey, President.
“ J. E. Yan Wagenen.”

The ten years for which said lease was extended being about to expire, and defendant, the assignee of Yan Wagenen, the lessee, being about to remove the buildings which were so erected on the premises, this action was commenced to restrain such removal. Ordinarily a building erected by a tenant on demised premises for the purpose of trade may be removed by him at the expiration of his term. (Ombony v. Jones, 19 N. Y., 234; Holmes v. Tremper, 20 Johns., 29; Mott v. Palmer, 1 N. Y., 570.)

The lease in question was given for ten years, and then, by the consent of the lessor and lessee, extended for a further term of ten years. The rights of the parties, therefore, are the same as if the instrument had been originally drawn for twenty years, and no question would arise as to the right of the defendant, as assignee, to remove the store erected on the premises, were it not for the clause in the lease above set out, whereby plaintiff covenants at the end of the first ten years to pay for the buildings or extend the lease.

But tiie covenant in question is one merely obliging the lessor to extend the lease ten years, or buy the buildings placed on the premises by the lessee. It does not directly or impliedly effect a conveyance of such erections from the tenant to the landlord in case the lease is extended. It provides that the payment by the lessor to the lessee of the value of the buildings shall transfer the title thereto to the plaintiff. If the intent of the parties had been as claimed by appellant, the lease would have provided that “such payment so made,” or extension of the lease, shall entitle the party of the first part to the buildings. In the absence of such a provision, I am unable to see how the clause above quoted can be construed to have the effect of transferring the buildings in question to the plaintiff.

The lease provided for a renewal, but, in the event of the landlord declining to renew, it is obliged to buy the building, and the instrument provided that its payment therefor shall entitle it to the building. Not the payment or extension of the lease. I think, in the absence of a provision in the instrument providing that an extension of the lease shall transfer the building to the plaintiff, such building being erected for the purposes of trade, the ownership remained in the lessee.

This case differs from those, some of which are cited by appellant, where the tenant in the lease, and in consideration thereof, covenants to erect buildings on the premises, and by the terms of the lease is compelled to do so. In such a case, the buildings so erected have been held to belong to the landlord. The building, where such an agreement is contained in the lease, may be deemed (so to speak) as an additional rent, and hence the property of the lessor. I have examined the authorities cited by the plaintiff, but I do not think that they are applicable to this case, or require discussion.

The disposition of the question under consideration depends on the construction given to the clause of the lease above quoted, in the absence of which defendant’s right to the store in question is clear.

I am unable to construe that clause, the lease having been renewed, as conveying or showing an intent to convey title to plaintiff.

I think the judgment should be affirmed, with costs.

Mayham, P. J., concurred; Herrick:, J., dissented.

Judgment affirmed, with costs.


text:
    MARGARET KAIN, as Administratrix of DAVID KAIN, Deceased, Appellant, v. PATRICK LARKIN and Another, Respondents.

      Fraudulent conveyances — the complaint must allege that the property left was insufficient to pay the debt.

    la an action brought by Margaret Kain, as administratrix of David Kain, to set. aside a conveyance by Patrick Larkin to Maria Larkin, as made with intent to hinder, delay and defraud the administratrix, as a creditor of Patrick Larkin,, the complaint alleged such intent and a failure of consideration, and set up certain other transfers which were charged to have been fraudulent.
    Upon a former appeal in the case, on which a new trial was granted, the Court of Appeals held, that in order to establish a cause of action the plaintiff must not, only show what this complaint alleged, but, further, that the transfers complained of left Patrick Larkin insolvent and without ample property to pay his'existing debts.
    Upon the new trial the plaintiff offered to show these further facts, although the complaint had not been amended. The offer was excluded and the complaint was dismissed.
    Upon an appeal by the plaintiff from the judgment dismissing the complaint:

      Seld, that the ruling was correct.
    That these additional facts should have been alleged, and could not be shown under the complaint as drawn.
    That it was not enough to allege that the transfers were made with a fraudulent intent, but that the plaintiff must further allege that she was hindered, delayed and defrauded, for the reason that the transfers left the debtor insolvent and without sufficient property to pay his debts in full.
    That a mere fraudulent intent, not accomplishing the fraudulent purpose, would not create a cause of action, under the statute, relative to fraudulent conveyances.
    Appeal by tbe plaintiff Margaret Kain, as administratrix of tbe estate of David Kain, deceased, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Ulster on tbe 3d day of May, 1892, dismissing tbe complaint after a trial at tbe Ulster Circuit before tbe court and a jury; and also from an order of said court, entered in said clerk’s office on tbe 18th day of April,
    1892, denying a motion to set aside tbe direction dismissing tbe complaint and to grant a new trial upon tbe minutes.
    Tbe facts in tbe case were as follows:
    In November, 1886, Patrick Larkin, then a police officer of Kingston, killed David Kain. His administratrix, Margaret Kain, brought an action January 6, 1887, against him for damages. At tliat time Larkin bad money in a savings bank and owned real estate. On January 7, 1887, lie drew bis money from the savings bank and redeposited it in the name of bis wife, who has since died. On January 12, 1887, he mortgaged his real estate to his brother Michael for $3,000. The first trial of the action resulted in a judgment in favor of the defendant. An appeal was taken by the plaintiff, pending which, and on May 1, 1889, Patrick Larkin quit-claimed • his real estate to his infant daughter Maria. On May 27,1889, Michael Larkin satisfied the $3,000 mortgage on these premises. The consideration of the deed to the daughter was one dollar, natural love and affection. In February, 1890, a new trial was granted, was had, and the plaintiff, in October, 1890, recovered judgment for $800. Execution was returned unsatisfied. Larkins was, in 1887, convicted of homicide, was sentenced, remained in prison a year and was pardoned.
    In February, 1891, this present action was begun to set aside the deed from Patrick Larkin to his daughter on the ground that it was executed to delay creditors.
    The complaint alleged the recovery of the judgment on a cause of action which accrued November 21, 1886; that Patrick Larkin then owned the deposit and the real estate ; that he drew the money and redeposited it as stated above, executed the mortgage and conveyed the real estate as stated; that these “ conveyances and transfer of said real estate as aforesaid were made to cover up and conceal the right and title of the defendant Patrick Larkin thereto, and, in fact, without any adequate consideration therefor, with the intent to hinder, delay and defraud this plaintiff of her just suit, damages and claim against the said Patrick Larkin; ” and that the deed was executed for the expressed consideration, and also for the further oral consideration that Maria Larkin should support Patrick during his old age.
    “Eighth. That said transfer of said real estate by Patrick Larkin to his said daughter, Maria E. Larkin, and the considerations therefor are fraudulent and void as to this plaintiff, and the same were made and had by the said parties thereto with the intent to hinder, delay and defraud this plaintiff of her just suit, demand, damages and claim against said Patrick Larkin, and to protect and save for his own use and benefit his said real estate during his life, and thereafter for the sole use and benefit of his said daughter and only heir, and to prevent and hinder this plaintiff from collecting and receiving from the proceeds of any sale of said property on execution, or otherwise, the amount due her on her said judgment from said Patrick Larkin.”
    The answer denied fraud, and alleged the existence of a valid and sufficient consideration.

      G. JR,. Adams, for the appellant.

      F. A. Westbrook, for the respondent.
   Putnam, J.:

The Court of Appeals has determined in this case (131 N. Y., 300) that to establish her cause of action on the trial, plaintiff must not only show want of consideration for the transfers of real and personal property assailed in the complaint, but that such transfers left the judgment-debtor insolvent, and without ample property to pay his existing debts and liabilities; and that the fact that an execution was returned unsatisfied eighteen months after the conveyances in question, does not show that, at/the time thereof, the debtor did not have property enough to pay his debts.

The plaintiff insists that under a complaint alleging that the transfers in question were made without consideration, and with intent to hinder, delay and defraud creditors, she could properly show the facts which the appellate court has held necessary to estab- ■ lish her cause of action on the trial. That the allegation that the conveyances in question were made with a fraudulent intent, must be deemed to impliedly allege all that is necessary to show such intent, viz.: That the grantor did not retain sufficient other property to pay his debts. That it was only necessary, in the complaint, to allege the ultimate fact which constitutes the cause of action— that is, the fraudulent intent. That the action being statutory, it is sufficient to allege the cause of action in the words of the act.

The trial judge, however, held that it was necessary to allege in the complaint what the Court of Appeals has determined must be established on the trial, that the transfers in question left the defendant without other property.

I agree with the position of the appellant, that in an action given by a statute it is ordinarily sufficient, in the complaint, in alleging the cause of action to follow the words of the act. (Rochester Ry. Co. v. Robinson, 133 N. Y., 242.) But I think the plaintiff, in his pleading, fails to follow the words of the act. •

The statute (2 R. S., 137, § 1) provides “that every conveyance * * * made with the intent to hinder, delay or defraud creditors * * * as against the persons so hindered, delayed or defra/aded shall be void.” It will be seen that a conveyance made with a fraudulent intent is only void as against one hindered, delayed or defrauded. In other words against one damaged. In the opinion delivered in the Court of Appeals, when this case was before it (p. 307), this language was used: “If the grantor' remains solvent after the conveyance, and has sufficient property left to satisfy all his just debts, then the conveyance, whatever his intention was, cannot be a fraud upon his existing creditors.” In other words there may be a fraudulent intent in making a conveyance not fraudulent as to creditors, because the debtor retains sufficient property to pay his debts. In the same opinion the court further says (p. 307): “ The person assailing the deed assumes the burden of showing that it was executed in bad faith, and that it left the grantor insolvent and without ample property to pay his existing debts and liabilities.” This means he must show both facts, the bad faith, the fraudulent intent and also that the transfer assailed left the debtor insolvent.

It will thus be seen by the language of the statute, and by the extracts quoted from the opinion delivered by the Court of Appeals,, that the cause of action in such a case is not only the fraudulent intent, but also the injury, the damage, the hindering and defrauding, resulting from such fraudulent intent. It follows, I think, that the plaintiff, in stating her cause of action, should not only have alleged the making of the transfers in question without consideration, and with intent to hinder, delay and defraud his creditors, but should also have alleged that she was hindered and defrauded for the reason that such transfers left the debtor insolvent and without sufficient property to pay his debts in full. The statute says a transfer made with a fraudulent intent shall be void as against one defrauded. Therefore, there must be an unlawful intent and fraud, in fact, on account of which plaintiff lias been defrauded. This fraud, in fact, it was necessary for plaintiff to allege in order to properly state lier cause of action given by the statute. As stated in Ross v. Perry (61 Me., 150): “ A fraudulent purpose is an important element in the case, but it is not the only one; there must be superadded to it, in addition to the sale, actual fraud, hindrance or delay resulting therefrom to the creditors. The sale will be upheld unless the fraudulent purpose is actually accomplished. Thus if, notwithstanding the sale, W. and G. retained and held * * * other personal property sufficient to pay the debt * * * the sale would not be void whatever might have been the secret purposes of the parties to it. The reason for considering the sale void in this class of cases is that creditors are damaged thereby, and when the reason is wanting the rule itself becomes inapplicable.” To the same effect see Bell v. Bailey et al. (119 Ind., 51).

The Court of Appeals, when this case was before it, did not pass directly upon the question of the sufficiency of the complaint. But there is language in the opinion delivered by that court indicating an opinion that the complaint should have contained an allegation showing that the transfers assailed by the plaintiff in this action left the defendant without other property and insolvent. Thus Judge Far.t. says: “There was no allegation in the complaint that the money deposited in the savings bank, and the real estate conveyed by the judgment-debtor to his daughter, constituted substantially all the property he had, or that he was insolvent at the time of the conveyance, or that he was thereby rendered insolvent. And there was no allegation in the complaint that he owed any debts except the liability which he incurred by killing the plaintiff’s intestate.” Also: “ Our opinion, therefore, is that, upon the allegations in the complaint, and the proofs upon the trial, and the findings of the trial judge, the plaintiff could not successfully assail this deed.”

These quotations indicate that, in view of the learned judge who delivered the opinion of the Court of Appeals, an allegation in the complaint that the transfers assailed by the plaintiff as made with fraudulent intent, left the debtor without other property and owing other debts was necessary, or, at least, would have been proper. Such an allegation could hardly have been properly inserted in the complaint unless necessarily stated as part of the cause of action In the opinion by Judge Earl the case of Sherman v. Hoagland (54 Ind., 578) is quoted from, cited and approved. In that case, which was like this, a creditor’s bill, the court held: “After a very careful consideration of the whole subject, we have come to the conclusion that, both on principle and on authority, it is necessary to charge in the complaint and prove on the trial, that, at the time the conveyance complained of was made, the debtor did not have left enough of other property subject to execution to pay all his debts.” (Page 584.)

It will thus be seen that, in the case of Sherman v. Hoagland (supra), the very question involved in this case was passed upon.

On the whole, I think, the trial court reached the correct conclusion, and that the judgment should be affirmed, with costs.

Herrick, J., concurred; Mayham, P. J., not acting.

Judgment affirmed, with costs.


text:
    PETER FOLMSBEE, Respondent, v. THE CITY OF AMSTERDAM, Appellant.

      Municipal corporations — change of agrade established by user — when compensation by a city must precede a change of grade.

    The charter of the city of Amsterdam, incorporated in 1885, contained a provision that when the grade of a street had been once established and the street graded accordingly, the grade should not be changed and the street graded according to the changed grade, except upon the petition of the contiguous property owners, or unless compensation should be made to the owners of property injured, which compensation should be determined by agreement or by three commissioners to be appointed by the court, and that when any award should be confirmed by the court its amount should be a liability against the city.
    Peter Polmsbee, the owner of property in the city, on the corner of Spring and Kimball streets, the grade of which had been the same for more than twenty years, but had not been established otherwise than by user, brought an action to recover the damages resulting: from the action of the city in changing the grade in 1887, in which he succeeded.
    Upon an appeal by the city from the judgment in favor of Polmsbee:

      Meld, that the charter did not require that the grade should be established by resolution, and that it might be established by user.

      That as Uie defendant had not insisted in his pleadings, nor upon the trial,- that the plaintiff’s remedy was not hy action, but by applying, under the charter, for a commission to appraise his damages, it would not be allowed to take that position for the first time upon appeal.
    That the charter clearly intended that compensation should be made to an owner injured before any change was made in the grade, except in a case where the owners petitioned for such change.
    That as the defendant had elected to proceed without petition or payment of' compensation, its act was not under its charter, but in violation of it, was a. wrongful act and plaintiff was entitled to maintain the action.
    Appeal by the defendant, tbe City of Amsterdam, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of the county of Montgomery on tbe 4th day of March, 1892, adjudging certain assessments for sidewalks void, and restraining their collection, and directing a recovery by tbe plaintiff of judgment for $1,000 and costs, after a trial before a referee.
    The charter of tbe city of Amsterdam, under the provisions of wbicb tills action arose, is found in chapter 131 of tbe Laws of ,1885, and was amended in 1885,.1887 and 1888. Section 95 of tbe charter provides: “ "When tbe grade of a street lias been established, and tbe street graded accordingly, the grade shall not be changed and the street graded according to tbe changed grade, except upon peti- ' tion of the owners of a majority of the lineal feet fronting on the part of the street to be graded, or unless compensation be made to the owners of property injured by the regrading, such compensation to be determined by agreement, or by three commissioners to be appointed by tbe County Court of Montgomery county, or tbe Supreme Court, and who shall take the oath required of commissioners in section 90 of this act, and shall view the premises and may take evidence. Said commissioners shall make a report of their proceedings to the court in which they were appointed, and said court may confirm said report, or may set it aside and appoint new commissioners whose award shall be final. Tbe court in which said commissioners are appointed shall bave general jurisdiction of tbe proceedings, and the same shall proceed in accordance with the rules and provisions of the court, and when any award shall be confirmed by tbe court tbe amount thereof shall be a liability against said city, and may be enforced against said city.”

      Edward J. Maxwell, for the apjiellant.

      W. B. B>unla/p, for the respondent.
   Putnam, J.:

The facts of this case, as far as necessary to detail them, are stated in the opinion of the referee as follows :

“ The action is brought to recover for an injury to the plaintiff by reason of the change of grade of Spring street, in the city of Amsterdam, and to restrain the collection of an assessment for the laying of sidewalks in front of the plaintiff’s premises. The defendant justifies the change of grade and the laying the assessment under chapter 131 of the Laws of 1885, being the act incorporating the city of Amsterdam.

“ The premises in question are situated on the corner of Spring street and Kimball street. Spring street is a street of said city, and has been used for a street for more than twenty years past, and was established by general use, and the street graded accordingly and sidewalks laid thereon.

“ That more than twenty years ago Kimball street was opened and laid out as a street connecting with Spring street, and at that time Spring street, where it intersects Kimball street, was cut down to conform to Kimball street. Spring street, from Market to Wall street, had been used as a street prior to 1850. That about 1850 Spring street was extended from Wall street, and the same was graded and a plank-road laid therein.

That Spring street from that time continued to be used by the public and work done thereon by the authorites of the village, and sidewalks built at different places on each side of Spring street, the grade and location thereof fixed and adjusted by the trustees of the village.

“ That the grade of said Spring street, for over twenty-five years, until 1887, was the natural grade of the surface of the earth, except as to slight inequalities in the natural surface, which had been removed by throwing the earth from the higher to the lower places.”

It is conceded that the grade of Spring street, prior to the change in 1887, had not been determined by any formal resolution of the authorities of the village or city of Amsterdam. It had only been established by user. Counsel for respondent cites the cases of McGall and others v. The Village of Saratoga Springs (29 N. Y. St. Rep., 699); Matter of the Church of our Lady of Mercy (32 id., 967); Bartlett v. The Village of Tarrytown (55 Hun, 492) as showing that a grade, within the meaning of the statute, may be established by user, and need not be founded on.an order or resolution of the municipal authorities.

But those cases were all decided under chapter 113 of the Laws of 1883. The language of section 1 of that act is as follows: “ Whenever the grade of any street, highway or bridge in any incorporated ■ village in this State shall be changed or altered, * * * the owner * * * may apply,” etc.

That act applies only to villages, and not to a city like Amsterdam. The authority of that city to change the grade of streets is contained in section 95 of its charter, which was in force when the change of grade in question was made. That section provides that, “ When the grade of a street has been established, and the street graded accordingly, the grade shall not be changed,” etc. It will be seen that the language of the two acts differ materially. Hence, the authorities cited above are not necessarily decisive of the question before us. Were that question an open one, we should have doubts whether section 95 {supra), should not be construed to refer to a grade established by resolution. But this question seems to have been passed upon by the Court of Appeals. The charter of the city of Kingston, in regard to changing the grade of streets, is the same as that of Amsterdam. (Laws of 1875, chap. 429.)

In O'Reilley v. The City of Kingston (114 N. Y., 439), the action was to set aside an assessment made on account of a change of grade. There was no record of any previously established grade of, the street. It was claimed by counsel for appellant that the assessment was void as involving a change in the grade established without the petition of the adjacent owners. Counsel for respondent claimed that it was not sufficient to show that the street had been graded by the former village of Kingston. It was necessary to show am, establishment of the grade, and a working of it. The court held that “ the charter of defendant prohibited the change of the grade of a street which had been established, except upon the petition of tlie owners. * * * No petition of a majority of tbe owners of the lands fronting upon the avenue was presented, * * * and, consequently, the ordinance was without authority if a material change was effected by it.”

This authority seems to hold that under a charter like that of Amsterdam, as to changing grades, the changed grade may be established by user, and is decisive of the question before us. Hence, plaintiff was entitled to compensation for damages suffered on account of the change of grade in question.

Appellant, however, insists that plaintiff has mistaken his remedy. He should have proceeded under the charter of the city of Amsterdam to have a commission appointed to appraise his damages. That a municipal corporation, acting under authority of its charter, is not liable for damages, in the exercise of the authority conferred, as-long as the authority is properly exercised and not exceeded, unless the statute expressly gives a right to damages. Also, that in case of public improvements authorized by statute, which provides a mode of compensation to persons injured, that mode is exclusive, and no right of action exists in their favor, except that directed by the statute. (Heiser v. The Mayor, etc., of New York, 104 N. Y., 68; Dillon’s Municipal Corporation, 686 [543].)

This position does not appear to have been asserted in the pleadings or upon the motion for nonsuit or during the trial, and we-think should not now be sustained. Defendant’s only claim on the trial was that plaintiff was not legally entitled to damages. It made no objection to the method of procedure adopted to recover damages. It did not offer in the answer to make compensation to plaintiff or-to join with plaintiff in an application for the appointment of commissioners. Ye think defendant should have made the objection now first asserted on the trial, and failing to do so such objection cannot now be allowed to prevail. (Steers v. The L. N. Y. mid Phil. S. S. Co., 57 N. Y. 1: Vose v. Cockcroft, 44 id., 415; Thayer v. Mcursh, 75 id., 340.)

But we think plaintiff was entitled to recover his damages by action, had the objection been taken by defendant to his mode of procedure on the trial. Section 95 of the charter of the city of Amsterdam contains a prohibition against changing the established grade of a street, except upon petition of contiguous property owners, unless compensation he made to parties injured. The language of the section leaves no room for doubt, that the compensation was intended to precede the change of grade. “ The grade shall not be changed * * * unless compensation be made to the owners of the property injured.” Either the petition or compensation must precede the change and the compensation as clearly as the petition. In this case it is not claimed that there was any petition, and, although the change in the grade has been made, no steps whatever have been taken by defendant to pay plaintiff his damages. Defendant has changed the grade without petition or making or offering any compensation to the plaintiff.

"We are aware that it has been held in many highway, road and railroad cases, that when a party is entitled to damages under a statute providing for compensation, the actual assessment or payment of such damages need not precede the taking of his land. (Chapman v Gates, 46 Barb., 317; S. C., 54 N. Y., 132; Smith v. Helmer, 7 Barb., 416; Coles v. Trustees of Williamsburgh, 10 Wend., 659; Bloodgood v. The M. and H. R. Co., 14 Wend., 51.)

It will be observed, however, if the statutes referred to in the above and kindred cases are examined, that such statutes do not indicate an intention on the part of the legislature that the payment shall be made in advance. The language of section 95 of the charter of Amsterdam is different. It shows a legislative intent that when a grade is changed by the city without a petition, that payment of damages to injured parties shall precede the change.

Therefore, the doctrine relied on by defendant that, if plaintiff has. sustained damages, his only remedy is that pointed out by section 95 of the charter, the appointment of commissioners to appraise the damages, does not apply. That doctrine only applies where the corporation acts under and in pursuance of the statute. If a corporation exercises an authority conferred upon it in an improper manner, or does an act in violation of the prohibition contained in its charter — a wrongful act — by which another is injured, an action may be maintained. (See Seifert v. City of Brooklyn, 101 N. Y., 136 ; Dillon's Municipal Corporations, §§ 990-994.)

Defendant is prohibited from changing any established grade, except on petition of property owners, or unless compensation be made to the party injured. Without such a petition, and without making any compensation, or taking any steps to ascertain the plaintiff’s damages by appointing commissioners, defendant changed the grade. Under the provisions of its charter the presentation of a petition or compensation to parties injured should precede such change. The act, therefore, of defendant was not only not done under any provision of the statute, but was prohibited by its charter —• a, wrongful and illegal act — and, therefore, jdaintiff having sustained a serious injury in consequence of such wrongful act, can recover his damages by action.

The assessment for laying the sidewalk in front of plaintiff’s premises is so clearly unauthorized as not to require discussion.

The judgment should be affirmed, with costs.

Mayham, P J., concurred; Herrick, J., concurred in the result.

Judgment affirmed, with costs.