text:
    JEREMIAH O’ROURKE, Respondent, v. JOHN BROWN, et al., Appellants.

      Lease, execution sale of, on judgment against lessee—effect as to passing sub-leases made by Mm. Where intermediate the docket of the judgment and the sale, the lessee assigns the lease and the possession is changed to the assignee, the sheriff can sell or give only the right to possession, or the title at most without the possession; and until the execution purchaser is put in actual possession (no other facts appearing), the assignee is the landlord of all persons holding under either him or the assignor; and no rent is due or payable by such persons to the execution purchaser. This, whether the lease sold be regarded as chattel real, or personal property.
    Before Sedgwick, Ch. J., Freedmah and O’Gormar, JJ.

      Decided May 2, 1887.
    Appeal by defendants from judgment entered upon findings in a common law action, tried, by consent, before the court without a jury.

      Fruncis Forhes, for appellants.

      William L. Flagg, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for rent. One Henry P. Cooper had been the lessee of a lot and building under a lease for.the term of ten years. William L. Flagg recovered judgment against him on a money demand by default for want of answer. This judgment was docketed July 3,1883. The default was opened, but it was ordered that the judgment “ should stand as security but no execution to issue thereon until after the determination” of the issues thereafter to be tried. After this, and in October 1883, Henry P. Cooper assigned the lease to a corporation named “ The Henry P. Cooper & Company.” Flagg again recovered judgment against Cooper in 1886. Upon this judgment execution was issued about June 12, 1886. The sheriff published and posted a notice that by virtue of the execution he would expose for sale on July 24, 1886, “ all the right, title and interest of Henry P. Cooper, which he had on the 3d day of July 1883, or at any time thereafter has had or now has of, in, and to, the following described property, to wit: a certain indenture of lease made by, etc., to said Henry P. Cooper,” etc. This is the lease that has been mentioned. At the sale the plaintiff in this action bid and received from the sheriff a document, the substance of which is : “ This is to certify that I did on the 24th day of July, etc., sell unto Jeremiah O’Rourke for $500 “all the right, title and interest of Henry P. Cooper, the above named defendant, which he had on the 3d day of July, 1883, or at any time thereafter has had or now has, of, in, and to, the following described property, to wit: a certain indenture of lease made by and to Henry P. Cooper, etc., being for the period of 10 years, etc.”

The sale was made at the City Hall. The lease was not in the possession of the sheriff, and has not been, and is not in the possession of the plaintiff. The plaintiff claiming under the sale referred to, demanded rent of the defendant, who was in occupation of some rooms in the building, under a lease given by Cooper for five years and six months, from November 1 to May 1, 1889. This lease was in writing, and was made three days before Henry P.'Cooper assigned his lease to the corporation. The rent was payable on the usual quarterly days, and $1,250 was due on August 1st, after the sale referred to. The question in the case is, was the plaintiff entitled to recover this rent due August 1st.

It must be noticed first that the plaintiff does not claim ever to have become possessed of the sub-lease of Henry P. Cooper to the defendants. As this contained their covenant to pay the rent, it is an important fact in an action for rent, but it is now noticed to point out that plaintiff claims nothing excepting through the lease to Cooper. On the argument the form of the claim was that the plaintiff had bought at the sheriff’s sale, not the lease, but the term. If he did acquire this term, it was only because the lease, or Cooper’s interest in it, was sold to him. If the Henry P. Cooper & Company corporation received anything under the assignment to them, it was of the same nature as of that which the plaintiff acquired.

The plaintiff takes the position that the execution sale was in enforcement of the lien which was made by the docketing of the first judgment on July 3, 1883. At that time, the lease would run for more than five years. Being a chattel real, under the statue, the docketed judgment was a lien upon it. The lien was of a general nature and not specific. The title to the property remained in the judgment debtor. He had power to convey that title, although it was subject to the lien. His transferee took that title, subject as it was. The possession changed then to the corporation, and other objections being kept aside, the sheriff could thereafter sell or give only the right to possession, or the title at the most, without the possession. Banning v. Carpenter, 48 N. Y. 412; Smith v. Colvin, 17 Barb. 157; Schermerhorn v. Merrill, 1 Id. 511; Evertsen v. Sawyer, 2 Wend. 507 ; People v. Nelson, 13 Johns. 340, and other cases.

The corporation, then being in possession of the lease or the term, whichever it may be, is the landlord of the defendants and remains so until the plaintiff, if he has such a cause of action, is put in actual possession. This has not been done in this case and therefore rent is not due to the plaintiff. Evertsen v. Sawyer, supra.

If the lease or the term be looked at, as personal property, the result is not different. The sheriff had not made any levy actually or even a constructive levy, if that be possible, and his sale could not give any possession of Avhat was pretended to be sold to the purchaser.

For these reasons the plaintiff was not entitled to recover rent from the defendants.

Other matters should receive some attention in confirmation of what has been said. The contention, actually turned upon whether the sheriff’s sale put the plaintiff in possession of the lease to Cooper or of its term. It was assumed or it was not denied, thab the possessor of the lease or the term, became entitled to the rent payable by the defendants under the sub-lease made by Cooper to them. As has been said this sub-lease which was in writing, was never sold or assigned to the plaintiff. The plaintiff therefore never became possessed of the promise or covenant to pay rent.

At common law an action in assumpsit would not lie except upon an express promise to pay rent made at the time of the demise. Quakenboss v. Lansing, 6 Johns. 49. An action in assumpsit for use and occupation would not lie (Wood v. Wilcox, 1 Den. 38), excepting under the statute. 1 R. S. 748, 126. The landlord can by that recover only under an agreement not made by deed. But when the lease is by deed the action must be upon the covenant. Kiersted et al. v. O. & A. R. R. Co., 69 N. Y. 343. It is a question then whether the plaintiff in an action for rent must not produce in evidence the agreement, if the action be for use and occupation, to show that it is not made by deed. If the action be upon the written promise or covenant, the plaintiff should be in possession of that promise or covenant. In this case, as rent did not necessarily follow an assignment or transfer of Cooper’s interest in the term of the lease to him (Bennett v. Austin, 81 N. Y. 320), it is to be asked whether the plaintiff was entitled to recover unless he became lawfully possessed of defendants’ written agreement to pay rent. On this point it is not intended to make any decision. It was not discussed or stated on the argument of the appeal. It may hereafter have such attention as it deserves.

Judgment reversed and new trial ordered with costs to abide the event.

Freedman", J., concurred.


source: Caselaw Access Project

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

license: Public Domain

text:
    JEREMIAH O’ROURKE, Respondent, v. THE HENRY PROUSE COOPER & COMPANY, Impleaded, &c., et al., Appellant.

      Dispossess proceedings, against the sub-lessee of an assignee of a lease, not enjoined at suit of execution purchaser of the lease.

    Where intermediate the docketing of a judgment against a lessee and sale of the lease and his interest therein, under the execution issued thereon, he assigns the lease and the possession change^to the assignee, and the assignee sub-lets a portion of the demised premises, the rent reserved by the sub-lease (no other facts appearing) is, under the principles of the preceding case, payable to such assignee, and he has a right to institute dispossess proceedings for the non-payment thereof. Such execution purchaser cannot interfere with the exercise of that right by injunction.
    Before Sedgwick, Ch. J., Freedman and 0’Gorman, JJ.

      Decided May 2, 1887.
    Appeal by defendant from judgment enterecL upon findings, etc., of judge at Special Term.

      F. F. Vanderveer, attorney, and George H. Forster, of counsel, for appellant.

      William L. Flagg, for respondent.

      Charles H. Murray, attorney for Nippon Mercantile Company.
   By the Court.—Sedgwick, Ch. J.

The facts stated in the case of O’Rourke v. Brown, decided at this term, appeared in this action. It further appeared here, tha.t after the lease had been assigned to The Henry P. Cooper & Company, they sub-let to The Nippon Mercantile Company, rooms in the building reserving rent. After the sale under execution to the plaintiff The Nippon Mercantile Company failed to pay rent and The Henry P. Cooper & Company began dispossessory proceedings under the statute. The justice ordered that a warrant of dispossession, issue. Before it was issued, the proceedings under the warrant were stayed by order of injunction pendente lite, made in this action.

The plaintiff in this action asked and obtained a judgment permanently enjoining the appellant from proceeding under the warrant. No other relief was asked against The Henry P. Cooper & Company. It was not asked that the plaintiff be put in possession of the prem-* ises or that the plaintiff be adjudged entitled to the term assigned to The Henry P. Cooper & Company or to the sub-lease made by the latter to the Nippon Mercantile Company. No legal action had been brought to determine the rights of the parties or to eject The' Henry P. Cooper & Company who were in possession of the term, adversely to the plaintiff, and claiming under the assignment that has been mentioned.

In O’Rourke v. Brown, it has been held by this General Term that the plaintiff was not entitled to recover rent from a sub-tenant, because he did not hold the relation of landlord to the sub-tenants. The grounds of that decision when applied to this case, call for a reversal of this judgment, for as long as The Henry P. Cooper & Company remained in possession of the lease or of the term, under a transfer of the title to them, they were entitled to exercise all the rights that flow from a legal .possession. There is no difference in principle between the term for years and an estate in fee. As they had such rights, the plaintiff could not interfere with their exercise by injunction.

Judgment reversed and new trial ordered with costs to abide the event.

Freedman and O’Gorman, JJ., concurred.


text:
    DANIEL L. TULLIS, Respondent, v. SAMUEL W. HASSELL, Appellant.

      Master and Servant.

      Employee, reasonable command to.—Where one is employed at a stated salary, to solicit business for his employer and to give all his time and his best efforts to the business, a command to him to report at the office at a certain hour in the morning and between certain hours in the afternoon, and report the work he had done during each day, is a reasonable one which he is bomid to obey.

      Justifiable dismissal.—When such ,an employee intentionally and habitually disobeys such command, it is sufficient cause for dismissal. That attendance at the office as required, would prevent his getting business for his employer, does not excuse his disobedience.

      Dismissal of complaint.—There being in the case at bar no conflict of evidence but that the term of the employment, the command, the disobedience, and the only excuse for disobedience, were as above stated, it was a question of law for the court as to whether the command was reasonable, and whether the disobedience was sufficiently excused; consequently, held, that the case was improperly left to the jury, and that the complaint should have been dismissed.
    Before Sedgwick, Ch. J. and Freedman, J.

      Decided May 2, 1887.
    Appeal by defendant from judgment entered upon verdict for plaintiff and from order denying motion for new trial made upon the minutes.

      Dill, Chandler & Seymour, attorneys, and James B. Dill, of counsel, for appellant.

      William B. Tullís, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from a wrongful discharge of plaintiff by defendant who had employed plaintiff under a written contract. The defendant hired the plaintiff for six months from February 15th as soliciting employee in the business of printing and publishing, carried on by said Hassell . . . The said Tullís is to give all his time and his best efforts to the business, and the said Hassell agrees to pay the said Tullís therefor, $30 a week.”

The complaint charged that pursuant to, said agreement plaintiff had rendered service to the defendant until April 13, 1886, when defendant wrongfully discharged the plaintiff, to his damage in the sum of $580.” On March 27 the defendant wrote to the plaintiff that he was dissatisfied with the way in which the plaintiff performed his services, that the business done by the plaintiff amounted to only $7 in the last month; that the plaintiff did not report at the office. The letter continued “ unless you are willing to render me reasonable return for your salary I shall discharge you on April 10, next; meanwhile and hereafter I desire you to report at the office every morning at nine o’clock A. h., and again between five and, six o’clock p. m. and report the work you have done during each day.”

The plaintiff disobeyed the direction of this letter as to attendance at the office intentionally, going there irregularly at later hours in the morning, and not every day. The disregard of the instructions was habitual, and for this cause on April 13, he was discharged.

The excuse he gave on the stand for his conduct was that to be at the office at nine A. m. and five p. m. would prevent his getting business for the defendant. The defendant persisted in requiring him to attend.

Against the objection of the defendant, the jury were instructed to find whether the command of the defendant was' reasonable.

I am of opinion that the command was of a kind that the defendant might give at his pleasure, whether it was for his interest or not. The plaintiff had no legal interest in the way in which he should dispose of his time. He was not paid according to the business he should bring to the defendant. The defendant had the right to require the plaintiff to use the time contracted for, as the defendant thought best, provided such use had any relation whatever to the business of soliciting advertisements and of instructions in respect of it and reports of results.

For this reason the jury could not competently find that the command was unreasonable. The defendant was entitled to a dismissal of the complaint on the ground that the plaintiff was not wrongfully discharged.

I also think that the plaintiff was not under any .circumstances entitled in this action to recover for wages falling due before the alleged wrongful discharge. As this complaint was drawn, the only damages sought were such as followed from a wrongful discharge.

The judgment and order appealed from should be reversed and a new trial ordered with costs to abide event.

Freedman, J., concurred.


text:
    ROBERT MILLIKEN, et al., Respondents, v. ANDREW L. THOMSON, Appellant.

      Proceedings supplementary to execution.—Practice therein.

    An order requiring a defendant to answer a question propounded to Mm under examination in proceedings supplementary to execution, that affects no substantial right of defendant, is not appealable.
    Proceedings supplementary to execution are not a part of an action, and an order made therein should not be entitled in the action.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.
    Appeal by defendant from order requiring him to answer a question propounded to him when under examination in proceedings supplementary to execution, etc.

      Sidney I. Cowen, for appellant.

      David Milliken, Jr., for respondents.
   By the Court.—Sedgwick, Ch. J.

The appeal should be dismissed. The order is not appealable. It affected no substantial right of defendant. He was called upon by it to do no more than give a name in answer to the question. This affected no interest of his except upon the supposition that the answer might lead to the making of an order that would competently require the application of property of defendant, to payment of the judgment.

It is not necessary to examine the questions that would arise if the order were appealable. It may be further said, however, that proceedings supplementary to execution are not a part of an action and the order should not have been entitled in the action.

Appeal dismissed with $10 costs.

O’Gorman, J., concurred.


text:
    GENEVIEVE BAKER, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence.

    Counsel for appellant claimed that as matter of law, the verdict should have been directed for defendant, on the ground that the plaintiff was an interested witness, and that the version of the transaction as testified to by four disinterested witnesses for the defendant, that contradicted her testimony, should have been taken to be conclusive upon the jury.

      Held, that the jury were at liberty to disregard things sworn to by the defendants’ witnesses, to such an extent that they could find the plaintiffs testimony, to be credible upon the material issues. Held also, no error in the charge of the trial judge or his refusals to charge; such charge and requests relating to damages for loss of a Ijttle finger, by plaintiff, a music teacher.'
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.
    Appeal by defendant from judgment entered upon verdict for plaintiff, and from order denying motion for new trial, made upon the minutes.

      Davies & Rapallo, attorneys, Edward S. Rapallo and Hoioard Townsend, of counsel for appellant.

      Hunt & Me Vicar, attorneys, and James M. Hunt, of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages, from the negligence of the defendant, that caused a personal injury of plaintiff.

The learned counsel for the appellant argues that, as matter of law, the verdict should have been directed for defendant. The ground of this, as claimed is that as the plaintiff was an interested witness, the version of the transaction as testified to by four witnesses for the defendant, that contradicted her testimony, should have' been taken to be conclusive upon the jury. In my opinion the jury were at liberty to disregard things sworn to by the defendant’s witnesses to such an extent that they could find the plaintiff’s testimony to be credible upon the material issues.

On the issue of the damages the judge charged, “ that the damages to which the plaintiff is entitled, in case she is entitled to recover at all, include her physical pain and mental suffering and such general inability to attend to any business as a music teacher which the evidence, with reasonable certainty, shows she has sustained ; that there is no evidence oí any specific loss of business or loss of time in her business, and nothing can be allowed specifically for any of these items.”

The counsel for defendant excepting to the charge that there could be a recovery for the inability referred to and asked the court to charge to the contrary, which was refused.

In my opinion the charge with its limitations was correct. Although the plaintiff gave no proof of a specific loss of business, she gave proof as to the physical consequence of the destruction of the end of her finger, in impairing the use of her hand in playing upon the piano. For this impairment the jury might assess a compensation which would not necessarily include a compensation for a loss of business, and the plaintiff could not in the nature of things, give testimony as to what would be compensation. It was therefore to be fixed, as in many other like cases it has to be, by the jury itself. The same is to be said of the other consequences of the injury, that according to the plaintiff’s testimony prevented her from attending to her usual business of a music teacher. Apart from the loss that might be suffered, in her .not getting money from her pupils, there was something to be compensated, in her not being able to employ her time and her faculties in a way that she had lawfully chosen. In this case the jury could not have gone to a fanciful conjecture on this point, for the judge was most careful to instruct it that the plaintiff could recover damages what only were shown with certainty.

The amount of the verdict was not excessive.

Judgment and order appealed from affirmed with costs.

O’Gorman, J., concurred.


text:
    CAROLINE LEWY, Appellant, v. ROSE FOX, Impleaded, et al., Respondent.

      Practice—Order opening a judgment against a defendant, and allowing a supplemental answer to be served.

    In this case the General Term held, that the terms upon which the defendant was to exercise the right to serve a supplemental answer were within the discretion of the court, and it did not appear that the discretion was improperly used.
    Eftect on judgment against one of several tort feasors, of satisfaction, by, and release to remaining tort feasors,—considered by the court.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.
    Appeal by plaintiff from order opening a judgment against defendant and allowing a supplemental answer to be served, on payment of trial fee and disbursements in entering judgment.

      Edward P. Wilder, for appellant.

      Cardozo & Newcombe, attorneys, and Richard S. Newcombe, of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the conversion of personal property. Several parties were made defendants as jointly responsible for the conversion. The action went to trial against the appellant solely. The plaintiff recovered a verdict for $1,300. After judgment was entered the appellant moved that the judgment be discharged or vacated or that defendant have leave to file a supplemental answer to set up a defence disclosed by the affidavits, and that the judgment be opened for the purpose of having a new trial upon the answer to be served. The affidavits showed that before the trial then already had, the plaintiff had received satisfaction for the conversion from those who were co-defendants with appellant. The plaintiff had received $1,500 in money and had given to said co-defendants general releases under seal'. These facts showed entire and not partial satisfaction. On the motion there was no dispute as to the facts. It was however objected that the defendant had before the trial learned the situation of the case and should have made a proper plea before trial. This might be so if the sole effect of the transaction of satisfaction were to furnish the defendant with a defence. But it had. another effect, which was to give the defendant a right to a satisfaction of the judgment, when the facts should be competently ascertained as against the defendant. I do not think, under, the facts, that the plaintiff was injured by shaping the controversy so that its determination by a trial upon the issues made by the supplemental answer would adjust the rights of the parties.

The terms upon which the defendant was to exercise a right to serve the answer were within the discretion of the court, and it does not appear that the discretion was improperly used. •

Order affirmed with $10 costs.

O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    MARY CLUFF, Respondent, v. JOHN THOMPSON, Impleaded, et al., Appellant.

      Practice—Order for bill of particulars.

    The Special Term made an order requiring defendant, sued as surety on an executor’s bond, to furnish plaintiff a bill of particulars of the facts, by reason of which defendant’s principal (as defendant alleged, in his answer) ceased to act as executor, and entered upon his duties as trustee in respect to property referred to.in the complaint.

      Held, that this order was within the judicial discretion of the court, and the discretion was properly exercised.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.
    Appeal from an order made at Special Term requiring defendant Thompson, sued as surety on an executor’s bond, to furnish a bill of particulars of the facts, by reason of which his principal ceased to act as executor and entered on his duties as trustee in respect to property referred to in the complaint, and stating the act or acts by which plaintiff is alleged to have assenteto said principal’s acting as trustee.

      Isaac Fromme, for appellant.

      Robert Owen, attorney, and Edward B. Whitney, of counsel for respondent.
   By the Court.—O’Gorman, J.

The granting of this . order was in the judicial discretion of the court, and we see no reason to think that that discretion was not rightly exercised.

The defendant relied on the claim that his principal’s status had been changed, and that he had ceased to act as executor and had assumed the office, of trustee, and had acted as such for thirteen years with the consent of the plaintiff.

It is not right that the plaintiff should be left in the dark as to a fact so important to her rights, and if there were acts of the plaintiff or of any one else which caused •or contributed to such a result as defendant asserts, it is right that she should be apprised of them before going to trial.

The order appealed from is affirmed, with $10 costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Freedman, J.

text:
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Plaintiff, v. ISAAC T. SMITH, Defendant.

      Bond and mortgage—Recovery of balance due on bond after foreclosure of mortgage in another state. Code Civ. Proc. 1G28.
    This bond that was the subject of this action was conditioned for the payment of $20,000, and had been originally secured by a mortgage on real estate in New Jersey. The mortgage was foreclosed by action in a New Jersey court, and the mortgaged premises sold for $3,000 dollars. This action was brought to recover the balance due and unpaid on the bond after application of the $3,000 which, with interest to the day of trial, amounted to $20,123.49. A verdict for the defendant was directed by the trial judge, on the ground that leave of the court, in which the foreclosure suit was determined, had not been obtained to bring this action, as provided by section 1628 of the Code of Civil Procedure.

      Held, by the court, that this section of the Code does not apply to a case where the action for tile foreclosure of the mortgage was brought in a court outside of the limits of the state of New York. It is simply a regulation in regard to the foreclosure of mortgages upon real estate in the state of New York, and does not regulate actions on bonds generally, but only actions on bonds that are secured by mortgage on real estate situate in the state of New York. Bonds, secured by mortgages on real properly in other states, are not distinguished from bonds made without collateral security.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Exceptions of the plaintiff ordered to be heard at General Term, in the first instance.

      Henry G. Atwater, for plaintiff.

      Geo. Putnam Smith, for defendant.
   By the Court.—Freedman, J.

This action was brought to recover a balance of $15,657.21 due on a bond made by the defendant together with his wife, now deceased, to the plaintiff in 1872, conditioned to pay the plaintiff the sum of $20,000.

On the trial, it appeared that the bond in suit had been originally secured by a mortgage made by the obligors therein named on certain property situated at Elizabeth, N. J.; that such mortgage had been foreclosed in 1882, and the mortgaged premises sold thereunder for $3,000, and that a balance remained due on the bond which, with interest up to the day of the trial, amounted to $20,123.49.

At the close of the evidence on both sides, the court directed a verdict for the defendant on the ground that leave of the court, in which the foreclosure suit took place, had not been obtained for the purpose of bringing an action to recover the deficiency due on the bond, to which direction the plaintiff duly excepted.

The plaintiff’s exceptions were ordered to be heard in the first instance at General Term.

The direction of the verdict is sought to be upheld under the provisions of section 1628 of the Code of Civil Procedure which are as follows :

While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt without leave of the court in which the former action was brought.”

The question therefore is whether that section can be held to apply to foreclosures outside of the state of New York. The section referred to is a re-enactment of the provisions of the Revised Statutes to about the same effect. Before the Revised Statutes, no decree for deficiency could be rendered in a foreclosure suit. Dunkley v. VanBuren, 3 Johns. Ch. 330.

To recover the deficiency where one arose, a separate suit at law upon the bond was necessary, and the credit- or had the right to institute proceedings at law upon the bond even during the pendency of the foreclosure suit. Jones v. Conde, 6 Ib. 77.

The debtor was thus subjected to a double litigation, and the provisions of the Revised Statutes were enacted for the express purpose of abolishing this oppressive course of proceeding. Equitable Life Ins. Co. v. Stevens, 63 N. Y. 341 (345).

One of the provisions thus enacted was that, after the filing of a bill for the satisfaction of a mortgage, the court should have power to decree payment of the deficiency by the mortgagor, and issue execution thereon (§ 152). And another was that, after- the filing and during the pendency of the bill, and after decree rendered thereon, proceedings at law for the recovery of the mortgage debt should not be had unless authorized by the Court of Chancery (§ 153). It was also provided that a person other than the mortgagor, who was liable for the mortgage debt, might be made a party to the suit and payment of the deficiency decreed against him (§ 154).

These provisions were, all contained in title II. of chapter 1 of part 3 of the Revised Statutes, which was entitled “ Of the Court of Chancery,” and in Art. YI. of said title entitled “ Of the powers and proceedings of the court upon bills for the foreclosure or satisfaction of mortgages,” and they were evidently intended to regulate the foreclosure of mortgages in the state of New York only. The “bill” referred to was a bill filed in the Court of Chancery, and it was only after the filing “ of such bill,” that is, a bill filed in the Court of Chancery of the state of New York, that proceedings at law for the recovery of the mortgage debt were forbidden.

These provisions of the Revised Statutes have been re-enacted in the Code of Civil Procedure, with such changes only as were rendered necessary by the changes in the judicial system, that is, by the change in the organization of the courts of the state, and the fusion of law and equity.

Section 1628 of the said Code is contained in chapter 14 entitled “ Special provisions regulating actions relating to property,” and in title 1 entitled “ Actions relating to real property,” and in Article IV. entitled Action to foreclose a mortgage.” It is, therefore, a regulation in regard to the foreclosure of mortgages upon real property in the state of New York.. It does not attempt to regulate actions on bonds generally, but only actions on bonds which are secured by mortgage on real property in New York. Bonds secured by mortgages on real property in other states are not 'distinguished from bonds made without collateral security.

An action to foreclose a mortgage upon real property is a strictly local action as distinguished from a transitory action, and consequently must always be brought within the territorial limits of the state in which the property is situated, and which conferred upon the court jurisdiction over the subject matter of the action. The provisions of the Code of Civil Procedure relating to the foreclosure of mortgages are intended to regulate the remedy in such cases within the territorial limits of the state of New York, and the remedy is to be had through the action of certain courts within the state. By analogy of reasoning no greater extra-territorial force can be given to any such provision of the said Code than was given in Van Voorhis v. Brintnall, 86 N. Y. 18, and Thorp v. Thorp, 90 Ib. 602, to the disqualification to marry again imposed by the judgment of a court of this state upon a defendant adjudged under the statutes of this state to have been guilty of adultery. It certainly cannot be inferred from the language of section 1628 that the intention of the legislature was that application for leave to bring an action in the state of New York was to be made to a court of another state which, under the laws of that state, might have no power to grant such leave, or the action of which, even if it possessed the power, could not be reviewed by any appellate tribunal of this state.

.For the foregoing reasons, the direction of the verdict was erroneous.

The plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered with costs to the plaintiff to abide the event.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


text:
    ALFRED E. J. TOVEY, Respondent, v. JOHN L. CULVER, et al., Appellants.

      Corporation—Neglect to file annual report—Liability of Trustees.

    The provisions of Laws 1848, Ch. 40, § 12, are penal, and not to be extended by construction; and in an action to enforce a liability thereby created, nothing can be presumed against the defendants, but every fact necessary to establish their liability must be affirmatively proved.
    The amended complaint which the order appealed from permitted to be served, fails to allege the fact, that the services for which the plaintiff seeks to recover were rendered at the request of the corporation. Such a request is vital to the cause of action. (Dinsmore v. Mayor, etc., 4 Hun, 643.)

      Held, that the amended complaint being demurrable upon its face, the court below, under the decision of Pracht v. Ritter, 48 Super. Ct. 509, had no discretion to allow it to be served as an amendment of the earlier complaint, which had been adjudged insufficient.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal from order made at Special Term, permitting plaintiff to serve an amended complaint.

      E. P. Johnson, attorney, and of counsel for appellants.

      Edward Grosse, attorney, and Henry Wehle, .of counsel for respondent.
   By the Court.—Freedman, J.

The action is to enforce the liability of the defendants, as trustees of a corporation, for neglect to file the annual report required by statute. In Bruce et al. v. Platt et al., 80 N. Y. 379, it was said by Danforth, J., that it is settled by repeated decisions that the statute in question is penal, and not to be extended by construction; and that in an action to enforce a liability thereby created, nothing can be presumed against the defendants, but that every fact necessary to establish their liability must be affirmatively proved.

The amended complaint which the order appealed from permitted to be served, fails to allege the fact, that the services for which the plaintiff seeks to recover, were rendered at the request of the corporation. Such a request is vital to the cause of action (Dinsmore v. Mayor, &c., 4 Hun, 643), for otherwise, from all that appears upon the record, the rendition of the services may have been a voluntary courtesy. Comstock v. Smith, 7 Johns. 87; Bartholomew v Jackson, 20 Johns. 28; Griffin v. Potter, 14 Wend. 209; Maltby v. Harwood, 12 Barb. 473; Ingraham v. Gilbert, 20 Barb. 151; Williams v. Hutchinson, 3 N. Y. 312.

Even where a promise to pay, made subsequent to the rendition of services, is shown, it must also be shown that the services were rendered at the defendants’ request. Frear v. Hardenbergh, 5 Johns. 272; Comstock v. Smith, 7 Johns. 87; Parker v. Crane, 6 Wend. 647.

As the existence of a fact not averred will not be presumed, unless the presumption necessarily arises from what has been alleged (Malone v. Sherman, 49 Superior Ct. R. 530), and the amended complaint contains no allegations from which a request may be presumed or implied as a necessary consequence, the amended complaint is demurrable on its face. Such a defect cannot be obviated by a liberal construction.

The amended complaint being demurrable upon its face, the court below, under the decision of Pracht v. Ritter, 48 Super. Ct. 509, had no discretion to allow it to be served as an amendment of the’ earlier complaint which had been adjudged insufficient. (See 54 Superior Ct. 123.)

The order should be reversed with ten dollars costs and disbursements to be taxed.

Sedgwick, Ch. J., and O’Gorman, J. concurred.


text:
    MARTIN SIMONS, Appellant, v. HENRY C. SEWARD, Respondent.

      Landlord and tenant—Relations of, etc.

    There is no implied warranty or obligation on the part of a landlord, that the demised premises are in a safe condition for any apparently intended use or that they will not become unsafe. (Jaffe v. Harteau, 56 N. Y. 398; Kabus v. Frost, 50 Super. Ct. 72.)
    The obligation of a landlord in any case to repair or rebuild demised premises, rests solely on express covenant or undertaking; without such, he is neither bound to repair the demised premises himself, nor to pay for repairs made by the tenant. (Witty v. Matthews, 52 N. Y. 512.)
    No different rule applies to the case at bar, because the plaintiff occupied only the lower part of a building, namely: the store floor, cellar and sub-cellar.
    The following eases claimed to apply to the case at bar considered: Stapenhorst v. The American Manufacturing Co., 36 Super. Ct. 392; Worthington v. Parker, 11 Daly, 545; Westside Savings Bank v. Newton, 8 Id. 332,—and Held, That the principles involved in these decisions are not applicable to the case at bar, and it derives no support from the same.
    AVhen a tenant occupies only part of a building, and another part not occupied by him, which serves as a protection to his premises, gets out of repair, there is no implied condition that such protection shall continue, or that the landlord is bound to repair.
    The decision of the Court of Appeals in Doupe v. Genin, 45 N. Y. 119, has never been reversed or modified, and constitutes the law of the state of New York at the present time.
    If a landlord, in the absence of an express covenant for repairs is ever liable because he leased premises that were unsafe, it is because he knew they were unsafe for the use for which they were let, or he was guilty of fraud in the premises. (Jaffe v. Harteau, 56 At Y. 398; Edwards v. N. Y. & Harlem R. R. Co., 98 N. Y. 245.)
    The above doctrines applied to the case of the bursting of a water pipe, by which plaintiff sustained damage.
    Before Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal from judgment dismissing complaint.

      Townsend, Dyett & Einstein, attorneys, and B. F. Einstein, of counsel for appellant.

      A. P. & W. Man, attorneys, and Henry H. Man; of counsel for respondent.
   By the Court.—Freedman, J.

The complaint, as amended at the trial, showed the existence of the relation of landlord and tenant between the parties. The defendant, as the landlord of the plaintiff, was sought to be held liable in damages sustained by the plaintiff in consequence of the bursting of a water pipe. The bursting of the pipe was charged to have been- the result of defendant’s neglect to keep the plumbing in repair. The complaint as amended was dismissed on the ground that it failed to set forth facts to constitute a cause of action.

There is no implied warranty nor obligation on the part of a landlord that the demised premises are in a safe condition for any apparently intended use, or that they will not become unsafe. Jaffe v. Harteau, 56 N. Y. 398; Kabus v. Frost, 50 N. Y. Superior Ct. 72.

The obligation of a landlord in any case to repair or rebuild demised premises, rests solely on express covenant or undertaking. Without an express covenant to that effect by the landlord, he is neither bound to repair the demised premises himself nor to pay for repairs made by the tenant. Witty v. Matthews, 52 N. Y. 512.

It is claimed, however, that a different rule applies to the case at bar because the plaintiff occupied only the lower part of the building, viz. : the store floor, cellar and sub-cellar.

There is, it is true, a line of cases in which a liability was imposed upon the landlord, but they are cases which involved in some form or other a negligent use by the landlord of the parts of the premises retained by him, or the commission by him of some affirmative negligent act which was the direct cause of the injury.

Thus, in Stapenhorst v. The American Manufacturing Co., 36 Super. Ct. 392, the defendant so negligently carried on its business in the upper parts of the building as to allow oil and particles of iron to leak through its premises into plaintiff’s mustard mills below.

In Worthington v. Parker, 11 Daly, 545, the defendant, having undertaken, during the term of the lease, to change the place of the pipes which conducted the water from the roof of the building and to provide and put up new pipes for that purpose, did it so negligently as to cause damage.

These cases do not help the plaintiff. Nor can he derive any support from the case of The Westside Savings Bank v. Newton, 8 Daly, 332, upon which he so much relies. In that case the defendant was sued as a surety upon a lease. The tenant occupied the upper, and the landlord the lower part of the premises which were supplied with Croton water. The lease expressly provided that the tenant should not be held liable for any repairs except as therein provided, and no provision was made calling upon him to keep the water pipes in repair. In consequence of the occurrence of a leak in the said pipes and the tenant’s refusal to repair, the landlord cut off the entire supply of Croton water, and the tenant vacated the premises. Upon these facts it was held that the use' of the Croton water amounted to an easement which constituted part of the demised premises; that having deprived the tenant of the use of the wafer, it was not just that the tenant or the surety should pay rent beyond the time that the tenant actually occupied the premises, and it was in this connection that it was said, that under the circumstances of the case it was the duty of the landlord to keep the water pipes in repair. This meant, if he wanted the aid of the court in the collection of the rent. It was a case altogether different from one in which the tenant invokes the aid of the court to recover damages.

The claim that where a tenant occupies only part of a building, and another part not occupied by him which serves as a protection to his premises gets out of repair, there is an implied covenant that such protection shall continue, and that in such case the landlord is bound to repair, has been expressly overruled by the Court of Appeals in Doupe v. Genin, 45 N. Y. 119. In that case the roof and the upper story had been partially destroyed by fire and yet it was held that the tenant could not maintain an action for damages against the landlord for injuries sustained in consequence of the landlord’s failure to repair or the unnecessary length of time consumed in making the repairs, first, because in the absence of a covenant to repair bhe landlord was not bound to repair at all, and secondly, because the maxim “sic utere tuo, etc.” applies only to acts done on the landlord’s premises, or to his negligence in the process of making the repairs, or to any use made by the landlord of his own part of the premises, or to injury caused by any structure in that part of the premises. This decision has never been taken back or modified, and it constitutes the law of the state of New York at the present time.

If all the facts fully appeared, I believe that Eagle v. Swayze, 2 Daly, 140, and Bold v. O’Brien, 17 Weekly Digest, 466, could be readily distinguished. But in any event Doupe v. Genin must control so far as it can be applied.

In Vann v. Rouse, 94 N. Y. 401, no question was raised upon the pleadings, and no objection was made upon the trial, as to the liability of the landlord for damages caused by defective water pipes upon the parts of the premises under his control after notice and neglect to repair.

The reason for the stringency of the rule is that every contract of hiring is presumed to have been made upon the premises and after inspection by the tenant, and that whatever right the tenant omits to secure for himself, is his own fault. As to matters not readily ascertainable by inspection, he should protect himself by an express covenant. The only warranty which is implied against the landlord, is one for quiet enjoyment, and this means only that the tenant shall not be evicted by a paramount title.

If the landlord, in the absence of a covenant, is ever liable because he leased unsafe premises, it is because he knew them to be unsafe for the use for which they were let, or was guilty of a fraud. Jaffe v. Harteau, 56 N. Y. 398 ; Edwards v. N. Y. & Harlem R. R. Co., 98 N. Y. 245.

The law being as stated, the plaintiff’s complaint was properly dismissed. The plaintiff at the trial obtained leave to amend, and did amend, his complaint. The presumption is that he then made as favorable a showing as he could. But the amended complaint still failed to show facts upon which the defendant’s liability could be based. A mere alleged neglect to repair, in the absence of facts which showed a duty to repair, did not constitute a cause of action, and a bare allegation that it was the duty of the landlord to maintain the water pipes and plumbing in good order ” was but the statement of a conclusion of law without any fact to substantiate it. The complaint, as amended, did not even show whether the bursting of the pipe occurred on or outside of the premises occupied by the plaintiff. For all that appeared the occurrence might have taken place on the premises occupied by the plaintiff and in consequence of an improper use made by the plaintiff. Nor was there any allegation that the plaintiff had hired the premises occupied by him for a particular purpose, and that the defendant when he leased them to the plaintiff knew they were unsafe for the use for which he let the plaintiff have them, or was guilty of any fraud.

The judgment should be affirmed with costs.

0’Gorman, J., concurred.


text:
    JEREMIAH R. BYRON, Respondent, v. THE MAYOR, etc., of the CITY OF NEW YORK, Appellants,

      Work and labor and materials furnished under a contract.

    By the contract the plaintiff agreed to furnish and provide all the necessary material, and in a good and substantial manner, and, strictly in accordance with specifications and plans furnished, construct the necessary retaining walls, arch, steps and railing, and furnish the necessary filling for the support and protection of a roadway in the center of Forty-second street, between First and Second avenues, New York city, in the manner and under the conditions specified in said contract. It was also agreed that the plaintiff should not be entitled to payment for any portion of the work or material until the same was fully completed, and such completion duly certified by the engineer, etc., in charge of the work. The work was commenced on the 23d day of August, 1877, and proceeded as required by the contract in fifty feet sections. By June 29, 1878, the plaintiff had built three sections of the tunnel and completed the parapet wall near First avenue. On that day a portion of the arch of the tunnel fell in, being a piece about fifty feet in length and comT posing the third section. At the time there was but little filling upon that part of the arch of the tunnel that fell. The work was suspended for some time by the Commissioner of Public Works, and subsequently plaintiff was ordered to proceed to rebuild the part of the arch that had fallen, but upon changed plans. Subsequently, and on October 20, 1878, another portion of the arch fell, at a section thereof built under the original plans, prior to any change. The plaintiff kept at work until the 9th or 11th of November, 1878, when he and his workmen were driven from their work by the defendants.
    • Under these facts Held, That defendants had no right to the direction of a verdict in their favor on the ground that plaintiff had failed to obtain the certificates called for by the contract, and failed also to prove a demand'for the same upon defendants and an unreasonable neglect or refusal on their part to give them, as the plaintiff was prevented by the acts of the defendants, in driving him and his workmen from the work, from the full performance of his contract. Held, also, That for the same reason, if the plaintiff could recover at all, he was entitled to recover the actual value of the work done and materials furnished up to and at the time the further performance of the contract was prevented by defendants.
    In the case of a contract, where the contractor was bound to strictly follow the specifications and plans under which the woi'k was required to be done, and they were so defective that by strictly following them, it was impossible to construct a stable arch, such as would sustain the weight to be superimposed upon it, the contractor was exonerated from blame because of the falling of the arch. In such a case he was not « bound to build a safe and stable arch notwithstanding the defect in the plans and specifications.
    In the case at bar, it was competent for the plaintiff to exonerate himself from blame by showing that the plans and specifications, which he was actually compelled to follow strictly, were defective per se.

    The cases of Dermott v. Jones, 2 Wall. 1, and Thorn v. The Mayor, etc., of the City of London, 1 Eng. Law Rep., Appeal Oases, 120, considered, and held that neither was applicable.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying their motion upon the judge’s minutes for a new trial.

      E. Henry Lacombe, counsel to the corporation, and Francis M. Scott, of counsel for appellants.

      L. Lafiin Kellogg, attorney, and of counsel for respondent.
   By the Court.—Freedman, J.

This action is for work done and materials furnished by the plaintiff under a contract made between him and the defendants.

By the said contract the plaintiff agreed to furnish and provide, at his own proper cost and expense, all the necessary materials and labor, and in a good, firm and substantial manner, and strictly in accordance with the following specifications and with the plans therefor filed in the office of the Commissioner of Public Works, construct the necessary retaining walls, arch, steps and railing and furnish the necessary filling for the support and protection of the roadway in the center of Forty-second street, between First and Second avenues, in the manner and under the conditions specified in said contract.”

It was also agreed, by said contract, that the plaintiff should not be entitled to payment, or receive payment for any portion of the work or materials until the same should be fully completed in the manner prescribed by the contract, and such completion duly certified by the engineer, inspector and superintendent in charge of the work.

The contract further provided that the Commissioner of Public Works should inspect the materials to be furnished and the Avork to be done, and to see that the same corresponded with the specifications. As matter of fact the Commissioner of Public Works placed an engineer in charge of the whole work, and also appointed an inspector to inspect the same.

The work was commenced on the 23d of August, 1877, and the building of the arch proceeded as required by the contract in 50-foot sections. By June 29, 1878, the plaintiff had built three sections of the tunnel, or about 150 feet, and had completed, or nearly completed, the front or parapet tunnel near First avenue. On that day a portion of the tunnel fell in, being a piece about 50 feet in length, and composing all, or nearly all, of the third section built by him. At that time there was but little filling upon that portion of the tunnel which fell. The work was then suspended by the Commissioner of Public Works, but after a lapse of some time the plaintiff was ordered to proceed and to rebuild the part of the arch that had fallen. The rebuilding was to be done, however, under changed plans. The plaintiff thereupon continued to work until October 20, 1878, when the arch again fell at a section thereof built under the original plans and prior to any change. Notwithstanding this second fall, the plaintiff kept at work until the 9th or 11th of November, 1878, when he and his workmen were driven from their work by order of the inspector and of the police.

As the plaintiff was thus prevented by the acts of the defendants from the full performance of his contract, the defendants had no right to the direction of a verdict in their behalf on the ground that the plaintiff had failed to obtain the certificates called for by the contract and that he had failed to prove a demand for such certificates and an unreasonable refusal to give them.

For the same reason the plaintiff, if entitled to recover at all, was entitled to recover the actual value of the work done and of the materials furnished at the time the performance of the contract was prevented. The recovery which was had was had upon this theory.

It therefore remains to be considered whether the plaintiff was entitled to recover at all.

At the trial the plaintiff’s contention was that the plans and specifications, under which the work was required to be done, were so defective that by strictly following them it was impossible to construct a stable arch which would sustain the weight to be superimposed upon it; that in point of fact he had strictly followed, and had even been compelled to .strictly follow, the specifications and plans; and that the materials furnished and the workmanship were of the character and description called for by the contract and conformed in all substantial particulars to the requirements of the contract.

These matters were disputed by the defense, but the jury, under a charge which imposed the burden of proof upon the plaintiff, determined them in favor of the plaintiff. Upon an examination of the whole case it is impossible to say that their finding in these respects is against the weight of the evidence.

The only remaining question, therefore, is whether the plaintiff can maintain that the plans and specifications were so defective per se as to exonerate him from blame, or whether he was bound to build a safe arch ndtwithstanding the defect in the plans and specifications.

Upon this remaining point the defense relies upon two cases, neither of which is applicable to the case at bar.

In Dermott v. Jones, 2 Wall. 1, the contract was not only to build according to certain plans and specifications, but also to completely finish and fit for use and occupation all the houses and buildings and the several departments thereof, etc. The latter was held to be a special and additional covenant.

In Thorn v. The Mayor, etc., of the City of London, 1 Eng. Law Rep. Appeal Cases, 120, the plaintiff, in attempting to build and finish a bridge for the defendants as he was bound to do, found that the plans and specifications were so fatally defective that the work could not be done under them, and he thereupon, in order to finish the bridge, as by his contract he was bound to do, departed from the plans and specifications by adopting a much more expensive method of construction. He finished the bridge and the work was accepted. In the course of time he brought suit for the extra expense to which he had been put by reason of the inadequacy of the plans and specifications furnished to him. It was in this suit that it was held that inasmuch as his contract was absolute and unconditional that he would finish the bridge for a certain sum and in a certain time, and he had finished it, he could not recover additional compensation on the theory that the defendants had impliedly warranted the sufficiency of the plans and specifications.

In the case at bar the plaintiff was prevented by the defendants.from completing the contract, and he recovered only for what he had actually done up to the time he was compelled to desist. The contract price was evidence of the value of the work so done, and in the absence of other evidence it controlled, but there was no recovery beyond it. Moreover the contract as a whole cannot be construed as containing a covenant or warranty on the part of the plaintiff that the arch, when completed, should' be safe and fit for the purposes for which it was intended. For these reasons it was competent for the plaintiff to exonerate himself by showing that the plans and specifications which he was actually compelled to follow strictly, were defective per se.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J. and O’Gormar, J., concurred.


author: Truax, J. O’Gorman, J. Sedgwick, Ch. J.

text:
    WILLIAM P. ABENDROTH, Plaintiff and Appellant v. THE NEW YORK ELEVATED RAILROAD COMPANY and THE MANHATTAN RAILWAY COMPANY, Defendants and Respondents.

      Tald7ig of property without due process of law and without compensation— Damages to property abutting on a street in New York, caused by building an elevated railroad on Hie street.

    The plaintiff was owner in fee of premises abutting on Pearl street in-the city of New York, and claimed to be the owner of an easement in that street, and brought an action to obtain an injunction against the obstruction and encumbrance of that street by defendants in the maintenance of their elevated railroad on the same in front of plaintiff’s premises, and also that they be compelled to remove the same, and that he should have judgment for the damages sustained by him.
    The trial judge found that the title to the soil in the street was vested in the mayor, aldermen and commonalty of the city of New York, and that plaintiff had no easement nor private property whatever in the street against the taking of which he was entitled to protection under the constitution of this state; and, because of these facts, he dismissed the complaint.
    The trial judge also found that defendants had not taken any proceedings to condemn or acquire any property of the plaintiff; that the railroad structure seriously impaired the plaintiff’s light, and their engines emitted smoke, gas, steam, cinders, etc., which entered the plaintiff’s premises through his doors and windows and caused him injury, and the rental value of his premises had been seriously diminished, and his property had been and is seriously and permanently damaged, and its value greatly lessened. That the defendants’ railroad was a lawful structure, and its operation, as operated by the defendants, a lawful use of the structure, and their trains were furnished with the best possible appliances known for the prevention of noise and to arrest sparks and cinders.

      Held, that, irrespective of the conclusion, that the plaintiff had no private easement or property rights in the street, plaintiff is entitled to relief by injunction, etc., on the ground that the acts of the defendants complained of were not necessary incidents of the lawful use of the railroad, and also on the ground that, even if they had. been such necessary incidents, they were, so far as they impaired the plaintiff’s beneficial use of his property, and diminished its rental value, either trespassers or a private nuisance for which he had a valid right of action to recover damages, or such acts were a taking of plaintiff’s private property, without compensation and without due process of law, which is prohibited by the constitution of the state.

      27eld by Truax, J.—One’s right to enjoy property free from smoke, gas, steam, cinders, etc., is property; and, when he is deprived of that right without due process of law, he is deprived of his property without due process of law. Even if the legislature had authorized the defendants to do the very acts complained of, such authorization would be unconstitutional and void because the legislature cannot deprive one of his property without due process of law.

      Held by O’Gorman, J.—If it were necessary for the decision of the case at bar, I should have no hesitation in holding that the legislature had no right to authorize or sanction any serious injury to the private property of a citizen, so far destroying or impairing its beneficial use to him as to constitute a taking thereof, unless such taking were accomplished under due process of law, and provision he made that he be duly compensated therefor.
    The trial judge also found that the plaintiff had paid assessments as well as taxes to the city, upon his said premises. (It was in evidence that plaintiff’s grantor paid, in 1862, an assessment for paving Pearl street from Fulton to Beekman street.)

      Held by Truax, J.—If they were assessments for street purposes, then within the decision of the Court of Appeals in the “ Story” case, in the “Lahr ” case (and others cited), the plaintiff would have an easement of light, air and access to the street. If he has such an easement then within the decisions in those oases, iliis easement has been taken from him without compensation.

      Held by O’Gorman, J.—(reviewing same cases.) It seems a natural and proper step, and a logical consequence of the principle sustained by these authorities, to hold that, when an abutting owner pays, under compulsion of law, a sum specially awarded as his individual contribution to the well-being and improved utility of the street to the public, and to himself, as abutting owner, a contract must be implied that he shall be secure in his right to use and enjoy the street with all the improvements and advantages to the creation of which he has specially contributed.
    Sedgwick, Ch. J., concurred with both judges delivering opinions that the property of plaintiff was taken without compensation.
    The following cases reviewed and discussed in the opinions of the court: Wynehamer v. People, 13 N. Y. 378; Arnold v. Hudson River R. R. Co., 55 Ib. 661; McKeon v. See, 51 26. 300; Bertholf v. O’Reilly, 74 26. 509; Uline v. N. Y. C. & H. R. R. R. Co., 101 26. 107; Cogswell v.
      FT. Y. FT. H. & H. R. R. Co., 103 Ib. 10; Lahr v. Metropolitan El. R’y. Co. (Court of Appeals, February, 1887), 104 N. Y. 268; Penn. R. R. Co. v. Angel, 6 Eastern Reporter, 353.
    Before Sedgwick, Ch. J., Truax and O’Gormar, JJ.

      Decided May 2, 1887.
    Appeal from a judgment of the Special Term dismissing the plaintiff’s complaint with costs.
    Action for injunction and damages.

      Edward B. Cowles, attorney and of counsel for appellant.

      Davies & Sapallo, attorneys, and Edward C. James, Julien T. Davies and Charles A. Gardiner, of counsel for respondents.
   Truax, J.

The judgment in this case must be reversed, irrespective of the question which seems to have solely influenced the learned judge before whom the case was tried.

It is immaterial, for the purposes of this case, whether the plaintiff has or has not any interest in the fee of Pearl street in front of and adjacent to his premises, or any easement in the street,—and for the following reasons:

The judge, before whom the case was tried, found in his twelfth, thirteenth and fourteenth findings of fact that the engines used by the defendants, emit smoke, gas, steam and cinders, which at times have entered and do enter the plaintiff’s premises through his doors and windows, and cause him injury. That, by reason of the facts aforesaid, the rental value of the plaintiff’s premises has been seriously diminished, and the plaintiff’s property has been and is permanently damaged, and its value lessened.

Having found these facts, the trial judge should have found in favor of the plaintiff instead of for the defendant.

Even if we should concede that the defendants own a fee in the street, and they so use that fee that their use of it permanently damages the plaintiff’s property, and lessens its value then the plaintiff has a cause of action for such damages against the defendants, and he is entitled to an injunction restraining the commission of the acts which damage him.

The constitution of this state provides that property shall not be taken for public use without compensation, and that no one shall be deprived of his life, liberty or property without due process of law.

It is to be noticed that a distinction is made between taking property for public use, and depriving one of his property without due process of law.

What is a deprivation of property without due process of law was determined by the Court of Appeals in the case of Wynehamer v People, 13 N. Y. 378, where it was held that the provisions of the act to prevent intemperance (Laws of 1855, page 340) substantially destroyed the property in intoxicating liquors owned and possessed by persons within the state when the act took effect, and for that reason the act violated the provisions of the state constitution above referred to.

It is to be noticed that in this case the actual possession of the property was not taken from the owner, and yet a law which simply decreased the money value of the property by rendering it difficult for the owner to dispose of it, was held to be a violation of the constitution.

This case was cited by the Court of Appeals with approval in the case of Bertholf v. O’Reilly, 74 N. Y. 509.

In this last case it was said that the provisions in the act then under consideration, were held to deprive persons owning' intoxicating liquors at the time of its passage of their property, although their title was not affected by the act, or the property itself, in its material substance, taken or destroyed.

A like question was before the Court of Errors and Appeals in New Jersey, in The Pennsylvania Railroad Company v. Angel, reported in the 6th Eastern Reporter, 353. It is to be noticed that there is no provision in the constitution of New Jersey that no one shall be deprived of property without due process of law. In that case it was held that the plaintiff, by using for the purpose of a terminal yard a portion of a street over which it has only a right of way, became responsible for any nuisance, public or private, thereby created, and an act of the legislature cannot confer upon individuals or private corporations acting primarily for their own profit although for public benefit as well, any right to deprive persons of the ordinary enjoyment of their property, except upon condition that just compensa-, tion be first made to the owners. This case first came before Vice Chancellor Bird who held, as was held in the case now before us, that the smoke, dirt, cinders, noises and smells worked inconvenience, discomfort, hurt and damage to the complainants, and that the value of their property was, therefore, greatly depreciated. The Court of Errors held that “whether you flood the farmer’s fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion.”

This is a taking of his property in a constitutional sense.

This decision is in harmony with the decision of the Court of Appeals of this state in Cogswell against The New York, New Haven and Hartford R. R. Co., 103 N. Y. 10.

In the Cogswell case which, in this respect is unlike the Story case, (90 N Y. 122) no easement of light, air and access was taken, but the defendant was held liable for the damages that it had done to the plaintiff by the emission of smoke, cinders, ashes and dust upon the property of the plaintiff, on the ground that, by these acts of the defendant, plaintiff’s property was subjected to a burden in the nature of a servitude in favor of the defendant which seriously impaired the value and enjoyment of the property.

And the Court of Appeals, in the case of Lahr against The Metropolitan Elevated Railway Co., (104 N. Y. 268,) held that the Cogswell case is a conclusive authority upon the question as to what constitutes a taking of property within the meaning of the constitution, and of the liability of the perpetrator of such injuries for the damages occasioned by a corruption of the air through the dissemination* therein of noxious and unwholesome elements, such as gas, smoke, dust, cinders, ashes, etc., to the detriment of the property of adjoining owners.

One’s right to enjoy property free from smoke, gas, steam, cinders, etc., is property, and when a person is deprived of that right without due process of law, he is deprived of his property without due process of law. The word abridge ” is one of the synonyms of deprive. (See Webster and Worcester.)

The defendants contend that the legislature has authorized them to do the very thing that it is now doing; but such an intent of the legislature cannot be inferred from the charter of incorporation, either by express provision or fair construction. Even if the legislature had authorized the defendants to do the very acts complained of, such authorization would be unconstitutional and void because the legislature cannot deprive one of his property without due process of law. And it was held in the Wynehamer case that the words “due process of law” in the constitution did not mean an act of the legislature, but that it meant law in its regular course of administration through courts of justice: See 2 Kent’s Commentaries, page 13; Campbell v. Evans, 45 N. Y. 358; In the Matter of Townsend, 39 Id. 171; People v. Draper, 15 Id. 563.

This court held, in McKeon v. See, 4 Robertson, 449, that the lawful character of the results of an occupation, trade or mechanical art, or the care with which it is carried on, will not prevent a right of action by those whose enjoyment of life and property is disturbed by the mode or means of conducting such occupation, trade or mechanical art. The right of jarring a neighbor’s house by the motion of a steam engine upon one’s own premises, cannot depend at all upon the utility and lawfulness of the purpose for which such motion is?employed, or of its final results. The intermediate injury before such results are obtained, wrought upon another’s juoperty or enjoyment of life, makes such employment unlawful: and a nuisance may consist in the application of steam as a motive power to an engine already upon the defendant’s own premises, and in using the same, thereby producing a vibration and shaking of the plaintiff’s buildings, and injury thereto, causing an offensive noise, interfering with the quiet use of such buildings, alarming the tenants and diminishing the rents.” This case was affirmed on appeal, see 51 N. Y. 300.

It may be that we cannot determine what portion of the total diminution of the value of plaintiff’s jn’operty is caused by the smoke, or what portion is caused by the steam, or the noise, or the ashes, or the dust, or what portion is caused by the structure itself, and by the loss of light, air and access; but this difficulty does not prevent the plaintiff from having the protection of an injunction to restrain the defendants from injuring him by emitting smoke, ashes, dust and noxious gases upon his property; or rather it is a reason why an injunction should be granted, because of the difficulty in ascertaining the damages that he is sustaining.

The judge before whom the case was tried also found that the plaintiff has paid assessments as well as taxes to the city upon his said premises.

We are unable to say to what assessments, or to assessments for what purposes, the trial court referred in this finding; if they were assessments for maintaining the street as a street, if they were assessments for street purposes, then within the decision of the Court of Appeals in the Story case, in the Lahr case and in Washington &c. v. Prospect Park &c., 4 Abb. N. C. 16, and of this court in St. Johns v. Mayor, etc., 3 Bosw. 483, the plaintiff would have an easement of light, aii; and access to the street. If he has such an easement then, within the decisions in those cases, this easement .has been taken from him without due process of law and without compensation.

In this connection we may remarle that the records of the department of taxes in the city show that plaintiff’s grantor did pay, in 1862, an assessment for paving Pearl street from Fulton to Beekman street.

We are also of the opinion that the acts of the legislature under which the defendant operates its road, and especially chapter 606 of the Laws of 1875, commonly known as “The Rapid Transit Act,” require that the defendant shall compensate a person whose land is subjected to the use that the findings in this case show that the plaintiff’s land was subjected to.

It is provided in section 17, chapter 606, of the Laws of 1875, “ that the defendant shall have the right to acquire and hold such real estate or interest therein as may be necessary to enable it to construct, maintain and operate its railway.”

This act contemplates the contingency of the defendants needing less than a fee in the land for the purpose of maintaining and operating its road, and that it should pay for any interest in the land less than the fee that it acquired. "

The right to use another’s land as a place on which to throw dust and ashes is an easement, and an easement ii an interest in the land. Arnold v. Hudson R. R. Co., 55 N. Y. 661.

The defendant claims to have the right to throw dust and ashes upon plaintiff’s premises without compensation, and therefore it claims and has taken an easement or interest in his land. This easement it has not yet acquired by contract with the plaintiff, or in the method pointed out in the act above referred to. It has no right to this easement without compensating the plaintiff therefor.

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

O’Gorman, J.

The plaintiff being owner in fee of premises abutting on Pearl street in the city of New York, and claiming to be the owner also of an easement in that street, brought this action for the purpose of obtaining an injunction against the obstructing and encumbering of that s.treet in front of his premises by the defendants, by their maintaining their elevated railroad there; and that they be compelled to remove the same and also that he should have judgment for the damage sustained by him. The case was tried by a judge without a jury, and he dismissed the complaint on the ground that the title to the soil of the street in fee simple absolute was vested in the Mayor, Aldermen and Commonalty of the city of New York and that plaintiff had no easement or private property whatever in the street, against the taking of which he was entitled to protection under the constitution of this state. The finding of the trial judge as to the title of the city of New York to absolute ownership of the highway or street, was supported by competent and sufficient evidence; the only condition attached to that ownership, being derived by implication from the provision in the second section of the Dongan charter, that the street should be for the public use and service of the Mayor, Aldermen and Commonalty of the city of New York and travellers there. By that provision, however, no private easement or property right attached to any lot abutting on the street nor was any property right in the street constituting private property vested in any individual owner of such lot. It created a trust in favor of the public at large, but not of any particular individual, whether abutting owner or not. The trial judge also found that the defendants had not taken any steps to condemn or acquire any property of the plaintiff; that the railroad structure seriously impaired the plaintiff’s light; that the engines emitted smoke, gas, steam, cinders, &c., which at times entered the plaintiff’s premises through the doors and windows and caused him injury; that his property had been permanently damaged and its value seriously lessened thereby; that defendants’ elevated railroad was a lawful structure and the operation of it, as it was operated by defendants, a lawful use of the structure; that defendants’ trains caused some noise, but that they were furnished with the best practicable appliance known for prevention of the noise and also with the best practical appliances to arrest sparks and cinders.

Accepting, for the present, the conclusion arrived at by the trial judge, that the plaintiff had no private easement or property rights in the street,—as to which conclusion, more will be said hereafter,—the question is still open for discussion whether, on the authority of, oas a legitimate sequel to the recent decision of the Court of Appeals in Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10 ; and Lahr v. The Metropolitan Elevated Railway Co. (Court of Appeals, February 1887) 104 N. Y. 268. The plaintiff in the case at bar is not entitled to relief, on the ground that the acts of the defendants complained of, were not necessary incidents of the lawful use of the railroad, and also on the ground that, even if they had been such necessary incidents, they were still, as far as they impaired the plaintiff’s beneficial use of his premises and diminished their rental value, either trespasses or a private nuisance for which he had a valid claim to recover damages; or a taking of plaintiff’s private property without compensation and without due process of law which is prohibited by the constitution of this state.

Granting then that the defendants’ structure, having been erected in accordance with law, is not, of itself, a nuisance, either public or private (Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 107), and also that the operation of their road was a lawful use; granting also that they had used the best known means in order to prevent the dissemination of the noxious vapors, etc., which entered the plaintiff’s house and seriously diminished its value; yet these means and appliances were inadequate and inefficient to prevent the mischief, and the impairment of plaintiff’s beneficial use of his house and of its rental value has occurred and continues.

The trial judge has not found that the creation and existence of these noxious vapors, etc., by defendants are necessary incidents to the lawful use of defendants’ railroad.

Excluding then the idea of the possession by the plaintiff of any easement in the street and treating the relations between him and the defendants as such only as ordinarily exist between owners or occupiers of premises adjoining one another in a city, the rights and duties of each as to the other would be these:

Each would have the right to use his own premises for his own private advantage in all ways, not in themselves unlawful, subject, however, to the duty of not. inflicting thereby any substantial injury on the other. If either did inflict injury on the other, the fact that the necessities- of his business required such injury to be inflicted, or that he exercised due care to prevent the mischief, would not be an excuse. McKeon v. See, 51 N. Y. 300; Cogswell v. R. R. supra. The discussion of the principles of law in the latter case is specially instructive and important. The facts were these : The defendant railroad company, having a legal right to operate and run its cars into the city of New York, acquired a lot of land adjoining the premises of the plaintiff, and on this lot, they erected an engine house, in the use of which they flooded the plaintiff’s premises with noxious gases, to the great injury thereof and the pecuniary loss to plaintiff. The defendants contended that the use of this engine house and the emission of these noxious vapors therefrom, were necessary incidents to the use of their railroad and were, “ damnum absque injuriar The court below held that the injury to plaintiff’s premises was not a taking of his property within the constitution, and affirmed a judgment in favor of the defendants. Cogswell v. R. R., 48 Super. Ct. 31. The Court of Appeals reversed that j udgment, and placed its decision on the ground that the legislature had not authorized the wrong of which the plaintiff complained, and it was unnecessary to determine whether the legislature could have authorized it consistently with the principles of the constitution for the security of private rights, without providing for compensation. Cogswell v. R. R. 103 N. Y. 16. In that case, as in the case now at bar, there was no question of any infringement on any easement in the plaintiff, but only of the injury inflicted on him by noxious vapors emanating from the engine house next to the plaintiff’s house; and the Court of Appeals held, that the engine house as used by defendants was a nuisance for which, as between individuals, an action would lie for damages and for which a court of equity would afford a remedy by injunction. Cogswell v. R. R. (supra) p. 15.

As to the argument used in the Cogswell case; viz., that the statutory authority to run railroad cars to the city of New York, justified also the acquisition and the use of the engine house in New York, which would otherwise have given a right of action, the Court of Appeals says:—

“ But the statutory sanction which will justify an injury to property, must be express, or must be given by clear and unquestionable implication from the powers expressly conferred so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be" presumed, from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining them consent. This construction of statutory powers, applies with peculiar force to grants of corporate powers to private corporations which are set up as a justification of corporate acts to the detriment of private property.” (p. 21.)

Applying this clear and emphatic expression of the opinion of the court in the Cogswell case, to the case at bar, it seems impossible for the defendants to justify the infliction by them of the injury complained of by the plaintiff, on the ground that it was the necessary incident to the use of their lawful railroad. It cannot be held that the legislature contemplated the doing of the very act which occasioned the injury to the plaintiff, or even entertained or assented to the probability that the defendants’ cars in their passage on the defendants’ railroad, would emit smoke, gas, and noxious vapors at all, or to such an extent as to render the houses abutting on the street practically uninhabitable.

But even if it could be with good reason held that this emission of noxious vapor was a necessary incident to the use of the defendants’ road, and that "the legislature so intended, the question would still remain whether the legislature had the right to sanction a nuisance so detrimental to plaintiff's private property as to constitute a taking thereof, without compensation.

The opinion of the Court of Appeals in the Cogswell case" on that subject is again important. After stating that they placed their judgment on the ground that the legislature had not authorized the wrong to plaintiff, they proceed, “ It is therefore unnecessary to determine whether the legislature could have authorized it consistently with the principles of the Constitution for thsecurity of private rights, without provision for compensation.”

If it were necessary for the decision of the case at bar, I should have no hesitation in holding that the legislature had no right to authorize or sanction any serious injury to the private property of a citizen, so far destroying or impairing its beneficial use to him as to constitute a taking thereof, unless such taking were accomplished under due process of law and provision be made that he be duly compensated therefor.

But another subject still remains to be considered.

The learned trial judge found that, during the plaintiff’s occupation of his premises, he had paid assessments as well as taxes. It may be presumed that it was meant thereby, that he paid assessments imposed on the premises, referred to in this case, for improvements, repairs, étc., to Pearl, street in front of these premises; other wise the finding would have been irrelevant.

Assessments imposed on real property in the city of New York for local.improvements of streets are special contributions paid by an abutting owner, in addition to, and exclusive of, the general tax which he pays as one of the general public. The distinction between these two imposts, is clear and well defined. Hassan v. City of Rochester, 67 N. Y. 533-34. The assessment is not to be regarded as a burden, but as a compensation paid by the owner of a lot for the enhanced value derived by him from the local improvement. But in making that payment, he has the righfi to expect that his right to use and enjoy the improvement that he thus pays for, shall be preserved to him without impairment, and this right is private property which cannot be taken from, him without compensation. This appears to me to be the natural consequence and sequel to the Story case and of the more recent case of Lahr v. The Metrópoli-, tan El. Ry. Co. (supra.) In the Story case it was held; that the title, in an abutting owner, to an easement in a public street in front of his premises, depending on a deed from the city of New York, containing covenants protecting the street from any use other than that of a public street was good title, and vested in him a private property which could not be taken without compensation. In the Lahr case, the Court of Appeals held, that there was no legal difference between the title acquired under these circumstances, and that acquired through a series of mesne conveyances from an original owner, whose property had been taken in proceedings instituted by the municipality under the Act of 1813, which provided that lands thus acquired should be kept open forever as public streets in the city of New York, are, or of right ought to be ”.....and for the reason especially, that he had been a party to the proceedings under which the land had been appropriated for a public street and was liable to be assessed for its benefit, and therefore entitled to enjoy them. Lahr v. Met. El. Ry. (supra) p. 289.

It seems a natural and proper step and a logical consequence of the principle sustained by these authorities, to hold that when an abutting owner pays, under compulsion of law, a sum specially awarded as his individual contribution to the well being and improved utility of the street to the public and to himself, as abutting owner, a contract must be implied that he shall be secure in his right to use and enjoy the street with all the improvements and advantages to the creation of which he has specially contributed.

For these reasons, it is my opinion that the judgment appealed from in this case should be reversed, and a new trial be ordered with costs to abide th*e event.

Sedgwick, Ch. J.

I concur with both judges deliver-opinions, property plaintiff was taken without compensation.


text:
    MICHAEL MORRASSY, Respondent, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, et al., Appellants.

      Negligence—Public streets.

    In this case the plaintiff, while walking along Fourth street, New York city, fell over a block of stone, that had been used for a stepping stone and for a long time been allowed to remain on the sidewalk and to be used for that purpose, and the plaintiff was injured thereby.
    The trial judge directed the jury as a matter of law that the defendant was negligent in allowing the block to remain on the sidewalk.

      Held, That there was error in such direction, the question of negligence should have been submitted to the jury. Dubois v. City of Kingston, 102 N. Y. 221.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal by defendants from judgment in favor of the plaintiff for $750, entered on verdict.

      E. Henry Lacombe, counsel to the corporation, and D. J. Dean, for appellants.

      Peter Mitchell, for respondent.
   By the Court.—O’Gorman, J.

The facts are that plaintiff, while walking along Fourth street in this city, fell over a large block of stone which had been used as a stepping stone and for a long time allowed to be on the sidewalk, and The plaintiff was badly hurt thereby.

The learned trial judge submitted to the jury the question at issue whether the negligence of the defendants contributed to the disaster, but directed the jury, as a matter of law, that the defendant corporation was negligent in allowing the block to remain on the sidewalk. To this direction, the defendant corporation excepted, and the only question to be considered on this appeal is whether that exception was well taken.

In the case of Dubois v. City of Kingston, 102 N. Y. 221, the plaintiff was injured from a similar cause, and had a verdict and judgment in his favor, from which the defendant appealed. The Court of Appeals held that the court erred on the trial in denying the defendant’s motion to dismiss the complaint, and that there was no evidence which justified the conclusion that the stepping stone, there in question, was dangerous to travellers or that the defendant, the city of Kingston, was liable for negligence in allowing it to remain on the sidewalk.

This decision was rendered since the trial of the case at bar, and it may justly be inferred from it, that in the opinion of the court, the question whether the allowing such an obstruction to remain on the sidewalk was in itself negligence, should be left to the jury under all the circumstances of each case, as a question of fact.

The refusal in the case at bar, to send the question to the jury was, therefore, error.

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

Sedgwick, Ch. J., concurred.


text:
    THOMAS HAND, an infant, Appellant, v. JOHN KLINKER, Respondent.

      Negligence.

    The plaintiff was injured in September, 1881, by being struck by a wagon belonging to defendant, which was backed across the sidewalk in 49th street, New York city, between 11th and 12th avenues, in order to deliver some sacks of salt into the window of a factory on that street. The plaintiff was then about eight years old.
    The trial judge in his charge to the jury said: “That the defendant’s wagon was lawfully on the sidewalk. The driver had a load to unload. But the boy was also lawfully there, and each had to respect the presence of the other. Each was bound to take care.” To that part of the charge “that the defendant’s servant and truck was lawfully on the sidewalk,” the counsel for the plaintiff excepted, and the only material question considered by the General Term was whether the exception was well taken.

      Held, That there was no error in the charge, the trial judge was justified in charging “that the act of defendant in placing his wagon on the sidewalk, was not per se unlawful, under all the circumstances of the case.
    The case of Welsh v. Wilson, 101 N. T. 254, considered. Held, That the facts are not precisely the same as in this case, yet they are similar in their main features and in principle the cases are analogous.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.
    Appeal from judgment for costs entered on verdict in favor of the defendant and from an order denying plaintiff’s motion for a new trial.

      Hart & Price, attorneys, and George H. Hart, of counsel for appellant.

      John G. Shaio, attorney, and E. J. Myers, of counsel for respondent.
   By the Court.—O’Gorman, J.

The plaintiff was injured in September, 1881, by being struck by a wagon belonging to defendant, which was backed across the sidewalk in 49th street between Eleventh and Twelfth avenues, in order that some sacks of salt on the wagon could be delivered into the window of a factory on that street.

The plaintiff was then about eight years old.

The learned trial judge, in his charge to the jury, said, “that the defendant’s wagon was lawfully on the sidewalk. The driver had a load to unload. But the boy was also lawfully there and each had to respect the presence of the other—each was bound to take care.”

To this part of the charge, “that the defendant’s wagon was lawfully on the sidewalk,” the plaintiff’s counsel excepted, and the only material question to be considered now, is whether that exception was well taken.

The Court of Appeals in the case of Welsh v. Wilson, 101 N. Y. 254, say:—

> _ “ The defendant, desiring to remove two large cases of merchandise from his store in the city of New York, placed a pair of skids from a truck across the sidewalk to the steps of the store...... The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the cases of merchandise. Every one doing business along a street, in a populous city, must have such a right, to be exercised in a reasonable manner so as not to unnecessarily incumber and obstruct the sidewalk.” In this and the case at bar, although the facts are not precisely the same, yet they are similar in their main features, and in principle analogous.

The trial judge in the case at bar, was justified in charging as he did, that the act of the defendant’s driver, in placing his wagon on the sidewalk, was not, per se, unlawful under all the circumstances of the case. He clearly and carefully instructed them that the defendant was liable for any negligence of his driver in the management of his horse while the wagon was on the sidewalk. This was all that the plaintiff was entitled to ; and this and the other exceptions to the judge’s charge, are not well taken.

The judgment should be affirmed, with costs ; and the order denying the motion for a new trial should be affirmed..

Sedgwick, Ch. J., concurred.