text:
    EDWARD H. AMMIDOWN, et al., Respondents v. THE CENTURY RUBBER COMPANY, et al., Appellants.

      Bill of particulars—Demand of further bill ordered by court and motion for further bill and information considered.

    In the case at bar. the plaintiffs demanded a bill of particulars of defendants of advances alleged in the answer, and after the service of a bill in compliance with the demand, plaintiffs moved for a further bill, showing specific dates of consignments and advances, and their motion being granted, and the further bill having been served, the plaintiffs moved for a further bill giving additional and particular information demanded. On this last motion, and in opposition thereto, defendants read and filed an affidavit in substance, and to the effect, that defendants were utterly unable to furnish any particulars in the matter further than those already submitted in the two bills of particulars theretofore furnished and submitted. Notwithstanding this affidavit, and the opposition to the motion for this third and further bill of particulars, the judge at special term required the defendants to furnish the required account and information within ten days, or in default thereof the answer be stricken out, etc.
    On appeal from this order, Held, that if the defendants cannot give a more particularized bill than already given, it is certainly not in furtherance of justice to strike out the defence and refuse a hearing when the action is called for trial. The law never requires a party to do an impossible thing under the penalty of being denied a hearing in defence of his right to liberty or property “Yea; non cogit ad impossibilia." The Rubber Company proves that it cannot give the additional information required, and there is no evidence to the contrary; under such circumstances the application should have been denied.
    Bills of particulars may be ordered to aid the administration of justice, but never where the direction tends to defeat, jeopardize or impair it. The court must exercise a wise discretion in granting or withholding the order.
    Order reversed and application for the further bill of particulars denied.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided June 1, 1891.
    Statement of the case by the Court.
    The action is in replevin to recover the possession of certain goods, of the value of about $7,000, which were sold by the plaintiffs and delivered by them to the defendants Carpenter and Lockwood, upon the faith of certain representations as to their financial standing and condition, which turned out to be ‘fraudulent. Part of the goods have been made up into 832 waterproof garments, identified in the complaint by certain numbers. The plaintiffs allege that the Century Rubber Company, a domestic corporation, which is joined as a co-defendant, was the sole agent of the defendant Carpenter and as such obtained from him the possession of the property and thereafter refused to deliver it up to the plaintiff, after demand made therefor, and after the plaintiffs had elected to rescind for the fraud and their title by such rescission had become known to all of the defendants.
    The answer of the Century Rubber Company is substantially a denial of the material allegations of the complaint, and an affirmative plea in defence, that the goods formed a portion of divers consignments made by Carpenter and Lockwood to the Rubber Company, upon which it had made advances, and that on account of such advances there is now due $2,452.65, and that the Rubber Company acquired a special property in the goods with the right to retain them until the said sum was fully paid to it. The contention of the Rubber Company is that whether Carpenter and Lockwood were bona fide or fraudulent vendees of the goods, that it, by advances made in good faith and without knowledge of any wrong-doing on the part of the vendees, acquired a valid lien upon the goods with the right to retain them, until they are reimbursed therefor. The plaintiffs by way of reply deny every allegation of the answer respecting the advances or lien. The plaintiffs demanded a bill of particulars of the alleged advances, in response to which the Century Rubber Company served the following :
    93 Peasant Garments, $279 00 127 it it . 254 00 54 it it 310 50 113 Clermont it . 254 25 54 it tt 175 50 99 tt it 643 50 75 Edinboro it 168 75 8 it tt 26 00 124 Peasant Shirred Garments, . . 248 00 10 a it tt 57 50 65 Garments, • • • • . 767 00 3 it it 6 75 ,7 U a . 22 75
    $3,213 50 .
    The plaintiff thereupon moved for a further bill, and Judge Freedman directed that the Rubber Company serve a bill of particulars showing the date of each and every consignment to said Company of the goods in suit, or any of them, the sum and sums advanced upon each consignment, and the date or dates of each and every advance upon the goods contained in such consignment. As a compliance with this order the Rubber Company served a further bill of particulars as follows: “ During the months,of November and December, 1389, and Jan-nary and February, 1890, the firm of C. C. Carpenter consigned to the defendant, The Century Rubber Company, a large quantity of manufactured garments, composed in part of the material which is the subject matter of the plaintiffs’ claim. The merchandise so consigned consisted of the following : Nov. 1st., 273 rubber garments.”
    Then follow 81 similiar items, with dates and particulars as above.
    Then comes this statement: “ Upon this merchandise the defendant, The Century Rubber Company, advanced to the said firm of C. C. Carpenter the following sums upon the following dates respectively: 1889, Nov. 2d, to cash $1,500.”
    Then follow 65 similar items, with dates and particulars as above.
    Then comes this statement: “ The consignments of merchandise above referred to were all made within the period of the four months above stated, but from the large quantity of such consignments and from the altered character of the goods in their manufactured state, it is wholly impossible for the defendant to particularize upon what precise day during the said period any precise portion of the plaintiffs’ alleged goods was received by the defendant, but it was all received within the period above mentioned, and all forms a part of the above-mentioned enumeration of manufactured garments.”
    The plaintiffs not having received an account of the sums advanced on each particular consignment, with the date of such consignment and the specific advance thereon, moved for a further bill giving this particular information. In opposition to the motion the defendant relied on the facts stated in the following affidavit:
    £‘ Sigmund Bendit, being duly sworn, says that he is the secretary and treasurer of the Century Rubber Company, the defendant herein; that, in addition to the two bills of particulars already prepared by him, he

      is utterly unable to furnish any particulars in the matter further than those already submitted; that he has made a thorough examination of his books, but is not able therefrom to add anything to what the bills of particulars already served contain.”
    Venue and Jurat.
    Notwithstanding this affidavit, Judge Dugkro required the defendant to furnish the required account within ten days, or in default thereof that the answer of the Rubber Company be stricken out.
    The Rubber Company appeals from the order so made.

      Horwitz & Hershfield, for appellants, argued :—
    I. The order appealed from is harsh and oppressive. A further bill of particulars ought not to be ordered, because such an order will be oppressive in its operation. The scope of an order requiring a bill of particulars is a question of discretion, but it is plain that when from the necessities of the case all has been done, as has been done by the defendant in this case, the court, in exercising such discretion, will “ not impose unnecessary labor,” and where, from all the circumstances of the case, an order “may have an oppressive operation,” Wigand v. De Jonge, 18 Hun, 407, the court will not grant it.
    II. The plaintiffs are in possession of all the essential facts that the defendants can furnish. A further bill of particulars ought not to be required, because the plaintiffs have in their possession all the essential facts they seek to obtain' from the defendants; and where the party knows what his adversary means to rely on for his defence, no particulars will be ordered. Stevens v. Webb, 4 Civ. Proc. R. 64. Nor where the information sought for lies within the knowledge of the party who seeks it. Fink v. Jetter, 38 Hun, 163. Nor where the claim is fairly described in the pleadings. Banks v. Ocean Nat. Bank, 53 How. 51. The plaintiffs cannot assume ignorance of what the defendant’s claim is, nor of what goods the defendant claims a lien on, as the answer and bills of particulars already served sufficiently apprise the plaintiffs of the defendant’s claim, since a bill of particulars is sufficient if it fairly apprises the party of the grounds of claim, so that he cannot be surprised. Stowits v. Bank of Troy, 21 Wend. 186 ; Brown v. Williams, 4 Ib. 360.
    III. The bills of particulars already furnished cover all the ground, and perform all the functions required of a bill of particulars. It is not the office of a bill of particulars to state the grounds upon which plaintiff seeks to recover, but only to point out the items and particulars of his claim. Seaman v. Low, 4 Bosw. 337. Its office is to amplify a pleading, and indicate to the defendant the nature of the claim that he will be called upon to meet, so that he may not be taken by surprise from the generality of the pleadings, and come to the trial unprepared as to the nature of his defence.- Enright v. Seymour, 8 State Rep. 356. Its office being to amplify a pleading that might otherwise be vague, ambiguous or too general in its statement, where the bills already served have apprised the opposite party of the specific claims made, “ the demand for and allowance of particulars ought not to go beyond the necessity of the case.” In Wigand v. De Jonge, 18 Hun, 405, the court said : “ Orders for particulars are made in the interest of justice, and for the purpose of its advancement. A party must not be sent to trial without knowledge of the accusation against him. He must be subjected to no surprise. But while this rule attains in the administration of justice, another consideration of equal importance is that the court will make no order which will shield the defendant from just responsibility. If the information sought is in the possession of the party asking it, then it will be plain that the application is stimulated by some motive other than a desire for- specific details; and if it appears in addition that the parties from whom further particulars are asked are not in a situation to answer the demand, and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order.”
    IV. The motion for a further bill of particulars should have been denied. In La Scala v. Lyon, (Supreme Court, General Term, June 6th, 1890,) 11 N. Y. Supp. 31, the court held “ that a motion to compel a defendant to furnish a bill of particulars is properly denied where the answer, setting up justification, is elaborate, gives many details, and defendant swears that he has stated the elements of the justification with as great particularity as he can.” The affidavit of the secretary and treasurer of the defendant showed that he is utterly unable to furnish any particulars in the matter further than those already,submitted, and after a thorough examination of his books, is not able to add anything to what the two bills of particulars already served contain. The defendant having, with as great particularity as possible, given all the details in its possession, cannot be expected to do more, as, “ where a party is unable to give minute particulars, he may be excused from giving them if the substantial rights of the other party may be guarded. Baremore v. Taylor, 53 N. Y. Supr. 119.

      A. H. Ammidown, for respondents, argued:—
    I. Each consignment of goods fraudulently purchased can be held only for the advances made thereon in good faith and unpaid, and not for advances generally or a precedent debt, and the particulars ordered by Mr. Justice Freedman are important and necessary to prevent surprise at the trial and enable plaintiff to prepare for trial. Adams v. Bowerman, 109 N. Y. 23 ; Farwell v. Imp. & T. Bk., 90 Ib. 483; Dows v. Kidder, 84 Ib. 121.
    II. The defendant-company served a bill giving practically no particulars and professing no inability except “ it is wholly impossible for the defendant to particularize upon what precise day during the said period any precise portion of the plaintiffs’ alleged goods was received by the defendants,” but made no pretence that the time of receipt could not be given within a day or two, or that the time of consignment as distinguished from the time of receipt could not be given exactly, or that the time of receipt of the “ replevied garments ” as distinguished from the “ goods ” could not be given exactly.
    III. Plaintiffs made a motion that the order of Mr. Justice Freedman be complied with or the answer be stricken out, or for other relief, and the affidavit of A. H. Amtnidown stated facts tending to show and claimed to show, together with the other papers in the case, that said defendant was attempting to evade said order, and no part of said affidavit is denied. The order appealed from was proper on the ground that the bill of particulars served was evasive. Gas Works Construction Co. v. Standard Gas Light Co., 16 State Rep. 1001.
    IV. The defendants in opposition to plaintiffs’ motion for a further bill presented only the affidavit of one Sigmund Bendit, that he was the secretary and treasurer of said defendant, and “ he has made a thorough examination of his books, but is not able therefrom to add anything to what the bills of particulars already served contained,” but did not swear that the defendant-company could not comply with Mr. Justice Freedman’s order, and he had himself verified the complaint as true of his own knowledge.
    V. The ignorance of a single agent or officer is of no consequence or not conclusive. Baremore v. Taylor, 53 Superior Court, 119. In Witkowski v. Paramore, 93 N. Y. 467, it was stated in the answer that .defendant could not state the exact amount, but a bill of particulars was nevertheless ordered. It was presumed to be within their knowledge. In Humphrey v. Cottley, 4 Cow. 54, an affidavit was made that they “ could not ” “ give the precise dates and times,” but the order requiring the precise dates and times was nevertheless allowed to stand. The Hon. Justice who made the order appealed from might properly under all the facts of this case have ordered the answer stricken out without any qualifications. Gross v. Clark, 87 N. Y. 272.
   By the Court.—McAdam, J.

The plaintiffs are evidently proceeding upon the theory that the goods, though fraudulently purchased by Carpenter and Lockwood, cannot be taken from the Rubber Company if it in good faith made advances on the security thereof. They claim, however, that the goods cannot be held for advances generally or a precedent debt, and their object in insisting upon the last bill ordered is to enable them to determine whether the lien asserted is for a precedent debt, advances generally, or for specific advances on particular consignments. This could readily be decided if the Rubber Company specified separately each consignment with the special advance made thereon. This course would also enable the court to see at a glance the precise question to be determined. Courts are liberal in requiring bills of particulars as a sort of curative aid in the administration of justice by preventing surprise and giving each party a reasonable opportunity to produce his proofs and to meet and sift those of his adversary. Dwight v. Germania Co., 84 N. Y. 493 ; Tilton v. Beecher, 59 Ib. 176; People v. Tweed, 63 Ib. 194. The inconvenience of furnishing the information is no answer to the application. Inability to' furnish it may form a complete answer. 2 Am. and Eng. Enc. of Law, 247 ; Chandler v. Stevens, 2 Month. L. Bul. 5. To this phase of the question we must give our attention.

The plaintiffs are seeking information concerning transactions between the Rubber Company on the one hand and Carpenter and Lockwood on the other. It is fair to assume that while those transactions continued, the Rubber Company had no anticipation that the information now sought would be required. That they kept 'their accounts in a general way, crediting each consignment as it came in and charging Carpenter and Lockwood with the advances as they were from time to time made. Ordinarily that system of bookkeeping would suffice.

The Rubber Company kept on making advances as goods came in, taking care at all times, that the security exceeded the sums advanced. This system would not require a separate entry for each consignment, nor an entry of a specific advance thereon. The Rubber Company, by the affidavit of its treasurer, proves this, in effect, when he swears that “ he is utterly unable to furnish any particulars in the matter further than he has already furnished; that he has made a thorough examination of his books but he is not able to add anything to what the bills of particulars already served contain.” If the Rubber Company cannot give a more particularized bill than it has already given, it is certainly not in furtherance of justice to strike, out its defence, and refuse it a hearing when the action is called for trial. The law never requires a party to do an impossible thing under the penalty of being denied a hearing in defence of its right to liberty or property. Lex non eogit ad impossibilia. In Wigand v. DeJonge, 18 Hun, 405, the court held, that if it appears that the parties from whom further particulars are asked are not in a situation to answer the demand, and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order.” This is as it should be. See Broom's Legal Maxims, 242.

Suppose a merchant loses his books by fire, larceny or other cause, is he to be denied his day in court because he cannot particularize his account ? Certainly not. Nor is he to b.e so deprived because his system of bookkeeping does not enable him to divide up his accounts to suit contingencies he never expected to meet. An illiterate man who keeps accounts according to a method of his own is not to be deprived of justice because his system does not enable him to give an account with the accuracy or particularity a skilled bookkeeper might have given if he had had charge of • the business. In all these cases the explanation is to go to the jury, and in the light of their best judgment they are to determine the facts with reference to their inherent probability or improbability, in view of the. situation of the party, his systems and methods.

The Eubber Company proves that it cannot give- the additional information required, and there is no evidence to the contrary. Under such circumstances a proper case was presented for denying the plaintiffs’ application. To sustain the order appealed from means that the defendant’s answer is to be stricken out,, and that it must lose its advances amounting to $2,452.65, simply because it did not keep books or accounts to meet a contingency it.was under no obligation to expect. It will not do to say that if the defendant cannot give the information now it cannot furnish it on the trial, atid that it might as well be defeated now as then.

The Eubber Company may be able to prove by Carpenter and Lockwood, or by their books or bookkeeper, all that is necessary to prove in defence. The law gives it the privilege of compelling Carpenter and Lockwood and their bookkeeper to appear, and of requiring them to produce their books in aid of the Eubber Company’s defence. We cannot hold in advance how far this evidence may go or what it will prove.

These things should be ascertained at the trial, which is a constitutional right, and not upon mere motion in advance of it. The defendant may have no means of securing this information or evidence except at the trial, and he is not to be deprived of the opportunity of obtaining it. Bills of particulars may be ordered to aid the administration of justice, but never where • the direction may tend to defeat, jeopardize or impair it. A bill of particulars is not matter of right, is a mere creature of the court, and is no part of the record.

Blunt v. Cook, 4 Man. and Gran. 458. The court must exercise a wise discretion in granting or withholding it. This appeal is a continuation of the motion in the same court, and we are called upon to adopt the discretion of the special term judge or to reject it and substitute our owm

In the analogous proceeding to compel the adverse party to exhibit a document or serve a copy, it is a complete answer to the motion that the-party is unable to do either. 4 Abb. Pr. 233; Ib. 41; 8 How. Pr. 89 ; 1 Duer, 652 ; 25 How. Pr. 522; 1 Robt. 681; 16 Abb. Pr. 1; 20 W. Dig. 85. A bill of particulars is a mere amplification of the pleadings, intended to furnish facts, not evidence. If the pleading is sufficient on its face to entitle the party to a trial, he cannot be deprived of it, simply because he does not particularize the facts to suit the pleasure of his adversary, if the refusal to do so be not capricious, but real, resulting from positive inability, and not from contumacy. "

It will not do to say that the defendant ought to have prepared itself for the present condition of things. The more appropriate question to ask is whether it is prepared for the emergency. The court must act on things as they are, and not as they ought to be, or as the plaintiffs would like to have them.

For these reasons, and on the ground of the inability of the defendant to give the information required, the order appealed from must be reversed, and the application for a further bill of particulars denied, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—McAdam, J.

license: Public Domain

text:
    JAMES H. McGEAN, as Executor and Trustee, etc., Respondent v. THE METROPOLITAN ELEVATED RAILROAD COMPANY, et al., Appellants.

      Action to obtain injunction relief against the maintenance and operation of dej'endants’ elevated railway and for damages resulting therefrom.

    The only question urged upon this appeal, that has not already been passed upon by this court adversely to defendants’ contention, is one based upon the admitted facts in the case. After this action, was brought the plaintiff sold and conveyed the premises, claimed to have been injured, to one Rosenbaum for the consideration of $8,800, the grantor (the plaintiff) making the following reservation in the deed. “ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street as now constructed, and the fee and easement in Division street, now or heretofore or hereafter occupied and invaded by the said elevated railway structure when maintained "and operated, as aforesaid, an<j the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.” This transfer of title was not pleaded by defendants in a supplemental answer or otherwise. The defendants’ motion to dismiss the complaint, made immediately upon the introduction of this deed in evidence, was taken under consideration by the court, and finally, in effect, denied by the decision of the court granting an injunction.

      Held, that this conveyance did not bar or otherwise interfere with the pending litigation. It was made upon the express condition that it should not interfere with it. The recovery by the plaintiff in this action bars any action by the purchaser for the same cause of action, and this circumstance deprives the defendants’ objection of all practical significance. The damages recovered belong to the plaintiff. The plaintiff had a right to the relief when he brought the suit and should not be deprived of it by any subsequent act short of parting with his entire right of action. The plaintiff-, by this reservation in the grant, preserved his right to continue the action, and he was entitled to the relief obtained. For this reason, as also upon the further ground that the technical objection urged against the recovery was not raised by supplemental answer and is now available to the defendants, the judgment is affirmed.
    Before Sedgwick, Ch. J., and McAdam, J.

      Decided June 1, 1891.
    Appeal from a judgment rendered after a trial at special term. The judgment awards to the plaintiff the sum of $780.42, for past damages, and contained an injunction restraining defendants from operating their railway, in front of the premises, unless within a time specified they pay the sum of $1,500.

      Davies & Rapallo, attorneys, and Julien T. Davies and Alexander S. Lyman of counsel, for appellants, argued :—
    The attempted reservation in the deed from the plaintiff to Rosenbaum was ineffectual for any purpose. A preliminary question to be disposed of, is the construction to be given to the clause of reservation. The plaintiff’s contention on the trial, before his Honor Judge Freedman, was that the language employed was intended to, and did accomplish • two things : First, a reservation of the damages to be thereafter caused by defendants’ railroad to the premises granted to Rosenbaum, viz., No. 15' Division street. Second, an exception of the land in the bed of the street in front of No. 15' Division street, and a reservation of the easement in the street, appurtenant to the granted estate, and “ occupied and invaded ” by the defendants’ railroad. The learned trial judge, however, apparently adopted the plaintiff’s view, holding that the plaintiff was still seized in fee of one-half the bed of Division street, in front of the premises conveyed, and that his right to obtain an injunction herein was predicated wholly upon such ownership. Indeed, it was apparently conceded by the learned counsel for the plaintiff, that the reservation of future damages merely, and of the easement appurtenant to the premises granted, was insufficient to support his claim- for an injunction! In this connection the case of Williams, and subsequently his executor, Henderson, against the New York Central Railroad Company, 16 N. Y. 97; 78 Ib. 423, was cited as being a conclusive authority upon the point that the ownership by plaintiff of the fragment of land in the street, was sufficient to sustain the injunction. The effect of the reservation in the deed from the plaintiff to Rosenbaum was to reserve the damages to the fee and easement in the street, and not the fee and easement themselves. The language employed is : “ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street, as now constructed, and the fee and easement in Division street now or heretofore or hereafter occupied and invaded by the said élevated railway structure when maintained and operated as aforesaid, and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.” The natural construction is that the words “ all damages to ” are to be read in front of the words “ the fee and easement in Division street,” and not the word “ reserving.”

      Edward J. McGean, attorney, and Roger Foster of counsel, for respondent, argued:—
    The sale of the property pending the action did not deprive us of the right to an injunction as an alternative to the payment of the damages to the fee value by the maintenance of the elevated railway, (a) Common sense teaches us° that it is unjust that one who has sold property for a much less price on account of the existence of a r'ailway should not be entitled to recover those damages in a court of- equity. The only reason upon which the courts have hitherto sustained the rights of the purchasers has been that they presumably bought the right to enjoin the construction of a railroad. When a reservation of that right was made, that reason ceased. In the case of Henderson v. N. Y. Central R. R. Co,, 78 N. Y. 423; S. C. 16 Ib. 97; we quote from the headnote : “ All of the lots had been conveyed by W., or by the present plaintiffs, before trial, reserving all claims against defendant for damages. Held, that the action was maintainable; that in the exercise of its equitable jurisdiction the court, or a referee acting in its place, could give full relief—any relief to which plaintiff would in any action and before any tribunal be entitled to; and so that an allowance as an item of damages of the amount of the depreciation in value of the lots was proper, as was also a provision in the judgment that if plaintiffs tender to defendant a conveyance of the interest W. had at the time of his death in the land so occupied by defendant’s tracks, and released it from all claim for damages, except the item above stated, that it should pay a further sum, or in default that it should be enjoined from using its railroad upon said lands.” The only question there left in doubt by the court was whether the plaintiffs were entitled to thus recover the damages for the lands sold before the action was brought. That question does not arise here. Even did the court not believe that the Henderson and McRae cases were sound, yet they have existed unquestioned so long as to become a rule of property; and many conveyances, of some of which the writer of this brief has knowledge, have been made in reliance upon them since the construction of the elevated railway. To now overrule them would do great injury and tend to unset the faith in the decisions of the court. An easement of a right of way for a railway can always be reserved or granted to an individual or a corporation although detached from any interest in land. See Junction R. R. Co. v. Ruggles, 7 Ohio St. 1, cited at length in brief in Pegram v. N. Y. El. R. R. Co., submitted at this general term. Rover on Railroads, p. 322: “If the railroad of the company to whom the grant he thus made he sold by any means allowed by law, the right to the easement passes to the grantee unimpaired.” In N. J. Midland Ry. Co. v. Van Syckle, 9 Vroom (N. Y. Law), 496, 504, such an easement created by grant was held assignable. “ The company having, therefore, an interest in the land occupied by the railroad, it was assignable by the legislature, as any of their legal interest in lands may be assigned.” Lewis on Eminent Domain, § 318, p. 420 : “Where land is occupied wrongfully or by mere consent of the owner, expressed or implied, no right or title to the land so occupied passes, and a subsequent deed by the owner vests the entire estate in the grantee, and such grantee, in the absence of any reservation, is entitled to the just compensation for the land so occupied.” The following decisions hold that in such a case, even where there is no reservation, the grantor is entitled to all the damages, past and future, caused or to be caused, by the unlawful occupation by the railroad. Pomeroy v. C. & N. W. Ry. Co., 25 Wis. 641; Indiana, etc., Ry. Co. v. Allen, 100 Indiana, 409; Mc-Lendon v. Railroad Co., 54 Georgia, 293 ; McFadden v. Johnson, 72 Va. St. 335; Davis v. T. & O. C. Ry. Co., 114 Ib. 308; Rand v. Townshend, 26 Vt. 670; Lewis v. Wilmington, etc., R. R. Co., 11 Rich. Law (S. C.), 91.
   By the Court.—McAdam, J.

The main questions urged upon this appeal, are such as have already been passed upon adversely to the defendants’ contention and need not be again considered. The deed from the plaintiff was made after suit brought, and the transfer of title was not pleaded by supplemental answer or otherwise. In the contract and deed, a reservation, drawn in form similar to that which in the case of Henderson v. N. Y. Cent. R. R. Co., 17 Hun, 344, affirmed 78 N. Y. 423, was held to be sufficient to entitle a vendor to enforce by injunction the permanent damage done to his property, was inserted to save the ulaintiff’s rights of action. The conveyance did not bar or otherwise interfere with the pending litigation. It was made upon the express condition that it should not interfere with it. It would be unreasonable to suppose that one who has sold his property for a much less price on account of the railway should not be able to reserve and enforce his right to compensation for the loss. The right of purchasers to maintain equitable actions has been sustained on the theory that they succeeded to the right to enjoin the operation of the railway. The vendee in this case purchased no such right. He bought knowing that the vendor had a pending action for an injunction and damages, and that whatever rights were secured or damages recovered in that proceeding were to belong to the plaintiff therein, for he had expressly excepted and reserved them from the operation of the grant. The recovery by the plaintiff bars any action by the purchaser for the same cause of action, and this circumstance deprives the defendants’ objection of all practical significance. The damages recovered belong to the plaintiff. They were assessed on legal principles and are fully sustained by the proofs, both as to the subject matter and amount.

The defendants’ proposition seems to be, that having conveyed the property, to which the easement is appurtenant and appendant, it ran with the grant of the land, and that the plaintiff having lost both property and easement, the equitable jurisdiction to enjoin the defendants by injunction ceased, and could not be exercised for the sole purpose of assessing damages, and hence the court below had no power either to award damages or to enjoin the operation of the defendants’ road. The plaintiff had a right to the relief when he brought his suit, and should not be deprived of it by any subsequent act short of parting with his entire right of action. Pom. Eq. Juris., §§ 231, 242. If the defendants had applied to the court for leave to serve a supplemental answer, pleading the transfer made after issue joined, the plaintiff might have elected to discontinue his action, or if he' had concluded that the easement passed with the grant might have consented to the sup- • plemental answer unless his grantee elected to continue the action, or he might under section 756 of the Code have joined the grantee as a co-plaintiff, and allowed the action to proceed for their joint benefit. That course was not pursued and the plaintiff missed these opportunities. The defendants ask us upon this appeal to give full effect to a technical objection not pleaded, that might have been obviated if made in time and according to prescribed practice.

The deed in question on its face contains this provision : “ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street as now constructed, and the fee and easement in Division street now or heretofore or hereafter occupied and invaded by the said elevated railway structure when maintained and operated, as aforesaid, and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.”

The property is located on Division street, which was laid out in 1765 by an agreement between Henry Rutgers and James DeLancey, who owned the land between which it runs upon the division line between their premises. Plaintiff’s predecessor in title was Henry Rutgers. (Finding V., p. 27, fol. 107.) Under that agreement each reserved a fee in one-half the roadway subject to the right of the public to use it as a street:

This circumstance, peculiar to Division street, is not to be overlooked.

Notice of the grants was notice of their contents, which include the reservations. No one has been or could be misled or injured to his prejudice, in which respect the case differs from Foote v. The Manhattan Railway Co., 58 Hun, 478. The easement reserved in this instance was, as will be observed, more tangible than mere sunlight or-air, and is hardly open to the criticism made against it. We think the plaintiff, by the reservation in the grant, preserved his right to continue the action, and that he wras entitled to the relief he obtained.

For this reason, as wrell as upon the further ground that the technical objection urged against the recovery was not raised by supplemental answrnr, and is not now available to the defendants, the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: “ Freedman, J. Per Curiam.

text:
    NICHOLAS M. QUADE, Respondent v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      Summons, motion to set aside service of same.

    Service of a summons upon one of the directors of the company-defendant, of the kind prescribed by the Code, is not valid, except in the case provided concerning a domestic corporation. The defendant is a foreign corporation. As neither the Act of 1816, nor the Code provided for the service that was made, such'service should be set aside.
    Before Sedgwick, Ch. J., Truax and Dugro, J,J.

      Decided June 10, 1891.
    Appeal by defendant from order denying its motion to set aside service of summons.
    The following opinion was delivered by the court at special term:
   “ Freedman, J.

This is a motion to set aside the service of the summons in this action. The motion is made on two grounds. The first is that the service was not made as prescribed by section 432, and the second is that the service was not made as prescribed by section 1895 of the Code of Civil Procedure.

“ Concerning the first point, it is claimed that the defendant is a foreign corporation, and that in such a case the service must be made in strict conformity with the requirements of section 432. In fact, the service was hot made according to the requirements of that section. It was made upon a director, which, under section 431, is good service in the case of a domestic corporation, but which is insufficient, under section 432, in the case of a foreign corporation. . The first point would, therefore, be well taken if it were not for the following considerations: The defendant corporation was originally chartered by the state of Connecticut, in the year 1844, under the name of the New York and New Haven Railroad Co. In the year 1846 it applied to the legislature of the state of New York for the permission to extend its road from the Connecticut state line to the line of the New York and Harlem Railroad, and to unite or connect with the last-mentioned railroad at or near Williams Bridge. Such permission was granted by chapter 195 of the laws of 1846, and one of the conditions imposed by the eighth section óf said act was that the said company shall be liable to be sued by summons in the same manner as corporations created by the laws of this state. This provision subjects the defendant to the liability of being sued by summons like any domestic corporation, although, for all other purposes, it may be a foreign corporation. This being so, I am of the opinion that the service of the summons upon a director was a good and valid service.

“ Concerning the second point, it must be noticed that the action is for the recovery of a penalty given by a statute. The plaintiff claims, in his complaint, that on a certain day on which he took passage on a passenger train of the defendant, to be carried on the defendant’s road from One Hundred and Thirty-fourth street, in the city of New York, to Morris Park, in the state of New York, and thence back to said One Hundred and Thirty-fourth street, he was charged and compelled to pay, contrary to the laws of the state of New York, fourteen cents in excess of the sum which the defendant had the right to ask and to receive, by means whereof the defendant became liable to pay to the plaintiff by virtue of the statute of the state of New York, entitled, ‘An Act to prevent extortion by railroad companies,’ passed March 27, 1857, the sum of $50, together with the sum of fourteen cents, so asked and received as aforesaid, in excess of the legal fare. That being the character of the complaint, the defendant claims that service of the summons could be made only as prescribed by section 1895, and that, because in fact it was not so made, the service which was made should be vacated. Section 1895 provides as follows : ‘ The summons in an action, brought as prescribed in the last section, can be served only by an officer authorized by law to collect an execution issued out of the same court,’ etc.

“ The section thus referred to (§ 1894) provides that where a penalty or forfeiture is given by a statute to any person who sues therefor, an action to recover it may be maintained by any person in his own name. But this does not apply to plaintiff’s case. The plaintiff is a person aggrieved, and the statute gives a right of action to him and not to any person who may sue for the penalty. The language of chapter 185 of the laws of 1857, as amended by chapter 415 of the laws of 1886, is ‘ which sum may be recovered, together with the excess so received, by the party paying the same,’ etc.

“ This distinction has been carefully preserved by the Code of Civil Procedure. Section 1893 provides that where a penalty or forfeiture is given by a statute to a person aggrieved by the act or omission of another, the person to whom it is given may, if it is pecuniary, maintain an action to recover the amount thereof, etc. While § 1894, as already shown, provides for cases in which the right to sue for the penalty is given by the statute to any person, § 1893, therefore, relates to actions which may be brought by persons aggrieved, while § 1894 relates to actions which may be brought by common informers. The distinction is a material one, and as § 1895 relates only to the actions to be brought under § 1894, it does not include the actions which may be brought under § 1893. The action brought by the plaintiff falls within §1893, and consequently § 1895 does not apply.

" Page & Taft, attorneys, and Henry W. Taft of counsel, for appellant, argued :—

■ I. It appeared from the affidavits submitted herewith that the defendant has a president, treasurer and secretary,1 and that at the time when the summons was delivered to Hr. Park, Frank E. Hall had been designated as a person upon whom service of summons could be made in accordance with the provisions of subdivision 2 of section 432 of the Code of Civil Procedure. It appeared from the affidavit- on which the order to show cause was obtained by the defendant that no effort whatever was made to find Frank E. Hall, the person so designated, and in the affidavits upon which the order for judgment was obtained by the plaintiff there was no allegation that any effort was made to find Mr. Hall. There was, therefore, no claim made that Mr. Hall could not have been found with due diligence. Section 432 of the Code provides that personal service of a summons upon a defendant being a foreign corporation must be made by delivering a copy thereof 'within the state ” to one of several persons therein designated, namely, the president, treasurer, secretary, or a person designated as prescribed in the second subdivision oí the section. It is only in case there is no such person designated, or in case neither such person nor one of the above-named officers can be found with due diligence, that the service may be made by delivering the summons to the cashier, a director or a managing agent. . Clearly upon the papers there has not been any compliance with the provisions of this section. Or, if there has been a compliance with its provisions and an effort has been made to find one of the officers named in subdivision 1 or the person designated under subdivision 2, there is no allegation of the fact in the papers upon which the order was granted, and therefore the entry of the order was irregular and it should be set aside. It may be claimed that, independently of section 432, service upon a director of a foreign corporation is good service, because it is sufficient in the case of a domestic corporation under section 431 of the Code. This claim cannot be substantiated, because such a construction would nullify the express provisions of section 432. What the object of the legislature was in making these special provisions in relation to foreign corporations need not be considered. It is sufficient that they have made such a provision. It is not for the court to inquire whether any other kind of service would be as efficacious in giving notice to the defendant. But it was not seriously contended by the plaintiff’s counsel below that if this defendant were a foreign corporation doing business without special, express permission of the legislature of this state, the service of the summons could have been considered to be in compliance with the provisions of the Code. It was practically conceded that, considered solely with reference to the provisions of the Code, the service of the summons in this case was defective and should be set aside, and so Judge Freedman held.

' For the foregoing reasons the motion must be denied, with $10 costs.”

II. But the position of the defendant is different from that of other- foreign corporations by reason of the following facts : The defendant was chartered by the legislature of the state of Connecticut under the name of The New York and New Haven Railroad Company. In 1846 that company applied to the legislature of the state of New York for-permission to extend its road into this state, and for certain other privileges. These were granted in chapter 195 of the laws of 1846, under the provisions of which the defendant has continued ever since to do business in this state. In 1870 the Hartford and New Haven Railroad Company -was consolidated with and merged in the New York and New Haven Railroad Company, and the name of the corporation became, and ever since has been, The New York, New Haven and Hartford Railroad Company. One of the conditions of the Permissive Act of 1846 was the following : Section 8. Said company shall be liable to be sued by summons in the same manner as corporations created by the laws of this state; and said summons, in case the same cannot be served on the officers of said company as now provided by law, may be served upon any agent of said company.” It is claimed,,and the learned judge at special term held, that this provision subjects the defendant to the liability of being sued by summons like any domestic corporation, and that, therefore, the service of the summons upon a director, being a sufficient service upon a domestic corporation under the provisions of section 431 of the Code, was sufficient as to the defendant. To one looking no further than the words of the Permissive Act of 1846, such a construction would seem to be quite plain. The peculiar use of words in. the provision is noticeable and demands a close analysis to discover, its origin and cause.

R. J. Shadbolt, attorney, and E. M. Wight of counsel, for respondent, argued :—

I. The plaintiff answers the defendant’s-first contention by pointing to the special charter under which defendant obtained -certain favors from this state, and showing that under the conditions of this act, the defendant was “ liable to be served by summons in the same manner as corporations created by the laws of this state.” § 8, ch. 195, Laws of 1846. Church, C. J., in Milnor v. N. Y., N. H. & H. R. R. Co., 53 N. Y. 363-7, says: “ When the defendant sought and obtained permission of the legislature to continue its line into and transact business in this state, it must be deemed as to its contracts made here, to possess the powers and be subject to all the liabilities of similar corporations created by this state.”

II. The other contention of defendant has no force. Section 1895 of The Code of Civil Procedure has no application to this class of actions. It applies only to actions where a penalty or forfeiture is given to “ any person who sues therefor.” § 1894. The provisions of the Code are taken from 3 R. S., ch. 8, tit. 6, art. 1, §§ 5 and 6, and relate to suits by common informers, known as “ qui tam actions.”

Per Curiam.

The defendants were attempted to be brought into court by a service upon one of their directors of a summons of the kind prescribed by the Code. Such a service is not valid, excepting in the cases provided concerning a domestic corporation. The defendant is a foreign corporation. The service was upheld below under § 8, ch. 195, Laws of 1846, which provided that the defendant “was liable to be served by summons in the same manner as corporations created by the laws of this state.” The court, however, is of the opinion that to constitute a service under the act cited, it would be necessary to serve the kind of process described. The summons named in the act was not of the character in form or substance of the summons named by the Code. As neither the act of 1846 nor the Code provided for the service that was made, that service should be set aside.

The learned judge was correct in holding that this action is not within section 1895, Code Civil Procedure.

Order reversed and motion below granted, with ten dollars costs.


author: ;c McAdam, By the Court.—Freedman, J.

text:
    EUGENE F. LETHBRIDGE, Appellant and Respondent v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents and Appellants.

      Suspension or removal from public office under civil service.

    Suspension of a regular clerk or permanent employee, of the city, ap- ' pointed after a civil service examination, is not authorized by law. The power of suspension does not exist. In this case the evidence shows neither a discharge nor an abandonment or a relinquishment of the office, and the plaintiff is entitled to recover his salary for the two years and six months subsequent to his suspension.
    The only error committed by the court below consists in the deduction of the sum of $600 that was earned by plaintiff in temporary employments during the period for which salary was claimed. Under the decision of the court of appeals in Fitzsimmons v. The City of Brooklyn, 102 N. T. 536, this deduction was unauthorized, and the plaintiff is entitled to prevail on his appeal, and the judgment should be amended by adding the $600 deducted, and as so amended, affirmed to the plaintiff.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.
    Cross-appeals taken by plaintiff and defendants, from a judgment rendered in favor of the plaintiff and against the defendants upon a trial by the court without a jury.
    The following opinion was delivered by the court at special term :—
   ;c McAdam,

There was an appropriation, sufficient to cover all the expenses of the department of public works, at the time the plaintiff was appointed to the clerkship therein, so that the appointment was a valid exercise of power by the commissioner. The plaintiff passed the requisite civil service examination. This fact, though not alleged in the complaint, was proved under objection. It was not necessary to allege it specifically. The general allegation, that the plaintiff was 6 duly appointed,’ embraced whatever was necessary to a legal appointment. Omnia praesumunter rite et solemnitur esse acta. Having been legally appointed, he could not be lawfully removed until he had been informed of the cause and allowed an opportunity of being heard. Cons. Act of 1882, § 48. The fact that the appropriation is exhausted may furnish proper cause for discharge. Dumphy v. The Mayor, etc., 8 Hun, 479. But the power of removal for this cause, or any other, was not exercised in the present instance. The notice served stated that the plaintiff was suspended. ‘ Suspension ’ means a temporary interruption or cessation of labor. The phrase ‘ removal ’ means a discharge, the act of removing from office, or putting an end to an employment. If the notice served on the plaintiff was intended to operate as a discharge, the use of an inapposite term effectually frustrated the commissioner’s intention. The power to remove conferred, by the statute does not include authority to suspend, and the alleged suspension is, therefore, inoperative. Gregory v. The Mayor, etc., 113 N. Y. 416.

“ The so-called suspension was in consequence of an alleged insufficient appropriation, but the allegation was untrue, as there was unexpended, of the appropriation, $116.89, as late as December 31, 1887, so that want of appropriation could not have been truthfully presented in January, 1887, even as ground for removal. The appointment, though for no specific period, was not temporary in its character. The salary was not so much a day, a week, or month, but $1,000 per year, indicating a regular clerkship that was to continue until cause for

removal arose and the power of removal was exercised. Consolidation Act of 1882, § 48, supra. In this respect the case differs from Dunphy v. The Mayor, etc., supra, in which the appointee was removable at pleasure. The defendant claims that the plaintiff acquiesced in his alleged suspension, and treated it as a removal. There is no proof of this. A man put out does not acquiesce by omitting to force his way back. If an officer takes a man by the collar he does not acquiesce by passive physical non-resistance. Resistance is at times criminal. The acquiescence that evidences the abandonment of a public office must be consent, freely expressed, the acceptance of incompatible employment, formal resignation, removal from the states or some such affirmative act, so repugnant to the existence of incumbency as to demonstrate that abandonment was intended. The term £ abandon ’ includes the intention and the external act by which it is carried into effect. To constitute an abandonment of a right, there must be an unequivocal and decisive act of the party, showing a determination not to have the benefit designed. Anderson's Law Dic. p. 2: There was no such act or intention here. The plaintiff endeavored to return, but was refused permission to work and told that he would not be permitted to come back. He could do no more. He was not obliged to remain idle and suffer from want, and had the right to accept temporary employment to relieve his necessities. The salary of the office was an incident to it, and followed the legal title which remained in the plaintiff. People v. Smyth, 20 Calif. 21; Same v. Ocilton, Ib. 44. The plaintiff being legally in the office, it was the duty of the municipality to provide for the payment of his salary until he was legally removed from it, and, if it neglected to perform that duty, the failure furnishes no defence. Want of the necessary appropriation may disable a department from making a valid contract or appointment. Cons. Act, 1882, §§ 46, 47, but when a valid and binding contract is once made, it is difficult to see how municipal neglect to raise or appropriate the money to discharge it constitutes a legal or meritorious defence to its enforcement. The salary up to the time the claim was presented for payment to the comptroller aggregates $2,552.25, and from this must be deducted the $600 earned from the temporary employments obtained by the plaintiff during the period for which compensation is claimed, leaving $1,952.25 due, for which amount the plaintiff is entitled to judgment, with costs.”

B. C. Chetwood, attorney and of counsel, for plaintiff, argued :—

I. The plaintiff being a “ regular clerk ” could not be removed without being informed of the cause and being allowed a hearing. This is the fundamental law of the city and involves a constitutional right. Consolidation Act, Laws 1882, p. 10, § 48.

II. Plaintiff was a permanent employee of the city classed with a head of bureau ” and appointed after a civil service examination, and his term of office was as thoroughly protected by law as that of any city employee.

III. But the defence of the city and the contention of the learned corporation counsel based on the theory of a discharge are all inapplicable to the state of facts proved in this case and were properly set aside by the learned judge in his opinion. No attempt was ever made to discharge plaintiff, either with or without cause, with or without a hearing. The fact was “ you are hereby suspended ” and that could not and did not effect a removal. Gregory v. The Mayor, 113 N. Y. 410; Morley v. The Mayor, 35 N. Y. State Rep. 262.

IV. But it is sought to reduce the judgment by the pittance earned from time to time by plaintiff in temporary employments. To that reduction we except and from it we appeal, and it seems to us that the latest view of the law is clearly on one side. Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.

V. As the learned judge expresses it so tersely”: “ The salary of the office was an incident to it and followed the legal title which remained in the plaintiff; ” exactly in point is Morley v. The Mayor, supra (p. 264). As subsequent neglect or failure to appropriate funds could constitute no excuse for non-payment of an employee already legally in office, no defence remains to the appellants and this judgment should be amended by adding the $600 deducted and as so modified affirmed with costs.

William H. Clark, counsel to the corporation, and Sidney J. Cowan of counsel, for defendants, argued: —

I, Immediately after plaintiff’s alleged suspension he relinquished his office and abandoned it and himself to other employment. One of the serious contentions of the defendants in this case is that the plaintiff regarded his “suspension” (if it may be so called, though it is a misnomer) as a discharge. Confessedly, the plaintiff did no work—not a stroke of work—for the $2,552.25 for which he sues. Immediately after his connection with the department of public works ceased, he applied, so he says, for a “ reinstatement.” He made but two applications for reinstatement, and those applications were within the four weeks after January 20, 1887. This shows he regarded his connection with the department as having ceased and regarded himself as a discharged employee. He never made any further move towards “ reinstatement,” as he calls it, or towards seeking work from the department of public works until December, 1887, and then he did nothing more than to address commissioner Newton by letter. Further than that, during the year 1887 and a short time after his discharge and continuing all through the summer of 1887, he applied to various persons and firms for work and was successful in obtaining the same. This certainly is ample evidence that he regarded himself as a discharged employee, and the defendants respectfully insist that refusal of the court below to so find was error. If he had intended to consider himself otherwise, and if he had believed himself to be all during the year 1887 still in the employ of the department of public works, and if he had intended during the year 1887 to insist upon the possession of his office he certainly would have presented himself more than twice to the proper authorities.

II. The protection of the civil service laws of this state cannot be successfully invoked herein by plaintiff. If it be true that the plaintiff abandoned his office and himself to other employment it follows that it is entirely immaterial whether the commissioner of public works suspended or discharged him, or whether the commissioner violated the civil service law by discharging him without a hearing. It is strenuously insisted in this case that the plaintiff cannot claim any protection which he may possibly consider himself entitled to under the civil service laws of this state, for the reason that such claim has not been pleaded by him, nor upon the trial was any motion made to amend the complaint in this respect. Ail special statutes entitling a party to the benefits of any certain law must be pleaded, and defendant should have been charged in the plaintiff’s complaint with a failure to observe and respect the special law, the protection of which the plaintiff desires to invoke upon the trial.

III. It is respectfully insisted that the judgment should at least in part be reversed, for that the hiring was but for a month, or at best for a year.

IV. The defence of failure of appropriation considered. Sections 46, 47 and 48 of the Consolidation Act provide that no expense shall be incurred by any city department unless there has been a previous appropriation therefor, nor shall there be any expense incurred in excess of the appropriation. In section 47 the commissioner of public works is charged -with the “ duty ” of so regulating the amount of money he receives for expenditures that the same shall not exceed the appropriation. A further provision of the section is to the effect that the city shall not be made liable on any claim in excess of the amount appropriated. Section 48 provides that the “ salaries of officers and clerks shall be such as the commissioner of public works shall designate and approve.” Here we find an inhibition from exceeding the appropriation, and an authority given to the chief of the department to so regulate the salary of the clerks by raising them, reducing them or cutting them entirely off, that the appropriation shall not be exceeded. Here we find a failure of the appropriation, or an inadequate appropriation, to be a complete impregnable defence to any action by any employee, whether he be discharged or whether he be suspended or—to put the case in the strongest light possible for the plaintiff—whether he be continued in the department doing work. Had this plaintiff been continued in the department during all this time performing work, and had he never been paid, he could not, in the face of the failure of an appropriation, or the insufficiency of an appropriation, recover a single dollar of his claim. The defence of an insufficient appropriation is as impregnable as the defence of an alibi in a criminal case. Kingsland v. The Mayor, 5 Daly, 448 ; Dillon on Mun. Corp., 4th ed., p. 518 ; Hodges v. Buffalo, 2 Den. 110 ; Donovan v. The Mayor, 33 N. Y. 291; McDonald v. The Mayor, 68 Ib. 23. .

V. The letter of appointment of plaintiff was introduced in evidence by the defendants and it appears therefrom that the fund out of which he was to be paid was the appropriation for “ repairing, renewal of pipes, stop-cocks, etc.—salaries.” That was the appropriation out of which the plaintiff was to be paid. That was the law of his case. Out of that or none must he be paid. It is difficult to conceive how the learned justice before whom the case was tried felt himself compelled to deny the defendants’ request to find that there was no such appropriation for the years 1888 and 1889. The proof is positive that there was none. That was sworn to by Mr. Barrett, and no objection was offered to his testimony other than the objection that it was immaterial. Had the duty of paying plaintiff’s salary been impressed upon the city government Toy statute the case would possibly have been different. But here we find a contract between the parties hereto that the plaintiff shall be paid out of a distinct fund. There certainly was an appropriation of $50,000 for the year 1888, but it is contended that the duty of the chief of the department of public works was to see to it that that appropriation did not become exhausted. If the plaintiff had been retained in the department by the commissioner of public works, that appropriation would have been exhausted before the close of 1887. The evidence shows that on December 81, 1887, $116 remained to the credit of that appropriation. That proof conclusively shows that if the plaintiff had been continued in the department at a salary of $1,000 a year, the appropriation would have been exceeded by. the difference between $116 and $1,000, namely, $884. The commissioner of public works, anticipating this, dispensed with the plaintiff’s services on January 20, 1887. Had he not done so, the appropriation would have been exceeded by the said sum of $884. On the 20th day of January, 1887, the commissioner of public works did his duty pursuant to the terms of sections 46, 47 and 48 of the Consolidation Act, and so adjusted his pay-roll that this $50,000 was not exceeded, and the doing of this resulted in the necessity of dispensing with plaintiff’s further services from January 20, 1887, and it was just as much his duty to do this as it was his duty to obey any other law upon the statute books.

By the Court.—Freedman, J.

The plaintiff was appointed May 15, 1886, a clerk in the department of public works of the city of New York at a salary of $1,000 per annum. He served until January 20, 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to do any work for the city, although he applied repeatedly to be allowed to return to work. The action is brought for the recovery of the salary for two years and about six months subsequent to his suspension. The evidence shows neither a discharge nor an abandonment or relinquishment of the office, and inasmuch as under the decision of the Court of Appeals in Gregory v. The Mayor, 113 N. Y. 416, and the decisions of the general terms of the Supreme Court and of this court in the Aqueduct cases, I am compelled to hold that the power of suspension did not exist, the plaintiff was entitled to recover. The failure to make an appropriation constitutes no defence. All the questions presented on defendant’s appeal are discussed at length in the able opinion rendered by the learned judge below, and it is not necessary to add anything to the reasons there assigned. The only error committed by the trial judge consists in the deduction of the sum of $600 earned by the plaintiff from temporary employments during the period for which salary was claimed. Under the decision of the Court of Appeals in Fitzsimmons v. The City of Brooklyn, 102 N. Y. 536, this deduction was unauthorized. The plaintiff is, therefore, entitled to prevail on his appeal.

The judgment should be amended by adding the $600 deducted and as so amended affirmed, with costs to the plaintiff.

Dugro and Gildersleeve, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    MICHAEL SHANLEY, Respondent v. JOHN STANLEY, Appellant.

      Negligence—Action by employee of defendant for injuries, etc., while in such employment.

    In this base, the plaintiff was employed by defendant as a workman in his soap factory, in which there was an iron tank or kettle from which protruded a pipe which had been screwed into the tank in a way intended to. secure a permanent fastening. The plaintiff, in the performance of his usual duties, was engaged with another workman in the fastening of another pipe to the pipe protruding from the tank, when the latter was suddenly forced or blown out, and the boiling soap spurted from the opening and injured the plaintiff. The plaintiff knew of no defect in the pipe or its fastening, nor was he chargeable, as matter of law, with a neglect of duty in not having discovered the defect; nor did it appear affirmatively that he was otherwise chargeable with contributory negligence.

      Held, that the question of negligence on the part of the plaintiff or defendant was one for the jury. The defendant was not bound to furnish the best of known or conceivable appliances, and it was enough for his defence to show that the pipe from the tank or kettle was so fastened as to be reasonably safe and secure; but there was some evidence of original improper and unsafe construction, and also some evidence, if credited by the jury, it had the right to find that the fastening, if originally sufficient, had become unsafe by long continued use, and that the defendant, by the exercise of ordinary care and prudence, could and should have discovered the defect, but that for years he had omitted to make any inspection or examination.

      Held, that the question of negligence was properly submitted by the court to, and considered by, the jury, and their verdict and the judgment should be affirmed.
    Before Freedman and Gildersleeve, JJ

      Decided July 2, 1891.
    Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Frederick G. Gedney, for appellant.

      Goff & Pollock, for respondent.
   By the Court.—Freedman, J.

This action was brought to recover.damages for personal injuries sustained by the plaintiff through the negligence of the defendant. The plaintiff was a workman employed in and about the soap factory of the defendant, and engaged as such in the performance of his work at the time he sustained the injuries complained of. In the factory of the defendant there was an iron tank or kettle from which protruded a pipe which had been screwed into the tank or kettle in a way intended to secure a permanent fastening. At the time of the accident the plaintiff, in the performance of his usual duties, was engaged, with the assistance of another man, in fastening another pipe to the pipe protruding from the tank or kettle when the latter suddenly was blown or forced out, and the boiling soap spurted out through the opening and injured the plaintiff. According to the testimony of the plaintiff, he neither knew of the defect which caused the occurrence, nor was he chargeable, as matter of law, writh a neglect of duty in not having discovered the defect, nor did it appear affirmatively that he was otherwise chargeable with negligence which contributed. The question of plaintiff’s contributory negligence was, therefore, one for the jury. The testimony adduced by and on behalf of the defendant upon this branch of the case was not so convincing as to call for a different result.

The question of defendant’s negligence was also one for the jury. True, the defendant was not bound to furnish the best of known or 'conceivable appliances, and it was enough if the pipe protruding from the tank or kettle was fastened into it so as to be reasonably safe. But there was some evidence of improper and unsafe construction from the start which raised a question for the jury. Moreover, there was evidence upon which, if credited, the jury had a right to find that the fastening, if originally sufficient, had become unsafe by long continued use, and that the defendant, by the exercise of ordinary care and prudence, could and should have discovered the fact, but that he failed to discover it because for years he had omitted to make any inspection or examination.

The verdict, which was for only $500, accords with substantial justice, and upon the whole case none of the exceptions urged upon the appeal presents ground for reversal.

The judgment and order should be affirmed, with costs.

Gildersleeve, J., concurred.


author: “ McAdam, J. By the Court.—Dugro, J.

text:
    THOMAS F. OAKES, Appellant v. EDWARD F. DeLANCEY, Respondent.

      Action to recover moneys that were claimed to have been paid in excess of the contract price for the purchase of land.

    It is undisputed that plaintiff purchased of defendant a tract of land, known as “ Vergemore,” at De Lancey’s Neck, in the town of Mamaroneck, N. Y., at auction, on June 4th, 1890, for the sum of $3,125 per acre, pursuant to the terms of sale which described said tract of land as containing 22 57-100 acres. After signing the agreement to purchase, annexed to said terms of sale, and paying the sum of $7,058,12, ten per cent, of the purchase price as therein provided for, plaintiff claims to have discovered that the said premises did not contain 22 57-100 acres, but contained only 18 734-1000 acres of land and no more. Thereafter, on July 7, 1890, plaintiff tendered to defendant the sum of $51,490.63 (making with the $7,053.12 paid on the day of sale, a total of $58,543.75), which plaintiff claimed was the balance of such purchase price, being at the rate of $3,125 per acre for 18 734-1000 acres of land, and demanded a deed pursuant to said agreement. Defendant, however, refused to accept such payment or deliver such deed upon the ground that said premises contained 22 57-100 acres, and that the total purchase price was $70,531.25. Thereupon plaintiff paid defendant said last named sum of $70,531.25, and received from the latter a warrantee deed of said premises, with the understanding and right to plaintiff to receive back and recover of defendant so much of said purchase money as should equal the excess thereof, over and above the price of the actual contents in acres of said premises to be determined. in this action, at the rate of $3,125 per acre.
    The plaintiff claims that the actual contents of said premises so purchased is 18 731WL000 acres, and in his complaint demands judgment for the sum of $11,987.50, with interest from July 8, 1890, which plaintiff claims represents and is equal to the excess of said purchase money so paid on the basis of 22 57-100 acres over and above the price of said actual contents in acres of said premises at the rate of $3,125 per acre. The defendant puts in issue the allegations that said premises contain only 18 734-1000 acres of land, and insists that they consist of and contain 22 57-100 acres of land.
    The question, whether these premises consist of less than 22 "57-100 acres is the pivotal point in the case. No question of title is raised nolis any question as to the character of the sale presented. The only question is, how many acres does the deed convey P Held, that the descriptive clause in the deed covered premises to low water mark on Long Island Sound; and with that mark as a boundary it was clearly established that the premises or plot, described in the deed, contained 22 57-100 acres. The plaintiff’s reasoning that high water mark was the boundary, and that there was only 18 731-1000 acres in the plot, is not sustained by the decisions cited by the court.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.
    Appeal from a judgment entered at trial term, on the findings of the judge (a jury having been waived.)
    The following opinion was delivered by the .court at, trial term after stating the facts, as appear in the head note.
   “ McAdam, J.

The property is situated on Long Island Sound, at a place where the tide ebbs and flows, and the contention is settled by the decision of the question whether the land between low and high water mark is included or excluded from the measurements and description called for by the deed. If this piece of land is to be included the land conveyed contains twenty-two ,507 acres, and the defendant is entitled to judgment. If it is to be excluded, the grant contains but eighteen /03040 acres, and the plaintiff is entitled to recover. The plaintiff rests his right of action on the proposition that where the shore of the sea, bay, navigable river or tide-water is named as the boundary of land in a grant of title, the land to ordinary high water mark is intended. This is undoubtedly the rule. Girard on Titles, 3d. ed., 517; People v. Canal Appraisers, 33 N. Y. 461; Mayor v. Hart, 95 Ib. 443 ; Same v. Starin, 106 Ib. 1; Canal Commissioners v. People, 5 Wend. 443 ; People v. Tibbetts, 19 N. Y. 523 ; Gould v. Hudson R. R. R. Co., 6 Ib. 522 ; Wheeler v. Spinola, 54 Ib. 377 ; 3 Kent’s Comm. 432. The defendant concedes the law to be as stated, but claims that the grant in this instance is not bounded by ’ the shore and hence not within the rule referred to. The boundary on the water front is shown by the first two courses in the deed, which read as follows: ‘ Thence running along said division line north, 42 degrees and 47 minutes east about 865 feet to a point on the shore of Long Island Sound; thence running along said shore and Sound as the same bend and turn easterly, and thence southerly to their intersection with the center line of De Lancey avenue aforesaid.’

“ The surveyors all agree that the description contained in the deed to the plaintiff carries the grant to low water mark, so that, if the grantor had title to the land between low and high water mark, it passed by the deed delivered to the plaintiff. In construing the description of two deeds running to the shore of a navigable stream, the court in Stover v. Freeman, 6 Mass. 435, said, inter alia: ‘ The shore has two sides, high water mark and low water mark. Elwell’s corner is described as a known monument. If it is at low water mark it is by the shore, as well as if it was a high water mark. Now, if it be a fact that this corner was a known monument at low water mark, the plaintiff might be admitted to prove it by oral testimony. Then the boundary line running to Elwell’s corner would cross the flats to low water mark, and the next boundary line running by the flats must run by the same side of the flats on which Elwell’s corner stands, and thus the flats would be included by the boundaries of the land conveyed by the second deed. And further, from this fact, the first deed would receive a similar consideration, as it was executed by the same grantor.’ The deed to the plaintiff conveys title along a certain line ‘ about 865 feet to a point on the shore of Long Island Sound,’ and jif, as decided by the last case, low water mark is by the shore, as well as high water mark, the point indicated by the ( 865 feet ’ carried the line directly to that point on the shore. The metes and bounds show clearly that the defendant intended to and did convey to low water mark. If the plaintiff was misled by this fact, and did not intend to purchase to low water mark, he might perhaps have obtained from the court relief from the sale, but he made no such application. If deceived in respect thereto, to his damage, he might on such ground have some legal remedy, but he has invoked none. The sole question to be decided is whether the deed conveyed twenty-two ”, acres of land, and it undoubtedly did. It is conceded that as a rule, land between low and high water mark, where the tide ebbs and flows, is by the common law vested in the state, Girard on Titles, 2d ed., 714; Angell on Water Courses, §§ 544-546, except in certain cases of Colonial charters, The Mayor v. Hart, 95 N. Y, 443, or Colonial grants. Trustees v. Strong, 60 N. Y. 56. The land on Long Island Sound, between low and high water mark, is likewise vested in the state, in the absence of Colonial grants such. as were proved in the case of the Trustees v. Strong, supra.

Holmes & Adams, for appellant.

“ Whether a similar grant exists in respect to the property in question, or whether the state has released its title to the lowland to the owner of the upland, as authorized by statute (1 R. S. 6th ed., 802), could not be ascertained, for the reason that the plaintiff did not litigate the defendant’s title, and declined to litigate that issue. For all the purposes of this litigation it must be assumed, therefore, that the defendant in some legal manner acquired title to the lowland, and that it passed by his deed, if the lowland is sufficiently covered by the descriptive words of the deed, and as matter of fact it is. Notwithstanding the rule of construction which bounds a grant by the line of high water, it will not do to hold that a conveyance of land on the shore will not under any circumstances convey the land between high and low water mark. If the grantor of the land has title to the lowland, a deed of the upland will convey the lowland if the descriptive words of the grant contain metes and bounds which include the lowland as well as the highland, and this is the situation of the parties here. The . plaintiff argues, and with reason, that there are no natural or artificial monuments at low water mark to locate the boundary line, as in Stover v. Freeman, supra, and that the words ‘ about 865 feet to a point on the shore,’ etc., do not meet legal requirements, yet this is a question which might be made clear in an action involving the question of title. As to the meaning of the term ‘about’ see Belknap v. Seeley, 14 N. Y. 143. The question is novel, and not entirely free from doubt, and one which merits review by the court of last resort.

“ Upon the issue litigated there must be judgment for defendant, but without prejudice to a new action alleging want of title in the defendant to the lowlands, in which the latter may be required to produce whatever grants vest in him the title he undertook to convey.”

Martin J. Keogh, for respondent.

By the Court.—Dugro, J.

The complaint reads “The defendant being owner of real property hereinafter described * * made sale thereof at public auction * * at such sale the plaintiff purchased the said premises for the sum, etc., * * of $3,125 per acre.” No property is described in the complaint. If it be assuméd that the property described in exhibit 1, which is attached to the complaint, is that which the complaint states will be thereinafter described, it is “ property, at DeLancey’s Neck, in the town of Mamaroneck, Westchester County, N. Y., known as ‘ Vergemere,’ of about 22,57 acres.” This assumption will for present purposes be made.

The agreement which forms the basis of this action, and which is set forth in the complaint, provided that the plaintiff should recover the excess of the money paid over that which should have been paid for the actual contents in acre# of the said premises at the rate of $3,125 per acre. Therefore, in order to be entitled to succeed in his action, the plaintiff must have shown that the actual contents of the property, at DeLancey’s Neck, etc., known as “ Vergemere,” of about 22,” acres, was less than the stated number of acres.

Of what this property consisted does not appear, except- as it is to be gathered from the plaintiff’s testimony that he “ received a deed for certain premises known as ‘Vergemere,’ in Mamaroneck, etc.;” the premises described in the deed must, therefore, be taken as the premises which the plaintiff purchased, and whether these premises consist of less than 22,57 acres, is thus the pivotal point in the case.

■ No question of title is raised, nor is any question as to the character of the sale presented. The question is, ho,w many acres does the deed convey ?

For the reasons assigned by the learned judge at special term, we believe that the descriptive clause in the deed covered the premises to low water mark. Stover v. Freeman, 6 Mass. 435, does not seem to sustain the plaintiff’s way of reasoning.

The judgment is affirmed, with costs.

Freedman and Gildersleeve, JJ., concurred.


author: By the Court.—Dugro, J. Freedman, J., (concurring.)

text:
    W. H. HAYDN MILLER, Plaintiff v. WILLIAM H. CURTISS, Defendant.

      False and fraudulent representations, action to recover money paid thereon.

    It appeared on the trial in this action, that the defendant called plaintiff’s attention to the Stead Boiler Manufacturing Company and expressed confidence that its stock would be very valuable. Upon plaintiff’s expressing a desire to have some of the stock, the defendant said he had some of the stock but would not sell any of it; that the company had no stock for sale, and that there was none to be had unless perhaps a Mr. Allen, who had taken thirty shares, would sell his. Thereupon plaintiff requested defendant to ascertain if the Allen stock could be had. This the defendant promised to do and report to plaintiff. Shortly after, the defendant informed plaintiff that the Allen stock could be had. Plaintiff then requested the defendant to buy the Allen stock for him, and in pursuance of this instruction defendant delivered to plaintiff fifteen shares of the stock and received $900 from the plaintiff. Plaintiff subsequently discovered that the stock thus delivered to him was not the Allen stock but some of the defendant’s own stock. Upon making this discovery plaintiff tendered the stock back to defendant and demanded the return of his money. The defendant refused, and plaintiff then brought this action to recover the money paid.

      Held, that these facts and circumstances show constructive fraud. The defendant was in that situation of trust towards the plaintiff that did not allow him to deal with his own property when his principal had reason to believe that he was purchasing property for him from another.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.

      Verdict directed at trial term arid exceptions ordered to be heard in the first instance at general term.

      Marshall P. Stafford, attorney and of counsel, for plaintiff.

      Leavitt & Keith, attorneys, and John Brooks Leavitt of counsel, for defendant.
   By the Court.—Dugro, J.

The defendant’s exceptions were ordered to be heard in the first instance at general term.

It seems the plaintiff told defendant to see whether Allen would sell his stock. Some time later defendant informed plaintiff that Allen’s stock could be got and was then told to buy it for plaintiff. Defendant thereupon transferred to plaintiff his own stock instead of Allen’s, the plaintiff believing that he was buying that of Allen. The plaintiff having offered to return the stock to the defendant and having demanded and been refused the return of the purchase money, asked for judgment for the amount paid. These facts appear conclusively from the evidence, and upon them the plaintiff is entitled to a judgment upon the verdict, unless there be a valid exception in the case. The case discloses none.

The purchase was by defendant from himself without any authority from the plaintiff, and in view of the relation existing between the parties, was a constructive fraud. Conkey v. Bond, 36 N. Y. 427.

The defendant, as in Gillette v. Peppercorn, 3 Beav. 78, was in a situation of trust, which did not allow him to deal with his own property when his principal had reason to believe he was dealing with another’s. The plaintiff was entitled to be put into possession of the actual facts, and their suppression was an act of impropriety to be discountenanced. Doubtless no fraudulent or corrupt intent impelled the defendant in making the sale himself, but the law has settled it that such facts and circumstances as appear in this case show constructive fraud. Conkey v. Bond, 34 Barb. 283.

The exceptions are overruled and judgment is ordered to be entered for the plaintiff upon the verdict, with costs.

Gildersleeve, J., concurred.

Freedman, J., (concurring.)

The reasons assigned by the general term upon the former appeal for a reversal of the judgment which the defendant had obtained, compel me to concur in the result now announced by Judge Dugro.