text:
    JULIA T. MUNROE, Respondent, v. JACOB CROUSE and GILES EVERSON, Appellants.

      Bale of land subject to a right of dower and, also to a mortgage, which is assumed, by the purchaser — payment of the mortgage by the purchaser, compelled by the owner of the dower interest.

    'Certain real estate which had belonged to an insolvent debtor was conveyed by his assignee, subject to a mortgage thereon which the purchasers agreed with the assignee that they would pay, and subject also to the dower interest in the premises of the widow of the assignor, the insolvent debtor.
    The purchasers at such sale entered into possession of the premises, and received the rents thereof, but refused to pay any interest on the mortgage with the intention of inducing a foreclosure thereof, which took place in consequence of such non-payment of the interest, and the premises were purchased at the foreclosure sale by the parties who had purchased the premises from the assignee for just the amount due upon the mortgage for principal and interest and expenses:

      Held, that as the purchasers from the assignee had agreed to. pay the mortgage, and such payment consequently constituted part of the purchase-price of the premises, that they were trustees of that portion of the unpaid purchase-price to be used by them for the purpose of paying ofE the mortgage, and that they owed the duty, not only to the assignee, but also to those who had interests in the lands subsequent, to such mortgage, to so apply such funds in their hands, for the reason that the land stood only as surety for the debt, for the payment of which the purchasers held this fund in trust, and for' which they were primarily liable.
    That the widow, having a right of dower in the premises, which would be defeated if the mortgage was not paid, was in a position to require the purchasers from the assignee to relieve, by the payment thereof, the land from the lien of the mortgage and the plaintiff’s right of dower therein from the contingency of extinguishment by a foreclosure and sale under the mortgage.
    Appeal by the defendants, Jacob Crouse and Giles Everson, from a judgment, entered, upon a decision at Special Term, in the office of the clerk of the county of Onondaga on the 25th day of May, 1890.

      The action was brought for the recovery of a dower interest in certain premises which had been owned by one Allen Munroe, of whom Julia T. Munroe was the widow.
    The judgment appealed from adjudged that the plaintiff was entitled to dower, to be admeasured to her out of certain premises owned by the defendants, Crouse and Everson, and to damages against them for withholding such dower, and appointed a referee to admeasure her dower and ascertain the amount of such damages.

      Waters d McLennan, for the appellants.

      M. E. da G. 1U Driscoll and Hon. G. F. Oomstoclc, for the respondent.
   Martin, J.:

The plaintiff and Allen Munroe were married June 11,1847, and lived together as husband and wife until October 6, 1884, when Allen Munroe died intestate, leaving the plaintiff, his widow, surviving.

On the 15th of December, 1845, John Townsend and Augustus James were the owners in fee and in possession of the property known as the Syracuse House property, situated in the city of Syracuse, N. Y. On that day they executed and delivered to David S. Kennedy a mortgage thereon, in which their wives joined, to secure the payment of $40,000, according to the condition of a bond executed by them at the same time.

Before November 9, 1871, the plaintiff’s husband and Charles B. Lansing and John Townsend had become possessed of and were the owners in fee, as tenants in common, of such property, subject to the mortgage thereon, in the following proportions: Allen Munroe, three-eighths; Charles B. Lansing, three-eighths, and John Townsend, two-eighths. On that day they paid in that proportion, to apply on said bond and mortgage, $15,000, leaving unpaid thereon $25,000. After such payment, and on the same day, at the request of Munroe, Lansing and Townsend, the owner of said bond and mortgage assigned it to the Onondaga- County Savings Bank. On tlie 11th of the same month Munroe, Lansing and Townsend executed and delivered to the bank an instrument under their hands and seals, whereby they acknowledged that there was due upon such bond and mortgage the sum of $25,000, which they promised to pay within one year from the date of the assignment, with interest, and charged the premises with the payment thereof.

The property was thus held, the plaintiffs' husband being the owner of three-eighths thereof, and liable to pay three-eighths of the mortgage thereon, until the 21st day of February, 1876, when Allen Munroe and John W. Barker, who were copartners, made1 a general assignment, under the State laws, for the benefit of their creditors, individually and as partners, to James J. Belden, wlm accepted the trust and qualified as such assignee.

On May 2, 1876, Allen Munroe and John W. Barker were duly adjudicated bankrupts on the petition of their creditors, filed April 26, 1876, and James J. Belden was appointed assignee in bankruptcy of said bankrupts, duly accepted the trust and entered upon his duties as such.

Daniel I'. Gott, as register in bankruptcy, on June 16, 1876, conveyed to Belden, as such assignee, all the estate, real and personal, of said bankrupts, including the interest of Allen Munroe in the property in question.

On August 5, 1876, Belden, as such assignee, under the order of the court, sold at public sale to the defendants, Grouse and Everson, the three-eighths interest which Munroe had had in the Syracuse House property. This sale was made subject to the payment by the purchasers of three-eighths of the $25,000 mortgage held by the Onondaga County Savings Bank, .which the purchasers assumed to pay as a part of the consideration or purchase-price of the premises. It was also made subject to the inchoate right of dower of the plaintiff therein.

On or before September 12, 1876, Grouse and Eversoh paid to the assignee the sum of $72,250, being the amount of the purchase-price less three-eighths of the amount unpaid on the mortgage, each paying one-half. The assignee thereupon executed and delivered to each of them a deed dated August 22, 1876, expressing a consideration of $36,125 as paid, and each deed conveyed to the grantee named three-sixteenths of the Syracuse House property, subject, however, in each case to the payment of $4,687.50 upon the bond and mortgage held by the bank, that being three-sixteenths of the sum remaining unpaid thereon, which sum Crouse and Everson each assumed and agreed to pay as a part of the purchase-price of the premises conveyed to him, in addition to the consideration of $36,125 mentioned therein.

. The defendants,- Crouse and Everson, immediately took possession of the property thus transferred, and they have received the rents and profits of the same and' continued in possession thereof until the present time, except as such possession • was subsequently modified by a friendly partition made between them and the other owners of the property. The interest on the bond and mortgage held by the bank was regularly paid by the defendants and the other owners of the property in proportion to their interest therein until January 1, 1878. After that time, the defendants Crouse and Everson refused to pay their portion of the interest thereon.

. In March, 1880, the defendants, Everson and Crouse, and the o'ther “owners of the property, agreed upon a division of it into three parts, which by mutual releases .and conveyances should be vested and held in severalty, one part by each of the other owners and the third by the defendants, Crouse and Everson, as tenants in common, they paying to one of the other owners $3,750 forequality of partition. An agreement in writing was executed by the parties March 18, 1880, providing for such partition and for the execution of the conveyances necessary for that purpose, and by which it was-further agreed that .the principal of $25,000 remaining unpaid on said bond and mortgage should be paid, two-eigliths by one of such joint owners, three-eighths by the other, and three-eighths by the defendants Crouse and Everson, and that each should be charged with and pay their proportion of interest from the time to which they had paid such interest. It was also agreed that all the premises described in the mortgage should be released from the lien thereof, except the part to be conveyed to Crouse and Everson, as to which it was agreed that, upon their paying their portion, the bond and mortgage should be assigned to such person as they might designate, subject to the condition that no personal claims should be made against the obligors in said bond or their representatives. In pursuance of this agreement conveyances were made on the 28th of April, 1880, according to the provisions thereof, and the defendants ■thereupon acquired title to the portion so conveyed to them, discharged of any interest of the other joint owners therein. They thereupon took possession of the portion conveyed to them and have since been in possession as sole tenants in common thereof. The defendants Crouse and Everson refused to pay interest on the bond and mortgage which fell due on or after January 1, 1878, for the purpose of compelling a foreclosure of the mortgage, intending thereby especially to cut off the plaintiff’s claim of dower and •deprive her of any rights or interest she might have in said premises. They made no payment thereon as contemplated by the agreement of March 18, 1880, but instead, after the delivery of the deeds, procured a foreclosure of such mortgage and a sale of the premises thereunder.

The action of foreclosure was commenced June 19, 1880, against all the parties interested in the premises, including Allen Munroe and the plaintiff in this action. Judgment was entered in that action adjudging the sum of $27,952.56 to be due on said bond and mortgage, directing a sale of the premises, and adjudging the defendants and all persons claiming under them to be forever barred and foreclosed of all right, title, interest and equity of redemption in -the premises sold or any part .thereof. On January 19, 1881, the premises were sold, under the judgment of foreclosure. At the request of the defendants Crouse and Everson the portion of the premises, which had been conveyed to them and was in their possession, was first offered for sale and was struck off to them for $11,609.78, which was the exact amount of the mortgage debt, interest and costs, which they had agreed and were bound to pay. The referee making such sale executed and delivered to the defendants a deed of the premises purchased by them January 19, 1881. The bids on which the several parcels were struck off were made under an agreement between the defendants and the other owners •of the premises that they should be sufficient in the aggregate to •extinguish the mortgage, and they were sufficient for that purpose.

Before the commencement of this action, and after the death of Allen Munroe, the plaintiff’s rights in the premises were duly demanded of the defendants Crouse and Everson, who denied that she had any right of dower in the lands¿’orin any part thereof, on the ground that they had purchased the property at foreclosure sale and obtained a title which had divested her of her dower therein. The property purchased by the defendants at the sale by the assignee in bankruptcy, when taken subject to the plaintiff’s right of dower, was worth at least the sum paid and the portion of the mortgage assumed by them.

The facts were fully set out in the complaint and the plaintiff" demanded judgment for dower in the premises owned by the defendants, and for such other and further relief as might be just.

The defendants’ answer consisted of a denial of a portion of the complaint, and of allegations of the foreclosure of the mortgage-on the premises, a sale under a judgment therein, a purchase by tire defendants at such sale, and that such judgment was a bar to the-plaintiff’s recovery herein.

The facts ((fated were found by the trial court, and were abundantly established by the evidence.

The court, in substance, held that the plaintiff before her husband’s-assignment and bankruptcy had an inchoate right of dower in the-premises subject to the mortgage; that he was personally and primarily liable for three-eighths of the sum unpaid thereon ; that defendants, having purchased his interest subject to such mortgage and to plaintiff’s dower right, and having agreed "to pay the portion of the mortgage debt due from him as a part of the purchase-price, they became primarily liable therefor and held such portion of the purchase-price in trust for that purpose, and that it became their duty to so- apply it and thus protect the plaintiff’s right in the land ; that the payment of the sum bid on the sale in foreclosure was a payment of their own debt, and they acquired no title thereby which would bar the plaintiff’s right of dower; that plaintiff’s right having become absolute by the death of her husband, she was entitled to judgment for dower in thé premises acquired by the defendants and to damages for withholding the same after demand.

If the facts alleged and proved were sufficient to sustain a recovery in this action, and the relief awarded was that to which the plaintiff was entitled, no time need be spent in considering the question of the proper name to be given to this action, nor in discussing the peculiar characteristics of different actions or the refined distinctions which may have formerly existed between one action .and another. If, upon the proof in this ease, the plaintiff was entitled to the judgment awarded, there is no question as to the .sufficiency of the pleadings.

The only real question, that need be here considered, is whether .the title acquired by the defendants by their purchase at the sale on the foreclosure of the mortgage was a bar to the plaintiff’s action for dower. That the mortgage foreclosed was a lien upon the premises prior and superior to the plaintiff’s right of dower is not •denied. It must also be admitted that if the premises had been purchased by a person upon whom no duty rested as to the payment •of such mortgage, he would have obtained a title freed from the plaintiff’s dower. We think such was not this case.

Prior to his insolvency the plaintiff’s husband had expressly .agreed to pay three-eighths of the mortgage to the then holders of it. ITe was, therefore, personally liable to pay the mortgage debt. Upon the sale of the premises by the assignee in bankruptcy they were sold to the defendants, subject to the plaintiff’s right of dower, .and also subject to the mortgage,-which the defendants assumed and Agreed to pay, with a portion of the purchase-price ■ which was retained in their hands for that purpose. They thereupon became the principal debtors and were personally liable to pay the debt .secured by the mortgage under which they now claim title. They were also bound to protect the land from any liability on account thereof, as it was merely security for the debt for which they were primarily liable. ( Wilcox v. Campbell, 106 N. Y., 325 ; Wilbur v. Warren, 104 id., 193, 199 ; Schley v. Fryer, 100 id., 71.)

While this liability rested upon the defendants to discharge the mortgage debt, and while they retained a portion of the purchase-price in their hands for that purpose, the proof shows, with painful •certainty, that they devised a plan to deprive the plaintiff of her interest in the premises without the slightest compensation' to her therefor and to secure the property to themselves, free from her interest therein. The plan may have been ingenious, but it was neither just nor equitable. Whether it shall succeed is the practical question to be 'determined on this appeal.

The respondent, to uphold this judgment, invokes the rule that •equity imputes to a party an intention to fulfill an obligation resting upon him. “ This principle is the statement of a general presumption upon which a court of equity acts. It means that wherever a duty rests upon an individual, in the absence of all evidence to the contrary, it shall be presumed that he intended to do right rather than wrong; to act conscientiously rather than with bad faith; to perform his duty' rather than to violate it.” (1 Pomeroy’s Eq. Juris., § 420.)

Much as we would be gratified to uphold this judgment upon the ground that the defendants intended to perform their duty rather than to violate it, still the evidence is such as to forbid the application of that principle in this case. It is only in the absence of all evidence to the contrary that that presumption arises. The evidence discloses, and the court has found, that the defendants procured this mortgage to be foreclosed and became the purchasers of the property at the sale for the especial purpose of depriving the plaintiff of her right of dower.

The evidence and findings of the court in this case are totally inconsistent with the idea that the defendants procured the mortgage to be foreclosed, and purchased the property with an intent to fulfill their obligations to pay the mortgage and relieve the property from the lien thereon. But we think the judgment may be sustained upon other grounds. The defendants were permitted to retain in their hands a portion of the purchase-price of the premises upon an agreement to apply it to the payment of the mortgage under which they now claim title. This constituted a trust. “A trust signifies a holding of property, subject to a duty of employing it or applying its proceeds according to directions given by the person from whom it was derived.” (2 Abb. Law Diet., 609.)

The portion of the purchase-price retained by the defendants was held by them subject to the duty of applying it to the discharge of the mortgage on the premises, and they, in effect, agreed to apply that sum in discharging the land from the lien of the mortgage. Tins constituted them trustees of the fund for that purpose. They ■ ■owed this duty to so apply the fund in their hands to the assignee in bankruptcy, to relieve the estate from any personal liability for the mortgage debt. They also owed the same duty to those who had interests in the land subsequent to such mortgage, as the land stood only as surety for the debt which they held this fund in trust to pay and for which they were primarily liable.

The plaintiff had a right of dower in the premises which might be defeated if this mortgage was not paid. The defendants purchased the premises subject to that right, and agreed to pay the mortgage from the fund remaining in their hands. We think the defendants owed the plaintiff the duty to apply the fund in their hands in accordance with the terms of their agreement, and to relieve the land from the lien of the mortgage thereon, and the plaintiff’s right from the contingency of extinguishment by a foreclosure and sale under it. It was their duty to protect the plaintiff’s interest in the premises to that extent. When they refused to pay the mortgage debt, procured the mortgage to be foreclosed for the purpose of depriving the plaintiff of her right, and purchased under the mortgage sale, their purchase was inconsistent with their duty to the plaintiff, and, we think, was invalid as to her.

In Van Epps v. Van Epps (9 Paige, 238, 241) Chancellor Walworth said: “The rule of equity which prohibits purchases by parties placed in a sitution of trust or confidence with reference to the subject of purchase, is not, as the defendant supposes, confined to trustees or others who hold the legal title to the property to be sold; nor is it confined to a particular class of persons, such as guardians, trustees or solicitors. But it is a rule which applies universally to all who come within its principle; which principle is, that no party can be permitted to purchase an interest in property and hold it for his own benefit, where he has a duty to perform in relation to such property, which is inconsistent with the character of a purchaser on his own account and for his individual use.” This doctrine was cited with approval in Fulton v. Whitney (66 N. Y., 548), and it was there held that a trustee cannot purchase for his own benefit property which, although not the subject of the trust, is connected with it in this, that a sale of the property for less than its value will diminish the trust fund. In that case it was also held that the provision in a decree of foreclosure authorizing any of the parties to become purchasers was no protection to the purchasers, nor did the confirmation of the sale have that effect, as the rights and equities of the plaintiff were not before the court nor involved in the foreclosure suit.

The doctrine of the Van Epps Case was again cited and approved in Bennett v. Austin (81 N. Y., 308, 323), where it was held that “ where a debtor creates or appropriates a fund for the payment of a particular debt or lien, the duty of the holder of the fund is not performed by applying it to the payment of another debt; the debtor has the right to determine as to the application, and to have the application, when made, carried out. Where a duty rests upon a party in respect to the property of another, the violation or omission of which will result in a sale of the property, and where a sale is made because of such breach of duty, the person owing it is absolutely disqualified from becoming a purchaser at the sale for his own account. The usual provision in a decree of foreclosure, that any of the parties to the suit may purchase on the sale, will not permit one defendant to bid in premises belonging to another, and to hold them against the latter contrary to equity.” (See, also, Fairchild v. Lynch 99 N. Y., 359; Conger v. Ring, 11 Barb., 356.)

The appellants’ counsel correctly states the question involved when he says “ the question here is whether the facts are such as, in equity, to charge the defendants with a duty to plaintiff inconsistent with the character of purchasers ón their own account.”

We think, as we have endeavored to show, that the facts were such that, under the principle of the authorities cited, the defendants were not permitted to purchase this property upon the mortgage sale for their own use and benefit, as against the plaintiff’s interest therein, and, therefore, that the judgment and purchase by the defendants was not a bar to the plaintiff’s recovery in this action.

The questions involved in this controversy did not arise in the foreclosure action, and were not in any way determined therein. Nor do we think the contention of the appellants, that their agreement to pay such mortgage from the money retained by them was without consideration, can be sustained. The consideration was full and ample. It was the amount due on the mortgage, and was sufficient to uphold their agreement.

We think the judgment was right and that it should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: IMartin, J. :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE F. COMSTOCK, Respondent, v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SYRACUSE, Appellant.

      Statute — when permissive, and not mandatory.

    Section 19 of chapter 475 of the Laws of 1889, amending section 106 of chapter 26 of the Laws of J 885, provides that the aggregate of the annual city tax levied in the city of Syracuse, exclusive of local assessments, shall not exceed $700,000, ■“provided, however, that in the city tax levy for the year 1889 there may be included, in addition to the annual levy provided for by the section hereby amended, the following named sums for the purposes specified, to wit. * * * for payment, in whole or in part, of the cost of opening and improving Comstock avenue, a sum of five thousand dollars.”

      Held, that the language of the statute was clearly permissive, and not mandatory.
    That as there was nothing in the surrounding circumstances or in the apparent purpose of the act which tended to show that the word “may,” as used in the statute, was intended to be mandatory, it could not be construed to be so.
    Appeal by the defeudant, the Mayor and Common Council of the City of Syracuse, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Onondaga on the 15th day of September, 1890, granting a peremptory writ of mandamus, directed to the defendant, requiring it to include the sum of $5,000 in the annual tax levy of the city of Syracuse, for the year 1890, for the payment, in whole or in part, ,of the cost of opening and improving Comstock avenue.
    • €. L. Stone, for the appellant.

      ü. II. Peak, for the respondent.
   IMartin, J. :

This was an appeal from an order directing that a peremptory writ of mandamus issue requiring the mayor and common council -of the city of Syracuse to include in the city tax levy for the year 1890 the sum of $5,000 for payment, in whole or in part, of the cost of opening and improving Comstock avenue in that city.

The order was based on the provisions of section 19, chapter 475, Raws of 1889, amending section 106 of chapter 26, Raws of 1885. Before the amendment of 1889 that portion of the statute of 1885 •which was amended was as follows : “ § 99. The common council of the city of Syracuse shall have authority and are hereby empowered to raise by tax upon the property of said city in each year as follows.” After specifying the amounts that might be raised for several specific and general purposes, it further provided: “ Section 106. The •aggregate of the annual city tax levy, exclusive of local assessments, shall not in any year exceed the sum of four hundred and twenty-five thousand dollars for all purposes.” By the statute of 1889 this last section was amended so as to read as follows: “ The aggregate of the annual city tax levy, exclusive of local assessments, shall not in any year exceed the sum of seven hundred thousand dollars for all purposes; provided, however, that in the city tax levy for the year one thousand eight hundred and eighty-nine there may be included, in addition to the annual levy provided for by the section hereby amended, the following named sums for the purposes specified, to wit: For the expenses of the police department, the poor department and the board of health, and other expenses theretofore paid by the board of city auditors, incurred since December fifteen, one thousand eight hundred and eighty-eight, a sum not exceeding forty-two thousand dollars. For the purchase and equipment of a police electric signal alarm system, a sum not exceeding fifteen thousand dollars. To provide for payment of the city’s share of the cost of the Croton street sewer, a sum not exceeding seventeen thousand dollars. For the construction or contribution toward the cost of constructing a bridge and approaches over the tracks of the New York Central and Hudson River Railroad Company, the Delaware, Lackawanna and Western Railroad Company, and the Erie canal, where the same cross West Genesee street in said city, a sum not exceeding ten thousand dollars. For payment in,whole or in part of the ■cost of opening and improving Comstock avenue, a sum of five thousand dollars. For the city’s share of the cost of the improvement of Wilbur avenue and the extension and improvement of Milton avenue in said city, the sum of thirty thousand dollars, or so much thereof as may be estimated by the city engineer as necessary for the purpose; the remainder of any sum so raised, if any, not required for such improvement and extension, shall be applied to the improvement of Burnet park. Provided, also, that in the annual ■city tax levy for each of the fiscal years, one thousand eight hundred and eighty-nine and one thousand eight hundred and ninety, -there shall be included the further sum of ten thousand dollars for the improvement of Burnet park.”

- The single question presented on this appeal is whether the provision of the statute, that for the year 1 889 there might be included in the city tax levy, in addition to the annual levy, the sum of $5,000, for payment, in whole or in part, of the cost of opening and improving Comstock avenue, was merely permissive or whether it should be construed as mandatory. The contention of the respondent which prevailed at the Special Term was that this statute should be regarded as mandatory; that, although it was-permissive in form, still, as it clothed a publie body with power to do an act which concerned the interest of the public, the execution, of the power became a duty which it could be compelled to perform.. As this is the only question in this case, and as it is claimed on one hand that the respondent’s contention is fully sustained by all the authorities, and on the other that an opposite doctrine is established by the later and more binding decisions, it is, perhaps, proper to-examine the authorities bearing upon this question.

In Potter’s Dwarris on Statutes it is said: “ "Where a statute directs the doing of a thing for the sake of justice, the word may means the same as the word shall. * * * So, if a statute says that a thing may be done which is for the public benefit it shall be construed that it must be done.” (Page 220.) In a note on the same page it is said: “ May, in a statute, means must whenever third persons or the public have an interest in having the act done which is authorized by such permissive language. * * * It may be construed to mean shall when the publie or individuals have a claim de jure that the power shall be exercised. (Newburgh, etc., Turnpike Co. v. Miller, 5 Johns. Ch., 113 ; Malcom v. Rogers, 5 Cow., 188.) But no general rule can be laid down on this subject further than that such exposition ought to be adopted as shall carry into effect the true intent and object of the enactment. The ordinary meaning-of the word, which is permissive, ought to be adopted, and must be presumed to be intended, unless it would manifestly defeat the object of the provision.” (Minor v. Mechanics’ Bank, 1 Pet., 64; N. Y. and Erie R. Co. v. Coburn, 6 How Pr., 224; Buffalo Plankroad Co. v. Commissioners, 10 id., 239.)

Ia Mayor v. Furze(3 Hill, 612), Chief Justice Nelson said: “ The inference deducible from the various cases on this subject neems to be, that where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory.”

In People ex rel. Otsego County Bank v. Supervisors of Otsego Bounty (51 N. Y., 401) it was held that where a statute provides for the doing of an act for the sake of justice, or where it clothes a public body or officer with power to do an act which concerns .the public interest or the rights of individuals, though the language of the statute be permissive merely, it will be construed as imperative and the ■execution of the power.may be insisted upon as a duty. In that case, Earl, C., said : “ The words ‘ authorized and empowered ’ are usually words of permission merely, and generally have that .sense when used in contracts and private affairs ; but when used in statutes they are frequently mandatory and imperative.” In the same case it was said : “ To determine this question, not only the language of the act, but the circumstances surrounding its passage und the object had in view must be considered.”

In People ex rel. Conway v. Supervisors (68 N. Y., 114), where the supervisors of Livingston county were authorized to adjust and audit certain claims, it was held that the act was mandatory. In that case Earl, J., said: “ Here was something directed to be done for the sake of justice, and in- such a case the word ‘may’ is generally ■construed to mean ‘ shall.’ Where it is merely indifferent whether a thing shall be done or not, then the word ‘ may ’ in an act is usually construed to confer a permissive authority, but where the public interest or private right requires that the thing should be done, then the word ‘ may ’ is generally construed to mean the same as ‘ shall.’ In such a case it must be presumed that it was the legislative intent to confer the authority for the purpose of promoting the public interest or securing the private right.”

In Hagadorn v. Raux (72 N. Y., 583).it was held that, although the language of the statute under consideration in that case was permissive in form, yet, it being for the protection of public interest, the word “ may ” therein was equivalent to “ must, ’ and the statute was mandatory, as such was the intent of the legislature. The same doctrine was held in the case of People v. Supervisors (1 Sheld. Supr. Ct. R., 517, 520), Smith, J., said : “ In the construction to be given to the terms used in an act of the legislature,- to confer power upon public bodies like defendant, the intention of the legislature must govern, to the end that the object of the law may be attained. For this purpose, in many cases, words which, in their ordinary use, are only permissive, must be considered as obligatory. Numerous decisions of the court hold that in certain cases the word ‘ may> means the same as the word ‘ shall, or ‘ must.’ And where public bodies or officers are authorized and empowered, or it is declared that it shall be lawful for them to do certain things, the act may be construed as imperative, so as to make it the duty of such bodies or officers to exercise the power conferred.” .

In Phelps v. Hawley (52 N. Y., 23),where an act provided that in case a bridge should be destroyed and not rebuilt, the bridge should thereupon become a public bridge, and may be maintained at the expense of the county, it was held that the word “ may,” in the statute, was mandatory, and imposed the obligation to repair upon the county.

In People ex rel. City of Lockport v. Supervisors of Niagara County (49 Hun, 32), where the supervisors were authorized, by a majority vote, to raise money by general tax, to be paid to the city of Lockport for construction of water-works, it was held that the statute being passed to enable the defendant to perforin a public duty in the discharge of a just claim, was, upon well-settled principles, entitled to such consideration as would give mandatory import to the words used, and that it imposed upon the defendant the duty of exercising the power thus given ; and that such a construction of the statute was not affected by the fact that the act authorized the action of the board of supervisors to be taken by a majority vote of the board.

In Cain v. City of Syracuse (95 N. Y., 83, 91), where, by the defendant’s charter, its common council had power to pass ordinances for demolishing buildings, wdiich by reason of fire “may become dangerous,” it was held that the power conferred was-simply one of local legislation, and the failure to exercise it did not make the city liable for injuries caused by the falling of a dangerous. wall. In discussing tlie questions involved in that case Finch, J., said: “ We must consider the nature and scope of the duty, and in so doing must not be misled by the test which makes permissive words absolute and a command. That test is applicable only to solve a doubt, and determine between a ministerial and judicial duty, when such duty may possibly belong to either class, but will not serve to-mate a duty which is inherently and inevitably discretionary, nevertheless ministerial, because the public have an interest in its exercise or the rights of individuals may be affected by it.”

In Gilmore v. City of Utica (121 N. Y., 568) Earl, J., said: “ Generally permissive words used in statutes conferring power and authority upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals. (Minor v. Mechanics' Bank, 1 Peters, 46; Thompson v. Carroll, 22 How. [U. S.], 422; Newburgh and C. T. Co. v. Miller, 5 Johns. Ch., 101; Malcom v. Rogers,, 5 Cow., 188; Mayor v. Furze, 8 Hill, 612; People ex rel. Otsego County Bank v. Supervisors, 51 N. Y., 401; People ex rel. Conway v. Board of Supervisors, 68 id., 114.) The language is held to be mandatory in such cases, not arbitrarily, but because such is supposed to have been the legislative intention. There must be a definite, plain public interest, or a vested, well-defined private right, and then it will very justly be supposed that the legislature meant to subserve or protect the public interest, or to give or secure the private right.” The cases of Thompson v. Carroll, Minor v. Mechanics' Bank, Newburgh Turnpike Company v. Miller, Malcom, v. Rogers, were especially referred to as. upholding the doctrine stated.

In Rex v. Barlow (2 Salk., 609) it was held that where a statute directs a thing of a public nature, “ may ” is understood as “ shall.”

In MacDougall v. Paterson (11 C. B., 755) it was held that where a statute confers authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises.

In Queen v. Barclay (L. R., 8 Q. B. D., 306, 312), in discussing the question whether the word “ may ” should be construed as compulsory, it was said : “ The word £ may ’ is capable of different constructions and has in certain cases been construed as meaning £ must/ and the true rule, as laid down in Regina v. Bishop of Oxford (4 L. R., Q. B. D., 245, 525) is, that the context and the surrounding circumstances must be looked at in order to see what in the particular case the construction should be.”

In In re Newport Bridge (2 El. & EL, 377), where a statute enacted “ that where any bridge or bridges, or roads at the end thereof, repaired at the expense of any county, shall be narrow and incommodious, it shall and may be lawful to and for the justices of the county, at any of their General Quai'ter Sessions, to order and direct such bridge or bridges and roads to be widened, improved and made commodious for the public.” It was held that the section was permissive, not imperative, and left in the justices a discretion whether or not to order a bridge to be widened, though it was proved to them to be narrow and incommodious. In that case it was said “ that the words it shall and may be lawful5 are to be taken, in their primary sense, as permissive, and not compulsory, unless there be anything in the subject-matter of the enactment requiring that they should receive a different construction.”

In Bell v. Orane (L. R., 8 Q. B., 481) the statute provided that every authority having power to impose rates “ may exempt ” a building used as a Sunday or ragged school from any rate. It was held that the rating authority had a discretion whether they would or not exempt such building. In delivering the opinion in that case Blackburn, J., said: “ There is no doubt that may,’ in some instances, especially where the enactment relates to the exercise of judicial functions, has been construed to give a power to do the act, leaving no discretion as to the exercise of the power when the facts are such as to call for it. But, in the present Act, instead of saying that Sunday and ragged schools shall be exempt, the legislature say the rating authority may exempt them. * * * This shows that it was not intended that the exemption under the present Act should be absolute. It is clear, therefore, that the use of the phrase may exempt ’ was intended to give a discretion.” In Queen v. Bishop of Oxford (L. R., 4 Q. B. D., 245, 247), Cookburn, O. J., quoting the language of Mr. Justice Crompton, said : “ Prima facie, the words 4 it shall be lawful ’ import a discretion. It is only where the subject-matter imperatively requires it that they can receive a different construction.”

Our purpose in quoting thus fully from the authorities cited has not been simply to show that words permissive in terms have been sometimes construed as mandatory, but to show in what cases such ■construction has been held proper, and also to discover, if possible, the grounds upon which such construction has been based. A careful examination of the authorities bearing upon the subject discloses quite clearly, we think, that the decisions holding that permissive words should sometimes be construed as mandatory have been based upon the supposed intent of the legislature. While many general expressions have been used which, when taken alone, might seem to indicate that the word may, or words of .similar import, should be construed as ■ mandatory when the public interest or the rights of individuals are involved, independent of .any question of legislative intent, still, when the cases are examined it will be seen that such construction has prevailed only in cases where the statute under consideration, when taken as a whole and viewed in the light of surrounding circumstances, indicated a purpose on the part of the legislature to. enact a law mandatory in its character. In other words, the courts have sought the intent of the law-makers, and when found, they have carried out such intent by construing permissive words as mandatory. These cases are in harmony with the general and fundamental rule, that statutes should be so construed as to give effect to the .purpose of the law-makers. Therefore, in the decision of this case we are required to determine whether the legislature intended to peremptorily require the common council to include the sum of $5,000 in the tax levy for the year 1889 for the payment, in whole or in part, of the cost ■of opening and improving Comstock avenue, or whether the intentention was merely to permit it to so do if it should deem it proper and for the best interests of the city.

The language of the statute was, “there may be included.” These words are clearly permissive, and not mandatory. As it is only where it is necessary to give effect to the clear policy and intention of the legislature that the liberty of construing words that are permissive as mandatory can be taken with the clear words of a •statute, it follows that unless the statute under consideration, when construed in the light of the surrounding circumstances, shows that it was the purpose of the legislature to peremptorily require the council to include that sum in the tax levy, the words must be construed as permissive only. (Thompson v. Carroll, 22 How. [U. S.], 434.)

It is said by the learned counsel for the respondent that, “ in seeking the proper construction of this provision, the facts in relation to Comstock avenue and the resolution of the common council requesting that an item for its improvement be inserted in the pending bill are to be considered.” An examination of the moving papers, shows that the common council had taken steps to extend Comstock avenue from University place to the Jamesville road; that subsequently it had passed a resolution to the effect.that a proposed appropriation by the legislature of $10,000 for the improvement of Burnet park should be reduced to $35,000, and the remainder appropriated and expended for grading, opening and extending Com-stock avenue as laid out and surveyed, and that the senator of that district be requested to procure the act to be so amended, “ provided, however, that George F. Comstock shall donate to the city for highway purposes so much of lands belonging to him as shall be required for said extension of said highway.” Thus it seems that the condition upon which it was intended that $5,000 should be-appropriated for the opening and grading of this avenue was, that the respondent should donate to the city so much of his lands as-should be required for the extension of the street. It is, perhaps, proper to assume that the act in question, so far as it relates to this-subject, was passed in pursuance of the resolution of the common council. If, as claimed by the respondent, we should consider these facts in determining the intent of the statute, they tend to show that the purpose of the act was to appropriate $5,000 to the opening of Comstock avenue only in the event that the necessary lands-belonging to the respondent were • donated for that purpose, and hence that the legislature could not have intended to peremptorily require the common council to thus expend that sum. The papers-in this case also show that, while the respondent presented to the common council a deed conveying the required lands for street purposes, it contained a forfeiture clause, which was as follows : “And in case the said premises shall not be opened as such street or highway with a proper grade within a reasonable time from and after the date hereof, then these premises shall ipso faoto cease and determine and be void without entry or forfeiture.” This deed the common council did not deem it advisable to accept and resolved to return it. Ve find nothing in these facts which tends to show that the words used in the statute under consideration were intended as mandatory. They are more consistent with the claim that the legislature intended only to confer upon tlie common council the permissive right to include that sum in the tax levy for the purpose named, if they should receive a proper deed from the respondent and they should deem it proper and for the best interests of the public to do so.

Again, it may be observed that the word may is used in one portion of the section and the word shall in another. This would seem to indicate that as to one class of appropriations it was the intent of the legislature to leave it to the discretion of the common council whether they would include them in the lax levy or not, and that as to another it was the intent to require it to be done. That such was the intent is made more apparent by the order in which such contemplated appropriations were arranged in the statute. They were-mentioned separately. First the appropriations which the common council might include in the annual levy were enumerated, and an examination of those mentioned in that portion of the section shows that most, if not all, were of such a character as to render it improbable that the legislature intended to compel the council to include them in the tax levy. After making these provisions the statute then declares that there shall be included in such levy the sum of $ 10,000 for the improvement of Burnet park. The former were permissive, the latter was imperative. As was said by Grove, J., in Davies v. Evans (L. R., 9 Q. B. D., 243) : “ The framer of the Act evidently knew what words to use when he intended to be imperative,” and presumably the words used were those intended.

By the charter of the city the power to lay out, make, open, regulate, repair, improve, alter and discontinue highways, is vested in the common council. (Laws 1885, chap. 26, §§ 22, 30.) By the amendment in question the council were given permission to include a certain sum in the tax levy for the opening and improvement of one of the highways of the city. That it was the purpose of this .act in any way to interfere with the duties and discretion of the council in relation to the opening or improvement of this street, by compelling it to include in the tax levy the sum named for the •opening and improvement of it, does not seem prohable. Suppose the common council had received the money necessary for this purpose from some other source, could it be insisted that it was still bound to insert that amount in the levy ? Again, suppose that for .some good reason the common council were convinced and had determined that the best interests of the city required that this highway should not be opened and improved, can it be said that the intent •of this amendment was to compel it to do so, and in effect repeal the .statute which vested in it the power to control the highways of the city?

When we examine this statute as a whole, in the light of the ¡surrounding circumstances, and in view of the apparent object of its passage, we are unable to discover any such intent or purpose •on the part of the legislature as would justify us in holding that the words used therein, which are permissive only, should be construed as mandatory. We are of the opinion that the legislature intended only to give the council permission to include this sum in the tax levy, if, in its discretion, it .deemed- it proper, -and -that the facts in this case would not justify our holding otherwise. It follows therefore, that the order appealed from should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Martin, J.:

text:
    BROWNING A. WILCOX, Respondent, v. WILLIAM H. HOWE, Appellant.

      Exemption from execution — when it must he claimed.

    A judgment-debtor, if he desires to claim an exemption from execution for certain property, under section 1391 of the Code of Civil Procedure, must notify the sheriff of his claim before he can maintain an action for the conversion of such property, or to recover its possession, especially where there is other property to which said exemption might equally well apply.

      Appeal by the defendant William H. Iiowe from a judgment of the County Court of Jefferson county, entered in the office of the clerk of the county of Jefferson on the 29th day of October, 1889, in favor of the plaintiff and against the defendant, for the possession of certain chattels mentioned in the plaintiff’s complaint, namely, one horse and one wagon of the value of eighty-five dollars, and for six cents damages and costs.
    The complaint alleged that the defendant, o.n or about the 31st day of August, 1889, took and wrongfully detained from the plaintiff certain property belonging to the plaintiff as follows, namelyOne horse of the value of eighty-five dollars, and one red-stock wagon of the value of thirty-five dollars, in which plaintiff claims property and the right of immediate possession.

      George E. Morse, for the appellant.

      K G. Emerson, for the respondent.
   Martin, J.:

This is an appeal by the defendant from a judgment of the J efferson County Court, entered upon the verdict of a jury, rendered under the direction of the court. The judgment awarded to the plaintiff the possession of a horse and wagon, and determined their value at eighty-five dollars. It also awarded to the plaintiff six cents damages and seventy-two dollars and fifty-nine cents costs.

The action was to recover the possession of the horse and wagon in question. They had been levied upon and taken by the defendant, as a constable, by virtue of a warrant of attachment against the property of the plaintiff, issued out of a Justice’s Court. The plaintiff based his right to recover the possession of the property on the ground that it was exempt from levy and sale under execution. It was not exempt under the provisions of section 1390 of the Code of Civil Procedure. If exempt, it was under section 1391, and because it constituted a part of the working tools or team of the plaintiff, who was a householder having a family for which he provided.

The evidence discloses that when the property in question was taken the plaintiff had property of the description mentioned in section 1391 of the Code, which was of the value of $340, including the property in question. There was no evidence that he, before action, claimed this property as exempt, nor that he demanded it of the defendant. On the trial the court held that no such claim or demand was necessary, but that it was the duty of an officer executing a waiTant of attachment to determine at his peril that the property taken by him was not, and could not be, properly claimed as exempt. Upon that ground alone a verdict was directed for the plaintiff. The correctness of that ruling presents the only question necessary to be determined upon this appeal.

This ruling is sought to be sustained upon the ground that it was justified by the provisions of section 2909 of the Code of Civil Procedure, which provides that the constable must execute a warrant of attachment by levying upon the goods and chattels of the defendant “ not exempt from levy and sale by virtue of an execution.” In ■determining the effect to be given to this provision, it is necessary to briefly examine the provisions of the Code which relate to property exempt from execution.

Section 1390 provides that certain specified articles of personal property, when owned by a householder, shall be exempt. Section 1391 provides that, “ in addition to the exemptions allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library, not exceeding in value $250 * * * are exempt from levy and sale by virtue of an execution when owned by a person being a householder or having a family for which he provides.” * * * There are two ■classes of exemptions provided for by the statute. One relates to ■certain articles which are specifically enumerated and absolutely exempted. The other is limited to the sum of $250, and there may be claimed under it property of the kind mentioned in section 1391 to that amount, but to that amount only. The latter exemption is limited ■and indefinite; and where the debtor has property .of that character ■of greater value than $250, it is dependent upon his election as to the particular property that may be retained by him as exempt.

Construing the provisions of section 2909 in the light of the provisions of sections 1390 and 1391, the inquiry presents itself whether the. provision that a constable must execute an attachment by levying upon the property of the defendant not exempt from levy and sale under execution, in effect, forbids the officer to levy upon any property that might bé exempt under either section, or whether it relates only to the property specifically exempted by section 1390, and such as is claimed by the defendant or known to the officer to be exempt under section 1391. If it were to be held that an officer could not levy upon any property of the description mentioned in section 1391 without becoming liable to an action for its recovery, when no demand was made nor claim that it was exempt asserted by the owner, it would follow that all property of that character would be practically exempt from levy under an attachment, although it greatly exceeded in value the limit provided by that section. We think no such construction should be given to this statute.

If property consists of the articles mentioned in section 1390, it is absolutely exempt if the owner is a householder, and the officer has -no right to levy upon it. If, however, the property is of the description mentioned in section 1391, the exemption is a qualified one and the debtor must claim it and notify the officer of his claim, before he can properly maintain an action, either for its conversion or to recover its possession, especially when there is other property to which such exemption might apply. In Russell v. Dean (30 Hun, 242), where a constable levied upon the only team owned by a debtor, who was • a householder, and it did not appear what other property he then had, and where he did not, at the time of the levy or at any other time, claim it as exempt, it was held that he thereby waived any exemption he might have been entitled to under section 1391 of the Code. (See, also, Turner v. Borthwick, 20 Hun, 119 ; Twinam v. Swart, 4 Lans., 263 ; Seaman v. Luce, 23 Barb., 240; Lockwood v. Younglove, 27 id., 505 ; Dains v. Prosser, 32 id., 290; Baker v. Brintnall, 52 id., 188.)

We find nothing in the cases cited by the respondent in conflict with the views above expressed. In those cases the property was either absolutely exempt or known by the officer to be exempt when the levy was made. In this case the property was neither absolutely exempt, nor known by the officer to be so, nor was it in any way claimed as exempt until this action was commenced. The plaintiff had property of the kind mentioned in section 1391, which was of the value of more than $250, besides that taken by the defendant, as to which he could as well have claimed an exemption under that section. Under these circumstances, we think it was error for the-court to direct a verdict for the plaintiff, and for that error the-judgment should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Judgment of the County Court of Jefferson county reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Hakdin, P. J.:

text:
    JABEZ FURNER, Appellant, v. OTIS SEABURY, Respondent.

      Grant of a c&rtain quantity of water from a spring — right of the party entitled thereto to put the spiring in a condition to supply it.

    Under a grant of the water of a certain spring, conveying “ all the water of said spring which can be conducted through a one-half inch lead pipe,” a pipe was laid by the party entitled to such water, which, as it was claimed, ceased to convey the water by reason of excavations made, by the owner of the land, in the neighborhood of the spring. The owner of such water right thereupon proceeded to lower the pipe at the spring in order to obtain water therefrom, and having been interfered with, by the owner of the land upon which the spring was, he brought an action asking for an injunction to prevent further interference and for damages.

      Hefd, that such right to the water carried with it the privilege of .making changes in the spring and putting it in such condition as that the owner of the water-right would receive therefrom the quantity of water specified in the grant, and thus be enabled to enjoy the full benefit thereof; and that in an effort to secure that end the owner of such right was entitled to the protection of a court of equity.
    Appeal by the plaintiff Jabez Furner from a judgment of the Supreme Court, entered in the office of the clerk of the county of Madison on the 2d day of June, 1890, upon a decision made at Special Term dismissing the complaint and dissolving an injunction.
    The complaint alleged that the plaintiff was the actual owner and in possession of certain water privileges, relating to the water of a certain spring situated upon the lands of the defendant, and west from the dwelling-house of the plaintiff, together with the right and privilege of conveying said water over the lands of the defendant in a three-fourths inch pipe to a certain designated point, and from there in a one-half inch lead pipe to and upon the premises of the plaintiff, and that said water had been so conducted to the premises of the plaintiff for upwards of twenty years.
    That, during the five years preceding the pendency of this action, the defendant had wrongfully interfered with said spring upon his own land, and at a point twenty-five feet distant from said spring, the waters of which the defendant had theretofore sold and conveyed, and at a point below said spring, in such a way as to draw off and drain the water from said spring and divert it from its due and proper channel, as the same had theretofore been conveyed and granted by the defendant, through said pipes, and to the house and premises of the plaintiff.
    That the plaintiff thereafter lo'wered his said pipes leading from said spring in order that he might convey said water to liis premises, and thereupon the defendant wrongfully and unlawfully drew off, cut off and disconnected said pipes which conveyed said water from said spring to plaintiff’s premises, and deprived plaintiff of the use of said water, for which the complaint asked judgment for $1,000 damages, and for costs, and that pending the determination of the action the defendant be enjoined and restrained from further interference with said spring or pipes leading therefrom, or in anywise interfering with the flow of water from the same to the plaintiff’s premises.
    The judgment provided as follows: “ That the plaintiff be, and he is hereby directed to fill up the excavation made by him at the spring mentioned and described in said decision, on the 17th, day of April, 1889, and to replace in said spring a box similar to the one taken therefrom by him at the time he made said excavation, and to restore said spring to the same condition it was in at the time he commenced making said excavation on the said 17th day of April, 1889.”
    On the 20th day of August, 1852, the defendant owned a farm in the town of Hamilton, and he has remained the owner and in possession of the same ever since. At that date William Colcon owned a farm adjacent to the defendant’s, which has since been aquired by the plaintiff, with all the rights and appurtenances thereunto belonging. On the 20th day of August, 1852, said Colson and this defendant executed an instrument under their respective hands and seals, which, was by them duly acknowledged on that day and recorded on the 10th of January, 1855, which contained the following language: “ Witnesseth, whereas, the said parties at the date of the ensealing and delivery of these presents are respectively séized in fee of and in two contiguous tracts, pieces or parcels of land, with the appurtenances in. the town of Hamilton aforesaid ; and whereas, there is a spring of water situated in and upon the land of the party of the first part; said' spring is situated west from .the dwelling-house of the party of the first part, it being nearly in the center of the farm owned by the party of the first part, which spring is owned by the party of the first part. Now, therefore, this indenture witnesseth, that the party of the second part for and in consideration and agreement on the part of the first party, that he, the party of the second part, hereby agrees to convey the water from said spring in three-fourths inch lead pipe, which is to he laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes. The party of the second part is to carry said water as above described into the meadow of the party of the first part, in consideration of the foregoing agreement on the part of the party of second part; the party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm, unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one-half inch lead pipe ; the party of the second part has the right to all the water which can run through said one-half inch pipe, said half-inch pipe to be inserted at the termination of the three-fourths inch pipe as before •described, to be constructed and kept in repair at the cost, charges .and expense of the party of the second part, to have and to hold .all and singular the same easement and privilege to the said party of .the second part, his heirs and assigns forever, as appurtenances “belonging to his and their lands as aforesaid.
    “ In witness whereof we have hereunto set our hand and seals the day and year first-above written.
    « OTIS SEABUNY. [l. s.]
    “WM. COLSON. [l. s.]
    Signed, sealed and delivered in presence of A. M. Covey.”

      It was conceded on the trial “ that at the time the above instrument was executed William Colson was the owner of the farm of .about one hundred and forty acres, and was at that time in possession thereof, and which was contiguous to the lands of the defendant, and .are the lands mentioned in the instrument as belonging to Colson.”
    It was admitted that the title to the premises, upon which the spring an question is located, being the spring referred to in the above-described instrument, was in the defendant at the time the instrument between him and Colson, dated August 20, 1852, was executed, and that the defendant has ever since been the owner of said premises.
    It was further admitted “ that under the grant from Otis Seabury to William Colson in evidence, William Colson, soon after the date •of the grant, to wit, the 20th of August, 1852, laid a f-inch lead pipe connecting it in the spring, mentioned in the grant, and running thence to the defendant’s meadow, mentioned in the grant, at which point William Colson connected a ¿-inch lead pipe, mentioned in the grant, and conveyed water thence to his premises. It was also conceded that, on or about the year 1854, the defendant attached a ¿-inch lead pipe at a point above and nearer the spring than where ■Colson’s.¿-inch pipe joined to the f-inch pipe, and through the ¿-inch pipe thus attached conveyed water to his, the defendant’s, premises until about the year 1886, when he disconnected it.”
    At the request of the plaintiff it was found “ that plaintiff at no ■.time took or claimed the right to take more than one-half inch of water .and that the pipe at all times, laid and maintained by him, was a ¿-inch lead pipe.” The trial court refused to find, as matter of law, •“ that defendant, by his grant, rendered his lands subject thereto, and that any interference with plaintiff’s obtaining the half-inch of water granted was actionable, and defendant was liable to damages therefor ; ” and also refused to find “ that defendant, by his grant, included everything that was essential to its enjoyment, and all the means to attain the thing granted, and all the fruits thereof were granted inclusive with the grant of the thing itself, and that plaintiff was authorized to lower his pipe and dig out the spring to obtain the .thing granted (¿ inch water).”

      John F. Smith and L. P. Fuess, for the appellant.

      Mason c& Oushman, for the respondent.
   Hakdin, P. J.:

Plaintiff lias succeeded to the rights acquired by William Colson under the grant and easement executed by the defendant on the 20th of August, 1852. He is entitled to all the rights, privileges- and enjoyments mentioned in that instrument. While the instrument is indefinite in respect to the location of the pipe to be taken from the spring mentioned in the instrument, three-quarters of an inch in diameter to a certain point in the meadow of the defendant, where the union was to be made of this pipe with the half-inch in diameter to carry the water across the remaining portion of the defendant’s premises to the lands of Colson, yet, as the parties made a practical location and usage laying the both pipes in a track assented to by the parties to the instrument, and enjoyed by them, that portion of the agreement became definite and certain by reason of acts of the parties in the premises. (Tyler v. Cooper, 47 Hun, 94; S. C., 31 N.Y.St.R., 369.)

When the instrument of 1852 was executed Colson and the defendant owned adjacent farms in the town of Hamilton, as the instrument recites; and the instrument also recites that “ there is a spring of water situated in and upon the land ” of the defendant; and it also recites that said spring is situated west from the dwelling-house of the party of the first part.” The instrument also-recites a consideration moving from Colson to the defendant, which was an agreement on the part of Colson binding him to convey the water from said spring in ¿-in. lead pipe, which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes.” The evidence discloses that the consideration or agreement was fulfilled, as Colson, shortly after the agreement was entered into, laid a pipe so as to conduct the water from the spring, a distance . of some twenty rods, having a size of three-quarters inch, and for some eighty rods of the size of one-half' inch in diameter, in accordance with his agreement to carry the water “ into the meadow of the ” defendant, which, in the instrument-,, is declared in express words to be the consideration for the grant made by the defendant to Colson and his assigns and heirs. The-instrument then proceeds to state, viz.: “ The party of the first part, has hereby granted, bargained, sold, released and confirmed, and by these presents does grant bargain, sell, release and confirm unto the said' party of the second part, his heirs and assigns, alt the water of said spring which can be conducted through ¿-inch lead-pipe ; the party of the second part has the right to all the water which can run through said ¿-inch pipe, said half-inch pipe to be inserted at the termination of the ¿-inch pipe as before described, to be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.” The language which we have quoted is definite and certain in many of its parts. (1.) It contains words indicative that the quantity of water specified is granted, sold, released and confirmed to the second party to the instrument. (2.) It is definite and certain, in that it defines the quantity of water covered by the presents, to wit, “ all the water of said spring which can be conducted through ¿-inch lead pipe.” These latter words indicate the size of the conduit to be used, and they bear significantly the idea that the pipe is to be so laid that it will carry all the water that can be conducted through such a pipe. The words “ can be conducted ” may properly receive significance in considering the manner in which the pipe was to be inserted in the spring, and was to be laid and used to effectuate the intention of the parties. The subsequent language of the instrument does not limit the phrases with which we have already dealt; it is well chosen to make more clear and definite, if need be, the words already used. It declares, in express words, viz.: “ The party of the second part has the right to all the water which can run tlirou’gh said ¿-inch pipe.” Following these words are those which indicate where the half-inch pipe is to be connected to the one that is three-quarter inch; and, according to the testimony, the one-half inch pipe was inserted in the three-quarter inch pipe, about twenty rods from the spring. Again, the grant contains the following definite language in respect to the conduit to be used, and the manner of its use, and names the party on whom the burden rests of keeping it in repair, as in the instrument we find the following language in respect to the conduit: “ To be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.” The instrument serves as an express grant, and is itself “ the creation of the easement,” and in clear language it expresses the nature and extent.. From that language, in connection with the circumstances existing at the time of making the instrument, the nature and extent of the grant is to be determined. (2 Wash, on Real Estate [3d ed.],. 278.) If the construction was doubtful, the' interpretation, according to authority, should be given favorable to the grantee. (Fisk v. Wilber and Others, 7 Barb., 395.) The language used very clearly casts the burden upon the dominant estate to keep in repair the easement and its incidents. Such is the general rule in respect to easements. Mr. Washburn says (p. 311, vol. 2 [5th ed.], p. 355), viz.:: “As a general proposition, the dominant estate is bound to repair the way it enjoys over the servient estate, though the owner of the latter may, by grant or reservation, or by prescription, be bound to make the necessary repairs in order to its enjoyment.” The important and substantial thing granted is the use of the water, as well as the privilege of conducting it from the mentioned spring across the premises of the defendant to the premises now occupied and owned by the plaintiff. It is said by Mr. Washburn (vol. 2, p. 319 [5th ed.], p. 366), viz.: ■ “ Property in water, in connection with real estate, can only be predicated of its use, which serves by its enjoyment to give a value to the corporeal hereditament with which its ¡use is applied.” Under the language of the grant now before us, we are of the opinion that it was the duty of the plaintiff to maintain in ■ repair, not only the conduit, but the spring from which he was granted the privilege of conducting so much water as would flow through a lead pipe one-half inch in diameter. Such burden was cast upon the plaintiff by the exact words of the grant. That burden seems to be in accordance with the general rule laid down in respect to enjoyment of easements. It is said by Mr. Washburn (p. 325, vol. 2 [5th ed.], p. 373), viz.: “ If one owns the right of a water-course in the land of another, it is incumbent upon him to keep the same in repair, unless the landowner is bound by some covenant to make repairs. And to this end - he has the right, as incident to the principal easement, to enter upon the servient estate and do whatever is necessary to make such repairs, such as digging up the soil and the like, but doing no-unnecessary damage thereby.” For the purpose of enabling the plaintiff to enjoy the use of the water covered by the language of the grant, to obtain the same from the spring mentioned, we are of the opinion that he had the right to “ repair ” the spring; to put it in such a condition as to receive therefrom the quantity of water specified in the grant, and thus enable him to enjoy the full benefit of the rights secured by the grant made by the defendant. The tub which was placed or the box which was inserted in the spring at-the place where the water issued was not the spring; the earth which lay adjacent to the tub or the box was not the spring, neither was the rock which was on the westerly side of the aperture the spring. It was said in Magoon v. Harris (46 Vt., 264), viz.: The word spring, when applied to water, means the formation of water that nafurally gushes out of the earth’s surface. “A spring of water is a place where water by natural forces issues from the - ground.” (Bloodgood v. Ayers, 108 N. Y., 405.) If the lowering of the tub or box a few inches, if clearing the earth from under it fifteen inches and letting the tub down, were acts necessary to secure to the plaintiff the use of such water as would flow through the prescribed pipe, then they were acts which were lawful and reasonable; and after they were performed, and the site put in condition to yield the required quantity of water, the plaintiff had the right to have it remain in that situation. The defendant had not the right to disturb, to interfere or displace the reasonable arrangements made to secure the quantity of water conveyed by the grant. The defendant had undertaken that the owner of the dominant estate should have “ the privilege ” of “ ah of the water of said spring which can be conducted through a one-half inch lead pipe; ” and, in view of the grant, the plaintiff “has the right to all the water which can run through said one-half inch pipe.” In this connection the language used by the court in Paine v. Chandler (5 N. Y. Sup., 742) is appropriate: “ The plaintiff had a legal right to the use of the water from the spring upon defendant’s land, and this right had been conferred upon him by the defendant. Such being the case, while it may not have deprived the defendant of the right to the enjoyment of his premises; and to the underground waters upon them, it nevertheless did require of him that he should exercise that right in good faith, and with due regard to the rights of the plaintiff. 4E- -x- -x- ^f0 case cail be found wliicb holds that a person may confer a right or privilege upon another, and then maliciously destroy such right either by direct or indirect interference with the same ; and this court does not propose to be the pioneer of any such inequitable doctrine.”

Attention has been called to Phelps v. Nowlen (72 N. Y., 39), where it was held that “ a party is not liable for the- consequences of an act done upon his own land, lawful in itself, and which does not infringe upon any lawful rights of another, simply because he was influenced in the doing of it by wrong and malicious motives; the courts will not inquire into the motives actuating a person in the enforcement of a legal right.” If our construction of the grant, already intimated, is correct, that case does not aid the respondent, •who, having conferred a right upon the plaintiff, was not at liberty to infringe upon it by preventing, by direct acts, the plaintiff from the enjoyment of the right secured to him by the grant. Attention has been given to Bliss v. Greeley (45 N. Y., 671), so much relied upon by the respondent to sustain the judgment before us. In that case there was a limited and specific grant of “the right to dig and stone up a certain spring, and conduct the water therefrom through the grantor’s land, by a specified pipe, to the grantee’s house, with covenant of warranty.” It was held that such a grant “ does not render the entire premises servient to the easement; and the grantor may lawfully sink another spring, but twenty-seven feet distant, although the effect is to render the first one useless.” In the course of the opinion delivered in that case it is said the grant and the covenants of the grantor are the precise measure of the plaintiff’s right,” and after stating that the grant conferred “ the right to dig out and box this spring, and to put a pipe in it,” the pertinent question is asked by the judge: “ Did he thereby covenant that he would not use the rest of his farm in a farmer-like manner ? ” and the burden of the opinion is to answer in the negative; and later on the learned justice says: “ This grant prevents the grantor and his assigns from any substantial interference with the spring or the pipe. It does not prevent their improvement or use of the residue of the farm.”

In Johnstown Cheese Manufacturing Company v. Veghte (69 N. Y., 23), the case is referred to in the following language, viz.: ■“ The case of Bliss v. Greeley (15 N. Y., 671) is cited on the part of the defendant as in conflict with this judgment; but the facts of that case were very different. In that case there was simply a grant ■of a right to dig and stone up a certain spring and to conduct the water therefrom through the grantor’s land, with a covenant of warranty; and the court held that this did not preclude the grantor from sinking another spring on his land at some distance from the one granted, although the effect of it was to render the latter useless, ■provided such act was not done unnecessarily or maliciously. In that case the parties were regarded in the same light as adjacent ■owners, and the rule was applied that the defendant might lawfully dig on her own land, though the effect was to cut off the water from the plaintiff’s spring by percolation. But there was no grant in that case of any particular supply of water from the spring or from the defendant’s lands. The grant was merely of the right to the spring and secured the plaintiff no greater rights than such as he would have had if he had owned the land on which it was situated.” Thus it clearly appears that that case was unlike the one of Johnstown v. Veghtes (supra). The latter case was more like the one now before us. In concluding the opinion it was said: “ In this case the grant was of the use of the water which, at the. time of the grant, was being conducted from the spring, and the intent was to secure the continuance of that supply of water, it being essential to the operation of the cheese factory conveyed.” In the case in hand, as we have already intimated, the grant was of the use of a specified quantity of water to be taken from a specified spring, and the acts and efforts of the plaintiff were in the direction well calculated to secure to him the water granted, the quantity granted from the site mentioned in the grant, from the spring described in the grant.

It is claimed by the learned counsel for the respondent that the burden imposed cannot be made greater than it was at the time of the execution of the conveyance, and he has called our attention to Roberts v. Roberts (7 Lans., 55; S. C., affirmed, 55 N. Y., 275). "We do not understand that this is in conflict with the views already expressed, for, as we understand it, it is held “that the burden imposed cannot be made greater than it was at the time of the conveyance.” According to the evidence, the plaintiffs right secured by the grant and the privileges of the easement mentioned therein, are valuable and important and are entitled to the protection of a court of equity. The foregoing views lead to the conclusion that the remit at the Special Term was erroneous, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concurred.

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