text:
    The People of the State of New York ex rel. Fred A. Russell, Relator, v. The Board of Fire Commissioners of the Village of Saratoga Springs, Respondent.

      Certiora/ri — title to office — appointment and removal by a municipal board — village of Saratoga Springs — appointment of the seme person to two positions in the fire department — removal from one position.

    While it is not the office of a writ of certiorari to try title to office, yet, where the relator seeks to be restored to an office from which he has been removed by a municipal board the proceedings of which he seeks to review, he. must, to entitle himself to relief, show a legal title to the office; if he does not do this it is of no consequence how informal or irregular the proceedings of the board may have been.
    If it appears upon the face of the papers, in proceedings by certiorari to review the action of a municipal board in removing the relator from an office to which he seeks to be restored, that the relator was never entitled to the office, then he is not “a person aggrieved by the determination to be reviewed,” and is, therefore, not entitled to the writ. (Code Civ. Proc. § 2127.)
    The law does not favor the multiplication of offices in one person, and where they are inconsistent with each other, or where such multiplication has a tendency to impair the public service, it will be held that the occupant must surrender the one or the other office, if both appointments were conferred upon him at the same time ; or, if they were conferred at different times, the acceptance of the one last made forfeits the first.
    The intention of the provision of the charter of the village of Saratoga Springs (Laws of 1866, chap. 220, § 26, as amended by Laws of 1887, chap. 322, § 1), that the board of fire commissioners shall have power to appoint “ a chief engineer, an assistant engineer, * * * four or more firemen, not to exceed eight men for a hook and ladder company,” etc., and affixing different salaries to the several positions, is that the several positions shall be held by different persons.
    Appointments by such board of fire commissioners, of the same person to the two positions of “assistant chief engineer” and “fireman,” impair the public service, are contrary to the spirit of the statute, and void; and when this appears upon the face of the papers filed in return to a writ of certiorari issued to review the proceedings of the board in removing the relator from one of the two positions, and to obtain a reinstatement, the writ should be quashed, for the reason that the relator does not show that he was legally appointed to the office to which he seeks to be restored.
    Certiorari to review tbe proceedings of The Board of Fire Commissioners of the village of Saratoga Springs, had on May 8, 1893, removing the relator from the office of assistant chief engineer of the fire department of the village.

      The writ of certiorari was allowed and issued on the 6th day of June, 1893.

      A. IF. Shepherd, for the relator.

      J. F. Swanieli and J. T. Brusnihcm, for the respondent.
   Herrick, J.:

By section 26 of chapter 220 of the Laws of 1886, as amended by section 1 of chapter 322 of the Laws of 1881, the board of fire commissioners of the village of Saratoga Springs has poiver to make the following appointments: A chief engineer, an assistant engineer, and a superintendent of the fire alarm telegraph, at a salary to be fixed by them, but not to exceed $1,000 per annum for the chief engineer, $125 per annum for thé assistant engineer, and $600 per annum for the superintendent of the fire alarm telegraph. They shall also have power to employ, on such terms as they shall think best, four or more firemen, not to exceed eight men for a hook and ladder company, and not to exceed twenty men for a hose company. The compensation of such firemen shall not exceed $600 each per annum.”

On the 1st day of April, 1893, the defendants, the board of fire commissioners, appointed the relator assistant chief engineer of the fire department, which appointment was accepted by the relator; on the same day, by a separate and distinct certificate of appointment, the said board of fire commissioners also appointed the relator a fireman of the fire department for a term of one year, at an annual salary of $600, payable monthly, which appointment was also accepted by the relator; both such appointments and acceptances were in writing, and the acceptances signed by the relator; each appointment was for the term of one year, to commence May 1, 1893. At a meeting of the board of fire commissioners, held on the 1st day of May, 1893, the following resolution was adopted:

“ Whereas, it appears that Fred A. Russell is at the present time doing the work of two men, viz., that of permanent fireman and assistant chief engineer of the fire department, and it appearing that the two positions being too much work for one man to perform, be it resolved, that the said Russell be commanded to show cause, before a meeting of this board, to be held on the eighth day of May, 1893, at '1.30 o’clock, p. m., why he should not be removed from the position of assistant chief engineer of the fire department of the village of Saratoga Springs.”

The clerk of the board was directed to serve a copy of such resolution upon the relator, and it was served upon him on the 2d day of May, 1893.

On the 8th day of May, 1893, at a meeting of said board’of fire commissioners, the subject-matter of such resolution came up, and the relator appeared by his attorney, who objected to any proceedings looking to the removal of the relator upon the ground “ that there have been no charges of unfitness in his office presented against him, and no charge shown why he should be removed, and, therefore, the board has no power to remove him.”

The relator also presented a further communication which, after reciting his appointments, and claiming that since that time he has done nothing and omitted nothing, appertaining to the duties of the office, which calls for his removal, states “that he has not pei formed two men’s work since such appointment, and is not now nor was at the time of such resolution; that the work he has performed at the central house is in the line of and not inconsistent with the duties of his office and does not conflict with it in any way; that when not on active duty as assistant chief he has taken part in the general work of the house, and when the chief has been absent he has assumed the duties of his office and performed them, and been at the house at all times during such absence, ready to act in case of fire, in the same manner that the duties of the office of assistant chief were performed by William Fitzgerald during the year just passed. ■■ i

“lie further says, that by the arrangement now in force and commencing with the appointment of William Fitzgerald, the assistant chief is a man on duty at the central house the same as tiie chief and ready for duty at the sound of the alarm, and not as was the case before the assistant chief was not one of the permanent firemen, a man liable to be in any part of the town and liable also to miss the alarm, and so be late at a fire or not get there at all.

“ The undersigned, therefore, respectfully urges that there is no ground for his removal from the office on the grounds alleged in the resolution.”

After hearing the relator’s counsel orally the board, of fire commissioners by resolution removed the r.elator from the office of assistant chief engineer, and by another resolution appointed'another person to said office in his place and stead.

The relator then commenced these proceedings by certiorari for a review of the proceedings of the board of fire commissioners upon his removal and for his reinstatement in said office of assistant chief engineer.

To entitle the relato! to the relief he seeks he must show a clear, legal right to the office in which lie seeks to be reinstated; it is of no consequence how informal or irregular the proceedings of the board may have been, if he is not legally entitled to the office. If he was not legally holding the office the board could dismiss or drop him from the roll without a trial, and if they wrongfully did so, he, being in fact legally appointed to and holding the office, would have his remedy for restoration by mandamus. (People ex rel. McTigue v. Manning, 16 N. Y. Supp. 601: People ex rel. Kopp v. French. 102 N. Y. 583-586.)

While it is not the office of a writ of certiorari to try title to office, yet, I think, in a case of this kind, where the relator seeks to be restored to office, he must show his title to it, for' the Code provides {§ 2127, Code Civ. Proc.) : That an application for the writ must be made by or in behalf of a person aggrieved by the determination to be reviewed,” and if it appears upon the papers that the relator was never entitled to the office from which it is claimed he has been removed, then he has not been aggrieved by the determination he seeks to review, and is not entitled to the writ.

As we have seen, the statute provides that the board of fire commissioners shall have power to appoint a chief engineer, an assistant engineer and four or more firemen.

It seems to me that by that it intended to provide for a specific number of persons; that it had in view the needs of the department and the number of persons necessary to perform its duties. When the law provided for a chief engineer, assistant engineer and four firemen, it appears to me that it contemplated that those positions should he held by different persons:, and that when the board conferred more than one of the appointments authorized to be made upon one person it was contrary to the intent of the statute.

I think it is apparent, not only from the title of the office, but from the salary fixed by the statute, as compared with the others, • that the assistant engineer was only expected to act in the absence or disability of the chief engineer, and it contemplated that the chief engineer should have at least four firemen to assist him, that being the minimum number authorized to be appointed.

' In the event of the disability from any cause of the chief engineer, the assistant engineer, acting in his place and stead, if he is at the same time a fireman, would have only three firemen to assist him, and to that extent the department would be crippled and its efficiency impaired.

' The law does not favor the multiplication of offices in one person, and where they are inconsistent with each other, or where such multiplication has a tendency to impair the public service, it will be held that the occupant must surrender the one or the other, if both aj)]iointments were conferred upon him at the same time, or if they were conferred at different times, the acceptance of the one last made forfeits the first.

It is to be presumed that the Legislature intended to provide 'for such offices as were necessary for the public service, and in fixing a minimum number, that it determined that that number, at least, was necessary for the efficient performance of the duties imposed upon the department, and any diminution of that force, by conferring the offices and emoluments of more than one office upon one person, impairs and cripples the public service, and is contrary to the intent and spirit of the statute, and is void.

It appears hero on the face of the relator’s petition that both these offices have been conferred upon and accepted by him; the first in order of appointment and acceptance was that of assistant chief engineer, and the second that of fireman; and it further appears that he is now discharging the duties of fireman, and presumably receiving compensation therefor, and it seems to me, therefore, that he does not show that he was legally appointed to the office to which he seeks to be restored, for if he' was appointed to both of these offices at once such appointments were contrary to law, as we have seen, and his title to either is not clear; if it is held that in law they were made at different times, although on the same day, then his acceptance of the appointment of fireman, being the one last made, forfeited tlie appointment of assistant chief engineer, and he( was not legally entitled to hold it when removed, and, therefore, he is not aggrieved, within the meaning of the statute, by his removal therefrom, and is not entitled to the writ. The writ of certiorari should be tpiashed, with fifty dollars costs, and printing and other disbursements.

Mayiiam, P. J., and Putnam, J., concurred.

Writ of certiorari quashed, with fifty dollars costs, with printing and other disbursements.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Horace G. Young, as Trustee Under the Last Will and Testament of Thomas Cornell, Deceased, Respondent, v. Sarah B. Overbaugh, Appellant.

      Parol promise to convey land — performance on the part of the promisee — Statute of Frauds — right to a deed — expenditures ~by tJiepromisee — value of occupation of the premises, as a set-off.

    When, in pursuance, and upon the faith, of a parol promise by the owner of real estate to convey the same, the promisee has taken actual possession and remained in occupation of the premises, and made permanent and valuable improvements thereon, which acts cannot be recalled so as to place the promisee in the same position as before, such performance on the part of the promisee takes the parol agreement out of the Statute of Frauds and entitles him to a specific performance of the promise to convey.
    In such a case the value of the occupation of the premises by the promisee is not to.be set off against the expenditures made by him thereon and a decree for the conveyance denied because the value of such occupation equals or exceeds the expenditures made; the property becomes his, in equity, at the time of such performance on his part, entitling him to a deed, and the subsequent rental value thereof cannot be charged up against him.
    Appeal by the defendant,-Sarah B. Overbaugh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Ulster county on the 6th day of March, 1893, upon a decision of the court rendered after a trial by the court without a jury at the Ulster Circuit.

      J. JFemton Fiero, for the appellant.

      H. O. Sooj> and A. T. Olearwater, for the respondent.
   Herrick, J.:

Thomas Cornell,, deceased, was the half-brother of the defendant, and prior to the year 1872 was the owner of the premises in question, which are located in Kingston in this State, but since the year 1872 the defendant has been in the possession and actual occupation of said premises under the following circumstances:

The defendant and her husband were residents of Catskill, where her husband was engaged in business, during the year 1869. Thomas Cornell expressed the intention of purchasing .a home for the defendant in Catskill, but one was not found there which suited them; subsequently, in the year 1872, at the request of the said Thomas Cornell, the defendant and her husband went to reside in the city of Kingston, where the defendant’s husband engaged in some business, and some time in the year 1872 Cornell, stating that he desired to carry out the idea which he had suggested to the defendant’s husband when they were in Catskill, asked the defendant’s husband to build a house for her on the premises described in' the complaint, for the sum of $1,500, to bring the bills to him and he would pay the same; he then and afterwards said that the house ivas for the defendant, built for her, and was hers. The defendant’s husband after such conversation, at defendant’s request, entered into a contract for the building of a house on the premises described in the complaint, and paid the cost of removing a barn from the property.

The cost of building the house exceeded by about $1,200 the sum of $1,500 named by Cornell. Cornell knew of the contract, and the fact of this additional expenditure of money was communicated to him, together with the fact that defendant’s husband had paid the same.

The defendant made other valuable permanent improvements, built a barn, planted fruit trees, put in heating apparatus, etc. Cornell visited the premises at different times and knew that the defendant was improving the property.

The trial court has found that such improvements, as well as the payment of $1,200, were made and expended on the faith of the promise made by Cornell to give the property to the defendant, and that such expenditures and improvements were made for and on behalf of the defendant and at her request, and under her promise to repay her husband therefor.

Li tlie year 1876 tlie defendant’s husband informed .Cornell that lie had found a business that he thought would be a good thing to go into at Yonkers. Cornell told him that “if you take your wife and move away from the property where you now reside it shall not be hers, as I intended it for her when yon first built there, and if you now go away you shall lose it; if you remain I will carry out my design, which ivas to give it to your wife.”

Thereafter the defendant and her husband reported to Cornell that they had concluded to remain in Kingston.

At various times subsequent to the building of the house Cornell ■spoke of the property to different persons as the property of the defendant. The value of the property is about $8,000. The total amount of money expended by the defendant for permanent improvements, ordinary repairs, taxes, insurance, compensation to ■defendant’s husband for attending to the erection of the house, and the making of repairs, and of other expenses, and the ordinary care and expenditure on property of such a character, from the beginning of the erection of the house down to the present time, is $4,734.26. A fair rental value of the property during the occupancy of the defendant} a period of about twenty years, was $250 a year, aggregating $5,000.

About January, 1890, said Cornell purchased for the defendant and presented to her an undivided one-half interest in and to certain real estate in the county of Ulster, for which he paid the sum of $11,000. But there is nothing in the case to show, or from which we can infer, that it had any relation to the gift or promise in question.

The executor of said Cornell commenced an action in ejectment against the defendant to obtain possession of the property described in the complaint; the defendant denied that the said Cornell, at the time of his decease, was entitled to the premises described in the complaint, and that he was not the actual owner thereof, denied that the plaintiff in the action was the equitable owner or entitled to the possession thereof, and further answering asserted that she Avas in truth and in fact the equitable OAvner of said premises and entitled to the possession thereof under an agreement Avith the said Thomas Cornell, Avhich agreement was set forth in the answer, and tlie defendant, in addition to the dismissal of the plaintiff’s complaint, asked that he be adjudged and decreed to deliver to the defendant a good and sufficient conveyance to the premises set forth in the complaint.

Upon the trial the facts appeared substantially as herein stated ; judgment was rendered against the defendant, awarding to the plaintiff the possession of the premises in question.

The original plaintiff, the executor of Thomas Cornell, died during the pendency of the action, and the present plaintiff was substituted in his place and stead as trustee under the last will and testament of the said Thomas Cornell.

It seems to me that upon the facts as stated the defendant ivas entitled to the relief asked for in her ansiver, and that the plaintiff was not entitled to the judgment awarding to him the possession of the premises in question.

“ The doctrine was settled at an early day in England, and has been fully adopted in nearly all the American States, that a verbal contract for the sale or leasing of land, or for a settlement made upon consideration of marriage, if part performed by the party seeking the remedy, may be specifically enforced by courts of equity, notwithstanding the Statute of Frauds. The ground upon which the remedy in such case rests is that of equitable fraud. It would be a virtual fraud for the defendant, after permitting the acts of part perfonnanco, to interpose the statute as a bar to the plaintiff’s remedial right'. The acts of part performance, therefore, in order to satisfy this principle, must be done in pursuance of the contract, and must alter the relations. of the parties. The most important ■ acts which constitute a sufficient part performance are actual possession, permanent and valuable improvements, and these two combined.” (Pom. Eq Juris. § 1409. See, also, Lowry v. Tew, 3 Barb. Ch. 407; Malins v. .Brown, 4 N. Y. 404-407 ; Dygert v. Remerschnider et al., 32 id. 629; Freeman v. Freeman, 43 id. 34; Pope v. O’Hara, 48 id. 446 ; McFadden v. Allen et al., 134 id. 489.)

The facts in this case show that there has been an actual possession by the defendant, and permanent and valuable improvements made by her, and that such improvements and occupation were upon the faith, of the promise made by Thomas Cornell in his lifetime.

There is not much contention as to the rule of law applicable to-a case where there is a parol agreement for the transfer of land accompanied by possession and the making of permanent improvements upon it, in reliance ujion such agreement, but the decision of the court below and the contention of the respopdent is that such rule is not applicable to this case, although such agreement was. found, and the occupation of and making permanent and valuable-improvements upon the property, upon the faith of such promise or agreement, conceded, because the ground upon which the court exercises its equitable jurisdiction to compel a party to fulfill a parol contract, “ really is to prevent a fraud being practiced upon the parol purchaser by the seller, by inducing him to expend his money upon improvements upon the faith of the contract, and then deprive him of the benefit of the expenditure, and secure it to the seller by permitting the latter to avoid the performance of his contract. (Freemem v. Freeman, 43 N. Y. 34-38.) In this case it appears, that the rental value of the premises for the- years that the defendant has been in possession of them more than equals the amount of money which she has expended upon them, and, therefore, it is contended that the defendant is not deprived of the benefits of her-expenditures because of the use and occupation of the premises by her, and the value of such use and occupation more than compensates for what she has paid out; hence, no fraud is perpetrated upon her by the refusal to fulfill the parol promise made.

I think it has been generally supposed that the longer a person remained in occupation of property, making improvements upon and caring for it as his own, upon the understanding that it was liis. own, all based upon a promise to convey, the stronger the equitable title of the occupant became, but if the doctrine contended for by the 'respondent in this case is correct, then the longer the-occupation the weaker the equity of the occupant.

The cases to which I have been referred as sustaining the position of the respondent, to my mind fall short of it; the very important element of a gift or promise to convey, which is present in this case,, is lacking in all of them.

• In the case of Wack v. Sorber (2 Whart. [Penn.] 387) the court held that there was scarcely sufficient evidence of the contract submitted to the jury [ that there was no consideration for it in the first. instance; and that if there were permanent improvements made to the land that the expenditures were trivial in amount, and did not exceed in value the amount of rent for a single year, while the defendant had had the occupation and proceeds thereof for five years; the court also held that there was nothing in the case to justify ■the inference of a gift in the first instance.

Walton v. Walton (70 Ill. 142) was a case where the party claim- . ing the parol contract had occupied the premises, and had the entire proceeds thereof, which largely exceeded the improvements made ■and the taxes paid by him, and the court held that, upon the facts, there was no promise to convey, and none could be inferred from the mere fact of occupancy, payment of taxes and making improve.ments, where the proceeds and value of such occupation exceeded the expenditures made. The case of Hickman v. Grimes (1 Marshall [Ky.], 86) is not in point. Grimes brought an action against the Hickmans, father and son, upon a contract which he had made with the son to erect a building, and to have in return therefor a conveyance of certain premises; his claim was that the father had told the son that he would give him a deed of the property in question ; the court held that such promise by the father could not be enforced, there being no consideration given for the promise, and nothing done by the son in pursuance of it; that in any event it could not be enforced by the contractor with the son ; it was not a promise .to the contractor.

In McMahill v. McMahill (69 Iowa, 115) the court held the evidence to show that the father had intended to make an advancement to his son of the premises in question; that the son occupied them and had the proceeds thereof for some years prior to his father’s death, and that, after his death, he took his distributive share of the estate with the other heirs, and the court held that if he had accepted no more of the estate than, with the property in question, would have made him the equal of the other heirs, he might have been entitled to a decree directing it to be conveyed to him; but that equity would not wrong the other heirs by decreeing the enforcement of the promise of the father to convey the property as an advancement when to do so would give him, together with the distributive share he had already received, an undue proportion of his father’s estate.

The principle to be extracted from these cases is that where there is no promise to convey, the -occupation of land and the expenditure of money thereon will not be sufficient to create'an implied promise to convey, and that the value of the use of such premises and the receipt of the proceeds thereof will be set off against any equity created by expenditures made in permanent improvements; but that is very far from holding that where there has been a parol promise to convey, a taking possession under such promise, and the making of permanent improvements upon the property upon the faith thereof that the value of the occupation of such premises for a long-series of years, can be set off against the expenditures made, and a decree for the conveyance denied, because the value of such occupation equals or exceeds the expenditures made. The repayment of' the money expended in permanent improvements will not always, restore the parties to the situation they were in before the promise was made; we have no evidence that it would do so in this case other things are to be taken into consideration besides the money expended.

Taking possession under a parol agreement, with the consent of the owner, accompanied with other acts, which cannot be recalled, •so as to place the party taking possession in the same situation that he was in before, has always been held to take such agreement out of' the Statute of Frauds. (Miller v. Ball, 64 N. Y. 286-292.)

It appears that but for the promise to convey to the defendant, she and her husband would have moved to another place, where he would have engaged i-n business, where he believed there was a good opening for him, but he was tied down to Kingston by the promise-made ; the current of their lives was changed by this promise to provide a home, whether for the better or the worse we can only guess there is nothing certain; we only know that they refrained from taking advantage of what was believed to be a favorable opportunity to’ engage in business elsewhere, because of their faith in the promise, of Thomas Cornell.

For twenty years the defendant has been engaged in making and perfecting a home for herself and family; expenditures were made, perhaps trivial in themselves, care and attention, which cannot be-recalled, bestowed upon the premises supposed to be her own, and to be occupied as a family home, and after twenty years of such ■expenditures, care and attention, which one does not ordinarily make or bestow upon the property of others, to force one out of the possession of what has thus been made a home, upon the theory that the rental value of the premises equals, or to a moderate extent exceeds the money actually expended, is not, in my judgment, placing the parties in the same position that they were in twenty years before, and is the perpetration of a fraud.

But it seems to me that there is another view to be taken of the matter; the parol agreement claimed by the defendant, and the ■expenditures made by her upon the faith thereof, have both been found in her favor by the court, and in equity tl’ie property belonged to her from the time of the performance on her part of the things -which have been done by her. In equity the property was as much hers from that time forth as if a deed thereof had been executed then; it should have been given then; in equity it was given then. (Dygert v. Remerschnider, 32 N. Y. 629-647.)

She being, then, the equitable owner, the rents were equitably hers, and cannot be charged up against her. To charge her with the rents as an offset to her expenditures, it seems-to me is to beg the whole question, for if she is entitled in equity to a deed of the property, she is also entitled to the rents, or to the occupation thereof in lieu of the rents.

Some weight should be given to the promise to convey; that is the thing that the court is to enforce; it is the foundation of the whole matter, coupled with acts upon the faith of it; it is what gives the court jurisdiction, but by the rule contended for no consideration is given to that at all; the party relying upon a promise to convey or a gift by parol is placed in the same category with the person who voluntarily occupies and improves land without any gift, understanding or agreement; I have been cited to, and have found no authority to sustain such a doctrine, and it does not seem to me that it can be sustained upon principle.

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

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

Judgment reversed and a new trial granted, costs to abide the ■event.


text:
    Frank Brown, Respondent, v. The Root Manufacturing Company, Appellant.

      Ejectment — new trial, under section 1525 of the Code of Civil Procedure — original stipulation to refer requires the appointment, under section 1011 of the Code, of a new referee.

    Tlie provision of section 1011 of tlie Code of Civil Procedure, that if a new trial is granted of an action tried by a referee named in a stipulation, the court must appoint another referee, unless the stipulation expressly provides otherwise, applies to an action of ejectment in which a new trial is granted under section 1525 of the Code.
    The vacation of a judgment and the granting of a new trial in an action of ejectment, under section 1525 of the Code, does not vacate a stipulation and order of reference made before the original trial.

      Semble, that on the vacation of a judgment in ejectment, under section 1525 of the Code, every other proceeding in the action taken before trial stands.

      Wing v. Be La Blonda (131 N. Y. 422), considered.
    Appear by tlie defendant, Tlie Root Manufacturing Company, from an order of tlie Supreme Court, made at Special Term and entered in tlie office of tlie clerk of Albany county on tlie 29th day of August, 1893, denying the defendant’s motion for the appointment of a new referee to hear and determine the action.

      Paul Fenimore Ooojper, for the appellant.

      O. F. Foyle, for the respondent.
   Herrick, J.:

This is an action of ejectment to recover possession of certain, premises in the city of Cohoes.

The attorneys for the respective parties, by a written stipulation, referred the action to an attorney of this court as sole referee to hear and determine. The referee made his report, finding in favor of the defendant; judgment was thereupon entered against the plaintiff, with the costs of tlie action.

Thereafter, at a Special Term of this court, an order was entered under section 1525 of the Code of Civil Procedure vacating such judgment and granting a new trial upon the payment of defendant’s costs. The plaintiff paid defendant’s costs, and thereafter the defendant, by liis attorney, made a motion at a Special Term asking to liave tlie action referred to some other referee to hear and determine the same, in tlie place and stead of the former referee.

The Special Term denied the motion, and from that order tlie defendant appeals to this court. Section 1011 of the Code of Civil Procedure provides that where an action has been referred, and the referee named in the stipulation refuses to serve, “ or, if a new trial of an action tried by a referee so named is granted, the court must appoint another referee unless the stipulation expressly provides otherwise.” The stipulation in this case did not provide otherwise.

This section refers to all actions, except those specially exempted therefrom by section 1012, and the exceptions set forth in this latter section do not include actions of ejectment. While a new trial in an action of ejectment is a matter of right upon the payment of costs, still, it cannot be had except upon an order of the court vacating the judgment and granting a new trial.

Here, then, we have in this case an action referred by consent of tike parties, manifested by a written stipulation, to a referee to hear and determine, a hearing and determination by and the entry of a judgment thereon and tlie granting by the court of a new trial; tliis, it seems to me, brings it plainly and -squarely within the section of the Code referred to, it not being one of the cases expressly excepted therefrom.

The court below proceeded upon the theory that all proceedings' subsequent to the joinder of issue in the action were vacated by the order vacating the judgment and granting a new trial pursuant to section 1525 of the Code, and cited as authority therefor the case of Wing v. De La Rionda et al. (131 N. Y. 122).

The portion of the case relied upon is that wherein it was decided that in an action of ejectment, where a new trial had been granted, and the costs, including an extra allowance upon the first trial, had been paid, another extra allowance may be granted upon the second trial, and the respondent relies upon that portion of the opinion upon page 131 reading'as follows: “In taking a new trial under such circumstances, and by virtue of the statute, the party availing himself of the privilege in effect commences or causes the commencement of a new action.” And again at page 132: “ Thus, the new trial taken under the statute was, as I have said, in effect the bringing of a new action by vacating as of course the old judgment and taking such new trial in the old action instead of bringing another.”

The doctrine established by that case I do not think should be extended beyond the question there expressly decided.

The section of the Code under which the new trial is had only provides for vacating the judgment, and not for vacating anything prior thereto; it goes no further than is absolutely necessary to grant the party a new trial; it provides for going no further back in the action than is necessary for that purpose.

Following literally the language of the' opinion in the case of Wing v. De La Rionda, that the party taking a new trial in effect commences, or causes the commencement, of a new action,” would take us back not only to the joinder of issue in the action, but to the summons itself, which is the paper or proceeding by which the action is commenced, yet it will hardly be contended that everything after the service of the summons is vacated, and new pleadings may or must be served. J. think it cannot be successfully disputed but that the new trial provided for in actions of ejectment must be upon the same issues as the first.

It is evident, then, that all the proceedings prior to the entry of the judgment are not 'vacated, and that we must stop somewhere, between the summons and the judgment, and the safest way, it seems to me, is to regard nothing vacated except what the Code expressly provides for, that is, the judgment, and that every other proceeding taken before the trial stands; that being so, the stipulation and order of reference are still in force, and it was the duty of the court to appoint another referee.

The order of the Special Term should be reversed, and an order granted appointing another referee, with ten dollars costs of motion, and ten dollars costs of this appeal, and printing and other disbursements.

Mayham, P. J., and Putnam, J.,- concurred.

Order of Special Term reversed, order granted appointing another referee, with ten dollars costs of motion at Special Term, and ten dollars costs of this appeal, and printing and other disbursements.


author: Putnam, J.:

text:
    George Mark and Others, Respondents, v. The Village of West Troy, Appellant.

      Streets created by dedication — street extending to a river — accretions — ferry — reservation and, exemption from dedication — intention
    It is always a question of fact whether or not a public highway has been created by dedication.
    To effect a dedication, the intent of the owners of the land must clearly appear.
    A dedication may be revoked or modified, before acceptance by the public.
    Quiere, whether the general doctrine, that a dedication of a highway to a river extends the highway over subsequent accretions to the river bank, applies in a case where the owners of the land dedicate land extending only to the river, while owning land under water beyond the portion so dedicated which is afterwards filled in.
    In 1828 the trustees of the owners of a farm forming a portion of the village of West Troy on the Hudson river made and filed a map laying the farm out into lots and streets, on which Canal street was described as “extending to the river; ” the trustees were, at the time of filing the mail, owners of land in the river under water adjoining the foot of Canal street, and wore then operating a ferry from the foot of that street. In 1829, before there had been any acceptance of the street by public user or otherwise, all the parties interested in the farm mutually executed a partition deed thereof, by which the right to conduct the ferry, together with a lot adjoining the foot of Canal street, was reserved to the trustees, who afterwards, in 1835, deeded the ferry right and the privilege of approach to the ferry to certain persons, who filled in the river for 200 ■feet from the foot'of Canal street These grantees and their successors were ■ever after in possession of such filled land, and erected and maintained fences and ferry buildings thereon.
    In 1888 the grantees of the ferry rights, then in possession of the ferry and of the filled-in land, brought an action to restrain the village of West Troy from remov ■ ing the ferry and ferry buildings, which the village claimed a right to do on the ground that the premises were part of a public street. The defendant insisted that the making and filing of the map and the subsequent use of Canal street by the public effected a dedication thereof to the river.
    Held, that the facts and circumstances disclosed an intent on the part of the owners of the land in making the dedication to reserve to themselves and their grantees the foot of Canal street and such part of the river shore as was required for the use of the ferry ;
    That the reservation of the right to maintain a ferry should be deemed to mean a reservation of everything appertaining to the land which was necessary to conduct the ferry business properly, such as a dock, fences and toll house', and means of approach to the ferry;
    That if the dedication as originally made was not so limited, the subsequent acts of the owners of the land must be deemed a revocation of the dedication as to •that part of the foot of Canal street required for the use of the ferry ;

      That as it did not appear that when the deed of the ferry privilege was executed in 1885, the dedication had been accepted, or that there had been any public use of Canal street, the dedicators or their grantees had power to modify or revoke the dedication ;
    That the fact that the plaintiffs or their grantors, ever since a period prior to the alleged dedication, had remained in the quiet and peaceable possession of the premises; and the fact that the premises had never been in the occupation of the village, showed an absence of intent on the part of the proprietors of the land ever to dedicate the premises in suit.
    Appeal by the defendant, The Village of West Troy, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Albany county on the 26th day of February, 1892, upon a decision of the court rendered after a trial by the court without a jury at the Albany Circuit.
    The action, which was commenced in December, 1888, was brought by the plaintiffs as the owners and managers of the Troy and West Troy Ferry franchises and property, for a temporary and permanent injunction restraining the defendant from removing or disturbing the fences, buildings or property of the plaintiffs located at the western .terminus of their ferry, in the village-of West Troy, and for damages, etc.
    The answer denied that the plaintiffs are the owners of the lands and premises in question, and averred that such lands are a part of a public street or streets in the village of West Troy, which extend easterly to the waters of the Hudson river, and that the fences and buildings in question are unlawful obstructions upon said street or streets.

      Eugene McLean and E. Oountrymcm, for the appellant.
    .R. A. Parmenter, for the respondents.
   Putnam, J.:

We think that the legal propositions asserted by the learned counsel for the appellant are generally correct.

Tire making of a survey and map of the village of West Troy by the former owners of the land, laying out lots and streets thereon, filing said map with the county clerk, and selling lots with reference thereto, if followed by a public use of said streets, or other acceptance thereof, constituted a dedication, and it is true that a dedication once made and accepted cannot be revoked. Also, generally, where a street thus dedicated extends to the shore of a river, and such shore is shifted by natural accretion or, otherwise, the street will be extended over such accretion to the new shore.

If, then, the evidence shows that there was an absolute unqualified dedication of Canal street to the river shore, and an acceptance of such dedication by the public or the village of West Troy, we are not prepared to say that plaintiffs or their grantors by filling in the river east of Canal street would deprive the public of access to the shore-, unless other facts appear in the case which had the effect of limiting the dedication.

It is always a question of fact whether or not a public highway, has been created by dedication. (Flack & Ors. v. The Village of Green Island, 122 N. Y. 107.) And to effect a dedication the intent of the owners of the land must clearly appear. The owners’ acts and declarations should be unqualified and decisive, manifesting a positive and unmistakable intent to permanently abandon his property to the specific public use. If they be equivocal or do not clearly and plainly indicate the intention to permanently, abandon the property to the use of the public they are insufficient to establish a case of dedication. (Holdane v. The Trustees of the Village of Cold Spring, 21 N. Y. 474-477; State v. Green, 41 Iowa, 693 ; City of Columbus v. Dahn, 36 Ind. 330 ; Niagra Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261.)

And a dedication before acceptance by the public may be revoked or modified. (Holdane v. Trustees of the Village of Cold Spring, sxipra; Lee v. The Village of Sandy Hill, 40 N. Y. 442, 443; City of Cohoes v. The D. & H. C. Co., 134 id. 397, 402.) A dedication of a highway is in effect a gift of a right of way over land to the' public which only becomes operative by acceptance. Until accepted, the donor may change his mind at any time and withdraw his offer. When accepted the title of the public to the highway becomes absolute.

The real questions in this case are of fact, and are, whether the dedication under consideration made by filing the map in 1828, which described Canal street as extending to the river, had the effect of extending said street over the other land of the dedicators under water east of the river shore. Whether such dedication was limited by tbe reservation contained in tbe partition deed of 1829, and hence subject to the rights of the owners to the ferry landing at the foot of Canal streeet, then being used as such. If the effect of filing the map was to give to the public a right to use Canal street to the river and over the water lots of the owners, whether the fact that the latter at once and before any acceptance of Canal street by public user, took possession of and have ever since occupied the premises in question, effected a revocation or modification of said dedication.

On March Y, 1828, George Tibbits and others, as trustees for certain cestui gue trusts, being the owners of the lands embracing the premises in question and a portion of the village of West Troy, laid •out the same into lots and streets and made and filed a map thereof. In said map Canal street is described as extending to the river. The defendant claims that the making and filing of the map and the •subsequent use of Canal street by the public, effected a dedication thereof to the river.

The trustees at the time of filing the map were the owners by grant from the State of lands in the river under water east of and adjoining the foot of Canal street. After the making of said map, and on October 12, 1829, all the parties interested in said premises mutually executed a partition deed of said farm, duly dividing said property according to their respective rights. Each grant in said partition deed had the following clause: “ Excepting and reserving out of this ,release all right of ferrying or establishing, keeping or maintaining a ferry or ferries across the river Hudson, it being understood and expressly agreed by and between the said parties that the right of ferriage is to remain vested in them, the said Philip Schuyler, George Tibbits, Richard P. Hart and Nathan Warren, as such trustees as aforesaid until further partition is made by said proprietors •of West Troy of the residue of said trust estate.”

The trustees also retained the title of lot No. 40, which adjoined the foot of Canal street. The title was so retained for the purpose of maintaining a ferry. At that time the Troy and West Troy ferry boats landed at the foot of Canal street. The said trustees on September 19, 1835, conveyed to John P. Cushman and Ebenezer Wiswall said lot No. 40, “and also all the exclusive right and privilege of keeping and maintaining a ferry and ferries across the river Hudson from any and every part of tbe said village of West Troy, and the right and privilege of approach to said ferries as now used and vested in the said trustees in trust as aforesaid for the said parties of the first part, their heirs or assigns, and also all the said exclusive riglit and privilege of keeping and maintaining a ferry or ferries across the said river which have been reserved to said trustees.”

Thereupon said Cuslnnan and Wiswall became the owners of said ferry then being operated and maintained and the jjroperty belonging and appertaining to said ferry, the landing of which was then at the foot of said Canal street, as it then existed, and the exclusive right of ferriage not only at that particular landing, but also the exclusive right of ferriage all along the said shore of said Hudson river fronting on said village of West Troy.” The said grantees “ and their successors filled in with earth to the depth of several feet from the then foot of Canal street, and of lot No. 40 easterly to where the said ferry landing now is, a distance of upwards of two hundred feet, at their own costs and expense. The ownership of said ferry landing and the lands pertaining to it changed from time to time by reason of sales and conveyances and transfers of, undivided parts thereof, but at all times the said ferry was being maintained and the possession thereof and of the property pertaining thereto held by the owners thereof.”

It appears, therefore, that from a time prior to the filing of said map the owners of said land conducted a ferry business from Troy to West Troy, landing the boats at the' foot of Canal street. The right to conduct said business was reserved to the trustees in the deed of 1S29, and conveyed by them to Cuslnnan and Wiswall by the deed of 1835.

The learned trial judge made, among others, the following findings : “ In transforming the Bleecker farm into village and farm lots and streets and causing them to be placed upon the Roberts map, the then owners thereof did not intend to dedicate to the public said Canal street, now known as Sixteenth street, any further east than as indicated on said majj. Nor did they intend, by such dedication as was made, to interfere with or encroach upon the public ferry then existing, and which at that time had its landing within the side lines of said street produced easterly.

“ It was the intent of the owners of said Bleecker farm, when they decided to lay out said farm into village and farm lots, separated by streets, and partitioning tlie lots among tlie several owners by tlie deed which expressly reserved said lot number 40 on the corner of Broad and Canal streets, and the land under the water extending into the Hudson river, to except out of such dedication the then existing ferry and the exclusive right of occupying and maintaining a ferry or ferries, subject to the sovereign power of the State at the place where the ferry and the landing thereof then existed.”

• After a careful consideration of the evidence we think the conclusions of the trial judge were correct.

As already stated, ordinarily a dedication of a highway to the river gives the public a right of access thereto, and if. the bank is extended by accretion or otherwise the highway is likewise extended. But we doubt whether this doctrine applies in a case like this, where the owners only dedicated to the river or water’s edge, while owning land under water east of and beyond the portion so dedicated, and which was afterwards filled in with earth. We doubt whether the street could be extended over land under water which was not laid down on the map as a part of the said street. But we do not deem it necessary to discuss this view of tlie case.

The question to be considered is as to the intent of the owners of the land at the time in question, to be gathered from the filing of said map and the deeds aforesaid and the facts and circumstances of the case. The map filed in 1828 and the partition deed of 1829 should be deemed one transaction. It does not appear that between 1828 and 1829 there had been any acceptance of Canal street by public user or otherwise, and hence the owners of tlie land in 1829 could modify or revoke any dedication made by filing the map of 1828. •

When the map was filed a ferry business was being conducted with a landing at the foot of Canal street. In tlie partition deed the right to conduct such ferriage business was reserved to the trustees, and they afterwards deeded it to Cushman and Wiswall, conveying to the latter the exclusive right of ferriage and the right and privilege of approach to said ferries. After Cushman and Wiswall became the owners of said privilege they filled in the river 200 feet from the foot of Canal street, and they and their successors have ever since been in possession thereof.

We think that the evidence discloses an intent on the part of the owners of the land in making the dedication to reserve the foot of Canal street for the use of the ferry. The reservation of the right to maintain a ferry should be deemed to mean a reservation of what-' ever appertaining to the land was necessary to conduct the ferriage business properly, a dock, a place to erect a toll house, with proper fences and means of access to the ferry. When, in connection with the reservation in the deed of 1829, we take into consideration the fact that then and ever since that period the said owners of the land or their grantees have remained in possession of the locus in quo ; that after the deed to Cushman and Wiswall the latter or their grantees commenced the filling in of the river with earth at the foot of Canal street, and have erected on the land so filled in fences and buildings, and have continued to occupy the same, the intent of the dedicators to reserve the premises in question for the use of the ferry business seems apparent.

We think, therefore, that in the offer of Canal street by the owners of the land in question to the public, it was their intention to reserve that portion required for the use of the ferry. Such part was never dedicated, but was retained by the owners of the land and their grantees. It is a fair presumption that the right to maintain a ferry means at the place where the ferry was when the map of 1828 was filed and the deeds were executed; also means the right to control the landing where the ferry boats landed, and to erect there suitable docks and buildings for carrying on the business. Such rights were inconsistent with the dedication. The intent of the givers .of the land was not to include the shore of the river as ■far as the same was required for the use of the ferry.

If, however, the dedication as originally made in 1828-1829-was not so limited, the subsequent acts of the owners of the land must be deemed a revocation of the dedication as to that part of the foot of Canal street required for the use of the ferry. The village of West Troy was not incorporated until 1836. In 1836, when the deed to Cushman and Wiswall was executed, the evidence does not show that the dedication had been accepted. It does not disclose the fact that there had been any public use of Canal street. Hence, the dedicators or their grantees could modify or revoke said dedication. (Lee v. The Village of Sandy Hill, 40 N. Y. 442.) The trustees conveyed the exclusive right to maintain said ferry and the approach thereto, and it appears that Ouslnnan and Wiswall and their grantees took possession of said- ferry, continued the business, and filled in the river at the foot of Canal street with earth several feet in depth, erecting on said filling the structures necessary to carry on their business, and have remained in possession ever since such conveyance, a period of almost sixty years. Hence, if the filing of the map in 1828 by the owners of the land, and the transaction of 1828-1829 should be deemed an act which, if followed by a public user of the street, would have given the public a right to a street extending to the river, yet, as it is not made to appear that there was any public user of the street prior to 1835, when the conveyance ivas made to Cushman and Wiswall, and as it appears that the latter and their grantees entered into possession of the locios in quo and have ever since remained in possession, it must be held that there was a revocation or modification of the dedication. But, in fact, the evidence shows a possession by plaintiffs and their grantors of the premises in question since prior to 1828. We are of opinion that the fact that plaintiffs or their grantors, ever since a period prior to the alleged dedication have remained in the quiet aild peaceable possession of the premises in question, and the fact that such premises have never been in the occupation of defendant, shows the absence of an intent on the part of the proprietors of the land ever to dedicate the lot described in the complaint.

It is suggested by the learned counsel for the appellant that it does not appear that the grantors, who reserved the right of ferriage, had ever acquired such a right from the sovereign power of the State, which is the only legal source for its exercise. We do not deem it important in this case to consider whether the said grantors were conducting the ferriage business under authority conferred on them by the State or not, or whether it should be presumed that they were legally .conducting said business or otherwise. They were in fact carrying on the ferriage business. The question for our consideration in this case is as to their intent in making the dedication in question under the circumstances appearing in the case. Whether they carried on the ferry business with or without the authority of the State is not important on the question of their intent.

"We think that the trial judge disposed of the case correctly, and that the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Elizabeth Winegard, Respondent, v. Benjamin Fanning, Appellant.

      Mortgage foreclosure — action by the mortgagee (the assignor) in his own name, by agreement with the owner (the assigned) of the mortgage — in contravention of section 449 of the Code of Civil Procedure — the owner of the mortgage may recover the proceeds of the foreclosure from the mortgagee.

    If the owner (the assignee) of a hond and mortgage, by assignment from the mortgagee, delivers the same to the mortgagee as his agent to collect or foreclose, and at the same time makes an agreement with the mortgagee that the foreclosure action shall he conducted in the mortgagee’s name, in violation of the provision of section 449 of the Code of Civil Procedure, that “ Every action must he prosecuted in the name of the real party in interest,” the illegality of such agreement does not, after the agreement has heen executed, prevent the owner of the hond and mortgage from recovering from the mortgagee the proceeds of the hond and mortgage collected hy him in such action.
    The judgment in such action will not preclude the assignee, in an action brought hy him against the mortgagee, from recovering the proceeds of the foreclosure, although it would estop him as to the defendants in the foreclosure action.
    Appeal by tlie defendant, Benjamin Fanning, from a j udgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie clerk of Schoharie county on the 21th day of January, 1893, upon a verdict rendered at the Schoharie Circuit, and from an order denying the defendant’s motion for a new trial made upon, the minutes.

      L. W. Baxter, for the appellant.

      John B. Holmes, for the. respondent.
   Putnam, J.:

On December 27, 1882, one John W. Yroman and his wife executed and delivered to defendant a mortgage on certain lands in Schoharie county to secure the bond of the former conditioned to pay $3,500 and interest as therein specified. On or about March 31, 1883, by an assignment absolute on its face and citing a consideration of $3,500, defendant transferred said bond and mortgage to plaintiff. The assignment was not recorded. On the 10th day of April, 1886, defendant commenced an action to foreclose said mortgage in his own name and afterwards obtained judgment therein, under which the mortgaged premises were sold on March 5, 1887, and bid in by him for $4,183'.54, he acknowledging said bid to be a satisfaction of the mortgage debt and costs. Defendant,, prior to the commencement of this action, conveyed the mortgaged premises so bid in by him.

Plaintiff, claiming that, under the assignment above mentioned in consideration of the payment of $3,500, she became and remained the absolute owner of said'bond and mortgage, and that she delivered said bond and mortgage to defendant to foreclose for her benefit, brought this action to recover the sum of $4,183.54 so realized by the defendant on said bond and mortgage by the sale of the mortgaged premises. Defendant contended that the assignment, was made as collateral security for a loan of $1,500, and that,, prior to the foreclosure of said mortgage, he had fully paid the amount of said loan, and that when he commenced the foreclosure plaintiff had no interest in said security.

On this question, in the language of the trial judge, there was “ a-rugged dispute between the parties.” The jury have found in favor of the plaintiff; it is clearly one of those cases where the conflicting evidence given on the trial was properly submitted to the jury, and where the verdict cannot be disturbed by us. No objection was-made on the trial to the submission to the jury of the evidence as to. the ownership of the bond and mortgage. Nor do we understand that the learned counsel for the appellant seriously insists that we could properly on this appeal interfere with the verdict of the jury as to such ownership. In our consideration of the case, we shall, therefore, assume that plaintiff, being the owner of said bond and mortgage, delivered the same to defendant to foreclose and collect, for her benefit.

The appellant urges that the alleged agreement between Mrs. Winegard and himself to foreclose the mortgage, of which she was. the owner, in his own name, was illegal and void, and made in violation of the provisions of section 449, Code of Civil Procedure,. which provides that every action must be prosecuted in the name ■of the real party in interest; ” that said agreement was contrary to the provisions of a positive statute, and that the foreclosure was an illegal proceeding in execution of an illegal agreement. That no remedy can be had in a court of justice on an illegal contract where both, parties are in pa/ri deUoto. That hence no recovery can be had in this action.

From the evidence, it is not clear that defendant foreclosed the mortgage in his own name by direction of plaintiff. She and her husband gave testimony which, if believed oy the jury, authorized a finding that appellant brought the foreclosure action in his own name, of his own volition and without the knowledge or consent of plaintiff.

Assuming, however, that an agreement was made between the plaintiff, Mrs. Winegard, and Mr. Fanning, she being the owner of the bond and mortgage, that he should foreclose the same in his own name for her benefit, does this illegal agreement deprive her of the bond and .mortgage, and in effect transfer the same to Mr. Fanning — as claimed by him? We are unable to find any authority among those cited by appellant to sustain such a claim. We are of opinion that the principle invoked by defendant does not apply to this case. Here plaintiff was the conceded owner of a bond and mortgage. She became such owner by an assignment long prior to the alleged illegal agreement. Being such owner she delivered the mortgage to her agent to collect or foreclose — at the same time making an agreement with him that the foreclosure should be conducted in his name, in violation of the provisions of the statute. This illegal agreement as to the foreclosure has been executed. Had it not been doubtless it could not be enforced. If any claim were made by either party arising directly out of the unlawful contract it could not be sustained. But we can find no authority upholding the doctrine urged by appellant that such an unlawful agreement as to the manner of foreclosing the mortgage made by her with her agent or trustee deprived plaintiff of her title thereto. Notwithstanding the illegal contract as to the manner of foreclosure, which could not be enforced, respondent remained- the owner of the bond and mortgage, and could at any time, we think, demand and recover the same of defendant, or the proceeds thereof if collected.

Again, the agreement between plaintiff and defendant as to the foreclosure was not immoral or malum in se, but merely prohibited by statute. The right of parties who have entered into a contract which is merely malum prohibitum is clearly stated by Judge Andrews in Pratt et al. v. Short et al. (79 N. Y. 437, 445) as follows : “ It is no doubt the general rule of law that no right of action can spring out of an illegal contract. And the rule that an illegal contract cannot be enforced applies as well to contracts malum prohibitum as to contracts malum in se. But it does not necessarily follow that all the consequences attending a contract which is contrary to public morals, or founded on an immoral consideration, attend and affect a contract maluon prohibitum merely. The law in the former case will not undertake to relieve parties from the position in which they have placed themselves, or to adjust the equities between them. But in the latter case, while the law will not enforce the prohibited contract, it will take notice of the circumstances, and if justice and equity require a restoration of money or property received by either party thereunder, it will, and in many cases has given relief.” (See, also, The Utica Insurance Co. v. Scott (19 Johns. 6, 7; Rome Savings Bank v. Krug, 102 N.Y. 331-335.)

In Pratt et al. v. Short et al. (supra) a savings institution discounted commercial paper, such discounting being prohibited by statute. It was held that the discounted paper was void, and could not be enforced. But as the institution was authorized to loan money, it could recover the money actually loaned. In other words,, the institution had delivered money to parties on a prohibited security— the contract being prohibited by statute, and yet could recover the money received by defendant under such prohibited contract. So, in this case, plaintiff delivered her bond and mortgage to defendant with an unlawful agreement as to its foreclosure,, but, nevertheless, justice and equity demanding that defendant should return the bond and mortgage or the amount collected thereon to plaintiff, as held in the authority above cited, the law will give her the relief to which she is entitled.

Other answers might be made to the position asserted by defendant, but we do not deem any further discussion necessary.

It is suggested by appellant that respondent is bound in this action by the foreclosure judgment. Assuming that she consented to tlie foreclosure by appellant in his own name, she is undoubtedly ■estopped as to the defendants in the foreclosure action; but she does not seek in this action to impeach or invalidate that judgment ■as to the defendants therein or the purchasers thereunder. The foreclosure judgment is not an estoppel as between the plaintiff and defendant as to the questions litigated in this action. It was adjudged in the former action, as betvieen Fannmg and the defend■cmts therein, that Fanning was the owner of tlie bond and mortgage, and as to said defendants plaintiff consented to such foreclosure in the name of Fanning, and is estopped. But the judgment in said .■action cannot be held to conclude plaintiff in this, because as between plaintiff and defendant the question of the actual ownership of tlie ■bond and mortgage was not tried in the foreclosure suit.

We have examined the exceptions taken on the trial, and are of rtlie opinion that none of them require a reversal of the judgment.

If the evidence as to the deeds of Benjamin to Elmira J. Fanning, and by the latter to Robert J. Walrad, and as to the market value, of tlie mortgaged premises was immaterial, it is clear that defendant was not injured by its reception. The jury were instructed by the trial court that if they found for the plaintiff, that she was entitled to recover $4,183 and interest. No objection or exception was made to the charge in that regard, and tlie jury found as instructed by the court. The evidence above referred to could not, therefore, in any manner have affected the verdict.

The court did not err in excluding the evidence of the assignment ■of the mortgage from Richard to Abram Winegard. This evidence related to a collateral matter, and the defendant could not contradict the evidence given by Abram Winegard in that respect. A party who cross-examines a witness as to a collateral matter is concluded by liis answer. (Carpenter v. Ward, 30 N. Y. 243.)

The evidence offered by defendant to show improvements put on the mortgaged premises was immaterial; also the testimony taken on the trial of the case of Fanning v. Vrooman (the foreclosure ■■action) was clearly incompetent.

Tlie court below also properly sustained the objection to the following question: “ Who paid the taxes on tlie bond and mort.gage while he held it ? ” If defendant had offered in connection with this question to show that he paid the taxes to the knowledge and with the consent of plaintiff the evidence might have been material. His payment of taxes, unless done with the knowledge and consent of plaintiff, would not affect her rights, and hence the evidence sought to be introduced by plaintiff was properly excluded. It will be seen that defendant in connection with the question made an offer, but not to show plaintiff’s knowledge in regard to the payment of taxes.

We conclude that no errors were committed on the trial and that the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Francisco Wood, Respondent, v. The Town of Gilboa, Appellant.

      Defective highway — absence of railings — negligence of the town — proximate cause of a personal injury — statements by a plaintiff as to his injury — exclamations of pain.

    The question whether a town is or is not negligent, in failing to erect suitable railings along the side of a highway in dangerous places, is one of fact for the lury-
    The action of town highway commissioners, in failing to erect barriers along a highway in dangerous places, is not of a judicial character.
    The fact that a highway, a defect in which has caused an accident, forming the basis of an action to recover damages from the town, had been in the same condition for a long time, and that no previous accident had occurred, will not relieve the town of the charge of negligence.
    In such an action a verdict of the jury, upon conflicting evidence, establishing the negligence of the town officers in omitting to erect barriers at the place where the accident occurred, cannot properly be disturbed by the General Term.
    Where there is a defect in a highway, one whose horse became frightened, ran away, and became uncontrollable, may recover damages from the town although the conduct of the horse was a proximate cause of the injury complained of, if the negligence of the officers of the town was another proximate cause of such injury.
    The admission in evidence, on behalf of the plaintiff in an action brought to recover damages for a personal inj ury, of statements of the plaintiff as to his condition,. made after the accident, if not competent as being mere exclamations of pain, is a harmless error when it appears that the condition of the plaintiff after the accident, and his pain and suffering, were clearly proved by other witnesses, who were not contradicted.

      Appeal by the defendant, The Town of Gilboa, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Schohapie county on the 14th day of October, 1892, upon a verdict rendered at the Schoharie Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from injuries to plaintiff, his horse and wagon, by reason of their falling down a steep embankment of a dug-way road in the village of Gilboa, through the alleged fault and negligence of the commissioners of highways of the town of Gilboa in not keeping said road in proper condition' by the erection of some suitable railing or protection thereon.

      O. L. Andrus, for the appellant.

      llobert Krum, for the respondent.
   Putnam, J.:

Questions similar to those presented in this action have been so often passed upon that an opinion seems unnecessary.

The case of Maxim v. The Town of Champion (50 Hun, 88 ; 119 N. Y. 626) and many other authorities which might be cited, have established the doctrine that it is a question of fact for a' jury whether a town, is or is not negligent, in failing to erect suitable railings along the side of a highway in dangerous places. That question was fairly and properly submitted to the jury in this case, and the verdict establishing the negligence of defendant cannot be disturbed. In Maxim v. The Town of Champion it was also held that the action of the highway commissioners in failing to erect barriers in such a case was not of a judicial character ; and, also, the fact that the highway had been in the same condition for a long period, and that no previous accident had occurred, although proper evidence in the case, did not relieve the town of the charge of negligence.

Hence, the verdict of the jury upon conflicting evidence establishing the negligence of the town officers in omitting to erect barriers at the place in question cannot be properly disturbed by us.

Appellant urges that the plaintiff was guilty of contributory negligence in driving a horse which he knew to be vicious and unmanageable. There was evidence in the case, however, from which the jury could infer t-liat the horse was no more vicious and unmanageable than colts usually are. The question of fact in this regard was submitted to the jury by the court without objection by defendant, and tiie finding of the jury is conclusive.

The defendant also insists that the accident, being the result of two causes, one the defective condition of the highway, and the other the conduct of plaintiff’s horse, and the evidence not showing which cause produced the injury, the plaintiff must fail under principles settled in Taylor v. The City of Yonkers (105 N. Y. 202) and kindred cases. We think this case is more like Ring v. City of Cohoes (77 N. Y. 83) ; Kennedy v. Mayor (73 id. 365); and Ivory v. The Town of Deerpark (116 id. 477). These latter authorities held that where there was a defect in a highway, one whose horse became frightened, ran away and became uncontrollable, could recover, although the conduct of the horse was a proximate cause of the injury, if the negligence of the officers of the town was another proximate cause of such injury.

If the highway was in the same condition as it was at the time of the accident for many years prior thereto notice of its unsafe condition to the officers of the town is presumed.

We have examined the exceptions taken on the trial to the rulings of the court, and think that none of them require a reversal of the judgment. The statements of the plaintiff after the accident (which defendant insists were erroneously received in evidence), as proved by witness Croswell and others, we think, should be deemed mere exclamations of pain. They were made while his attendants were turning him over or touching him, and, we think, not incompetent under the cases. (Roche v. B., C. & N. R. R. Co., 105 N. Y. 294-297; Hagenlocher v. C. I. & B. R. R. Co., 99 id. 136.)

An examination of the testimony given on the trial, however, shows that if the above evidence Was improperly received it did no harm, as the condition of plaintiff after the accident, and his pain and suffering, was clearly proved by other witnesses who were not contradicted.

The judgment should be affirmed, with costs.

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

J udgment affirmed, with costs.


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    Daniel E. Mason, Appellant, v. Benjamin M. Secor and Josiah D. Chapin, as Survivors of the Co-partnership Composed of Themselves and Charles G. Craft, Deceased, Respondents.

      Employment by the year — formation of a partnership by the employer — no presumption of continuance of such employment — dissolution of a fi>'m by death terminates a contract of employment.

    When an individual, by whom a salesman has been employed for several years at an annual salary, forms, at the commencement of a hew year, a partnership with others to continue his business, and the salesman continues to ■work for the partnership, as he had before for the individual member of the firm, there' is no presumption, or contract raised by implication, that he continued in the employment of the partnership on the same terms as when in the employment of his original individual employer.
    Hence, in the absence of an express contract of employment for a year by the partnership, the latter may terminate the employment before the expiration of a year from its commencement.

      Semble, that a contract of employment for a year by a firm is terminated by the dissolution of the firm by the death of one of the partners before the expiration of the year, and that the survivors may thereupon lawfully discharge the employee.
    Appeal by the plaintiff, Daniel E. Mason, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of Albany county on tlie 3d day of February, 1893, upon a nonsuit ordered at the close of the plaintiff’s case on the trial. at the Albany Circuit.

      Andrew Vmiderzee, for the appellant.

      Isaac Lawson, for the respondents.
   Putnam, J.:

Plaintiff was employed as a salesman by one Charles G. Craft for several years prior and up to January 1, 1890, at a yearly salary of $1,000. At that time Craft formed a partnership with defendants for two years to carry on the same business previously carried on by him. Plaintiff continued to work for the firm as he had before worked for Craft until discharged as below mentioned. Said Craft died on March thirteenth, and defendants discharged plaintiff on March 17, 1890, he claiming an employment for a year commencing January 1, 1890, at a salary of $1,000. Plaintiff brought this action to recover damages on account of his discharge.

At the close of the evidence the defendants moved for a nonsuit, which was granted, and plaintiff excepted.

There was no evidence produced showing that the firm of Charles G. Craft & Co., formed on January 1, 1890, ever made any express contract with plaintiff to employ him for any length of time, or at any agreed salary or otherwise. It seems that having been at work for Craft prior and up to January 1, 1890, as a salesman, he continued in the same employment with the new firm without entering into any express contract with it.

Under such circumstances ordinarily an employer can discharge the servant when he elects, and is only liable to pay him the value of his services for the period of his employment. But the plaintiff contends that, having been employed by Charles G. Craft for several years at an annual salary of $1,000, and defendants having on January 1, 1890, formed a co-partnership with Craft and continued the same business, and he (plaintiff) having continued after the formation of the partnership in their employ, the presumption is that he continued in the service of the defendants on the same terms as when in the employment of Craft alone. (Douglass v. Merchants’ Ins. Co., 118 N. Y. 486 ; Vail v. The Jersey Little Falls Mfg. Co., 32 Barb. 564.)

The learned counsel for the appellant fails to cite any authority to sustain his contention as applicable to such a case as this. It is conceded that had Craft continued in business alone after January 1, 1890, and plaintiff had remained in his employ after his last year’s service, a contract to employ him another year on the same terms might have been implied. If there was such an implied contract to employ him in this case it arose after January 1, 1890; that is, after the formation of the co-partnership, and was implied because plaintiff had been employed by Craft for some years prior to January 1, 1890, and after the formation of the firm and continued in their employ. In fact it is a well-settled principle that where parties have entered into a contract for services for a certain period, which has elapsed, and their connection still continues, they are deemed to have renewed the contract by tacit relocation without any new agreement being entered into. (14 Am. & Eng. Ency. of Law, 770, 771.)

But we are of the opinion that this principle does not apply to such a case as this. The connection between Charles G. Craft and plaintiff was not continued. The firm of Charles G. Craft & Co., composed of said Craft, Benjamin M. Secor and Josiah D. Chapin, is an entirely different party from the one who employed plaintiff prior to and up to January 1, 1890. At that time Craft ceased to do business and a co-partnership took his place, and there oould 1)6 no renewal of the contract then existing between Craft and plaintiff unless by an express contract.

Certainly the plaintiff failed to show any renewal of the contract existing between Craft and himself, because it was not made to appear when the personal agreement between Craft and the plaintiff terminated or in fact that it was ended prior to the discharge of plaintiff by the defendant. Also, it does not appear that one of the defendants, Secor, ever knew the terms of the contract between plaintiff and Craft.

The plaintiff, therefore, failed to show any contract with defendants to employ him for any definite length of time, and the trial judge properly granted a nonsuit. (See Morrison v. O. & L. C. R. R. Co., 52 Barb. 173-182.) There was no question of fact for the jury. There was no evidence given from which the jury could have properly found an agreement on the part of defendants to employ plaintiff for a year.

"We also think that the position taken by defendants, that if there were a contract of employment for a year betAveen the defendants, and plaintiff, as claimed by the latter, the firm having been dissolved by the death of Charles G. Craft, such contract was thereby terminated and defendants could, therefore, lawfully discharge the plaintiff. (Greenburg v. Early, 4 Misc. Rep. 99 ; Lacy v. Getman, 119 N. Y. 109.)

The court properly refused to allow plaintiff to amend his complaint on the trial. But as no exception Avas taken to such refusal this point does not require any discussion.

The judgment should be affirmed, Avitli costs.

Mayham, P. J., and IIerriok, J., concurred in the result.

Judgment affirmed, with costs.


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    Edward Palmer, Respondent, v. The New York and Lake Champlain Transportation Company, Appellant, Impleaded with The Lake Champlain Transportation Company.

      Statutory rule of navigation — conflicting local custom — negligence—action against two defendants — error in the admission of evidence offered by one defendant, available to the other defendant as against the plaintiff.

    The statutory rule (U S R. S. § 4233, rule 22) that any “ vessel overtaking any other vessel shall keep out of the way of the- last-mentioned vessel,” cannot be controlled by a conflicting local custom on Lake Champlain, that when one tug-overtakes another the latter must slow up and allow the former to pass.
    In view of the existence of the contrary statutory rule, the failure of a tug on Lake Champlain to obey such local custom, when overtaken by another tug, and slow up and allow the other tug to pass, does not constitute negligence, so as to render the owner of such overtaken tug liable on that ground, in an action for damages for a personal injury sustained by a person on a canal boat in tow of such overtaken tug.
    An error in the admission of evidence offered by one of two defendants in an action brought to recover damages for negligence, over the objection and exception of the other defendant, is available to such objecting defendant as against the plaintiff, on appeal from a judgment entered upon a verdict in favor of the plaintiff, when such erroneous evidence was received generally in the case as to all the parties, and the jury was not instructed to disregard it as against the objecting defendant, and the probable effect of the evidence, and of the charge of the court in reference thereto, was to influence the verdict.
    Appeal by the defendant, The New York and Lake Champlain Transportation Company, from a judgment of tbe Supreme •Court in favor of tbe plaintiff, entered in the office of tbe clerk of Clinton county on tbe 6tli day of April, 1893, upon a verdict rendered at tbe Clinton Circuit, and from 'an order denying said defendant’s motion for a new trial made upon tbe minutes.

      J. S. Potter, for tbe N. Y. and L. C. T. Co., appellant.
    Smith, Weeds <h Conway, for Lake Cliamplain Transportation Co.

      L. L. Shedden, for tbe respondent.
   Putnam, J.:

On May 19, 1891, tbe New York and Lake Champlain Transportation Company’s tug boat, Robert II. Gooh, left Whitehall with a tow of canal boats and was shortly followed by the tug boat E. C. Baker, owned by the Lake Champlain Transportation Company, also with a tow of canal boats, among which w'as plaintiff’s. The Baker shortly came up with the Oook and gave two blasts of the whistle as a signal that it desired to pass on the left-hand side of the Oook. The Oook answered by a similar signal which signified an answer to the request of the Baker. Thereupon the Cook moved over to the right-hand or Vermont side as near as possible to the shore, continuing at the same rate of speed as before. When'the boat reached a place called Maple Point where the channel turns and is quite narrow the Baker was 500 feet ahead of the Oook, and the canal boat of plaintiff w'as opposite and near that tug. In turning Maple Point the hawser of' the Oook was drawn with great force against plaintiff’s boat and flew over the bow, striking the plaintiff and causing the injury for which this action is brought.

Plaintiff brought this action against the two transportation companies and recovered judgment against both for $1,500 and costs. The New York and Lake Champlain Transportation Company alone appeals.

It was alleged on the trial, and plaintiff claims on this appeal, that at the time of the accident the two boats were racing. But on a careful examination of the testimony we do not find that it sustains this position of the respondent. The evidence shows that after the Baker made its signal of a desire to pass the Oook that boat proceeded at the same rate of speed as before, which is variously estimated at from three to five miles an hour.

Were it not for the testimony which was allowed to be introduced by the court in regard to the local custom on Lake Champlain, that when one boat overtakes another the latter slackens its speed and allows the former to pass, the evidence does not establish a very clear case of negligence against appellant. When ’ signalled by the Baker the Cook passed over to the right-hand side of the channel as near the bank as possible so as to give room for the Baker to pass, and proceeded on its way at the same rate of speed as before. It is urged with much force that the accident to plaintiff was caused by the Baker and its tow (including plaintiff’s boat) running into the Cook while that tug was lawfully proceeding on its voyage,'in violation of the provisions of rule 22, section 4233, United States Revised Statutes, “ Every vessel overtaking arvy other vessel shall keep out of the way of the last-mentioned vessel.” (See 16 Am. & Eng. Ency. of Law, 300, 301.)

Perhaps, however, without the testimony as to the local custom, above referred to, there was evidence in the case authorizing the submission to the jury of the question of appellant’s negligence at the time of the accident. At that time the Baker was 500 feet ahead of the Cook, and although, under the rule above quoted, the Cook had the right of way, yet its captain, seeing that a collision with the tow of the Baker was probable, it may have been his duty to stop or back up his boat. The fact that the Baker had violated the provisions of the statute did not absolve the captain of the Cook from the duty of taking the utmost care, and, seeing that a collision was likely to occur, as lie must have, possibly he should have stopped or slowed up his boat. (See 16 Am. & Eng. Ency. of Law, 314, 315 ; Cooper v. The Eastern Transportation Company, 75 N. Y. 116.)

With the testimony as to the local custom above referred to in the case, however, if such custom was controlling the negligence of the appellant was clearly shown. In that view of the case the accident was caused by the Cook's failing to follow such custom. Had the tug slowed up when signalled, the Baker and its tow would have passed long before reaching Maple Point.

This evidence then, in regard to the custom of boatmen navigating Lake Champlain, being important in the case, and doubtless having influenced the verdict, it becomes necessary to. consider the exception of the appellant to the reception of the evidence showing such custom and the charge of the judge in relation thereto.

On the trial the following questions were asked and answers given, the objections of appellant thereto being overruled: “ Q. What-is the custom among men engaged in the transportation business on Lake Champlain, captains of towing boats, with reference to allowing a steamer to advance after she has signalled her intention to pass, what is the custom with reference to slackening speed ? A. The custom is, if we overtake a boat like that where it is crooked and not fit to hang on ; if we come into a straight place then we choose the side, and if they answer we usually lay over and let them pass before we get to another bad spot; if the steamer Cook had slackened her speed in the long reach there would have been sufficient room for the Baker to have passed clear.”

To another witness the following question was asked : “ Q. When you say you understood it to be the duty of the overtaking boat to keep out of the way of the other boat, do you also understand that that duty is qualified by the custom on Lake Champlain that the •forward boat shall slacken its speed ? A. Yes, sir.” These questions were properly objected to by the appellant.

The court charged the jury in reference to the custom as follows : “ I chai’ge the jury that if you find there was such a custom existing on Lake Champlain, the officers of the Baker had a right to rely on that being observed by the officers of the Cook.” The appellant excepted.

The reception of this evidence and the charge above quoted was, in effect, a ruling by the court that it was the duty of the appellant to obey the local custom, and such custom in fact rendered it unnecessary for the Baker to obey the statutory rule above quoted.

We are unable to agree with the view taken by the learned trial judge. By the statutory rule, any vessel overtaking any other vessel shall keep out of the way of the last-mentioned vessel. In other words, the Baker overtaking the Cook was bound to keep out of its way. But the custom proved was in direct conflict with such rule. By the custom, when any tug overtakes another, the latter must get out of the way of the former, must slow up and allow the former to pass. We understand it to be well settled that a rule of law cannot be qualified or changed b}r a local custom. ( Wright v. Boller, 42 Hun, 77; West et al. v. Kiersted, 15 Wkly. Dig. 549; Walker v. Trans. Co., 3 Wall. 150; Homer v. Dorr, 10 Mass. 25 ; The Clement, 2 Curtiss, 363 ; Case v. Perew, 34 Hun, 130.)

The case last above cited is very nearly in point. The action was brought to recover damages sustained by the plaintiff in consequence of defendant’s propeller running into his canal boat in the harbor of Buffalo creek. To show plaintiff’s contributory negligence, defendant offered evidence to show that the persons in charge of plaintiff’s boat did not obey the city ordinance in regard to lights on said boat. Plaintiff was permitted to show a local custom not to light canal boats. The court remarked: “ The omission of other parties to observe this ordinance is no legal excuse for the plaintiff in omitting to comply with its requirements. If the plaintiff failed to keep the out-port light, as required by the ordinance, it tended to prove negligence on his part, and the receipt of the evidence objected to was practically a ruling by the court, and the jury must have so understood it, as excusing the plaintiff's violation of the ordinance, if there wras in fact an omission to display the light required by the ordinance.”

So, in this case, by reason of the evidence as to the custom, and from the charge, the jury must have understood that the local custom ivas controlling, and that the appellant, in failing to obey said custom, was negligent.

Had there been no rule established by statute as to the course to be taken by one vessel overtaking another, doubtless the local custom on Lake Champlain could have been properly proven. (The City of Washington, 92 U. S. 31.)

Rut the respondent claims that the evidence in regard to the custom was offered by appellant’s co-defendant, and not by him, and, hence, appellant’s objection to the introduction of such evidence is not available against the plaintiff on this appeal; and he cites Schneider v. Second Ave. R. R. Co. (39 N. Y. St. Repr. 375). That case, however, was different from this. The objectionable evidence in that case wras not received as against the party objecting. The jury was charged that such party was not affected by such evidence. The conclusion of the court was, however, that the evidence in question -was improperly received, but that under all the circumstances of that case, the plaintiff’s cause of action being fully established by other satisfactory evidence, the error of the trial court was not such as to require a reversal of the judgment under the provisions of section 1003, Civil Code.

Here the evidence was received generally in the case as to all the parties over appellant’s objection. The jury were not instructed that the objectionable evidence was not to be considered as against appellant, as in the case last cited. . And the court in its charge, which affected all the parties to the action, instructed the jury that the officers of the Baleer had a right to rely on the custom being •observed by the officers of the Go'ole. In other words, that the latter were required to obey the custom. Although the plaintiff did not introduce the evidence as to the custom or request the charge above referred to, the effect of such evidence and charge being in all probability to influence the verdict we think a new trial should be granted. The plaintiff’s position is like that of a party where a trial judge asks of a witness an improper question which is objected to and the objection overruled and an exception taken. If such exception is well taken a new trial will be granted on account of the error of the court, although such error occurred without any fault on the part of the party.

The judgment should be reversed and a new trial granted, costs ,o abide the event.

Mayiiam, P. J., and Herrick, J., concurred.

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