text:
    John W. Fowler, Plaintiff, v. The Atlantic Mutual Insurance Company, Defendants.
    1. It seems that where an agent for several part owners of a vessel who are tenants in common, is by them instructed to keep their respective interests insured, but without any more specific directions, and he takes out various policies in his own name for the benefit of whom it may concern, he may appropriate the policies to the benefit of the respective owners severally, so as to give each a policy for his own benefit to the exclusion of the others.
    2. But in such a case, one part owner, to whom a policy, covering an amount corresponding to his interest, has been appropriated by the agent and transferred by the written consent of the Insurance Company, cannot maintain an action on the policy in his own name alone, against the objection of the company, that other part owners are still interested in the policy, not having assented to such appropriation, and that, therefore, they are necessary parties to a determination of the controversy.
    3. An answer setting up the non-joinder of parties, alleged to be necessary co-plaintiffs in an action on contract, may be sustained by proof that some of the persons named for this purpose, are parties in interest. The defect of proof in not showing that all those named are such, presents a case of variance only, which may be disregarded unless the plaintiff has been misled.
    (Before Bosworth, Oh. J., and Monomer and White, J. J.)
    Heard, May 9 th;
    decided, June 29th, 1861.
    Oase, heard upon exceptions, directed by the Judge at the Trial Term, to be heard in the first instance at the General Term, and the judgment in the meantime suspended.
    In 1857, Messrs. Stanton & Thompson were agents of the vessel Knickerbocker, and authorized by several part owners to keep their interests in the vessel insured at a valuation of $50,000. Mr. Stanton, of the firm of Stanton & Thompson, was a part owner in the vessel to the amount of J-6. The other part owners were Eouse Babcock r6, Simon Y. Peabody x-6, Joshua Aiken and Joshua Aiken, Jr., A, John W. Fowler, (the plaintiff in this action,) Jo, Mr. Forgay J6, John Connor J-0, Thomas Collyer J-6.
    Stanton & Thompson had verbal authority from the part owners to effect insurance to cover their interests. Ko particular instructions were given as to what companies or what amounts, except that it should be at a valuation of $50,000. These instructions were given by the several owners separately. Stanton & Thompson effected insurances in several different companies, and one of the policies which they took out covered an interest of J-6. This policy was issued by the defendants.
    The intention of Stanton & Thompson, as it appeared by the testimony, was that these insurances were effected for the joint account of all concerned, and on taking out the policy in question, they passed it merely as a matter of clerical convenience, as one of them testified, to the account of Mr. Fowler, (the present plaintiff,) Mr. Forgay and Mr. Connor, who were each owners of J6 interest.
    On January 20th, 1858, Mr. Peabody, who owned tit, died and the plaintiff in this action became his administrator. On April 9th, 1858, on the application of the plaintiff, and the indorsement by him of the premium note, Stanton & Thompson indorsed and delivered to Mr. Fowler the policy in suit, as covering his interest, and that of Peabody, his intestate; and at the same time the defendants, in consideration of Mr. Fowler’s indorsing Stanton & Thompson’s note given for the premium, made a marginal agreement on the face of the policy, transferring the same to him, in part as administrator, and in part for himself.
    On the maturity of the note, it was not paid by Stanton & Thompson, but was protested, and then paid by plaintiff, less a credit by reason of a partial loss receipted on the note by the defendants.
    The vessel was lost before the maturity of the policy; and the plaintiff now sued thereon, claiming to recover one-third in his own right, and two-thirds as administrator.
    At the time of the loss, including the policy in suit, there was the full line of $37,500 of insurance on the f of the Knickerbocker, effected bjr Stanton & Thompson, who subsequently, retaining two of the policies themselves, transferred the others to the other owners for whom they were agents, except in the case of two such owners, James Oonnor and William Forgay, who declined to receive the policies tendered them, claiming that to the extent of the two-thirds the amount covered by the policy in suit it was taken out specially for, and belonged to them by reason of Stanton & Thompson having charged them with two-thirds the amount of the premium note given for the policy, as if taken out directly for them. For the one-third of that premium note Stanton & Thompson had charged Mr. Fowler, against whom no one makes any claim to the one-third of the amount covered by the policy sued .for in this action; the other owners, to whom Stanton & Thompson transferred policies, having put them in suit.
    The defendants in their answer admitted the making of the policy in question, and the loss, but averred that at the time of making the policy Stanton & Thompson were agents for the part owners abovenamed to the amount all together of Te, and that all these part owners, excepting the two named, authorized Stanton & Thompson to insure for their benefit, but none of them authorized them to insur<) upon their specific or individual interest separate from the other interests, and that no specific insurance of any particular interest was ever made by Stanton & Thompson, and that the policy in question was one of eight policies effected by Stanton & Thompson in various companies, and that this policy was for the benefit of all the parties authorizing such insurance, and was owned by them in common; and the defendants insisted that the various other part owners were still owners in the policy of insurance in suit, in common with the plaintiffs, and were necessary parties in this action.
    Connor and Forgay, claiming that this policy had been originally appropriated to them and Fowler, by Stanton & Thompson, and their thirds of the premium note charged to them in account, declined to receive from Stanton & Thompson any other policy, and had brought a suit against the defendants in which Fowler was made a party defendant, claiming to recover two-thirds of the amount of this policy, on the ground of such original appropriation to them and Fowler, by Stanton & Thompson, which suit was still pending at the time of the trial of the present action.
    Upon the trial of this action before Mr. Justice Bosworth and a Jury, the Court directed a verdict for plaintiff ; and Counsel on both sides consenting, it was ordered accordingly that the questions of law arising upon the facts be heard in the first instance at General Term.

      John E. Parsons, for the plaintiff.
    I. The transfer of the policy to him by Stanton & Thompson, gave plaintiff a right to recover. As between themselves and the plaintiff and defendants, innocent parties, without notice of claims on the part of others, they had the power to transfer the policy absolutely to the plaintiff.
    1. The policy was in terms a contract between the defendants and Stanton & Thompson, made specially payable to them. They were responsible for the amount of the premium; could recover upon the policy in their own names. (Story on Agency, §§ 272, 394 ; 2 Phil. on Ins., §§ 1958, 1965 ; Kemble v. Rhinelander, 3 Johns. Cas., 130 ; Munson v. N. E. Mar. Ins. Co., 4 Mass. R., 88 ;

      Columbian Ins. Co. v. Black, 18 Johns., 149.) They could cancel the policy before loss, by agreement with the company. (2 Duer on Ins., 193,194 ; Erick v. Johnson, 6 Mass. R., 196.)
    They could receive payment of any loss under the policy and discharge the defendants. (Story on Agency, § 103 ; 2 Phil. on Ins., § 1882 ; Todd v. Reid., 4 Bar. and Ald., 210 ; Russell v. Bangley, Id., 395.)
    They were bound to do so on pain of personal liability for damages sustained by neglect so to do. (2 Duer on Ins., 247.)
    They were the only persons the defendants were required to recognize as interested in the policy. They could, even after notice of interests in others, have set off against any claim on the policy claims in their favor against Stanton & Thompson personally. (Erick v. Johnson, 6 Mass. R., 196, and comment on it in 2 Duer on Ins., 321 ; Stewart v. Aberdein, 4 M. & W., 228 ; 2 Duer on Ins., 307 ; note, 321 Id.) Or have been entitled to set-off in a suit by them against Stanton & Thompson personally, any amount due on the policy. (2 Duer on Ins., 317 ; The Columbian Ins. Co. v. Black, 18 Johns., 149 ; Parker v. Beasley, 2 Maul. & Selw., 423.)
    And this is not because the policy so provides. Policies containing such a provision give a right to the company to set-off claims due them by the “ assured.” Where the policy is effected through an agent, his principal was assured. (2 Duer on Ins., 276.)
    Stanton & Thompson could assign the policy so as to enable their assignee without value to discharge the defendants, on payment to him. (Story on Agency, § 227.)
    And the defendants would be equally discharged, if, instead of paying on the policy, no payment being due at the time, they assumed a new and sufficient liability direct to such assignee. (Jell v. Pratt, 2 Stark. N. P., 67.)
    An insurance broker to whom a policy is made payable, and in whose possession it remains, and specially as in this case where his principals remain unknown, is the trustee of a trust in favor of his several principals, himself being the party to the contract, in whom is the right at law, and having the same control of and power over the policy as if he were the sole one beneficially interested therein. (Vide, supra ; Story’s Eq. Jur., § 977 ; 2 Duer on Ins., 263 ; Gibson v. Winter, 5 B. & Ad., 96.)
    2. The security of the underwriters requires that this should be so.
    And it does not operate injuriously against the shipowner, who can always protect himself by obtaining possession of the policy or notifying the underwriters.
    3. Stanton & Thompson gave their note for the premium, and, as security for payment to them by the parties for whom they insured., had a lien upon and interest in the policy; they were, on defendants’ proof, interested, and this, being coupled with their possession of the policy through the permission of their principals, gave to them the right so to transfer the policy as to discharge all claim to or interest in it, of the persons for whom Stanton & Thompson acted. (2 Phil. on Ins., § 1959 ; Story on Agency, § 379 ; Reed v. The Pacific Insurance Co., 1 Met., 170.)
    4. The very terms of Stanton & Thompson’s agency empowered them to transfer the policy as against their principals.
    If they kept all the interests represented by them always fully insured, though continually shifting the policies, canceling old and taking out new, or specially appropriating particular policies to particular interests, maintaining’ a sufficient line fully to cover the balance of interest, they did exactly what their agency required.
    . II. The marginal agreement written on the policy by the defendants, sustained by the consideration furnished by Mr. Fowler’s indorsement of Stanton & Thompson’s premium note, and subsequent payment on it of an amount, ($204.79,) which was a very large premium for the unexpired term of the policy, operated as a new insurance by the defendants direct to the plaintiff for himself to the extent of one-third, and as administrator to the extent of the other two-thirds of the amount insured. It operates thus:
    1. By a proper construction of the agreement itself.
    2. By estoppel: for the plaintiff must be prejudiced if his right to recover on this policy be not sustained.
    IH. The plaintiff was entitled to succeed on the ground that the policy was effected for his special benefit on his individual interest to the extent of one-third of the amount insured.
    IV. The action is properly brought by Mr. Fowler individually, to recover his part of the amount due on the policy.
    V. If the case show that plaintiff has a right, good as against defendants, their plea is not to be allowed on the score that if the other principals of Stanton & Thompson were parties, a judgment against them would bar suits by them against the defendants.
    The defendants, on the evidence, must show that other parties have actual, not possible rights, for which purpose they could have given notice of the suit to any supposed claimants, have interpleaded them or examined them as witnesses.

      Daniel Lord, for defendants.
    I. A policy of insurance made in the name of a particular person, for whom it may concern, will be applied to the interest of the party or parties, and only to the party or parties for whom it is ordered. (Phil. on Ins., § 383, and cases.) And however general may be the description of the parties, no part of the amount insured can be applied in behalf of any other parties than those ordering the insurance, though the nominal assured consent so to apply it. (Baudny v. Union Ins. Co., 2 Wash. C. C. R., 391 ; Frierson v. Brenham, 5 La. An. R., 540.) The orders for the policy, and the interest, determine who are the concerned. (Buck v. Ches. Ins. Co., 1 Peters’ S. C. R., 151 ; 1 Phil. Ins., § 384 ; Seamans v. Loring, 1 Mason R., 127 ; Newson, &c., v. Douglass, 7 Har. & J., 417 ; Turner v. Burrows, 5 Wend., 541.)

      II. By the terms of the policy, the defendants agreed to indemnify Stanton, Babcock, Oollyer, Fowler, Peabody, Connor and Forgay, against loss upon their interest in the ship, by reason of the perils mentioned in the policy, for they were the parties for whose interest the policy was ordered, id est, the parties to be indemnified, or the “ whom it may concern.” And these parties were liable for the premium. (Patapsco Ins. Co. v. Smith, 6 Har. & J., 166 ; Ins. Co. of Penn. v. Smith, 3 Whart., 521 ; 1 Phil. on Ins., § 508.)
    III. The policy being upon the whole ship, and not upon any particular portion or individual interest, supports this view and, therefore, when the policy was executed and complete as a contract, the rights of all parties thereunder were fixed, and could not be divested without their consent. The several parties owned portions of the policy, just as much as they owned portions of the ship.
    IY. The persons “ concerned” having been ascertained, and their rights under the policy fixed, no evidence is admissible to vary the terms of the contract, the policy must be interpreted by its language, and every one having an interest and ordering the policy, may claim the benefit of it. (16 East., 141 ; New York Ins. Co. v. Thomas, 3 Johns. Cases, 4 ; Burrows v. Turner, 24 Wend., 276 ; l Phil. on Ins., § 120.)
    Y. It follows, that unless Stanton & Thompson had authority to assign the policy to the plaintiff, they could not divest the other owners of the policy of their property therein. The evidence fails to show any such authority; as ships’ husbands they would not have authority even to effect insurance. (Turner v. Burrows, 8 Wend., 144.)
    YI. Stanton & Thompson, holding the policy simply as trustees, and having no authority to assign it, the plaintiff took nothing by the assignment, and the defendants are not, by their indorsement, estopped to set up the title of the other parties.
    1. The defendants were ignorant of the real assured on the 9th of April, and of the nature of. the contract between the owners and Stanton & Thompson. They only knew the latter, and had the policy itself as their protection, relying upon the principle, that if the assured gave authority to transfer the policy, they were protected, and if they gave no authority, the transfer was void.
    2. Ho new liability was assumed by the plaintiff, nor did he part with anything upon the transfer, or in any manner damnify himself.
    3. The plaintiff, as one of the assured, gave the power to Stanton & Thompson, which resulted in having these various policies effected. He with Stanton & Thompson, his agents, knew all the facts on the 9th of April; whereas the minds of the defendants were simply like a mirror, open to receive impressions, but, without aid, unable to give any.
    4. By permitting the plaintiff to recover, Connor, For-gay, Babcock, and the others, may be divested of their property, without their consent, as, in case of the failure of the other policies, they might lose their entire interest in the vessel.
    VH. As there are other parties than the plaintiff entitled in this policy, and the defendants are not estopped to set up their nón-joinder, the plaintiff is not entitled to maintain his action, without bringing all the parties before the Court.
    1. This is an action of assumpsit. (2 Phil. on Ins., § 1958.)
    2. In assumpsit, all the parties who have contracted must join,- and where joint contractors may join, they must join. (Chitty on Plead., 8, 9, and 11 ; 1 Saunders, 291, note f, and cases ; Ehle v. Purdy, 6 Wend., 629 ; Scott v. Godwin, 1 Bos. & Pul., 74.)
    3. Where several persons jointly procure insurance on a vessel owned by them jointly, they cannot maintain sepaante actions, but all must join. (Blanchard v. Dyer, 21 Maine, [8 Shep.,] 111 ; Wright v. Post, 3 Conn., 142 ; 1 Phil, on Ins., § 396.)
    4. The case is similar to that of tenants in common ■ suing for rent, &c., they must all join. (Hill v. Gibbs, 5 Hill, 56 ; Putnam v. Wise, 1 Hill, 234 ; Sherman v. Ballou, 8 Cow., 304 ; Bradish v. Schenck, 8 Johns., 151.)
    VIII. Ho judgment can be given until all the parties are brought before the Court; there may be* some defense, that the defendants can "only avail themselves of when all the parties are in Court. The Code requires all the parties to be brought in. (§ 117.)
    If they will not consent the Code provides a remedy. (§ 119.)
   By the Court—Bosworth, Ch. J.

The testimony of the person who took out this policy, is that it “ was effected for the joint account of all concerned. That was the intention.”

On that state of facts, had there been no indorsement of the policy to Fowler by Stanton & Thompson, to whom by its terms the loss, if any, was to be paid; and had there been no transfer by the defendants of the policy to Fowler, and had the other part owners not accepted a transfer of other policies as being the policies effected to cover their interest; and had there been no appropriation of it by Stanton & Thompson, by the manner of keeping and rendering their accounts, an action on the policy must have been brought in the names of Stanton & Thompson, or in the names of all the part owners for whom it was taken, and who were insured by it. (21 Maine R., 111 ; 2 Arnould on Ins., 1250, note 2.)

William Forgay and John Connor each claim the ownership of one-third of this policy, and before this suit was commenced they brought an action upon it against the defendants, making Fowler a party, in which they claim to recover, severally, one-third of the sum insured by it. That action was pending and untried at the time this action was tried.

They were severally charged by Stanton & Thompson, in account current rendered to them from time to time, with one-third of the amount of the premium note given for the policy taken and continued in this Company, including the policy in question, and with one-third of the charg-e for the policy in question. Fowler was in like manner charged with the other third.

If Stanton & Thompson, after having obtained policies for the joint account of all the part owners by whom they were instructed to insure, could, by subsequent acts, appropriate any one policy to the exclusive use of some of such part owners only, their action in the matter and manner of keeping, their accounts, would be strong evidence of their having made such an appropriation of this policy, before they indorsed and delivered it to the plaintiffs.

Their action would conclude themselves to the extent of their interests as part owners.

The premium note which the plaintiff was required to indorse before the defendants would transfer the policy to him, was for the sum of “ $938.75, due May 27,1858.”

The amount of the premium note charged in the account rendered to him, including the charge for the policy, was $250.41, in May, 1856; and $250.42, in May, 1857.

Hence, when the policy was indorsed to him by Stanton & Thompson, he had notice that it had not been effected on his own account alone; being for the sum of $9,375, and his interest in the insured valuation being only $3,125. And he had notice that such a premium note as was described in the account rendered to him had not been given, but one for a larger amount.

He might, nevertheless, very well have supposed, that the policy was taken out to cover his interest and that of S. Y. Peabody, unless he had previously seen the accounts rendered to him by Stanton & Thompson. It is not to be presumed that in these accounts rendered to Peabody, they charged him with any part of the premium note given for this policy, against proof of the whole amount having been charged to Fowler, Forgay.and Gonnor.

I see nothing in the testimony of Stanton, nor in the instructions, given to him and Thompson by either of the several part owners, as to the mode of insuring, which would put it out of the power of Stanton & Thompson to satisfy their whole duty to either part owner by having at all times a policy ready to be delivered to him, issued by a responsible company, sufficient in amount and in proper form to cover and protect his interest.

Kor do I see any practical difficulty or objection to their appropriating the policies they procured for the benefit of some of the part owners, to the exclusion of other part owners.

If the accounts kept with and rendered to each part owner, charged him with the premium on a designated policy, as being the policy procured for him under the instructions which he had given, and if no two were charged with the same premium, so that distributing the policies as designated in such accounts, each part owner would be insured for his interest precisely, it is not obvious why this appropriation would not conclude the several part owners as between themselves.

There is, therefore, much reason for concluding that Forgay & Connor, may be in a condition to assert successfully a claim to two-thirds ownership of the policy, viz., one-third by each.

Ko determination of this suit can effect Forgay or Connor. Their rights, as well as the plaintiffs’, and also the rights of the administrator of Peabody, should be ascertained, in order to have a complete determination of the matters in controversy. (Code, § 122.)

The answer alleges that all the part owners for whom the policy was obtained, should be made parties; and names those who are claimed to be necessary parties.

If all, except Forgay & Connor, have, with such knowledge of the facts as will conclude them, received other policies as the policies to which they are entitled, and if Forgay, Connor, and the plaintiff assent to such appropriation, then such part owners are not necessary parties.

But whether it is not essential to make them parties, with a view to conclude them by allegation and proof of the acts which are to estop them, is a question deserving of consideration.

Still if it should be conceded, that it is unnecessary to make them parties, it would not follow that the defendants have failed to sustain their plea in abatement.

Prior to the Oode, a plea in abatement of there being other joint promisers not made defendants, could not be sustained, if the evidence showed a greater or less number of joint promisers than the plea named. (24 Wend., 411 ; 2 Hill, 200.)

But in an action on contract, if there were too many or too few parties plaintiffs, a nonsuit followed as a matter of course. (1 Chitty on Pleadings, 14.)

The plea, in question, is a plea of the non-joinder of necessary parties plaintiffs, who are required to be the actual parties in interest, whether original promisers or not. I am inclined to think, in such a case, that proof that some of the persons named as joint owners, were such is sufficient to sustain the plea. Such a defect of proof presents a case of variance only. This, the Oode, requires the Oourt to disregard, unless it be shown that the plaintiff has been misled by it to his prejudice, in establishing his cause of action. Ho such proof was offered nor fact suggested.

The evidence establishes that other part owners of the vessel, were, as the principals for whom the policy was obtained, joint owners of it, and in judgment of law the persons to whom the defendants promises were made.

To the proper determination of a suit, brought by only one of such promisees, claiming to recover on the ground that the interest, of the other promisees has been extinguished, it is necessary to make them parties, especially when it is not alleged that such interest has been extinguished or transferred to the plaintiff by any act done by such other original promisees or with their knowledge or assent.

In this view there was a defect of parties, and the defect having been set up by answer and established by proof, the complaint was properly dismissed at the trial and the defendants are entitled to judgment.

Judgment ordered accordingly.


source: Caselaw Access Project

author: By the Court—Moncrief, J.

license: Public Domain

text:
    Garrett S. Mott, Plaintiff and Appellant, v. The Hudson River Railroad Company, Defendants and Respondents.
    1. Whether the firemen of the city of New York, being incorporated, and charged with the duty, and furnished with, and with the control of, the necessary means to extinguish fires, are liable to the owner of property burned, for loss arising from their negligence in the use of means to put f out the fire, quaere?

    2. In an action against a Railroad Company, to recover damages for so neglii gently running a train of its cars, that the train ran over and cut hose lying across the track of the road and attached to fire engines in use at the time by firemen, who were endeavoring to extinguish the fire of buildings burning near the track of the road, whereby, as was alleged, the firemen were unable to subdue the fire they otherwise would have extinguished, and whereby the fire was communicated to other buildings which were burned; it is error to instruct the Jury that, if there was negligence of the firemen in not using proper means to warn the approaching train of the fact of the fire and its locality, and that the hose was across the track, and that if such negligence concurred with that of the Railroad Company in producing the injury, the negligence of the firemen is to be deemed the plaintiffs negligence, and that such fact is a bar to bis recovery.
    3. Whether a railroad company, who have, in fact, provided approved brakes which had been found adequate to stop the train sufficiently quick to avoid such casualties as experience had shown might be anticipated, and which were faithfully used by the servants of the Company, but without avail, should be held liable, merely because, with the very best brakes in use, the train might have been slopped in time, quaere ?

    4. In such a case, it is relevant to ask of a competent witness, within what distance could such a train, as that in question, be stopped with ordinary brakes, on an ascending grade, running at such a rate that a man could run faster than the train was going.
    5. A witness who testifies that he is somewhat familiar with railroad brakes and with the operation of them, and has used them on a railroad and knows which are the best brakes, is a competent witness to testify as to the distance within which any given train can be stopped, with a designated class of brakes and a given number of brakemen.
    (Before Boswop.th, Oh. J., and Moncrief and White, J. J.)
    Heard, May 10th;
    decided, June 29th, 1861.

      Appeal from an order denying a new trial which the plaintiff had sought on case and exceptions.
    This action was brought to recover from the defendants the damages which the plaintiff alleged-he had sustained from the act of defendants’ servants in running their train across a fire hose, which was employed in putting out a fire upon the plaintiff’s premises. The plaintiff was the owner of a lumber yard, between 54th and 55th streets and near the 11th avenue, in the City of Hew York. The defendants’ railroad lay through this avenue, and at the time of the fire the fire companies of the city in attendance, had laid their hose across the track for the purpose of conveying water from the hydrants to the place of the fire.
    The cause was tried before Mr. Justice Hoppmast, and a Jury, on the 31st day of May, 1860.
    It appeared from the evidence on the trial, that the Railroad Company had a station house at 59th street and another at 71st street, where it was their custom to keep a station man, with signals, to be used to stop trains in case of danger. The firemen did not send to these stations any notice of their having laid hose across the track, but on hearing a train approaching in that direction, sent one of their number up the track, and he met the train between 57th and 58th streets and told the engineer to stop. The train came into the avenue around a curve at 59th street.
    The engineer of the train testified, that he saw the fire from far up the river, but could not tell where it was until he got below certain buildings and trees as he approached it.
    There was other testimony, the particulars of which it is not material to state, bearing upon the question, whether with such notice as the engineer had, the train could have been stopped in season to avoid cutting the hose.
    Among other witnesses, Stephen B. Bowles, being sworn for plaintiff, testified: I am in the business of railroad supplies ; I am somewhat familiar with railroad brakes, and with the operations of them, and have used them on a railroad; I know which are the best brakes.

      The witness was then asked the following questions: In 1857, what were the best brakes in use, and how long had they been in use ? With such brakes, within what distance could a freight train be stopped on an ascending grade, running at the rate of fifteen miles an hour ?
    The defendants objected to both these questions as irrelevant, on the ground that in this action the defendants were not liable for any negligence of their own in not using the best brakes, and because as against the plaintiff and his rights involved in this suit, they were not bound to use them. The Court sustained the objection and the plaintiff’s Counsel excepted.
    The witness was then asked: From your experience in brakes, within what distance could a freight train be stopped, with ordinary brakes, on an ascending grade, running at such a rate that a man could run faster than the train was going ?
    This question was objected to by defendants as substituting the opinion of a witness for the judgment of the Jury, and because the witness was not shown to be competent to form an opinion. The question was overruled, and the plaintiff excepted.
    On cross-examination, the witness stated': I have run a railroad train as an engineer—the “ Old ColonyI was not employed as an engineer; I have run trains, twenty, perhaps fifty, times in 1849 and 1850.
    The charge of the Judge to the Jury, so far as it is material to be stated, with reference to the questions passed upon by the Court, was as follows:
    “I. The fire engine department, and its regularly appointed ofiicers in charge of engines, or hose companies, are not prohibited, during a fire and while taking proper measures to extinguish it, from using and occupying the space covered by the railroad tracks of every railroad in the city of New York. But—
    “ II. This right must be exercised with due regard to the particular right of the Railroad Company to the use of its track, a right granted in the present case by the Corporation of Hew York and the Legislature; so that if the engine or hose company could equally well attain the object of arresting a fire by using other portions of a public avenue or street in part occupied by a railroad, or by 'running the engine or hose elsewhere, as by using the railroad track, they would be bound to do so. If there was no other place to lay the hose, or none which was not highly inconvenient, and would seriously delay the extinguishment of the fire, they were entitled to use the track.
    “ III. When such engine or hose company do properly . make use of a railroad track, they are bound to take all ’ reasonable measures and precautions to apprise conductors, engineers, or other persons in charge of trains, which may in regular course of running, be upon the road about the time,of the use and occupation of such track.
    “ IV. The hose or engine company using the track in the present case, are to be considered so far the agents of plaintiff, as that if such company did not take those reasonable precautions, he cannot recover of the defendants. For the purposes of this action any negligence of the fire companies is to be treated as his negligence. He cannot recover if the firemen’s negligence contributed to the accident and damage, nor can he recover if his own neglect contributed to it.
    “ V. But if the firemen were negligent, yet if the defendants’ agents were guilty of gross heedlessness and negligence in managing the train after being apprised of the hose being on the track, or warned to stop, the plaintiff may recover.”
    The plaintiff excepted to the third and fifth propositions above stated, and also to that part of the fourth proposition as to the fire companies being agents of the plaintiff and as to his being affected by or responsible for their negligence.
    In the application of these principles the Judge instructed the Jury that they were to consider whether the fire department were guilty of negligence in laying the hose across the track instead of in another method, which there was some evidence tending to show was possible, and that they were also to consider whether they took that precaution which, as reasonable men, they ought to have taken, to apprise-the employees of the Hudson River Railroad Company of the use of the track by the hose; and he instructed them that if the fire companies were guilty of neglect, the plaintiff had no right to a verdict unless they should find, also, that the agents of the defendants, the engineer, and others in charge of this railway train, were guilty of willful and gross heedlessness in managing the train after they were apprised of the fact that the hose was upon the track, in which case the plaintiff may still recover. He added, in reference to the question of negligence on the part of the servants of the Railroad Company, that if the Jury should believe that the engineer-did make use of all the means at his command to stop the train, the plaintiff cannot recover, although they might believe that such means were, of themselves imperfect, and that there were other means known to science which would have been more effectual to do so.
    And next, that the Company were not bound to exercise the same degree of care to provide for the protection of this hose, as for the property placed under its control and charge.
    Where it is sought to make the Company responsible for the fault of its own agents, the question is, not what could have been done, if the Company had the best means of arresting the engine that science has ever devised, but what could have been done by the engineer or person in charge of the train by the proper employment of the means actually within their reach, and at their command at the ■ time.
    To such portions of these instructions as made the defendants’ liability depend on the firemen’s freedom from negligence, and exonerated the Railroad Company from obligation as toward the plaintiff to provide the best means for stopping the trains, the plaintiff excepted.

      The Jury found a verdict for the defendants, upon which judgment was entered; and the plaintiff having moved for a new trial upon a case and exceptions, appealed to the General Term both from the judgment and from the order denying a new trial.

      David Dudley Field, for plaintiff and appellant.
    (The points are not inserted here, as they simply rehearse the exceptions taken, as above stated, which the counsel relied on.)

      William Fullerton, for defendants and respondents.
    I. The Eire Department was constructively in Mott’s employ in putting out the fire, which was destroying his property. This action is founded upon the relation of master and servant, which for all legal purposes, may be said to exist in such a case.
    It follows, therefore, that the plaintiff was responsible for any negligence of the Eire Department whilst extinguishing the fire which contributed to the accident.
    II. The firemen and the plaintiff himself were guilty of the negligence which caused the accident, in that no timely notice thai the hose was on the track, was given to the approaching train.
    III. It was proper to charge the Jury that the defendant was not guilty of negligence if the officers in charge of the train used all the means at their command at the time to stop the train.
    Whether their brakes, therefore, were of the most approved pattern or not, was not a question for inquiry. (Owen & Lugar v. Hudson River R. R. Co., 2 Bosw., 374 ; Button v. Same, Id., 380, note.)
    The verdict establishes the fact that the defendant was not guilty of any negligence which contributed to the accident.
    IV. The damage done to the plaintiff’s property by fire by reason Of the injury to the hose, is too remote to be the subject of a recovery in this action, and he would not be entitled to recover even if a new trial were granted.
    In cases of deliberate or malicious wrong, the law affords liberal relief, and in case of mischievous acts injurious to others, the party in the wrong is often made answerable for consequences very remote from the original act.
    But in cases of tort without aggravation, where the / conduct of the defendant cannot be considered so morally [ wrong or grossly negligent as to give a right to exemplary or vindictive damages, the extent of remuneration is restricted to the immediate consequence of the act. (Sedgwick on Damages, 82.)
    The party complaining in such a case must show that the particular damage in respect of which he proceeds is the legal and natural consequence of the wrongful act. (Clark v. Brown, 18 Wend., 213, 229.)
    The action in this case was to recover damages for maintaining improper fences, by reason of which the plaintiff’s ox broke into the defendant’s cornfield, and ate so much green corn that he died.
    Judge Sutherland held, that “ the loss of the plaintiff’s ox was not the direct and necessary consequence of the neglect of the defendant to repair his fence.” (216 ; see also 1 Chitty Plead., 388 ; 8 East., 3 ; 2 Taunt., 314 ; 19 John., 228.)
    So, in Alabama, in case of malicious prosecution, whereby the plaintiffs were driven to an assignment, the loss in the sale of the goods made under the assignment was held not to be a proximate or natural consequence of the malicious prosecution. (Donnell v. Jones, 13 Ala., 490, quoted in Sedg. on Dam., p. 82.)
    A still stronger case arose in Massachusetts:
    An assault and battery was committed on the person of a pauper; and the contractor for the support of the poor, at a fixed sum per annum, brought his action, alleging that he was put to increased expenses for the support of this pauper during the illness consequent upon the assault. The Court held the damages too remote. (Anthony v. Slaid, 11 Metc., 290. See remarks in Sedg. on Dam., pp. 87, 88, on the case of Dewint v. Wiltsie, 9 Wend., 325.) The direct injury in the present case was to the hose which was cut. The consequential or remote injury was the burning of the plaintiff’s property.
    The party who brings his action upon a promissory note is limited in his recovery to the actual sum due, and interest at seven per cent. The legal interest of the money is the measure of damages. All other expenses which the plaintiff may have necessarily incurred in carrying on a litigation to recover what no honest man would have withheld from him, are, in law, too remote to form a part of the recovery. (See also Pacific Insurance Co. v Conard, Baldwin, 138.)
   By the Court—Moncrief, J.

The Jury was instructed in substance, that when an engine or hose company make use of a railroad track by laying the hose upon it, to effect the extinguishment of a fire, they are bound to take all reasonable measures and precautions to apprise conductors, engineers or other persons in charge of trains, which may, in regular course of running, be upon.the road about the time, of the use and occupation of the road.

That the plaintiff “ cannot recover, if the firemeh’s negligence contributed to the accident, and damage,” unless “the defendants’ agents in charge of the train were willfully and grossly negligent after they were apprised of the hose being upon the track,” in which case “the plaintiff may recover.” That “for the purposes of this action, any negligence of the fire companies is to be treated as” the plaintiffs’ “negligence,” and that he cannot recover if their negligence contributed to the accident and damage.

The plaintiff excepted to each of these instructions.

It is difficult to conceive of any principle on which the defendants should be held responsible to the plaintiff for loss or damage caused to his property, by the spreading of a fire occasioned by the cutting of the hose in use by the firemen engaged in extinguishing the fire, where such cutting was caused by the defendants’ servants negligently running an engine or train of cars over it, and on which the firemen should not be held liable if it was through their negligence alone that the hose was cut.

The firemen are incorporated and are charged with the duty and furnished with the necessary means, (and with the control of such means,) to extinguish fires. (Davies’ Laws, pp. 392, 394, sec. VII, 485, § 74, 722 ; Corporation Ordinances, (Revision of 1859,) pp. 207, 210, 213, § 31, p. 219, § 51, p. 224, § 71 ; sub. 2, 226, § 73 ; (Laws of 1860, p. 444, § 29.)

Any person or officer, charged by law with the performance of a plain and absolute duty, is liable to a person injured by his negligence in not performing it, or by negligence in the manner of performing it. The cases of Adsit and others v. Brady, (4 Hill, 630,) Hutson and wife v. The Mayor, &c., of New York, (5 Sand. S. C. R., 289, and 5 Seld., 163,) The Mayor, &c., of New York, v. Bailey, (2 Denio, 433,) illustrate the general rule. Unless there be some statute or consideration of public policy, exempting the firemen from liability for injuries caused by their negligence in not performing duties imposed upon them by law, they are equally liable as commissioners of highways for not performing a positive duty, when the means at their command are sufficient for the prupose. No such statute has been called to our attention; nor has any principle of public policy been stated in support of such an exemption.

The duty which the defendants have violated, in the present case, if any, is not one owing to any person being or then having property on the train of cars in question. If they have violated any duty, it is a duty they owe to the community generally, and to the plaintiff as one of its members, to use such care and diligence in operating their road, as not to injure any person or property that may rightfully, at any time, be on the track of their road.

It is quite clear that the defendants cannot be made to pay any damage which the plaintiff may have sustained by reason of the negligence of the firemen.

.. But it does not follow that if the plaintiff’s property was burned in consequence of the negligent severing of the hose carrying water to his buildings at the time on fire, he cannot recover of the defendants, if the severing of the hose was the result of the concurring negligence of the defendants’ servants and the firemen. If this act was done by the concurring negligence of the two, in such sense that the hose would not have been cut if either had been free from negligence, then the plaintiff is entitled to recover, unless it be a sound proposition that the damages are too remote to present a case of liability. '

•In the case supposed, the firemen and the defendants were joint actors in the wrong doing in such sense, that by the concurrence of the default of each the injury was produced.

Such a case is, in principle, like Colegrove v. The Harlem Railroad Company, and The New York and New Haven Railroad Company, (6 Duer, 382 ; 20 N. Y. R., 492.)

In that case, the Harlem Railroad Company owed, at the time of the injury, a special duty to the plaintiff. So, in the present case, the firemen, at the time of the casualty complained of, owed a special duty to the plaintiff in this action, and were eng’aged in performing it.

In the case cited, the Hew Haven Railroad Company owed no other duty to Colegrove than they owed to all persons who might be passengers in any train of the Harlem Company, and that duty was less extensive and entirely different from the duty it owed to its own passengers. In the case before us, the defendants owed no other duty to the present plaintiff than it owed to every person owning property in the City of Hew York; to use reasonable care and diligence not to frustrate or render ineffectual means in use to extinguish an existing fire, when such means consisted in part of hose rightly laid across or stretched along the track of its road.

The ground on which the defendants are charged in such a case is, that the wrong was done by an act, in the doing of which it was an actor. The fact that others cooperated or concurred with it in effecting the wrong, does not affect the question or measure of its liability.

If negligence, in such a case, can be imputed to the firemen then present, or to any or either of them and to only a part of them, the result is the same,

Whoever was' guilty of and responsible for the concurring negligence, they and the defendants are the parties ■ in fault; and it is by their and the defendants’ concurring negligence that the loss and damage were caused. The defendants’ liability is not affected by the consideration, whether only one or several of the firemen are in law to be deemed guilty of the negligence, in not taking proper and timely precautions to inform the defendants’ servants of the existence and locality of the fire, and that hose was then lying on the track to obtain the Supply of water ®f§quisite to extinguish it.

The difficulty in the case opcasioned by the charge is, ■ that the Jury may have found the defendants guilty of negligence, and yet have rendered a verdict against the plaintiff, because they foúnd the firemen also guilty of negligence, and that the injury was caused by the concurring negligence of the firemen and of the defendants’ servants.

An instruction to render a verdict for the defendants, on finding such to be the facts, is erroneous. If there had been no other evidence in respect to the question of the defendants’ negligence than that given on the part of the plaintiff, we cannot say that a verdict finding negligence would be contrary to evidence.

At the same time, if the cause had been submitted under an instruction that if the Jury, upon the whole evidence, believed the defendants’ servants were not guilty of negligencein not sooner discovering that hose was on the track, nor in the use of the means at their command to stop the train after discovering that fact or having grounds to believe it existed, then they should find for the defendants, we should not interfere with the verdict on the ground that it was contrary to evidence.

On the grounds stated, there must be a new trial. The exceptions to the rulings upon the questions put to S. B. Bowles, in connection with the charge as to there being no evidence that the engineer had sufficient means in his power to arrest the engine without running over the hose after discovering it, and that if he used all the means' in his power, the Company was not liable, are not free from difficulty.

The plaintiff was certainly bound to show the defendants negligent. Assuming the firemen to have not been guilty of negligence, the charge is broad enough to exonerate the defendant, if it had appeared that the defendant’s train had no brakes, and that was the whole cause of the injury, provided the defendants^ engineer did all he could wjtlithe means aUhis^ commai^d to arrest the progress of the train, _ We are not prepared to holcUw^^uFfurther consideration, that the defendant can be charged, merely because with the very best brakes in use, the train might have been ' stopped without injuring the hose, if in fact the train had approved brakes, which had been found sufficient to arrest the progress of the train and avoid injuries to occur, if at all, from want of adequate power to stop a train sufficiently quick to avoid such casualties as experience had shown might be anticipated and were to be guarded against.

We think the last question put to Mr. Bowles was relevant, and that enough was shown to make him a competent witness in respect to the matter inquired about.

He said he was somewhat familiar with railroad brakes, and with the operation of them, and has used them on a railroad and knows which are the best brakes. We see nothing in the evidence, or in reason, favoring the idea, that a person of experience cannot state with great accuracy, the distance within which any given train can be stopped with a designated class of brakes and a given number of brakemen.

As a new trial must be directed, we have not deemed it material to discuss or pass upon any other exception or point in the case.

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

Ordered accordingly.


author: By the Court—Bosworth, Ch. J.

text:
    Augustus Van Amringe and Eleanor, his wife, Plaintiffs, v. James Barnett, Defendant.
    1. A conveyance by metes and bounds, which in terms goes “ to the side ” of a road, thence “ along the side of the road,” not only conveys no interest in the bed of the road, but on the contrary excludes the road.
    2. T. died seised of a tract of fourteen acres of land in the city of New York, which was described in the deed to him and in previous conveyances as bounded ***** “northwesterly by the King’s Bridge Road.” After his death, a suit for partition was brought between his heirs, the bill in which described the premises in the same manner as in these deeds, and a decree was made for a sale. The sale was made in parcels, and on the map of lots or parcels, in reference to which the parcels were sold, as well as in the report of sale, and in the deed executed pursuant to it, one parcel upon the northwesterly side of the tract in question, and contiguous to the King’s Bridge Road, was'described by a boundary which was stated as running “to the southeasterly side” of that road, and “ thence along the said southeasterly sidewhile upon another side of this parcel, the'"boundary was described as running “ along the centre line of 54th street,” which was a new street not then opened. The description in the report of sale and the deed, also declared, that said parcel contained “ so much of 54th street as lies within the said boundaries.” Held, that such deed in partition granted no interest in the bed of the King’s Bridge Road, but the title to the same remained in the heirs of Y.
    3. As between the grantor and grantee, the presumption as to ownership of land within the limits of a highway, is the same in the city and county of New York as in other parts of the State, at least in respect to a highway lying in a rural or farming section of the county. One who owns both sides of the highway, is to be presumed entitled to the fee of the road.
    4. Upon the discontinuance of an old road, in the city and county of New York, the fee is not in the corporation, but presumptively in the owners of the adjoining land.

      5. A party excepting must, at his peril, place enough in his exceptions to show that the Court erred to his prejudice. The legal presumption is in' favor of the rectitude of the proceeding; and all decisions made, will be presumed correct, until the contrary appears. When the error relied on consists in the exclusion of evidence offered, the exceptions must show affirmatively, that it was relevant at the time when offered and excluded. The Court will not interfere on account of its rejection, unless, in connection with the evidence previously given, or that and evidence offered to be given, it can be seen to be material.
    6. In an action brought by husband and wife to recover possession of land, the plaintiffs claimed as owners in right of the wife. On the trial, the defendants offered in evidence an appointment made by the husband and wife, which recited an ante-nuptial agreement between them and S., to the effect, that notwithstanding the intended marriage, the real and personal property of the wife should remain her separate estate; reserving power to the husband and wife to discharge the said S., or substitute other persons in his place, which appointment thereupon declared said S. discharged, and substituted A. in his place. The defendants also offered, with this appointment, a written acceptance signed by A., in which he described himself as trustee for the property and effects of the wife; but these instruments did not otherwise describe either of these persons as trustees, nor recite any conveyance to or title in them; and the defendants offered no other evidence on these points. líéld, that this evidence was properly excluded. In order to raise the objection that the plaintiffs had not capacity to sue, it must be taken in the answer, and could not be raised for the first time on the trial. This evidence, moreover, did not show that the legal • title was not in the plaintiffs.
    7. Whether the action is brought in the name of the trustee, or the cestui que trust, is a matter not affecting the substantial rights of the defendant.
    (Before Bosworth, Ch. J., and Moncrief and White, J. J.)
    Heard, May 10;
    decided, June 29, 1861.
    Exceptions heard in the first instance at the General Term, (the judgment being in the meanwhile suspended,) by the direction of the Judge presiding at the trial.
    This action was brought to recover one undivided fifth of land described in the complaint, which was part of the old eastern post road, or King’s Bridge road, in the upper part of the Oity of Hew York.
    •The plaintiffs alleged in their complaint, that they claimed in right of the plaintiff Eleanor, who was a daughter, and one of the heirs of George Youle.
    George Youle died in 1828, seised of a tract of land lying on the eastern side of the eastern post road. The conveyances to him described the land as bounded on one side by that road.
    After the death of George Youle, the plaintiffs and one William E. Van Amringe, in May 1834, filed a bill in Chancery for the partition of this tract of land, and a decree was made for an actual sale in May, 1835. The description of the land, contained in the bill and decree, was precisely the same in respect to this boundary as that contained in the deed to George Youle.
    The decree directed a sale of all the premises.
    The master sold the premises in lots, and exhibited at the sale a map upon which lots were laid out as bounded by the southeasterly side of the road.
    The master’s deeds also described these lots by a boundary running to the southeasterly side of the road, and thence along the southerly side. Upon the map some new streets were laid out, not then open; and both upon the map and by the deed the lots adjacent to these new streets were described as embracing the bed thereof to the centre line respectively.
    By the master’s deed the parcel of lots in question were» conveyed to one Slipper, who subsequently conveyed the same parcel to the defendant.
    The defendant claimed that the land within the limits of the old post road, adjacent to this parcel, being part of the original tract owned by Youle, and embraced in tire description contained in the bill and decree, passed by the master’s deed made in pursuance thereof; and he offered in evidence a deed of release, dated in December, 1852, from the Mayor, Aldermen and Commonalty of the Oity of New York, to the defendant, for the land within the old road.
    The defendant also offered in evidence an instrument of appointment made by the plaintiffs on Dec. 9,1851, which recited that whereas by a tripartite indenture made in 1830, between them and William Silliman, Esq., of the Oity of New York, it was recited that the wife was seised of real estate, &c., as heir of Youle, and of personal estate, and that a marriage was intended between the parties of the first and second part, and that said indenture witnessed that the intended husband “thereby agreed to and with the said William Silliman, that notwithstanding the said (then) intended marriage should take effect, all the rents, profits, interest, proceeds and estate, real and personal, therein mentioned, should be accounted and taken as the separate estate of the said Eleanor, and should be in no way liable to him, or to the payment of his debts, with other provisions relating to the said estate and premises, and the proceeds thereof, as are in the said indenture particularly expressed, reference being hereby intended to be thereunto had,” and further provided that the husband and wife had power by writing “ to discharge the said William Silliman, his executors or administrators, and to substitute any other person or persons in his or their place, and such substitute or substitutes to change in manner aforesaid, as often as they might deem expedient; ” and thereupon this appointment declared that the husband and wife executing it, “ have discharged the said William Silliman, and have substituted and do hereby substitute William E. Van Amringe, Esq., of the City of Philadelphia, in his place, under the said indenture tripartite, and for all and singular the uses and purposes therein specified and contained.”
    With this appointment, the defendant offered in evidence the written acceptance by William E. Van Amringe, by which he declared that “ for value received, and in consideration of the premises as set forth in the articles of revocation, and appointment of myself as trustee for the property and effects of Eleanor Van Amringe, (formerly Eleanor Voule,) bearing date the 9th day of December, A. D. 1831, I do hereby accept the trust under my said appointment, hereby binding myself,” &c. Both these instruments and the deed of release from the Mayor, &c., of the city, were .objected to by the plaintiffs’ Counsel and excluded by the Judge.

      The Jury rendered a verdict for plaintiffs for one-fifth of the premises in dispute, and six cents damages.
    And the defendant having moved for a new trial on a case and exceptions, the Judge trying the cause at the trial, directed said exceptions to be heard in the first instance at the General Term, and the judgment in the meantime suspended.

      E. W. Stoughton, for plaintiffs.
    I. Laying out the highway across the Deffore patent did not divest the fee; the title to the highway remained, subject to the easement of the public right of way. Nelson, J., in Gidney v. Earl, (12 Wend., 98 ;) S. P., recognized in Williams v. N. Y. Central Railroad, (16 N. Y. R., 100.)
    And upon the abandonment of the highway the owners of the fee held the land discharged of that burden. (Jackson v. Hathaway, 15 Johns., 447 ; Whitbeck v. Cook, Id., 491 ; 3 Kent’s Com., 432, note c, and cases cited.)
    The deed to Youle conveyed a parcel of fourteen acres, bounded “ northwesterly by the Kingsbridge road.” This extends to the centre line of the road, and conveys the fee to half the highway. (Herring v. Fisher, 1 Sandf., 344 ; Hammond v. M’Lachlan, Id., 341.)
    So a general boundary by a river carries usque ad filem aquae. (Luce v. Carley, 24 Wend., 451 ; Jackson v. Louw, 12 Johns., 252.)
    While the master’s deed conveyed by metes and bounds the parcel Eo. 8, which is described as running “ along the centre fine of 54th street to the southeasterly side of the eastern post road, thence westerly along the said southeasterly side of said post road, one hundred and forty-three feet, ten. inches, thence,” &c, a description, which in express terms, excluded the road. (Child v. Starr, 4 Hill, 370 ; S. C., 5 Denio, 600 ; Jones v. Cowman, 2 Sandf., 234.)
    “ It is well settled that land cannot pass as appurtenant to land, though a right of way may.” (Tyler v. Hammond, 11 Pick., 214 ; Badeau v. Mead, 14 Barb., 337.)
    The master’s sale was by specific description and reference to the map. The purchaser took title by the same description, and cannot claim what he neither bought nor received title to.
    II. The instruments offered in evidence by the defendant, merely prove an interest in the plaintiff, Mrs. Van Amringe, which is the only interest claimed in the complaint.
    The defendant has not been prejudiced by the rejection of the evidence.
    The objection of misjoinder is waived by answering over. (Code, § 148 ; Zabriskie v. Smith, 3 Kern., 336 ; Baggott v. Boulger, 2 Duer, 160 ; Ingraham v. Baldwin, 12 Barb., 9.)
    HI. The deed from the Mayor, &c., was properly rejected : no ground for its admission had been laid, by proof that title or possession ever were in the Mayor. (1 Starkie’s Evidence, § 135, p. 325.)
    Had it been admitted the defendant has failed to connect it with proof of such title or possession. He has not been prejudiced, then, by its rejection.

      William Fullerton, for the defendant.
    I. It was error to exclude the appointment made by the plaintiffs; it was a link in the chain of proof to show that the husband had no title, and that the legal title was in a person not a party to the action.
    Husband and wife, where the action is brought in their joint names, must recover jointly, or not at all; and the defendant would have been entitled to a dismissal of the complaint, if he had established, by his proposed line of proof, that the title to the land was in a third person as trustee. (Bartow v. Draper, 5 Duer, 130.)
    II. Defendant was entitled to judgment, because plaintiffs showed no title. To make a good title to the soil of a highway in virtue of a grant of abutting land, it is necessary to carry up the chain. of title to a source when the possession of or title to the soil of the highway is united with the possession of or title to the abutting land. Ho such proof has been given in this case. (Bartow v. Draper, 5 Duer, 130.)
    Ordinarily the owners of land devoted to public use in the rural districts retain some right to the soil; and the possession of lands adjoining such highway is some, though not conclusive, evidence of the possession of the adjoining half of the road subject to the easement by the public.
    In cities there is no such presumption of title. (Wetmore v. Story, 22 Barb. S. C. R., 486.)
    In order to establish a title to a street in a city, adjoining owners must prove that the title to their lots emanates from those who at the time had owned the beds of the streets, and their deeds "had bounded the property by the streets in general terms. (Wetmore v. Story, supra.)

    There is no proof in this case that any of the grantors of the property in dispute ever owned the fee to the highway. (Bartow v. Draper, 5 Duer, 140.)
    III. In relation to the ancient public streets in the City of Hew York, it is a matter of presumption that the fee is in the Corporation of the city. (Bartow v. Draper, 5 Duer, 141.)
    The proof being that this road existed in 1796, it must have been laid out at a time when the fee of the road-bed was taken by the Corporation of the city, under the acts by which they acquired title to the lands. (Provincial Acts, October 1st and 9th, 1691, re-enacted by the Legislature 16th April, 1787. [1 Greenleaf’s edition, 441, Act of 7th of March, 1793.], See Hoffman’s Treatise, 269 to 276. Bartow v. Draper, opinion of Hoffman, J., 141 to 142.)
    IV. If the presumption arises that the road existed prior to the acts above referred to, still the presumption is that the title of the street is in the Corporation.
    The public history of the country may be taken notice of by the Court, and forms a proper element of decision. (3 Howard U. S. R., 34.)
    This colony was first settled by Holland, and was, consequently, governed de facto, at the time of its settlement, by the civil law.

      “It is the undoubted rule of that law, that highways belong to the sovereign power, as part of its royalties, or public rights; they belong to it absolutely; there is no right in the adjacent owners to the soil of the road, either during the use, or upon its discontinuance.” (Hoffman’s Treatise, 268.)
    If the road in question was laid out by the Dutch, then the road belonged to the government; and when Great Britain expelled the Dutch, they adopted the existing settlement with its existing customs, and in this particular, repeatedly ratified and sanctioned them by their charters and acts of legislation, to which reference has been made. (See Dongan and Montgomery’s Charters, and laws referred to, supra ; see argument of Mr. O’Conor in Wetmore v. Story, 22 Barb., 438, 440.)
    Y. It is evident from the proceedings in partition in this case, that the plaintiffs thereifi (among whom are the plaintiffs in this action) designed selling all their interest in the lands described in the bill of complaint, which description is the same as that contained in the deeds given in evidence by the plaintiffs.
    The failure to convey the parcel which includes the lot in question, by the same description contained in the bill of complaint and decree of sale, it must be presumed, grew out of the fact that the plaintiffs in that partition suit, were advised that they had no title to the bed of the road.
    It cannot be presumed that, in a bill filed for the partition of the whole estate, any portion was meant to be reserved; besides, tenants in common in suits for partition, are bound to include all the lands held in common. (Rule 77, Supreme Court.)
    YI. If, however, in the opinion of this Court, the construction of the plaintiff’s deeds carries them to the middle of the street, still it is contended that the title to the lands in question is in the defendant, by force of the same construction.
    The description of the lands, in the bill of partition, by the same rule of construction, carries the ownership of the fee to the middle of the street, and the lands, by such description, were ordered to be sold in lots. The sale of the parcel designated as on such partition map, ex vi termini carries the fee, into the middle of the street, provided the plaintiffs in the partition suit were the owners thereof; under such circumstances, the description in the deed, if erroneous, must yield to the legal effect of the conveyance of the parcel under the description of lot No. 8. (Jackson v. Clark, 7 John., 227 ; Jackson v. Defendorf, 1 Caines, 493 ; Hathaway v. Power, 6 Hill, 453 ; Jackson v. Marsh, 6 Cow., 284.)
    VII. The deed from the Master, by its terms, conveys to the purchaser all the interest of the parties to the partition suit, in the road.
    VHI. The Judge erred in excluding the deed offered in evidence from the mayor, &c., to the defendant, conveying the land in dispute to him.
   By the Court—Bosworth, Ch. J.

By letters patent, dated October 9, 1677, Edmund An dross, Lieutenant and Governor General, granted sixty acres of land to David Deffore. These sixty acres embraced the premises in question; and the Eastern Post Road, or as sometimes called, the King’s Bridge Road, or Post Road, when subsequently opened, run through this tract of land.

It was not proved, when this road was opened. It was, probably, opened between June, 1703. (Hoffman’s Treatise on the Corporation, pp. 278) and 1715 ; (id., 281). David Deffore continued to own the sixty acres, until the 2d of May, 1760, when by indenture of lease for one year, executed to David Deffore, Jr., dated May 1, 1760, and by deed of release, dated May 2, 1760, David Deffore, Jr., became the owner in fee. The deed of lease and release recite that David Deffore was then living on the premises, and, also, the grant of the premises to David Deffore by said letters patent.

By the will of David Deffore, Jr., proved before the surrogate of Hew York, on the 12th. of June, 1780, all Ms estate, real and personal, was devised to Ms daughter Ann, who spelled her name Devoor. She married Abraham Brevoort on the 29th of May, 1788. It was proved that she “ was m possession of the whole sixty acres,” except five or six acres sold to Olopper, on the south, and eight or ten on the north, sold to Buchanan; and that the letters patent, and deeds of lease and release, were in her possession, and held by her until in 1835, when they passed into the possession of her son, Henry Brevoort, on his becoming a grantee and owner of part of the premises west of the Eastern Post Eoad.

By a succession of mesne conveyances, commencing with one from Ann Devoor and her husband, fourteen acres of the sixty, bounded “ northwesterly by the said King’s Bridge Eoad,” were vested in George Youle, the deed to him being dated July 26, 1821. He died seised of the said fourteen acres, on the 20th of September, 1828. Eleanor, one of the plaintiffs, and one of his children and heirs-at-law, married Augustus Van Amringe, the other plaintiff, in March, 1830. The plaintiffs have issue of the marriage, who are living. On the 14th of May, 1835, a bill was filed in the then Court of Chancery, by the plaintiffs and William F. Yan Amringe, for the partition of said fourteen acres; the premises being described in said bill as in the deed to Youle, and a decree was made for the sale of said premises. The land was sold in parcels, and the master’s report of the sale had a map annexed to it, of the fourteen acres and of the parcels into which they were subdivided, and in which they were sold.

“Parcel No. 8,” on said map; was sold to Henry U. Slipper, and is described in the report of sale, and in the deed executed to Slipper, as bounded on the centre of 54th street (not then opened), and as running “ northwesterly 84 feet 4 inches ” from the starting point “ along the centre line of 54th street to the southeasterly side of the Eastern Post Eoad; thence southwesterly along the said southeasterly side of the said Post Eoad 143 feet 10 inches ; thence southeasterly,” &c., “ 143 feet 11 inches ; ” “ thence northeasterly,” &c., “ 135 feet, 5 inches, to the centre of 54th street to the place of beginning.” “ Said parcel contains lots Nos. 27, 28, 29 and 30, together with so much of 54th Street, as lies within the said boundaries.” Said parcel No. 8, as marked on said map, is divided into four lots, numbered 27, 28, 29 and 30, and lot No. 30 is bounded by the line of said road, and is marked as being 23 feet 3 inches on 54th street, and 110 feet 9 inches on the Post Eoad, and 69 feet and 11 inches on its southeasterly boundary. The Eastern Post Eoad has been discontinued, and this suit is brought to recover one-half in width of said Post Eoad, contiguous to and northwesterly of said lot No. 30. It is brought against James Barnett, who has succeeded to the title of Slipper, and is in possession, and who, upon demand made, has refused to deliver possession to the plaintiffs.

The plaintiffs are entitled to the possession of one-fifth of the premises, if entitled to recover anything.

If George Toule was seised to the centre of the post road, at the time of his death, the plaintiffs are entitled to recover, unless Henry U. Slipper acquired title by the sale and conveyance to him in the partition proceedings. A conveyance by metes and bounds, which in terms goes “to the side” of a road, thence along “the side of the road,” not only conveys no interest in the bed of the road, but, on the contrary, excludes the road. (Child v. Starr, 4 Hill, 370 ; Jones v. Cowman, 2 Sand. S. C. R., 234.)

The deed to Slipper, therefore, grants no interest in the bed of the road. The parcel No. 8, as marked on the map, includes no part of the road, but does include one-half of the bed of 54th street, and one of its boundary lines is the centre of that street. And parcel No. 8 is subdivided on the map into four lots, numbered 27, 28, 29 and 30, and the description in the deed, of the parcel thereby conveyed, declares that “ said parcel contains lots Nos. 27, 28, 29 and 30, together with so much of 54í7¡. street as lies within the said boundaries.”

This language clearly indicates the actual understanding of the parties that the effect of the deed, and the interest conveyed by it, were in accordance with the construction of the deed as settled by Child v. Starr, supra. The conveyance of any estate in the bed of the road is excluded by the settled construction of the- words which describe the boundaries or limits of the land conveyed; by the specified length of the several boundary lines; by the limit lines as marked upon the map; and by the fact that one boundary line is in terms along the centre of a street.

The conclusion is inevitable, therefore, that the deed to Slipper did not convey to him any interest or estate in the bed of the road; and that the title to an undivided fifth of the premises in question is in the plaintiffs, if George Youle died seised of them. Whether he did die so seised, is the question of most practical importance.

The plaintiffs deduce title from a person, who owned and was in possession of the premises on both sides of this road, and of the bed of the road itself before the road was opened, if it may be assumed that the road was not laid out until after June 19, 1703. They also show that successive grantees of the land on both sides of the road, (after the road was laid out,) cultivated it for ordinary farming purposes. This part of the road was, therefore, practically laid out in a rural or farming section of the country; although within the corporate limits of the city. And it is difficult to perceive, on what principle any rule of presumption as to the ownership of the bed of the road is to be applied, different from that applied in the case of a public highway in any other county of the state.

In Herring v. Fisher, (1 Sand., 344, 350,) it was held, that the same rule of presumption applied to both cases, and the same rule is, in effect, conceded by S. B. Strong, J., in (Wetmore v. Story, 22 Barb., 487.)

If this road was opened and laid out under the act approved June 19, 1703, “for laying out, regulating, clearing and preserving public common highways throughout this colony,” there can be no inference that any rule is applicable to the owners of the lands through which it runs, that is not applicable to the owners of lands taken for any other road, opened under that act.

The act of June 19, 1703, enacts “that there be laid out, preserved and kept forever in good and sufficient repair, one public common and general highway, to extend from the now site of the Oity of New York, through the Gity and County of New York and the County of Westchester, of the breadth of four rods English measure at the least, to be continued and remain forever the public common, general road and highway from the said City of New York, to the adjacent Colony of Connecticut.” (Bradford’s Laws from 1691 to 1725, pp. 52, 57, 86,185,201 and 205.)

This part of the act, relates to the road in question, and at least imports, that the road was to be laid out, established and maintained under it, even though it may be true, as matter of fact, that there was at the time, some open path or road between the points named, along and over which the public was accustomed to travel. This act contained no provision for compensating the owners of any land that might be taken for the road, and its provisions relate to the construction of roads in various parts of the Colony.

The acts of 1713 (Van Schaack’s Laws of N. Y., p. 93,) of 1720, (id., p. 119,) of 1728, (id., p. 147,) of 1736, (id., p. 188,) and of Nov. 7, 1741 (id., p. 211,) import that this road was created and continued, in all respects, precisely as every other highway or public road, in any county of the State. The legislation in regard to it, treats it as a public highway or road, as contradistinguished from a city street.

The preamble of the act of Nov. 7, 1741, (supra,) describes this road as “the Highway or Post Road leading through Manhattens or York Island to King’s Bridge.”

Section II, provides, that it “shall be laid out the breadth of four rods, and cleared the breadth of two rods at least,” and divides the section of country through which it passes into divisions, or road districts, and specifies the inhabitants, by the locality of their residence, by whom the road within their road districts is to be kept in repair.

Section II authorizes the Justices of the Peace of the City- and County of Hew York, at and in their general Quarter Sessions to be held for said city and county in the month of February then next, and so on in every month of February thereafter, to nominate and appoint three sufficient and able persons “ to be surveyors of the said Highway, Bridges and Causeways,” and to execute the provisions of that act “ for the amending, clearing, widening and repairing and making good the said High-Road, Bridges and Causeways within the several districts and limits hereinbefore set forth.” By section III, each of said divisions was to be repaired, &c., by the inhabitants upon whom that burden was imposed, “justly and equally every year, and in their respective terms.”

The Act of March 21, 1787, (Jones and Varick’s Laws, vol. 2, p. 122, and Gr. Laws, vol. 1., p. 417,) appoints “the Mayor, Aldermen and Commonalty of the City of Hew York, in Common Council convened, and their successors, Commissioners, to regulate and keep in repair the present public roads or highways, and to lay out, regulate and repair such other public roads or highways as shall hereafter be laid out in said city and county.” And section III of that Act declares “ that the main road or highway leading to King’s Bridge shall not be of less width than it is at present, nor any part thereof less than four rods wide.”

The Act of April 16, 1687, “ for regulating the buildings, streets, wharves and slips in the City of Hew York,” provided for the subjects embraced in its title, and thus at that time, as well as previously and subsequently, the legislation, in respect to “ the piMio roads in the City and County of New York,” (Gr. Laws, vol. 1, 417,) was by acts different from and independent of those which conveyed authority for regulating the streets, &c., in the City of New York. (Id., 441.) This independent legislation in respect to these two subjects, by distinct and independent statutes, is none the less significant, as the territorial limits of the city and of the county are the same, than it would be if the latter were more extensive than the former.

The Act of April 9, 1813, to reduce several laws relating particularly to the City of Hew York, into one act, continues the distinction, and contains a series of provisions for paving and regulating streets, and opening and laying out streets, &c., (Laws of 1813, vol. 2, pp. 407, 408,) and a distinct series of provisions in regard to the regulation and repair of public roads. (Id., 423.)

If it shall be thought, or ascertained, that any of the acts above cited in relation to the King’s Bridge or Post Road, do not relate to the portion of the road in question, the argument will not be much weakened. In that view they show that all the acts in relation to public roads in the County of Hew York, contain no provisions in respect to the fee of the bed of the road, not common to acts relating to all public roads in every county of the state.

The act of April 10th, 1792, (Gr. Laws, vol. 2, p. 462,) “ for laying out, repairing and improving certain public roads and highways within this State,” divided the State into four districts, and appointed a distinct set of Commissioners for each district. Among the duties enjoined upon the Commissioners for the southern district, was to lay out and improve the post road from King’s Bridge through the County of Westchester; the building and keeping in repair a bridge over Spuyten Duyvel Creek, at or near King’s Bridge, “ and the repairing the post roads on the Island of Hew York, Long Island, and Staten Island.”

If the provisions of the acts providing for ascertaining the compensation to be made to the owner of land taken for a road are considered, no inference can justly be drawn from them, that the owners of the land adjoining the road in question have any less or different estate in the bed of the road itself, than the owners of land adjoining a public highway in any other county of the State.

The act of May 4th, 1784, (Gr. Laws, vol. 1, p. 105,) for . laying out roads, &c., in Ulster, Orange and other counties therein named, provides that where any road is laid out at the request of twelve reputable freeholders, the Avhole value of the lands taken, with such damages as may be sustained, shall be assessed and paid.

By the act of March 21, 1787, (supra,) a Jury is “to assess the damages and recompense due to the owner or owners of such land,” “ according to their several and respective interests and estates of and in such land, or any part thereof, for their respective interests and estates in the same;” and payment of the sum so assessed, or tender and refusal thereof, “ shall be a full authority to the said Commissioners to cause the said land to be converted to and used for the purposes aforesaid.”

The provisions of the one act are, in substance, as effectual as those of the other, to divest absolutely all estate ■ of the owner of the land so taken.

By the former, the full value of the land taken was to be paid, "and by the latter no more could be assessed for the land itself. But in each case, the land was to be taken for and used as a public highway; and when the use of it for such a purpose is absolutely terminated, the right in the one case of the owner of the abutting land, in whom the title of the original owner has been vested, to enter and occupy it as his own, seems to be as perfect as in the other.

And in this connection see The Trustees of the Presbyterian Society in Waterloo v. The Auburn and Rochester Railroad Company, (3 Hill, 567 ;) Williams v. The New York Central Railroad Company, (16 N. Y. R., 97, 101 ; 3 Kent’s Com., 432 ;) Hilliard’s Abridgment of Laws of Real Property, (vol. 2, pp. 72, 73 ;) Holmes v. Bellingham, (7 Com. B. R. N. S., 328.)

We conclude, therefore, that on the evidence given in this case, the presumption of law is, that George Youle owned the fee to the centre of the road, subject only to the easement of the public right of way.

It necessarily results from these views,.that if none of the exceptions taken at the trial are tenable, the plaintiff must have judgment on the verdict.

If the views already stated are correct, the deed of the 20th of December, 1852, from the Mayor, Aldermen and Commonalty of the City of New York to James Barnett, was properly excluded. There is no evidence tending to show title in the grantors executing it, nor was there any offer to give such evidence. Had it been received it would have been wholly irrelevant.

The only other exception noticed in the points of the appellant, or called to our attention on the argument, is to the exclusion of the written appointment of the 9th of December, 1831, with the acceptance thereof. Neither the appointment, nor its recitals of the contents of the tripartite indenture of the 27th of March, 1830, therein mentioned, affirm that the legal title had been conveyed to William Silliman, as trustee. The tripartite indenture was not offered in evidence. The written appointment, therefore, furnished no evidence that the legal title was in a trustee.

No evidence having been offered in connection with the written appointment, the only question is, whether the admission of the rejected evidence could justly affect the result.

A party excepting must, at his peril, place enough in his bill to show that the Court erred to his prejudice. The legal presumption is in favor of the rectitude of the proceeding, and all decisions made will be presumed correct, until the contrary appears.

When the error relied on consists in the exclusion of evidence offered, the bill must show affirmatively that it was relevant when offered and excluded. It is not enough that in the nature of things something else might have been proved that would render it relevant and material. It must be distinctly made to appear how it was relevant, and the Court will not interfere on account of its rejection, unless, in connection with the evidence previoxxsly given, or that and evidence offered to be given, it can be seen to be material. (2 Cow., Hill & Edwards’ Notes, vol. 2, pp. 1003, 1004.)

Tested by these rules, there was no error in rejecting this evidence.

If the objection could have been taken with effect, in any mode, that the suit should have been by the husband, or by the wife alone, and not by the two jointly ; it could not be first taken at the trial. (Ingraham and wife v. Baldwin, 12 Barb., 9.)

And even if it had been shown that the legal title had been conveyed to Silliman, as trustee, in order to preserve the property as the separate estate of the wife, and for her sole and separate use, it is not clear that she would not have a legal estate in the lands, against all persons except the trustee and those claiming under them. (1 R. S., p. 729, §§ 61, 62 ; Briggs v. Davis, 20 N. Y. R., 28 ; Session Laws of 1849, p. 528, ch. 375, § 2.)

And whether the action was brought in the name of the trustee, or the cestui qui trust, is a matter not.affecting the substantial rights óf the defendant. (Code, § 176 [151].)

The facts stated in the complaint were proved as alleged, and the answer contains no new matter alleged as a defense, except that the premises in question were part of a public highway, the title to which was vested in the municipal corporation that had conveyed them to the defendant; and the inconsistent allegations that George Youle died seised of them, and that on a partition and sale of his estate, the defendant succeeded to his title. And we think the appointment was properly excluded, because no objection was taken in the answer based on the plaintiff’s incapacity to sxxe, (Code, § 134, subs. 2 and 4, and §§ 147, 148 ;) and because the evidence offered was immaterial, and no evidence was offered with it that would make it material.

. The plaintiffs must have judgment on the verdict. .

Ordered accordingly.

       Since the decision in Van Amringe v. Barnett was made, the case of Bissell v. N. Y. Central R. R. Co. (23 N. Y. R., 61,) has been reported, in which the Court of Appeals have confirmed the doctrine laid down by the Superior Court, in this case, and in the case of Herring v. Fisher, (1 Sandf., 344.)