author: By the Court, Robertson, Ch. J. Barbour, J.

text:
    George W. Coster, respondent, vs. John R. Peters, appellant.
    1. The possession of land, over which a vault is built under a street, is not a mere easement, but an interest in the land, and cannot be rendered such an appurtenance of an adjoining piece of land as to pass by a deed of the latter,
    2. The occupation of such land under the street, by virtue of a permit from the street commissioner of the city of New York, allowing the occupant to build such vault granted under an ordinance of the corporation of the city empowering such commissioner to give such permits, makes the occupant a mere tenant at will of the corporation of the city of New York, if the land belonged to them, or a trespasser, if it did not.
    3. The plaintiff could not claim the ownership of such piece of land, where the deed under which he claimed bounded the land conveyed to him by the easterly “ litre ” of such street.
    4. Where the vault upon such a piece of ground is separated from the adjoining premises by a sunken area, although the entrance to such vault is opposite to a door in a building upon such premises below the level of the street, by which a passage is made to the vault across such area, it is not even an appendage to such building, so as to be included in a covenant by the defendant to quit and Surrrender “ additions and improvements ” to such building to the plaintiff.
    6. If the defendant obtained the permit in question, in consequence of being, and as the possessor of the adjoining land, the plaintiff, as his lessor of the latter, is not entitled to the benefit thereof, without indemnifying the defendant for . the expense of building such vault, and the fee paid by him for the permit. Nor unless he makes a proper case for such relief.
    6. Rand over which public streets are laid-out and used, in the city of New York, belongs to the city corporation, in fee, it seems. Per Barboto, J.
    7. The mere building and use of a vault under a street, by the lessee of the adjoining premises, as an appurtenance of a house erected by him, gives the owner of such premises no right to the possession of the vault, upon the termination of the lease; particularly where such vault is not a necessary or customary addition to buildings such as that erected by the lessee. Per Barboto, J.
    8. A paper, styled a “permit,” given to an individual by the street commissioner in the city of New York, not witnessed, acknowledged or sealed, and not even purporting to have been executed by, or by authority of,-the corporation of the city, which purports to be a mere license or permission to the licensee to build a vault in a street, in the rear of certain specified premises, (even though issued to him in consequence of his being in possession of a building then being erected by him on such premises,) has none of the elements of a grant of an easement. Per Barboto, J.

      9. Such a license or permit confers no right whatever upon the owner of the adjoining premises which entitles him to recover the possession of the vault so built by the licensee, in an action of ejectment.
    10. If such vault is of any value, when used in connection with the house, the owner of the premises should not be permitted to oust the lessee from his possession, without payment of that value.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard January 16, 1867;
    decided October 7, 1867.
    This is an action of ejectment to recover the possession of one half of a certain vault, under Mercer street, in front of the plaintiff’s land, with damages for detention.
    In June, 1848, the executors of J. GL Coster demised to the defendant, for a term of about ten years, the premises "known as 539 and 541 Broadway, extending through to Mercer street. By the terms of the lease, the defendant-was to erect upon the Mercer street end of the premises, a brick building, fifty feet wide, and of a certain description, at his own cost, and, upon the expiration of his term, to surrender the premises, with all the additions and improvements thereto, to the lessors; and the latter therein covenanted to pay to the defendant upon such surrender, the then value of the additional building,-to be determined by arbitrators.
    In erecting the building contemplated by the lease, the defendant left an open, arched passage way in the exterior wall of the cellar on Mercer street, and obtained from the street commissioner a written paper, styled a “Permit,” declaring that “ permission has been given to John R. Peters, Jr. to build vaults in front of premises on Mercer street, in the rear of numbers 539 and 541 Broadway,” and signed by the commissioner, and for which permit the defendant paid $150; and he, thereupon, constructed a vault, wholly under Mercer street, extending along the entire front of the new building, and twenty feet in width.
    The side walls of that vault simply abutted upon, and were not built into the walls of the house. It was independent of the house in its construction, with the exception of the passage way, and except, also, that the floors were upon the same level, and continuous. After the house and vault were huilt, the latter was used by the defendant for making gas for the house.
    Before the expiration of the lease, a partition of the demised premises was made between the owners, when lot number 539, extending from the west line of Broadway to the eastern line of Mercer street, was conveyed to the plaintiff in fee.
    At the end of the demised term, arbitrators were appointed, who estimated and appraised the value of the building at $18,832; but they were directed by the plaintiff not to include the vault in their valuation, and did not. The. defendant surrendered the premises described in the lease, but refused to deliver possession of half of the vault. The vault cost about $1000, and the use of half of it was worth about $75 per year.
    The defendant -set forth the facts in his answer, and prayed that the complaint be dismissed, or, in the alternative, that he have judgment for the value of half the vault.
    At the close of the proofs, the court directed certain questions to be separately submitted in writing, to the jury, who answered thereto, substantially, first, that the vault was not a customary addition to buildings like that erected by the defendant, or necessary to its reasonable and proper enjoyment; second, that the use of half the vault, up to the time of the trial, was worth $200; and, third, that the value of half the vault, not including the value of the land, nor the right or license to build such vault, was nothing. The learned justice then directed a verdict for the possession, with $200 damages for the detention, and from the judgment thereupon entered, this appeal was taken.

      JEverett P. Wheeler, for the appellant.
    I. The theory of the complaint is that the Vault is an easement, appurtenant to the demised premises. The judgment, in this respect, follows the complaint. It is not for the recovery of'land, but of “so much of the vault constructed under that part of Mercer street and the sidewalk thereof, as is in front of the rear part of the premises .descrided as follows.” This judgment cannot be sustained.
    1. Ejectment will not lie for interference with an easement. The action should be for damages, not for delivery of possession. (Child v. Chappell, 9 N. Y. Rep. 246.)
    2. There was no evidence that the vault in question could be entered from the premises set off to the plaintiff. There was but one entrance to the vault from the cellar, whether from these premises or from those adjoining, which originally formed part of the same building, is not proven. The vault could be entered from the street. The judge should have submitted to the jury the question, whether the vault.was appurtenant to the building; this he refused; but charged them that it was appurtenant. There was no evidence to justify this instruction.
    3. If the second question submitted to the jury substantially answered this request, then the special verdict disposed of it adversely to the plaintiff*. They found it was not “a construction necessary to the proper and reasonable enjoyment under the lease of the building' erected by the defendant on the plaintiff’s land,” nor “an ordinary and customary addition to buildings in the city of New York, similar to that erected by the defendant.” It cannot be. claimed, after these findings, that the vault was appurtenant.
    ■ 4. The question submitted was not a compliance with the request. “ Necessary to the proper and reasonable enjoyment,” is not a definition of “appurtenant,” It means “pertaining, incident;” and appurtenance, (isomething belonging to another thing as principal, and which passes as incident to it.” (See Webster’s Dictionary.) A garden may be appurtenant to a messuage, although “necessary to its enjoyment.”
    II. The plaintiff showed no title to the land in the street on which the vault was built.

      1. Two hundred feet from Broadway, carried him only to the easterly line of the street; his westerly boundary is “northerly along the easterly line of Mercer street;” this does not include any part of the land in the street. (Bartow v. Draper, 5 Duer, 130. Jackson v. Hathaway, 15 John. 447. Child v. Starr, 4 Hill, 369. Jones v. Cowman, 2 Sandf. 234.)
    2. Even if the conveyance to the plaintiff included the street, it would pass no title to it; the fee of the streets -of New York belongs to the city. (Bartow v. Draper, 5 Duer, 130. People v. Kerr, 37 Barb. 357. 20 How. Pr. 130. S. C. 27 N. Y. Rep. 188. 1 Hoff. Treatise, 368.)

    3. The plaintiff, therefore, must make title to the easement he claims, from the city. The city ordinances prohibit the construction of any vault without a license from the municipal authorities; this license the defendant obtained, and there is no evidence or allegation that the-plaintiff ever received any assignment of this license, or can make title to it in any way. The exceptions were therefore well taken, and the complaint should have been dismissed.
    IH. If the court should be of opinion that the vault in ' •question was appurtenant to the building erected by the defendant, and that the .plaintiff is entitled to recover its possession in this action, then the first instruction, (viz. that if the jury should find that the vault in question was appurtenant to and a necessary part of the building agreed to cover from the plaintiff" the reasonable value thereof,) should be and actually erected, the defendant was entitled to re-have been given, and the defendant has established his counter-claim.
    1. It is “ a cause of action arising out of the contract set forth in the complaint as the foundation of the plaintiff’s claim.” He bases his action on the lease, and the counterclaim grows out of the covenant in the lease to pay the defendant for the building erected by him. It “is connected with the subject of the action”—the vault. (Code, § 150. Blair v. Claxton, 18 N. Y. Rep. 529. Xenia Branch Bank v. Lee, 7 Abb. 372.)
    2. The lease was executed by the Costers individually; the addition of the words “ executors, &c.” is matter of description merely; they sign and seal as individuals. (Townsend v. Hubbard, 4 Hill, 351. Taft v. Brewster, 9 John. 334. Dean v. Roesler, 1 Hilt. 420.)
    3. The plaintiff", by replying to the merits, waived the objection that the other lessor is not a party to the suit; also any objection that might be taken to setting up such a counter-claim in this action. It is a general rule of pleading that a pleader who joins issue on the merits waives all objections of form. (Zabriskie v. Smith, 13 N. Y. Rep. 322, 336.) No objection of the sort appears to have been taken on the trial. The evidence in support of the counterclaim was received without objection.
    4. The award does not deprive the defendant of his right to be paid for the vault. The plaintiff instructed the arbitrator appointed by him not to include the vault in his estimate of the value of the building; all parties acted upon this instruction, as the written award shows; this is equivalent to an agreement so to modify the agreement to refer, as not to submit the question as to the vault; indeed, the appraisers agreed in writing to this. Such an agreement, when executed, is valid. (1 Greenl. Ev. § 302, n. 1. Dearborn v. Cross, 7 Cowen, 48.)
    5. The only possible basis for the instruction given by the plaintiff was that the vault was not part of the building; on this instruction all parties acted. If part of the building, the defendant was clearly entitled to be paid for it under the lease; but the instruction which withdrew this from the arbitrators, deprived him óf this compensation. The plaintiff is estopped now to claim that the vault is part of the building, and under such claim to recover its possession. The 'fifth, sixth and seventh instructions asked for, were therefore improperly refused. (Plumb v. Cattaraugus Co. Mutual, 18 N. Y. 392.)
    IY. The exception to the form of the third question submitted-to the jury was well taken. The value “to the plaintiff ” of the use and occupation of the vault was not the test. That might be less or more. Eor the same reason the third instruction was improperly refused.
    Y. The fourth instruction was improperly refused. The statute is express that the value of permanent improvments made by the defendant may be set off against the plaintiff’s claim for damages. (2 R. S. 311, § 49. 3 id. 598, § 42, 5th ed.)

    YI. The exception to the charge was well taken. The statute is express that “in estimating the plaintiff’s damages the value of the use by the defendant of any improvements made by him shall not be allowed to the plaintiff.” (2 R. S. 311, § 49. 3 id. 598, § 42, 5th ed.)

    YII. The eighth instruction was improperly refused. There is no evidence of the exclusion of the plaintiff from the possession of the vault; the evidence was the other way. The verdict for $200 damages is contradictory^ and cannot be sustained; the jury found that the vault was of no value, but that the use of it for five years was worth $200. It is impossible that both these findings should' be correct, and the verdict must be set aside.

      Joseph B. Choate, for the respondent.
    I. The plaintiff", as owner of the land and building, in front of which the vault was constructed, was entitled to recover the possession of the vault, as appurtenant to his premises. The vault is, by its very nature and mode of construction, appurtenant to the building. It is so agreed in the pleadings, and was fully proved to be so by the evidence on both sides; it being of no value, and of no possible use, except in connection with the building, as it had always been used. As against all parties, except, perhaps, the corporation, the owner of the building is entitled to use and possess it. There is nothing in the objection, that it is not such real estate as is recoverable in an action in the nature of ejectment, for it is tangible property which is capable of being possessed and delivered to the plaintiff.
    1. When the defendant, having entered under the lease applied for and obtained the permit for th e vault, and proceeded to construct it accordingly, his acts and doings were solely as tenant and.occupant of the premises. He had no right or title to build or use the vault as appurtenant to the buildings, except by virtue of the title of his landlords; nor would the law permit him while he held the land as tenant to acquire any adverse title to the vault as constructed. He was acting as the representative and for the benefit of the estate, and the improvement which he added to the premises went with the land to the landlord at the expiration of the term.
    2. His express covenant to quit and surrender the premises, together with all “ additions and improvements ” thereto, embraced the vault as well as the rest of the premises.
    3. Hor is it any thing to the purpose that the license to " construct the vault was applied for and obtained by the tenant in his own name, for both the letter and spirit of the ordinances, and the uniform usage and practice of the department which granted the. licenses, concurred in treating the licenses as granted to the premises, and the vault when built' as belonging to the house in front of which it was constructed.
    H. The damages assessed by the jury for the withholding of the property are much below the most moderate estimate which, could be put upon the use and occupation of the vault for any purpose—being only $200—from the first day of May, 1858, to the ninth of March, 1863.
    HI. The defendant is not entitled to any counter-claim, or set-off for any cause. Upon any evidence in the case he has no claim whatever against the plaintiff. The vault was no part of the building which, by the lease he covenanted to build, and the lessors covenanted to pay for. The description in the lease is fully satisfied and exhausted by the building erected, without the vault. That was an addition entirely outside of the covenants referred to, which the defendant, for his own pleasure and convenience, and at his own cost, saw fit to erect.
    1. Not only do the terms of the lease clearly exclude the vault from the buildings to be paid for, but the facts proved show, and the jury have found, that it was not a usual or customary addition to similar buildings in the city, or necessary in any way to the reasonable use and enjoyment of the building provided for in the lease. The defendant, thinking it an economy in the use to which he intended to put the building, constructed the vault in order to put up therein private gas works with which to illuminate the building; and could suggest no other use to which it could be put but storage.
    2. Like any other fixtures, or permanent improvements attached to the freehold by a tenant, the vault in question reverted to the landlord, without any obligation on his part to pay for the same.
    IV. The section of the Eevised Statutes, upon which the defendant relied for a set-off, and which in the latter part of the charge the learned judge seems to have had in mind, has no application whatever to the case. Part 3, chap. 5, title 1, § 49, simply provides, that upon the trial of a proceeding upon suggestion of a claim for mesne profits after judgment in ejectment, “ the defendant shall have the same right to set off permanent improvements made on the premises to the plaintiff’s claim as is now allowed by law; and in estimating the plaintiff’s damages the value of the use by the defendant of any improvements made by him shall not be allowed to the plaintiff.” The revisers, in their original note to this section, say: “ The first part of the section intended to embrace the case in 4 Cowen, 168. But as he thus would be remunerated only for the principal expended by him, he would still be liable to pay the interest on Ms own principal, that is for the use of his own improvements, if the latter part of the section were not added. The same rule of justice would apply to both; and no ground is perceived on which to justify the rule, that would give to a claimant who thinks proper to lie by and see another reaping the fruits of his industry, a compensation for his own indolence. The same principle above proposed now exists in the case of a widow claiming dower.”
    In Jackson v. Loomis, (4 Cowen, 168,) which was trespass for mesne profits, (a form of action abolished by section 44 of the above cited chapter,) the set-off intended was only for permanent improvements, made by the defendant after the plaintiff became entitled to the .possession of the premises and while the former held adversely. Nobody thought of allowing a defendant for the value of improvements, already made when he entered into adverse possession. The defendant’s argument reduced itself to this: “Although I had no claim for compensation when my term expired, and it was my duty to quit, yet by holding on adversely until the plaintiff, by lapse of time consumed in my defense of his suit, had acquired a claim of mesne profits, I can nullify that claim by a set-off.”
    V. None of the many exceptions on the part of the defendant will be found to be well taken. The only errors committed by the learned judge were in allowing a set-off in any contingency whatever, and in excluding evidence offered by the plaintiff—but as those were an error in the defendant’s favor, it is now immaterial.
    Of the several requests by the defendant to charge, those which were not immaterial, as covering ground really charged by the court, will be found to involve propositions at variance with the law, as we have contended for it, or with the facts which were not in dispute.
    VI. As to the further special question left to the jury, it was wholly immaterial, as well upon the pleadings as upon the view which the jury took of the case by their general verdict, and their special findings on the first and second questions. Under the charge of the learned judge, there was no occasion to inquire into the value of the vault itself, if they should find,, as they did find, that the vault was neither customary nor necessary. The meaning of the jury in their answer to this fourth question is perfectly obvious, having in view the charge, inasmuch as having answered the first and second questions in the negative, they found no value in the vault itself, for which the -defendant was to have a set-off or recovery in the action. Strictly, the answer is true, and supported by the evidence. But in any view of the case, upon the issues and evidence, both the question and answer are immaterial, and furnish no ground for disturbing the judgment below.
   By the Court, Robertson, Ch. J.

The space under the highway known as Mercer street, wherein the vault in question was built, was in the possession of the defendant as part of the soil or land, as much as if it had been a room in a building. It was not a mere easement. The ownership of soil extends downwards and upwards, from the surface as much as it does over the mere superficial area, and may be subdivided horizontally as well as perpendicularly. Being, therefore, land itself, carrying with it all the fruits of dominion, and not a mere right to the use temporarily or permanently of it without occupation, for the benefit of another piece of land, it could not be such an appurtenance as to pass by the mere conveyance of the latter.

The defendants’ title to the occupation as claimed by him, rested on permission granted by a street commissioner of the city of New York, to Mm personally to build such vault in front of premises on Mercer street, subject to the provisions of certain ordinances of the common council therein referred to, and set out in the case. By the first section of those ordinances, the commissioner is empowered to give permission to build vaults in the streets. This was entirely a personal license, and probably constituted the defendant a mere tenant at will of the city corporation, if they owned the fee of the street, or a trespasser, if it belonged to any one else. There is no evidence that it belonged to the plaintiff. Indeed, the conveyance to him, under which he claims, excludes the street by bounding the land conveyed by its easterly “line.”

Nor was the vault in any way annexed to the plaintiff’s buildings. They were, in fact, separated by that part of the street, which constitutes what is called “ an area.” It is' true, the entrance into the vault was opposite a door in the building, so as to make a direct passage to it, but it might as well have been a passage to a vault opposite adjoining buildings. There is nothing to make such vault an appendage to the house in front of which it was^ except the fact of so fronting it. The jury even found that such vault was neither “necessary to the proper and reasonable enjoyment under the lease of the building erected by the defendant” nor “ an ordinary and customary addition to buildings in the city of New York, similar to” such buildings. So that even if the defendant’s covenant to quit arid surrender “ all additions and improvements ” to such premises, could be extended beyond the building which he covenanted to erect, or other structures erected on the' demised premises, it would not include such vault so as to enable the plaintiff* to enforce such covenant in this action. The arbitrators were, for the same reason, right in excluding such vault from the buildings valued by them under the covenant in the lease.

I do not think the practice of the corporation in confining their permits to build vaults to the owner or occupant of, or other person representing the premises back of it, as proposed to be proved on the trial, could make it in law an appurtenance to the building, whose tenants used it. If the defendant obtained an advantage by virtue of his position as lessee, which would benefit the enjoyment of the land, and if retained by Mm after the lease ended, might-prejudice such use, he may possibly be bound in equity to transfer it. In such case the plaintiff claiming equity would be bound to do by contributing a proportionate part to the expense of obtaining such benefit, including the fee for the license and the cost of building the vault, because he cannot claim it as being affixed to the soil of his land or an appurtenance thereof. No offer to do so is made in this action, and it is not framed for such relief.

For these reasons the judgment and order denying a new trial should be reversed, with costs to abide the event.

Garvin, J. concurred.

Barbour, J.

To entitle the plaintiff to succeed in this action, it was, of course, necessary,.that he should establish his ownership or right of possession, upon the trial. The question whether the defendant has but an imperfect title or right, or even none at all, is, therefore,quite unimportant so far as concerns this appeal.

The evidence does not show that the plaintiff is the owner of the land upon which the vault is constructed. It, probably, belongs to the city of New York, in fee. (See ex parte Mayor, &c. Matter of Mercer street, 4 Cowen, 542. Matter of 17th street, 1 Wend. 262. Bartow v. Draper, 5 Duer, 130. People v. Kerr, 27 N. Y. Rep. 188. 1 Hoffman’s Tr. 368.) It is sufficient to say here, however, that although' the complaint alleges that the lessors,'at the time of the execution of the lease, were seised of the two lots “ bounded westerly by Mercer street,” thus averring by implication, perhaps, that the premises extended to the center of that street, yet the deed in partition to the plaintiff himself/ conveying to him the lot No. 539, makes the westerly line of Mercer street the western boundary of the lot. The ownership of the plaintiff, therefore, is limited by the line of Mercer street, and cannot be extended to the filwn ad medium via, by implication or otherwise. (Jackson v. Hathaway, 15 John. 447. Jones v. Cowman, 2 Sandf. 234. Bartow v. Draper, 5 Duer, 130. Child v. Starr, 4 Hill, 369. 3 Kent’s Com. 434.) Even if we may assume, therefore, that the seisin of the executors covered the land on which the vault was built, and that the defendant was bound by his covenant in the lease to return it to them at the end of his term, it is quite clear that the plaintiff cannot sustain this action as the owner, in severalty, of such land.

But the plaintiff claims, upon this argument, that irrespective of the question as to the ownership of the land, he is entitled to recover the possession of one half of the vault for the reason that it was constructed and used by the defendant, during his tenancy, as an appurtenance of the building erected by him under the lease, and because, also, the license granted to the defendant by the street commissioner was, in effect, an easement running with, and appertaining to, the adjoining premises belonging to the plaintiff, and for his benefit as such owner.

The mere fact that the vault was built and used as an appurtenance of the house erected by the defendant, gives the plaintiff no right to the possession of such vault upon the termination of the lease. A tenant under a lease, who is also the owner or possessor under a license from a third party, of a building adjoining the premises leased by him, and which building he connects" and uses during his term with the premises so leased, as an addition to the latter, does not thereby subject himself to be divested of his ownership or possession at the expiration of his lease. Rights of possession and ownership are not thus acquired or lost. Such a case was never heard of; although formerly, as now, men have taken leases of adjacent buildings from different landlords, and for convenience or business purposes, have connected them by doorways, and used the one as an appurtenance of the other, or have hired a house of one man, and a garden, as appurtenant to it, from another.

The written paper, styled a “permit,” which was given to the defendant by the street commissioner has none of the elements necessary-to constitute a grant of an easement. It has no witness, acknowledgment or seal, and does not even purport to have been executed by, or by authority of, the corporation of the city. It is amere license, or, as it calls itself, “a permission,” given to the defendant personally, to build a vault in Mercer street, in the rear of Nos. 539 and 541 Broadway. Possibly, and indeed probably, it was issued to him, because he was in possession of the building then being erected on lots 539 and 541, except for such possession, he could not have obtained the license. But that does not concern the plaintiff.' If the city was the owner, in fee, of the land covered by the street, there can be no good reason why it might not use or permit others to use, any portion of its land beneath the surface of the street, to the same extent and in like manner as an individual may use or dispose of his own property. The corporation, certainly, was under no obligation to give its license at all; but had a perfect right to grant such permission to any person, whether the= owner of a contiguous building or not, and for any purpose not inconsistent with its duty to the public, or with the rights of the holders of adjacent lands. The license or “permit” of the street commissioner, therefore; conferred no right whatever upon the plaintiff which entitles him, in this action, to recover the possession of the premises claimed by him.

Nor, if we are at liberty here to consider the claim of the plaintiff, as resting upon any principles of equity, does he occupy a' better position. If the vault in question prevents his obtaining water or gas from the street mains, or if its continuance there, in the possession of the defendant, obstructs the use of his own premises, he may, in a proper action, have the nuisance abated. But no such fact appears in this case, and we may, therefore assume that he has sustained no injury. The real and ultimate question in the case is, whether the plaintiff ought to recover from the defendant the possession of the premises without paying any consideration therefor. As'the jury have found that the vault was not a necessary or customary addition to buildings of the character erected by him, it may be assumed that he was at liberty to refuse to pay for and take it, or at his option, under the offer of the defendant to have it included in the arbitration; where its real value to him, whether much or little, as an appurtenance to the building, could have been estimated and appraised.’ That it was of some value when used in connection with the house is apparent from the finding of the jury in that regard; and I see no equitable reason why the plaintiff should be permitted to oust the defendant of his possession without payment of that value.

The judgment should be reversed, with costs, and a new trial directed.


source: Caselaw Access Project

author: By the Court, Garvin, J. McCunn, J.

license: Public Domain

text:
    Rufus K. Delafield et al. plaintiffs and respondents, vs. The Union Ferry Company, of Brooklyn, defendants and appellants.
    1. In an action for damages from the collision of a vessel of the defendants with that of the plaintiffs, where the question of the negligence of the former depended upon the fact whether it was so light at the time that the crew of the former could see the latter, and there was conflicting evidence upon that point, such question of fact ought to be submitted to the jury. McCunn, J. dissenting.
    2. In such case, if it were light enough at the time of the collision for the crew of the vessel of the defendants to see the vessel of the plaintiffs, although it was after sunset, it was not such negligence on the part of the latter not to have signal lights hoisted, as to deprive them of their right of action. McCunn, J. dissented.
    3. The verdict of a jury is controlling upon a question of negligence, where there is conflicting evidence.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard October 14, 1867;
    decided January, 1868.

      This was an action for damages for injuries to a canal boat belonging to the plaintiffs, (The Ogden,) by a steam ferry boat belonging to the defendants, (The Abbie,) plying between New York and Brooklyn in January, 1857. The collision occurred at the former place. The river was at that time full of ice. The plaintiffs’ vessel was deeply laden, and had sacks of salt on deck. Her captain attempted to take her 'across the slip, into which the vessel of the defendants always ran, and where the ferry was, in order to moor his vessel under the lee of some wharf to protect her from the floating ice. It was after the sunset, which was one minute before five o’clock on that day. The vessel of the defendants was fully lighted; it had a pilot at the bow, and a look out along side of him. On the trial, witnesses on behalf of the plaintiffs testified that it was so light at the time that the vessel of the defendants could be seen at Brooklyn from the New York side without regard to her lights; that on her approach her pilot could be seen from the deck of the canal boat, and one witness stated that he could see the passengers in the ferry boat as plainly as he saw “the faces of the jury.” The captain of the canal boat testified that immediately after the collision took place he went to look for men to haul off his deck load, which was twenty minutes after six. One witness examined for the plaintiffs, (Gillen,') the pilot of the ferry boat, (Shepherd,) the look out, (Cole,) a bridge man, (Brown,) and a carpenter, (Goodrich,) testified that it was at' night. The pilot testified that he thought the canal boat to be a mass of ice, and as soon as he discovered his mistake he used every means to avoid a collision, he immediately stopped his engine and reversed the wheels, to back the ferry boat. Some of the witnesses also stated the time of the evening by the clock. No light was shown on board of the canal boat. Her captain saw the ferry boat from the time she left the Brooklyn side, but gave no warning, and did not do any thing to avoid a collision.
    Upon the trial, the counsel for the defendants moved to dismiss the complaint upon two grounds: First, that there was no evidence of negligence or carelessness on the part of the defendants; and second, that the evidence showed negligence on the part of the plaintiffs, causing or contributing to the injury.
    The court denied the motion, to which the defendants’ counsel excepted. The jury found a verdict for the plaintiffs of $3371.80. A motion was subsequently made for a new trial upon a case and denied. Judgment was entered upon such verdict, from which, and from the order denying a new trial an appeal was taken.

      M. S. Bidwell, for appellants.

      Cr. IT. Forster, for respondents.
   By the Court, Garvin, J.

In the afternoon of the 17th of January, 1857, a collision took place between the plaintiffs’ canal boat “ Ogden,” and the defendants’ steam ferry boat “Abbie,” at pier No. 36, East river, on the New York side. This action is brought to recover damages for the injury done to the “Ogden” and her cargo. Upon the trial, the plaintiffs had a verdict for a little over $3000. The only material question before us arose upon the denial by the court of the motion to dismiss the complaint on two grounds: (1.) That there was no evidence of negligence on the part of the defendants; and (2.) That the evidence showed negligence on the part of the plaintiffs, causing or contributing to the injury. As rules of law, both these propositions will be conceded; but whether the facts before the court were of such a character as to show negligence on the part of the plaintiffs, and a want of evidence showing negligence on the part of the defendants, are the questions before us. If it had been certain that the collision took place between the two boats in open day, without any intervening object to prevent a full and clear view of the canal boat by those on the steamboat, then the defendants would, beyond all doubt, have been guilty of negligence, and such negligence as to have entitled the plaintiffs to a recovery for such damages as they proved, provided they were free from negligence themselves. But this question, as to whether it was dark or light, was not so clearly made out, upon the proofs, as to warrant the court in pronouncing upon the case in favor of the defendants. The facts did not show a case of contributing negligence against the plaintiffs, unless it.was so dark that the defendants’ employees could not see the canal boat; therefore it was entirely proper that the judge, at the trial, should submit that with other questions of fact to the jury. Upon their findings the cause turned. We must assume' the court charged, if it was so light that the defendants’ servants could see the canal boat lying across the entrance to the' slip in time to have stopped the steamer before she struck the plaintiffs’ boat, then the defendants were guilty of negligence, and the plaintiffs were entitled to recover. The jury must have found it was light enough to see the canal boat in time to have stopped her. Certainly, a collision under such circumstances would show a want of ordinary care and caution'on the part of the defendants, and it is difficult to see, upon such a finding, why the plaintiffs ought not to recover. The plaintiffs were not negligent in not having a light on their .boat, because under this state of facts it was light enough to see, and a light on the canal boat was unnecessary.

In this view of the case the verdict should be sustained, provided there is evidence in the case to support it. In cases of. this description, where there is conflicting evidence, the question of negligence as to both parties is one of fact for the jury. (Ernst v. The Hudson River Railroad Co., 35 N. Y. Rep. 9.) It was in proof on the part of the plaintiffs, that it was so light that the ferry boat could be seen across the river, on the Brooklyn side, before she left her dock to come over, without reference to her lights; that the canal boat was being moored to get under lee hom the ice, which was coming down so strong that it would be likely to run the canal boat down; that from the canal boat the pilot could be seen by the light of day; that it was so light the passengers could be counted and seen as plainly, one of the witnesses said, as he could see the faces of the jury. It is true there was conflicting evidence given'on the part of the defendants; but the questions of fact were submitted to the jury, and their verdict is controlling with us. We do not think the exceptions taken to the ruling made by the court, in denying the motion to dismiss the complaint, or in excluding evidence, are either of them well taken.

The judgment and order should be affirmed, with costs.

Robertson, Ch. J. concurred. '

McCunn, J.

I regret I am compelled to dissent in this case. The action was brought to recover damages for injuries sustained by the plaintiffs, from a collision between their canal boat (Ogden) and the defendants’ steam ferry boat (Abbie) on the 17th of January, 1857. The complaint alleges that the plaintiffs were not guilty of negligence, and that they in no way contributed to the collision; that said collision was caused wholly by the negligence of the defendants’ ferry boat. The rule is well settled, that before the plaintiffs can recover, these allgations must be clearly established on the trial below. The answer denies the allegations of the complaint, and insists that the accident was caused by the carelessness of the plaintiffs; so that, the two important questions that present themselves for our consideration, are: Was there negligence on the'part of the plaintiffs ? If not, was there such a degree of negligence on the part of the defendants, as to warrant the court in saying that they contributed to the accident? I shall endeavor to show, from the testimony, gross negligence on the part of the plaintiffs, and the entire want of negligence on the part 'Of the defendants ; and that consequently, on both of these grounds, the learned judge below was not warranted in allowing either of these questions to go to the jury, but should have granted a nonsuit.

First. As to the plaintiffs’ negligence. The slip which' Kain (the plaintiffs’ captain) attempted to cross, was a place which the defendants’ steam ferry boats were constantly entering. and leaving; this was well known to him, because he had been lying on the south side of the ferry pier for some time previous, and knew the regulations of the boats as to their time of running. It is also established, that his attempt to haul the canal boat across the ferry slip, and across the track of the steam ferry boats, was in the night, after sunset, and that in so doing he had no signal lights on his boats. Plis is the testimony of the plaintiffs’ witnesses. The witnesses testify that the night was a dark one; it must be presumed, therefore, that the captain of the canal boat knew the peril and imprudence of thus using his boat in the darkness, for, when he commenced hauling, it is in evidence that he told the men to hurry, for fear the ferry ho,at would come on him;

The sun set on that day at one minute before five o’clock; a time when darkness, almost immediately follows. Kain (the captain) says it WPS twenty minutes past six when he. ran to look for men to take off the deck load, which was instantly after the boat struck; it is, therefore, certain that he moved his boat after sunset and after dark. Moreover, it is ip evidence, on the part of the plaintiffs, that it is .unusual for vessels to haul across slips after dark. Yet, in the face of all this knowledge on the part of the plaintiffs’ captain, he not only took the unusual course of hauling this loaded barge across the slip after dark, but did so without displaying any light of any kind to the approaching ferry boat; although the navigation laws require all shipping moving in the harbor or lying in the stream to hoist at sundown, and keep hoisted until sunrise, signal lights.

Under these circumstances, the plaintiffs, in hauling their boat across the slip without displaying the usual signals, were guilty of gross carelessness and bad management; but the negligence of the canal boat captain did not end here, for he himself testifies that he did not make any signal whatever to the ferry boat, although he saw her approaching from the time she left the Brooklyn shore, which was the time he commenced to haul across the slip; nor did he, when he saw the ferry boat come down upon the canal boat, do any thing to prevent a collision. He had been loading his boat for a day or so alongside of this slip ; he saw the frequency of the ferry boat’s trips; it was his bounden duty therefore to notify the pilot of the steam ferry boat, of his intention to cross the slip, previous to doing so.

On such a state of facts—facts shown by the plaintiffs themselves, it is impossible to say that the conduct of the plaintiffs was free from fault or negligence contributing to the accident; on the contrary, it is quite clear that it was through their carelessness, and theirs alone, that the injury happened. The court, under these circumstances, did not require the aid of a jury to ascertain or determine such negligence, it being patent without their aid. On this' point alone the case should have been withdrawn from the jury.

Second. As to the carelessness .of the defendants: The ferry boat was running at fixed and certain intervals, from a certain place to a .certain other place; it is admitted that she was in the strict line of her duty; and it is in evidence by the defendants, and not contradicted by the plaintiffs, that every precaution was taken on the part of the crew and pilot of the ferry boat to guard against accident. She was duly and abundantly lighted; she was, as the counsel for the defense forcibly expressed it, “ a blaze of light,” so that her approach could not be unawares on any vessel; and she had in addition to all this a separate lookout at the front of the ferry boat to aid the pilot, both of them watching to take her over with safety to herself and passengers, and to other vessels. Not one word of all this testimony is contradicted by either the plaintiffs’ or defendants’ witnesses. It is also in evidence on the part of the plaintiffs, that the canal boat was down in the water so low that she presented little surface; and that her deck load, being white sacks of'salt, in the darkness could not be distinguished from the surrounding ice, so that as the pilot testi- - fies that when he first saw her- he supposed her to be a mass of ice. When he discovered his mistake, no promptness,' exertion, or precaution were omitted by him or the crew of his boat, from the instant the canal boat was discerned in the darkness; he immediately stopped his engine, reversed' the wheels, and backed the ferry boat. Under these circumstances, I am unable to discover a single act of carelessness on the part of the defendants.

One question touched upon is, whether the occurrence was after dark or not. That it' was after sunset is not denied; and that all the night lights in the harbor, with the exception of this canal boat’s light, were displayed, was established by the plaintiffs themselves. If no other fact than this was shown, their omission to display a light was gross carelessness on their part. The plaintiffs’ own witness, Gillen, testifies that it was in the night; this is also shown by the pilot, (Shepherd,) the lookout, (Cole,) the bridgeman, (Brown,) and the carpenter, (Goodrich.) It is absurd to suppose that all these witnesses, including the pilot, and the lookout, within a few yards of the slip, which, they were aiming to reach, carefully looking ahead, would not have seen the canal boat. had it been light enough to see her. Goodrich testifies that he was' on the bow of the boat, and could not see her until the stopping and backing of the ferry boat. In addition to this testimony we have, as I have said before, that of the plaintiffs’ witness, Gillen, to the effect, that “it was in the night.” Some of the witnesses on the part of the plaintiffs guess, after the lapse of ten years, as to the time of the clock. This is only .guesswork, and is entirely immaterial. Whether it was day or night, is the question, and this is a fact they might well remember; is the most important fact; the hour by the clock is a matter of very little consequence, and is entitled to little consideration. Nothing is less prohable than that any of the witnesses noticed the hour or ■minute of the occurrence, by the clock; conjectures on such a point," at the end of ten years, are entitled to little credit. The plaintiffs, by their gross carelessness, contributed largely to the collision, and I have satisfied my own mind that no carlessness was shown on the part of the defendants.

Congress passed an act, approved April 29, 1864, declaring that on and after September, 1864, certain rules and regulations concerning the exhibiting of lights to prevent collisions in our waters; among other regulations therein set forth, it declared that all lights-shall be displayed at sunset and be kept up to sunrise. This act was simply the reaffirmance of a long series of adjudications made by the courts of this and other countries, fixing the time for displaying lights at sundown. The laws of this state, (Laws of 1826, p. 284, § 5,) regulating the displaying of lights declares, that at night, signals shall be hoisted; and the courts have held under this law, that night began at sunset and continued to sunrise. (Durant v. Rea, 18 How. U. S. 225. Ure v. Hoffman, 19 id. 56. Culberton v. Shaw, 18 id. 586.) None of the plaintiffs’ witnesses say the collision took place before sunset; all say it was after sunset; at least half an hour after; some of them say it was dark. All the witnesses for the defense say, most positively, it was some considerable time after dark; from half past seven to eight o’clock. Can any one doubt that if the canal boat had displayed a light, the steamboat would have discovered her position, and the accident would have been prevented? Where a light may aid in preventing a collision, the party neglecting to exhibit the light should be held responsible for the fault. This was the doctrine held by Judge Greer in the case of the Osprey, (2 Wallace, 274.)

•A party cannot- recover, unless it appear that he was entirely free from any degree of negligence which contributed to the injury; and the greatest negligence on the part of the defendant will not cure the defect of the least negligence contributing to the injury on the plaintiffs’ part. (Wilds v. Hudson River R. R. Co., 23 How. 492. Haring v. New York and Erie R. R. Co., 13 Barb. 9. Munger v. Tonawanda R. R. Co., 4 Comst. Kelsey v. Barney, 2 Kern. 425. Griffin v. The Mayor, &c. 5 Seld. 456.) In the case of Johnson v. The Hudson River Railroad Company, (20 N. Y. Rep. 65,) the learned judge delivering the opinion of the court, says: “ As to the party injured, the rule is that he must have conducted -himself with ordinary care and prudence, but he must also have regard to the particular circumstances of the case; and one who has a right to go across or upon a railroad track, must exercise quite another sort of vigilance than a man who travels on a common road.” The same rule of law will apply with more strictness to the- one at bar. A person navigating a river known to be much frequented by other craft, should be bound to keep a strict lookout in order to avoid injury to others, which he would not be bound to do while navigating unfrequented waters. The learned judge below should have granted a nonsuit, because there was no disputed fact to go to the jury. For these reasons, I am decidedly for reversing the judgment and ordering a new trial.


author: Robertson, Ch. J. Barbour, J. (dissenting.)

text:
    Charles Dexheimer, adm’r, &c. plaintiff and respondent, vs. Conrad Gautier, defendant and appellant.
    1, In an action by an administrator to recover money, as belonging to the estate of his intestate, which had been the bounty paid to him upon enlisting in the army of the United States,- as a soldier in the recent war, "in which he was killed, where the defense set up by the answer was that such intestate gave the defendant such money, to be retained as a gift in case of the death of the donor; Held that an offer on behalf of the defendant to prove that the intestate gave him such money at the time he received it as a donatio mortis cama, and never revoked such gift, was properly rejected as not admissible under the pleadings.
    2. A gift, in case of death at any time is either absolute, since the contingency is certain on which it is made, or is void. The offer of evidence did not tend to establish such a gift.
    (Before Robertson, Oh. J., and Barbour and Garvin, JJ.)
    Heard January 15, 1867;
    decided October 21, 1867.
    Appeal from a judgment entered upon a verdict rendered by a jury, in favor of the plaintiff, by direction of the court. The action was brought by the plaintiff, as administrator of, &c. of Jacob Dexheimer, deceased.
    The complaint alleged: 1. That before and until about the month of August, 1864, one Jacob Dexheimer was lawfully possessed of the sum of five hundred and seventy-five dollars in bills of the United States, and of a lot of clothing of the value of about $50, all the property of the said Jacob Dexheimer, and amounting altogether in value to the sum of six hundred and twenty-five dollars.
    2. That in about the month of August, 1864, the said sum and property came into the possession of the defendant.
    3. That thereafter and on the 22d day of March, 1865, the said Jacob Dexheimer was accidentally killed, and died intestate, but, at the time of his death was entitled to the immediate possession of said sum of money and property as his own property; and that, on the fifth day of April, 1865, letters of administration upon the estate of said Jacob Dexheimer, deceased, were duly issued and granted to the plaintiff, by the surrogate of the city and county of New York, appointing the plaintiff administrator of all the goods, chattels and credits which were of said deceased, and that the plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of his said office.
    4. That on the 8th day o'f April, 1865, the plaintiff, as such administrator, demanded from the defendant, the said sum of mone^ and property belonging to him as such administrator, but that the defendant would not deliver the same to him, but then, and ever since, 'wrongfully detained the same, and converted the same to his own use, to the plaintiff’s damage of six hundred and twenty-five dollars. Wherefore the plaintiff demanded judgment against the defendant for said sum of six hundred and twenty-five dollars, with interest from the 8th day of April, 1865, besides the costs and disbursements of this action.
    The defendant, in his answer, alleged that in the month of August, 1864, the said Jacob Dexheimer, now deceased, was the owner and lawfully possessed of the sum of five hundred and seventy-five dollars in cash, eighty-three dollars • whereof he paid to the said defendant for a balance due and owing from him to the said defendant for board and lodging, and of the balance of four hundred and ninety-two dollars the said Jacob Dexheimer, at the same time made an actual free, voluntary and valid gift of the defendant, and delivered the same to him, with directions to keep the same as a gift in case of the decease to the decedent, and that the said Jacob Dexheimer, afterwards departed this life without having in any manner revoked the gift of said moneys made to the said defendant, as aforesaid, whereby the de-. fendant became the absolute owner of said moneys in his own right, and entitled to the sole possession and use of the same. The defendant also denied each and every allegation of the complaint, except as before admitted, and except also the allegation of demand made upon him of the sum of five hundred and seventy-five dollars ; and demanded judgment against the plaintiff, that the complaint be dismissed, with costs.'
    Qn the trial, the counsel for the plaintiff, opened the case to the jury, allowed the defendant’s claim of eighty-three dollars for board and lodging, waived the claim of fifty dollars for clothing, and put in evidence letters of administration to the plaintiff upon the estate of Jacob Dexheimer, deceased, which were admitted by the defendant, as well as the fact that the plaintiff acted as administrator, and proved that the interest on $492 amounted at this date to $57.40, (making the whole amount of plaintiff’s claim $549.40.) The plaintiff’s counsel proposed to rest, subject to the direction of the court, as to whether he should now produce the evidence in the possession of the plaintiff, negativing the facts set up by the defendant in his answer, in relation to the gift therein mentioned, or whether he should reserve such evidence in rebuttal of the defendant’s case. The court called upon the defendant’s counsel to state the law and the evidence, upon which he relied, to maintain the defense set up in the answer in relation to the gift therein described. The defendant’s counsel proposed to prove that the gift referred to in the answer was a donatio mortis causa by the deceased to the defendant about the time the deceased went to the war, and that the deceased was killed in the war without having revoked the gift. The court, after perusing the answer and hearing argument of counsel on both sides, (upon which it was admitted that the money referred to in the pleadings was delivered by Jacob Dexheimer, deceased, to the defendant, at or about the time of Jacob Dexheimer’s enlistment into the army of the United States; and constituted a portion of his bounty money, received by him at the time of such enlistment,) refused to admit the evidence thus offered, and ruled further; that assuming all the facts stated in the answer, in relation to the gift to be true, it constituted no defense to the action; to which refusal, to receive evidence, and ruling, the defendant’s counsel duly excepted. Whereupon the court directed the jury to find a verdict for the plaintiff, for the amount proved; to which direction the defendant’s counsel duly excepted. The jury, pursuant to such direction, found a verdict for the plaintiff for $549.40.
    The defendant’s counsel moved the court, on the judge’s minutes, for a new trial; which motion was denied.

      ■ E. E. Hall, for the appellant.
    I. Ho consideration is stated in the answer, because it is not necessary to support a gift. (2 Black. Com. 440. 2 Kent’s Com. 437, 8. Harris v. Clark, 3 N. Y. Rep. 93.)
    II. It is obvious from the answer that the gift in question was intended to be pleaded as a donatio mortis causa. An averment that it was made in extremis was not necessary.
    1. Mortis causa donatio est, quae propter mortis fit suspicionem, quum quis ita donat, ut si quid humanitus ei contigisset, haberet is, qui aecepit. (Institutes of Justinian, Liber 2, title 7.)
    2. Such gifts are conditional, like legacies; and it is essential to them that the donor make them in his last illness, or in contemplation and expectation of death; * * * The apprehension of death may arise from infirmity or old age, or from external or anticipated danger. (2 Kent’s Com. 444. Burrill’s Law Dict. Donatio causa mortis.)

    3. “I would therefore briefly define a donatio causa mortis to be a conditional gift, depending on the contingency of expected death.” (Opinion of Ch. J. Gibson, in Nicholas v. Adams, 2 Wharton’s Penn. Rep. 22.)
    The answer sets forth the delivery, the contingency of death attached to the gift as a condition, and the happening of this contingency by the decease of the donor without revoking the gift. Hothing further was necessary. The condition is stated in the words “in case of death.” These terms are the most concise and correct that could have been chosen. (Gardner v. Parker, 3 Madd. 184.)
    IH. But if the answer was defective, it was the duty of • the plaintiff to demur, or to move under section 160 of the Code to strike out, or to have the answer made more definite and certain. It is apparent on the face of the answer, that the fact of a gift is intended to be set up as a defense. The issue thus raised is material. There is no pretense of surprise, or that the court or the plaintiff’s counsel could not, or did not plainly see what the matter attempted to be pleaded was. It was therefore error in the court to reject the offer of evidence. It would have been error, even though, the offer, like the pleadings, had omitted an item of fact necessary to make the defence complete. Under the old practice, the court had no power to strike out pleadings on the trial, and the law on this point has not been altered by the Code. (Seeley v. Engell, 3 Kernan, 542. White v. Spencer, 4 id. 247. Wall v. The Buffalo Water Works Co., 18 N. Y. Rep. 119. Smith v. Countryman, 30 id. 655, 675. Lawrence v. Williams, 1 Duer, 585. S. C. 18 N. Y. Rep. 119. Farmers and Citizens’ Bank v. Sherman, 6 Bosw. 181 ; affirmed in 33 N. Y. Rep. 69. Currie v. Cowles, 6 Bosw. 452. Ayres v. O’Farrell, 10 id. 143.)
    TV". But if it should be held that the gift set out in the answer is a gift inter vivos, the discrepancy between the gift thus pleaded and that offered to be proved was technical, and was not such as to authorize the court to reject altogether the evidence offered, especially after the most material fact, to wit, the delivery, had been admitted by the plaintiff’s counsel. (Bedell v. Carll, 33 N. Y. Rep. 585.)
    V. Section 159 of the Code requires that the allegations of a pleading shall be liberally construed with a view to substantial j ustice between the parties. Section 176 requires the court, in every stage of the action, to disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party. Either the one or the other, or both, of these requirements must have been overlooked by the court on the trial of this cause. The defendant has been denied a hearing on the merits, and the judgment should be reversed, and a new trial ordered.

      John J. Freedman, for the respondent.
    I. The defendant and appellant, at the trial waiving all other points, proposed to rest his defense exclusively upon the ground that the gift set up in the answer was a donatio mortis causa, but his offer of proof was insufficient in not showing that the gift was made by the donor, 1. In peril of death at the time it was made; 2. With relation to his decease by illness affecting him at the time of the gift; and 3. That it was conditioned to take effect on the death of the donor by his disorder then existing. These are essential to constitute a donatio mortis causa, and unless they'all concur, there is no valid gift. (Dayton on Surrog. 3d ed. pp. 262, 263, and cases there cited.) Courts do not uphold such gifts unless they are attended by all the requisites which the law requires. The policy of the law is against the encouragement of such gifts. (Dayton on Surrog. 3d ed. 266.) The proof offered, on the contrary showed that the money was bounty money, and was delivered to the appellant by an able bodied man at the time of his enlistment into the army of the United States, in 1864, after having successfully passed the examination made by a surgeon with regard to his health and bodily fitness, as prescribed by the United States laws.
    II. The answer does not set up facts sufficient to constitute a valid donatio mortis causa, and the appellant having failed at the trial to move for leave to amend his answer by setting up the necessary facts in this respect, he could not be permitted to give any evidence of them.
   Robertson, Ch. J.

The only defense which the answer in this case sets up is, that the intestate (Jacob Dexheimer) of whose estate the plaintiff is administrator, gave the sum sued for to the defendant, in case of the death of the former, at any time, without reference to any specific imminent peril. The defendant’s counsel offered on the trial to prove that the gift was one “ mortis causa ” and made “ about the time the intestate went to the war,” and that he was “killed in the war” without having revoked it. Thereupon, it being admitted that the money claimed was delivered to the defendant by the intestate, when he enlisted in the army, and was part of his bounty money, the court refused to receive such facts in evidence, and held that the facts stated in the answer did not constitute any defense, and directed a verdict for the plaintiff. To which refusal, decision and direction, exceptions were duly taken by the defendant.

Such a gift as that alleged in the answer was clearly either an absolute one or void. Death by any casualty, and at any time, did not render it a il donatio mortis causa,” because it was inevitable. No case of a donatio mortis causa, unless by some imminent peril, is to be found, and when that has passed away the giver has a right to revoke it; it is immaterial whether such a gift be regarded in law as a conditional one, dependent upon the escape of the donor from impending peril, or a revocable one dependent upon his death thereby, without any revocation ; or whether the peril be confined to sickness or may include the dangers of traveling, navigation, or battle. (Justin. Inst. lib. 2, tit. 7. 2 Kent's Com. 444. Dayton on Sur. 3d ed. 262, 263, and cases cited.)

The evidence subsequently introduced by way of admission, did not establish a gift at all. The answer, therefore, either did not contain a defense, or was unproved, and the direction to find a verdict for the plaintiff was proper. The • judgment, and the order denying a new trial should be affirmed, with costs.

Garvin, J. concurred.

Barbour, J. (dissenting.)

This action was brought to recover the sum of $625, alleged in the complaint to have belonged to the plaintiff’s intestate at the time of his being killed, in March, 1865, and to be unjustly detained, from such plaintiff by the defendant. The answer avers that such intestate was, in August, 1864, the owner of such moneys, and, then, “ made an actual, free, voluntary, and valid gift of .the same to the defendant, and delivered it to him, with a direction to him to keep the same, in case of the decease of the donor; that the said donor died without revoking such gift, and that, thereby the defendant became the absolute owner of the said money.”

Upon the trial, the plaintiff’s counsel waived - —— of the amount of his claim, and proved the interest on the remainder from the date of the demand; and the counsel for each of the respective parties thereupon admitted and agreed, in open court, that the money referred to in the pleadings was delivered by Jacob Dexheimer, deceased, to the defendant, at or about the time of the said Jacob’s enlistment into the army of the United States, and constituted a portion of his bounty money, received by him at the time of his enlistment.” The court excluded the evidence which was offered by the defendant’s counsel to prove the fact that the gift was made, as set forth in the answer, and directed the jury to find a verdict for the plaintiff.

As the funds delivered to the defendant were the bounty moneys which had been paid to Jacob Dexheimer upon his enlistment, we may assume that when such delivery was made the latter was a soldier of the United States, and about to take his place in an army which was then employed in a most bloody war; a war in which probably, fully one-fourth of all who were actively engaged in it, laid down their lives. The enlistment, too, was at so late a period in the war that the hazards and dangers of the service were well understood and known by all; and it follows, that it was in view of those hazards, and of the uncertainty of his ever returning alive to claim his money, that the same was delivered by the soldier to the defendant. Why, then, was not the alleged gift, if made, a good and complete donatio mortis causa?

Homer tells us that Telemaehus when about to engage in a conflict with the suitors of Penelope, gave certain treasures, in case he should fall, to his friend Pemeus, (Odyssey, B. 17, v. 781,)—a case very similar to the one before us—which Sir William Blackstone says was a very complete donatio mortis causa, (2 Bl. Com. 514, n. m. It is true, the text in the commentaries speaks of a gift of this character, as a death-bed disposition of property, as a delivery of goods by a person, in his last sickness, to keep in case of his death. But the note of Sir William, above cited, shows he did not design to be understood as saying that such donations could be made only during a last sickness, or upon the death-bed of the donor, but, merely, as an instance, and the most common one. Swinburne speaks of this class of donations as “those gifts which be made in consideration of death.” (Swinb. part 1, § 6, n. 4.) But he does not limit the power to make such gifts during a last sickness or upon the bed of death. Chancellor Kent says it is essential to such gifts that the donor makes them in his last sickness, or, in contemplation and expectation of death; and that the apprehension of death may arise from infirmity, or old age, or, from external and anticipated danger. (2 Kent’s Com, 244.) Bouvier calls them gifts in prospect of death, and says such a gift must be made in peril of death, or, during the donor’s last illness, and to take effect only in ease he dies. (1 Bouv. Inst. Am. L. 277.) Mr. Burrill, after citing the definition of Blackstone as above, says such definition is too narrow in so far as it confines this species of gift to cases of last illness, it being sufficient if the apprehension' of death arises from other causes, as from infirmity, old age, or any external or anticipated danger. (Burr. Law Dic. art. Donatio Causa Mortis.) See, further, Walter v. Bodge. (2 Swanst. 97,) where the donor, although not in perfect health, was not dangerously sick, but well enough to go and return from the Bank of England; and Tate v. Hilbert, (2 Ves. Jr. 112,) in which the giver was old' and infirm, but had no particular or dangerous illness.

If, then, a gift is valid as a donatio mortis causa,, when made in contemplation, expectation, consideration, apprehension, or prospect of death, arising from sickness, infirmity, old age, or any external or anticipated peril or danger, as seems to be fully established by the learned writers above mentioned and the authorities cited by them, there can be no good reason why an enlisted soldier of the United States might not, under the circumstances detailed in the pleadings and admissions of the parties, have made such a gift of his bounty money to another as'would constitute a good and complete donatio mortis causa. For the obligation assumed by such soldier, almost necessarily, exposed his life to extraordinary perils and dangers.

I am of opinion that if the gift had been proven the defendant would have been entitled to judgment upon the issues; and, therefore, that the learned justice erred in excluding the evidence offered and directing a verdict for the plaintiff. '>

The judgment should be reversed, with costs, and a new trial ordered.

Judgment affirmed.