text:
    IGNATZ OESTERREICHER, Appellant, v. JAMES RAISBECK, Respondent.

      Decided March 2, 1885.

      Appeal from judgment overruling demurrer—Reversal, when not granted.

    An appeal from a judgment overruling a demurrer and adjudging costs against the demurrant, raises no question for review, where it appears that the judgment was entered pursuant to an order overruling the demurrer, but giving leave to withdraw the demurrer on payment of costs, and to an interlocutory judgment entered in conformity to such order, and to an express waiver of the leave, and no appeal is taken from either the order, or the interlocutory judgment.
    Where the appellant is not injured by the order below, the court will not reverse the order.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Appeal by plaintiff from judgment overruling his demurrer to the fifth defense set forth in defendant’s amended answer to the complainant, with costs.
    The facts sufficiently appear in the opinion.

      Wehle & Jordan, attorneys, and Henry Wehle, of counsel for appellant,
    argued :—I. There is no allegation in the plaintiff’s complaint which impeaches either the sufficiency of the affidavits on which the order for the arrest of the plaintiff was granted, or the jurisdiction of the judge to make that order. Ñor is it in any manner claimed by the complaint that the process under which the imprisonment was had was void. This is clearly a complaint for malicious prosecution only (2 Addison Torts, Wood’s Ed. 1881, 13 ; Dusenbury v. Kielly, 58 How. Pr. 286). There being no cause of action for false imprisonment in the complaint, the fifth defense was properly demurred to (Code, § 494).

      Phelps & Spooner, attorneys, and W. R. and C. W. Spooner, of counsel for respondent,
    argued :—I. The complaint is so framed that at trial plaintiff could claim the cause of action to be for false imprisonment or malicious prosecution, as he might desire. The plea of the statute was proper.
    II. The decree appealed from being based upon, and conforming to, the prior decree of January 4, 1884, and the order of December 6, 1883, after plaintiff’s waiver of the leave granted him ; and the order and the prior decree being not in review nor appealed from, the appeal must fall (Cameron v. N. Y. Eq. Life, 45 Super. Ct. 628 ; S. C., 46 Ib. 84).
   Per Curiam.

The defendant, among other defenses that were good on their face, averred for a fifth defense, “that the cause of action set forth in the complaint herein, for alleged false arrest and imprisonment of the plaintiff, did not accrue within two years before the com. mencement of this action.” It is assumed that if the action were for false imprisonment, the defense would be valid, and not valid if the action were for malicious prosecution.

The plaintiff demurred to this defense, on the ground ‘‘ that the same is insufficient in law upon the face thereof. ”

The court overruled the demurrer, on the ground that there were facts alleged in the complaint sufficient to sustain an action, either for malicious prosecution or false imprisonment. Thereupon an order was entered, “that said demurrer be and the same hereby is overruled, and that defendant have judgment thereon with costs to be taxed, but with leave to plaintiff to withdraw his demurrer within twenty days after entry and service of this order on payment of the taxed costs.”

As appears from the recitals contained in the judgment appealed from, the. costs were taxed at §36.10, and thereupon a so-called decree was entered and filed, overruling said demurrer with $36.10 costs to the defendant, but with leave to the plaintiff to withdraw the demurrer on payment of said costs ; and a copy of said decree with notice of entry thereof having been duly served on the attorneys for the plaintiff, and plaintiff having failed to withdraw said demurrer and pay said costs, and expressly waived the leave granted, a judgment was entered, which is the judgment appealed from, “that the demurrer interposed by plaintiff to the fifth defense set forth in defendant’s amended answer to the complaint herein, be and the same hereby is overruled, and that defendant recover of plaintiff, $36.10, his costs on said demurrer.”

The so-called decree referred to, is not contained in the appeal book. It evidently means an interlocutory judgment. The record also shows that neither the order nor the interlocutory judgment or decree has been appealed from. From all that can be learned and inferred, the judgment appealed from is the legitimate outgrowth of the order which we have not even been asked to review, and of plaintiff’s waiver. This being so, the judgment appealed from should be affirmed, with costs.

Moreover, we think the plaintiff was not injured by the overruling of his demurrer. If, as he now claims, the complaint does not contain an action for false imprisonment, the defense of the statute of hmitations to such a cause of action cannot embarrass the conduct of his real cause of action. So, if further provision should have been made in the judgment as to its effect upon the issues remaining to be tried, or as to the time of the payment of the costs awarded by it, such provision may yet be made on a proper application to the court at special term.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THOMAS F. SIMPSON, Appellant, v. NEW YORK, WEST SHORE & BUFFALO R’Y. CO., Respondent.

      Seal—presumption from letter's L. S.—effect on right to prove that party to instrument was agent.— Contract—construction of.—Pleading—con. struction of on demurrer—Quantum meruit.—Promise to pay—when not implied from reguest to perform services.

    Where a pleading has attached to it a copy of an instrument, which it refers to and makes part of the pleading, and such copy has this testificandum clause, “have hereunto severally set their hands and seals,” and has what purports to be, copies of the signatures of those named in the instrument as the parties to it appended to it, with the letters L. S., set opposite to such signature, it must on demurrer, be assumed that the letters L. S. were there placed as indicating that in fact the parties properly affixed their respective seals.
    Where a seal is necessary to the validity of the instrument on which it is used, any inquiry as to the agency of a party thereto is absolutely forbidden. When, though used, it is not necessary to its validity, to justify proof that a party to it was an agent, it must appear from the instrument that it was made on behalf of the party claimed to be the principal, and it must be proved that such party derived benefits from and accepted and confirmed the instrument by acts on his part, in order to charge him as principal.
    In the case at bar, the contract purported to be between plaintiff and one De 0. Annexed to the contract was a guarantee by the railroad company, whose road was to be built under the contract, by which it guaranteed the payments agreed to be paid to the plaintiff by De 0., in said contract. A provision of said contract was “ that in case said railway company fails to perform the contract between it cmd De G. . . . De C. shall have the right to suspend or cancel this contract ” without any liability to plaintiff for damages. Held, 1. It appeared that De 0. did not sign as agent. 2. Even if there was an agency, the plaintiff had relied upon the agent’s promise and credit exclusive of a responsibility of the principal.

      Decided March 2, 1885.
    Where certain averments appear from the rest of the pleading to be unfounded as matter of law, they are to be disregarded, in the consideration of the pleading on demurrer thereto.
    Averments that the party complained of had failed to do and perform certain things, without it further appearing that those things were by agreement or otherwise to be by him done and performed, are insufficient, as allegations of breach of contract.
    A count on quantum meruit alleging only that a certain specified sum “ is a reasonable charge and compensation therefor,” is defective on demurrer.
    In the case at bar, upon a count for extra work, it appeared from the averments of the complaint and reference to a contract therein set forth, made between the plaintiff and De C., that the work claimed for was such extra work as the contract embraced. This contract provided that, no claims for extra work should be made or allowed, and that whenever work not contemplated or provided in the contract should be required to be done, it should be done only on the receipt of the written order of the chief engineer of the company, whose road was to be built under the contract, setting forth, &c. The complaint contained no averment that the chief engineer gave any written order. Held, that the averments of the complaint as to the work being done at the special instance and request of the company, only signified that the company specially requested that the plaintiff should do the work, and receive compensation therefor, under the contract, and implied no duty or promise on the part of the company to pay.
    Before Sedgwick, Ch. J., Text ax and Ingraham, JJ.
    Appeal by plaintiff from judgment that complaint be dismissed, entered on demurrer to complaint.
    ‘The complaint demanded judgment against defendant, on the ground that by certain consolidations, not necessary to be specified, the defendant was liable for the obligations of the Jersey City & Albany Railway Company, and it made averments as to the obligations of that company, which are set out in the opinion.

      Culver & Culver, attorneys and of counsel for appellant,
    upon the questions considered by the court, argued :— I. If an agent make a contract in his own name the party with whom it is made may sue the agent as principal, or if he elect to do so he may sue the real principal. He has his option to sue either, but he cannot sue both, for when he sues the principal he affirms the fact that the other was acting simply as an agent (Borell v. Newell, 3 Daly, 233 ; Nicoll v. Burke, 78 N. Y. 580). The learned judge at special term sustained the demurrer herein on the authority of Schaefer v. Henkel, 7 Abb. N. C. 1, and Briggs v. Partridge, 64 N. Y. 357 (Mem. Daily Register, November 20, 1883), and therefore upon the ground that the contract being under seal, plaintiff could not show De Clark to have been merely an agent, and was precluded from resorting to the defendant as a principal.
    The fact is, however, that the contract is not under seal. A printed form was used, at the end of which, the letters “LS” are twice printed, and which were reproduced in the lithographic copies served on defendant. No seal, however, was attached to the agreement at that place, or elsewhere. The court was probably misled by the letters “L S,” and inferred that there were seals at those places.
    . We are, therefore, not within this decision (Briggs v. Partridge, supra), but are distinctly within the law stated by Mr. Justice Andrews in that case, cited on page 362, to the effect, that a principal may be charged upon a written parol executory contract entered into by an agent in his own name within his authority, although the name of the principal does not appear in the instrument. Followed in Schaefer v. Henkel, 7 Abb. N. C. 1.
    Going further in the same case, Briggs v. Partridge, 64 N. Y. it is stated that there are cases which hold that when a sealed contract is executed in such form that it is in law the contract of the agent, and not of the principal, but the principal’s interest in the contract appears on the face, and he has received the benefit of the performance by the other party, and has ratified and confirmed it by acts in pais, and the contract is valid without seal, the principal may be resorted to upon the instrument (Du Bois v. Del. & Hud. Canal Co., 4 Wend. 285 ; Lawrence v. Taylor, 5 Hill, 107 ; Evans v. Wells, 22 Wend. 324 ; Worral v. Mun, 1 Selden, 229). (a.) This contract was plainly the company’s contract. (6.) De Clark received no benefit under it. (c.) The company, to show that the work was being done purely for it, went so far as to guarantee the payments due under the contract.
    II. The second cause of action states facts sufficient to constitute a cause of action. It is a claim for extra work “ done at the special instance, and request of the Jersey City and Albany Railway Company. ”

      Alexander & Green, attorneys, and Charles B. Alexander, of counsel for respondent,
    on the question considered by the court, argued :—I. This action cannot be maintained by Simpson against this defendant because it is brought on a sealed instrument to which this defendant is not a party (Schaefer v. Henkel, 7 Abb. N. C. 1; S. C., 75 N. Y. 378 ; Briggs v. Partridge, 64 N. Y. 465 ; Fenly v. Stewart, 5 Sand. 112 ; Hendrick v. Lindsay, 93 U. S. 143). The appellant notified the respondent on the 23d of February for the first time that they proposed to contend that the instrument on which suit was brought was not sealed. In the court below it was alleged to be sealed. The argument at special term was proceeded with on the theory that the instrument was under seal, and the counsel never questioned the fact in the court below. They cannot now meet us on the appeal with the suggestion that they served erroneous papers. This was not a paper which was ever in defendant’s possession. It is only upon the issue raised by the copies served that this case can be tried (Trowbridge v. Didier, 4 Duer, 448). A defect in copy is not cured by showing that the original was correct (Hughes v Wood, 5 Duer, 603, note ; Graham v. McCoun, 5 How. 353 ; Littlejohn v. Munn, 3 Paige, 379; Carey v. Hatch, 3 Edw. 190). The plaintiff also is estopped by his signature and the recital from claiming against a third party that the instrument is unsealed (Atlantic Dock Co. v. Leavitt, 54 N. Y. 38). The plaintiff, having taken the position that in his complaint the instrument is sealed, is bound by its averments (Meeker v. Wright, 76 N. Y. 272 ; Davis v. Mayor, 14 N. Y. 506). Both parties were residents of the State of New Jersey, and it is fair to presume they contracted there. The situs of a contract is the residence of the payee (Wharton's Confl. Laws, § 364; Godwin v. Holbrook, 4 Wend. 377 ; Guillander v. Howell, 35 N. Y. 657 ; Kirtland v. Hotchkiss, 100 U. S. 419). Under the law of that state a scroll is a good seal (N. J. Revision, p. 387, P. 875, p. 56). Thus, where the record shows an instrument to be sealed, the court will not hold it to be unsealed because the only evidence of sealing in the appeal book is the presence of revenue stamp opposite each name (Van Bokkelen v. Taylor, 62 N. Y. 108). The plaintiff also claims that the contract appears on its face to be the contract of the railroad company. This it expressly does not. The guaranty would in such case be an absurdity. The cases cited by plaintiff’s counsel do not sustain the principle as applied in this case. There is no averment of ratification or adoption. The plaintiff says this contract was plainly the companies’ contract. Plaintiff expressly pleads that it was not. The contract shows it was not, and the company was asked to guarantee it because it was not their contract. A guaranty necessarily implies the existence of a principal. Who is the principal, unless it be De Clark % (Chitty on Contracts, 11th ed. 738). Plaintiff having accepted the guaranty is estopped from claiming that the railway can be held as principal (Pickard v. Sears, 6 Adol. & Ell. 469 ; Cornish v. Abington, 4 H. & N. 549 ; Brookman v. Metcalf, 4 Rob. 563 ; Chapman v. O’Brien, 2 J. & S. 524).

      II. The plaintiff does not allege any facts entitling him to sue on the contract. Where the complaint has annexed a contract which does not raise a cause of action it fails (Weichsel v. Spear, 15 J. & S. 225), The complaint contains certain conclusions of law which are not admitted by this demurrer. These ponclusions of law are: First. That De Clark was not the party in interest. Second. That he was acting as principal therein. Such conclusions of law are not admitted by this demurrer (Sheridan v. Jackson, 72 N. Y. 170; Scofield v. Whitlegge, 49 N. Y. 259 ; Reiner v. Brandhorst, already cited).
    III. The demurrer to the second cause of action for insufficiency is well taken. It is clear that the work provided for and mentioned in the bill of particulars must of necessity and as matter of construction of law be included within the terms of the contract. ISTo agreement to pay is averred. The mere request to De Clark to make such a contract, even for the sole benefit of the defendant, cannot, as a conclusion of law, be considered as an agreement on the part of this defendant to make any payments on the contract or otherwise (Quackenboss v. Edgar, 34 Super. Ct. 333).
   Per Curiam.

The complaint averred that one De Clark entered into an agreement with the plaintiff. The agreement was made part of the complaint. It witnessed that the plaintiff as party of the first part, for and in consideration of the prices agreed to be paid by De Clark, the party of the second part, agreed to construct and in all respects complete the railway of the Jersey City & Albany Railway Company, in the manner provided in the contract and in specifications annexed to it. The testificandum clause was that the parties “have hereunto severalty set their hands and seals,” and the complaint shows that the parties did in fact set their seals severally to the contract. From this, it would appear that the plaintiff, for a violation of the contract, was confined to a remedy against De Clark, the person making the covenants. The seal forbids an inquiry as to whether De Clark in making the contract was agent for the defendant (Briggs v. Partridge, 64 N. Y. 357 ; Schaefer v. Henkel, 75 Ib. 378; Whitford v. Laidler, 94 Ib. 145). In reference to the suggestion that the contract would have had validity if not sealed, the remark of Judge Miller in Schaefer v. Henkel (supra), is apposite: “It is therefore settled law, that in order to take a case out of the general rule, where the contract is one which is valid without a seal and the seal is therefore of no account, it must appear that the contract was really made on behalf of the principal,” from the instrument, and —or as well as—that the party derived benefit from and accepted and confirmed it by acts on his part. The word principal is here used, perhaps to designate the third party charged as if he were principal, for probably the law on this point makes the contract that of the person who affixes the seal without any principal. Whitford v. Laidler (supra), is to the same effect.

So far from it appearing on the face of the contract, that De Clark signed as agent for a principal, that is, .the railway company, the contrary of it appears, if an addition to the contract and which appears on the face of the complaint, may be considered. It is, that in consideration of one dollar by the plaintiff paid to the railroad company it guaranteed the payments agreed to be paid to the plaintiff by said De Clark in the foregoing contract' A significant provision is, “that in case the. said railway company fails to perform the contract between said company and De Clark so that for any cause, the work is suspended or discontinued on the part of De Clark, then the said De Clark shall have a right to suspend or cancel this contract,” without a liability for damages to the plaintiff. The complaint plainly discloses that the railway company had contracted with De Clark to pay him for the building of the road, he contracting to build it, and De Clark had contracted with the plaintiff to pay for the building of the road, plaintiff contracting to build it, while the railway company guaranteed that De Clark would pay. The obligations of the company are confined to a performance of this guarantee. Upon this, they are not sued. Upon these facts, even if there were an agency, it appears that by force of contract, the plaintiff has relied upon the agent’s promise and credit exclusive of a responsibility of the principal.

The complaint goes on to aver that De Clark “ was not the party in interest in said agreement, and was acting as principal therein at the request of and solely for the Jersey City and Albany Railway Company.” These averments appear from the rest of the complaint to be unfounded, as matter of law. The action is upon the agreement, and as matter of law De Clark was the only party in interest, and the only party to sue or to be sued. Nor would his acting as principal, • at request of the railway company and for the company solely, forbid it being true that what he did made him liable and did not make the company liable on the contract.

Further, if De Clark had been the defendant, the complaint does not show that he was guilty of violation of the contract. The allegations would be that De Clark made .default in certain of the agreements on his part in said contract made, as more specifically set forth in items three to seven inclusive of the statement ahnexed to this complaint and marked B, to which said items in the words and figures therein set forth, plaintiff herewith refers, as a part of this complaint, for further and more specific allegations and as a bill of particulars of the default so made, and of the damages resulting to plaintiff thereby.” An examination of one of the so-called items will be enough. The others are not less defective. Item No. 5. By the railway company’s failure as per agreement to furnish flat cars in sufficient number so that the ballast unloaders could be used, it was made necessary to send the men who loaded the ballast into the pit, and then out with the train to shovel it off the cars.” There is no provision in the agreement that De Clark or the company should furnish flat cars in numbers sufficient to allow the using of ballast unloaders. The further statement is, Also by not furnishing the track-laying materials as per agreement, so that the track could be laid during the summer season, the ballasting had to be done during the winter season in frost and snow, by which the cost was fully doubled, making a damage of twenty cents per cubic yard on 24,680 cubic yards ballast.” An examination of this would show that for the supposed breach the damages as claimed were not recoverable under the agreement. It is enough, however, to say that no part of the agreement, in the absence of allegations as to facts aliunde, shows that the track-laying materials were to be furnished so that the track could be laid during the summer season. And of all the so-called items it must be said that they contain hints or intimations of the existence of certain facts, and not allegations that they exist.

The second cause of action is averred to be “that during the performance of the work by plaintiff under said contract, plaintiff did at the special instance and request of the said The Jersey City and Albany Railway Company, perform certain extra work and services additional to those agreed to be done in and by the aforesaid contract, which extra work and services are more particularly described and set forth in items numbers one and two of the statement annexed to this complaint and marked B, to which said items in the words and figures therein set forth, plaintiff herewith refers as a part of this complaint for further and more specific allegations, and as a bill of particulars of said extra work. That for the same there became due and payable from said company the sum of $2,101.36, which is a reasonable charge and compensation therefor.” This is defective in omitting to aver as a fact, what was the value of the work and services. The allegations as to reasonable charge and compensation, are matter of opinion and of law.

The mere fact that the failway company requested the plaintiff to perform work and services, apart from circumstances to show that the work was for the benefit of the company or to the detriment of the plaintiff, does not create an obligation to pay for them (Crane v. Baudouine, 55 N. Y. 261; 2 Saund. 137 h). It must be taken from the explicit averment that it was extra work, and from the reference to the contract that has already been considered, that the extra work was such extra work as the contract embraced. By the contract (subd. 13), “No claims for extra work shall be made and allowed.” The subsequent clause shows what the contract intends by the term extra work, “whenever work not contemplated or provided for in this contract shall be required to be done, it shall be commenced only upon receipt of the written order of the chief engineer setting forth the nature of the work and the compensation to be paid therefor,” etc. There is no averment that the chief engineer gave any order in writing for the work. And as it was done under the contract, the party liable for its value, if any one be hable, is De Clark, not the railway company. The averments as to the work being done at the special instance and request of the company signify that the company specially requested that plaintiff should do the extra work under the contract and receive com ■ pensation therefor under the contract. There would be implied no duty or promise on the part of the company to pay. The complaint does not allege that the company expressly promised to pay, and this makes it unnecessary to inquire if there was any consideration for such a promise.

Judgment affirmed, with costs.


text:
    EPHRAIM DRUCKER, Respondent, v. THE MANHATTAN RY. CO., and THE METROPOLITAN ELEVATED RY. CO., Appellants.

      Elevated railroads—evidence in actions for damages to property—personal knowledge of jury as to ordinary use of street—matters accruing after action brought—Rule when damages resulting from lawful and unlawful acts not distinguishable—lneguality of apportionment damages against two tort feasors, not ground for new trial.

    In an action against an elevated railway company to recover for damages to property, the question was asked, “ what in your opinion would have been the fair rental value of this property immediately after the construction and operation of this road there ?” An objection was made to it on the ground that it called for the effect of the operation of the road. Held, that the objection was not valid, evidence being given before the close of the case which justified the submission to the jury of the question whether or not the operation of the road involved a use of the street other than the ordinary one.
    Another question was asked, “ what effect has the road had on the business of the street, if any ?” This was objected to on the ground that the inquiry should be as to the effect on value. Held proper; that whatever affected the business of the street would be likely to affect the rental value of the property situated on the street, and that, as no attempt was made to recover for loss of business, whatever would affect the rental value was admissible, it being subsequently shown what was the rental value so affected.
    Another question was asked, “ was business ever before the construction of the road as bad as it was at the time of the commencement of this action ?” Held proper; it called for a fact which the jury might properly consider.
    When the court is not asked to inform the jury what the legal qualities of an ordinary use of the street are, the parties allow the jury to say whether, as matter of fact, a proved use was an ordinary one or not, and in determining this they can use their personal knowledge.
    The plaintiff proved that after the commencement of the action defendants placed a dripping pan under a certain point of the track. This was objected to as tending to show damages after the action was begun. Held, that dropping and falling of ashes from such a height could not be deemed an ordinary use of a street, and that the jury had a right to find, the pan was put there to prevent the injurious consequences of what had occurred before the commencement of the action.
    The rule as to damages resulting from lawful and unlawful acts, -when a distinct line of demarcation cannot be shown by evidence, is, "where all the testimony of a substantial kind that the nature of the case admits of is before the jury, it should be left to it to judge for itself upon that testimony under proper instructions by the court, the amount of the damages resulting from the unlawful acts.

      Decided March 2, 1885.
    A new trial for any inequality in the apportionment of damages between defendant tort feasors, cannot he granted upon a motion made on the minutes.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendants from judgment for plaintiff, entered upon the verdict of a jury
    The action was for damages from the alleged impairment of plaintiff’s easement of- light, air' and access, appurtenant to his land, on Division street, in the city of New York, by the construction and maintenance of an elevated railway, in front of the land and along the street, by the Metropolitan Elevated Railway Company, and by the maintenance of the same, by the Manhattan Elevated Railway Company, that were lessees of the former company. The jury found for plaintiff. Further facts appear in the opinion.

      Davies & Rapallo, attorneys, Julien T. Davies and Edward S. Rapallo, of counsel for appellants,
    upon the questions considered by the court, among other things, argued :—I. The court by its charge and rulings applied an erroneous rule of damage, and established an erroneous basis for the estimation of the amount of damages for which defendants were held hable. Against the objection of defendant, the court improperly admitted evidence of damage for which defendants were not hable, and by its charge erroneously permitted its consideration by the jury as a basis for their verdict. Thus, the ruhngs and the charge allowed the jury to consider and find a verdict upon evidence of the whole net damage produced by the railroad, consisting principally of injury to the business interests of the street in which the property is situated. No attempt was made to confine the evidence or the jury to the damage produced by the interference with the easements appurtenant to the land in question, and the direct consequence to the value of the land by such interference ; and no attempt was made to confine the evidence of damage to the property in suit. The plaintiff was allowed to prove the rental value before and after the construction and operation of the road ; and the effect of the road generally upon the rental values. Evidence was allowed as to the disastrous effect of the road upon the business interests of the street; and the injurious effects upon the plaintiff’s own business. The judgment should be reversed upon these exceptions alone (Taylor v. Metropolitan El. R. Co., 50 Super. Ct. 311). Evidence was allowed of dripping from the structure and engines, although no negligence was proved or pleaded. Evidence was allowed as to the effect of the cinders upon the millinery business of plaintiff. The court refused to limit the damages to the interference with the easement, and refused to exclude damage caused by noise, gas, steam or smells. It is the established law of this state that the legislature may authorize the construction of works of a public nature, such as railroads, without requiring compensation to be made to persons who may suffer damages occasioned by the construction or operation of' such works, in case no property of such persons be actually taken or appropriated (Gould v. Hudson River Co., 6 N. Y. 522 ; Radcliff’s Exrs. v. Mayor of B., 4 Ib. 195 ; Taylor v. Metropolitan, &c. Ry. Co., supra; Story v. N. Y. Elevated, 91 N. Y. 122).
    The precise issue for the determination of the jury should have been narrowed down to the question of the value of plaintiff’s property taken and occupied by defendant, together with the damage directly resulting to the plaintiff’s lot, and the compensation which defendant was liable to pay therefor. It has been repeatedly decided that where the city owns the fee of the street the public authorities may use or authorize the use of the same for any street purpose. That the construction of a horse or even a steam railroad is not such a use of a street as will entitle abutting owners to damages or compensation. In this respect there is no difference in principle between the use of a street for a horse or steam railroad (People v. Kerr, 27 N. Y. 188). It is expressly so stated by Earl, J., in dissenting opinion in Story case, and by Freedman in Taylor v. Manhattan Co. Hence we claim that no damage occasioned simply by the running of the trains through the street was recoverable, and that no injury from gas, noise, smells, &c., should have been included. The judge refused so to charge. It has been repeatedly decided that the legislative permission exempts the railroad from all liability to individuals for any public injury (Trager v. Troy U. R. R., 25 N. Y. 526). The plaintiff can recover only the individual injury to property personal to himself, as distinguished from the injury to the whole street, and yet we find that the greater part of plaintiff’s evidence relates to the general injury to the street and to the business of the street, and to the injury to plaintiff’s business. Much of the evidence relates to the injury to plaintiff’s land by the operation of the road and the erection of the structure, including all the effects, direct and indirect, remote and consequential, without any endeavor to prove the extent of the interference with plaintiff’s easements in the street, or the damage resulting from such interference. “It is incumbent on the part of the complainant to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury beyond that which he maybe supposed to have sustained in common with the rest of the Queen’s subjects ” (Chamberlaine v. Chester & B. R. Co., Exch. R. 870). Ho general estimation of the appreciation or depreciation of value in the neighborhood can affect the question of damages to land by the opening of a highway or railroad through it (Troy & Boston R. R. v. Lee, 13 Barb. 169 ; Del. L. & W. R. Co. v. Burson, 61 Penn. St. 369). The immediate, and not the remote cause, is to be considered in determining the point of legal liability for damage (People v. Mayor of Albany, 5 Lans. 524). Thus loss of customers is not a proper element of damage where an action was brought against defendant for placing a pile of lime and sand in front of plaintiff’s store in such manner that the dust blew in and damaged the goods (Squier v. Gould, 14 Wend. 159). No account is to be taken of the general benefit to the land-owner resulting from the building of .the road (Cleveland R. R. v. Bull, 5 Ohio St. 568 ; Little M. R. R. v. Collet, 6 Ib. 182; State v. Miller, 3 Zabr. [N. J.] 383). Conversely, no damages should be allowed the plaintiff for general public injury. In estimating the damage to land from the construction of a railroad, the injury to other-property similarly situated cannot be shown (Selma R. Co. v. Knapp, 42 Ala. 480). In awarding compensation for land taken for railroad purposes, there must be a limit marked which will exclude remote and indefinite damages. The damages must be direct, and not such as are common to the community (Bangor R. R. v. McComb, 60 Me. 290). In an action for obstructing a highway, the plaintiff could not recover at common law, his damage not being peculiar to himself, but common to all (Rickett v. Metropolitan R. R., 161 L. R. 2 H. of L. App. Cas.). Even if the charge to the jury be considered as a direction to disregard any evidence of damage for which defendants were not liable, such direction would not cure the error of having admitted improper evidence. In Erben v. Lorillard (19 N. Y. 299), the plaintiff aided the defendant hr negotiating the purchase of land under a parol agreement that he should be compensated for his services by a permanent lease of the land at an annual rental of eight per cent, upon purchase price. Held, that' this agreement being void, the value of the lease could not be shown for the purpose of proving the value of plaintiff’s services. Such evidence having been received under exception, if it may have affected the verdict, the error is not cured by the judge directing the jury to disregard it, and the defendant is entitled to a new trial.
    II. The court erroneously denied defendants’ motions to non-suit, made upon the ground that there was no evidence of damage for which defendants were liable, except such as indistinguishably included damage for which defendants were not hable. The court erroneously refused to charge that the damage caused by interference with the easements alone being subject of recovery, the jury must find for defendant, unless they believed that the whole damage proved was caused by the acts of defendant, and not the result of other causes for which defendant was not liable, as the evidence did not distinguish between these two elements. No damage can be recovered for loss of air, light or access where substantial injury is not proved to have been sustained So held in actions for damages to ancient fights, &c., in England (Goddard’s Law Easements, Burnett’s Ed. 397, and cases ; Dent v. Anden M. Co., L. R. 2 Eq. 244). Injuries of indefinite amount not capable of estimate do not fall within the constitutional provision against taking property without compensation (Radcliff’s Exrs. v. Mayor, 4 N. Y. 196 ; Pottstown Gas Co. v. Murphy, 39 Penn. 251). To such an extent was the introduction of improper evidence permitted, evidence of damage by gas, steam, smells, noise, loss of business, ■depreciation of rents and values in the neighborhood, driving of busines from the street, total depreciation of plaintiff’s property and rentals, that no evidence whatever can be found in the case of any damage for which defendants were responsible. But even if it be considered that such evidence was given, no attempt whatever was made to distinguish between the total damage and the damage caused by interference with the three easements, for which alone defendant was responsible, nor would the most careful scrutiny have enabled the jury to make distinction. The damage to the principal easement, that of light, is nowhere proved, and no evidence of the extent of interference therewith is offered. Under such proof the plaintiff could recover no more than nominal damages. No data whatever are furnished by which any larger verdict could be sustained.

      Roger Foster, attorney, and of counsel for respondent,
    oil the questions considered by the court, among other things, argued:—I. The measure of the damages was properly defined by the trial judge (Matter of Utica C. & S. V. R. R. Co., 56 Barb. 456 ; Troy & Boston R. R. Co. v. Lee, 13 Ib. 169 ; Matter of Furman St., 17 Wend. 670 ; Matter N. Y. C. & H. R. R. R. Co., 15 Hun, 63 ; Matter N. Y. L. & W. Ry. Co., 29 Ib. 1 ; Williams v. N. Y. C. & H. R. R. R. Co., 16 N. Y. 103 ; finally reported as Henderson v. N. Y. C. R. R. Co., 78 Ib. 423 ; Walker v. Old Colony, &c. Ry. Co., 103 Mass. 10 ; S. & E. R. R. Co. v. Doughty, 2 Zab. [N. J.] 495 ; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. C. 418 ; Yeaton’s Appeal, Sup. Ct. Penn., 30 Alb. L. J. 116). There is nothing in the case of Greene v. N. Y. C. & H. R. R. R. Co. (12 Abb. N. C. 124) that conflicts with these views.
    II. The objection as to inequality in the apportionment of damages, cannot be raised by the Metropolitan Company in its appeal from the order denying its motion for a new trial. It was not specified in the grounds of that motion, nor is it in the section of the Code upon which that motion is based.
    III. The defendants’ contention, that the damage caused by their acts is not proven with sufficient mathematical precision, is untenable. The rule is well laid down by Chief Justice Sedgwick, in his charge to the jury, in Schile v. Brockhahne, which was sustained by the court of appeals in 80 N. Y. 614, and in the Taylor Case (50 Super. Ct. 311). See also Matter of Utica, &c. R. R. Co. 56 Barb. 456 ; Sutherland Dam. 121.
    IV. There was no error in the various rulings of the trial judge, upon the admission and exclusion of evidence. 1. The testimony in regard to the pan was properly admitted as showing that the defendants by their dripping of water interfered with the uses of the street more than they might have done, and thus made an unreasonable use of the same. That a change of conduct is evidence of previous negligence, is held in Manderschid v. Dubuque, 29 Iowa, 73 ; Folsom v. Underhill, 36 Vt. 680). The claim that plaintiff’s omission to plead negligence in so many words, debars him from recovery for negligent acts, is untenable (Leawse v. Bray, 3 East, 593 ; Blin v. Campbell, 14 Johns. 432 Percival v. Hickey, 18 Ib. 257; see also Bostwick v. B. & O. R. R. Co., 45 N. Y. 712 ; School District Medfield v. B., H. & E. R. R. Co., 102 Mass. 552 ; S. C., 3 Am. R. 502). 2. The evidence of the nature and the amount of the business carried on in Division street before and after the construction of the elevated road was clearly relevant to show the depreciation in the rental value of plaintiff’s property.
    The questions put the experts were clearly proper (Folkes v. Chadd, 3 Douglas, 157 ; Salvin v. North Bracepeth Coal Co., L. R. 9 Ch. App. 708 ; Goldsmid v. Commissioners, L. R. 1 Ch. App. 350 ; Glason v. City of Milwaukee, 30 Wis. 316 ; Grigeby v. Clear Water Co., 40 Cal. 396).
   Per Curiam.

The action was for damages against two defendants, one being the constructor of an elevated railway, and the other the lessee of that railway, which ran through Division street, in front of houses, some owned and some leased by the plaintiff. The complaint alleged that the defendants had, without compensation to the plaintiff, appropriated the easement of air, light and access, belonging to the plaintiff’s land, through means of the railway structure itself, and also of the running of the locomotives and trains upon it. The judge charged the jury that the plaintiff could only recover the diminution of the rental value of his lands, caused by the wrongful acts of the defendants, as shown by the testimony. He charged that they should find to what extent, if any, the structure itself had caused a diminution, and further, “that if you find the use of the railway and its emission of smoke, gas and the flickering caused by passing trains, also are a use inconsistent with the legitimate use of the public street, and that, by reason of that use, the rental value of plaintiff’s property has been seriously damaged, and that that use and that erection were the only cause of that damage, you will then find for the plaintiff, for the amount that you think that damage was.” He in effect charged the jury also, that the plaintiff’s recovery must be confined to the effects of such impairment of the easement of air, light and access, as the testimony proved. These charges follow the law announced in Taylor v. Metropolitan Elevated Railway Co. (50 Super. Ct. 311).

The plaintiff was allowed, under exception, to ask, what in your opinion would have been the fair rental value of this property immediately after the construction and operation of this road there ?” The defendant objected to the question, so far as it called for the effect of the operation of the road, on the ground that the plaintiff was entitled to recover only for the injury caused by the interference to fight, access and air, but nothing for the noise, smoke, smell or any of the inconveniences from the running of the road. The Taylor case decided in effect, as the judge charged, that there could be a recovery for the consequences of the running of locomotives and trains, provided it appeared that the manner of the running, and its physical effect, constituted a use of the street in fact other than, or beyond an ordinary and legitimate use of the street. The objection was not valid, as it assumed the contrary of this. There was before the case closed testimony given, which justified the submission to the jury of whether the running of the locomotives involved a use of the street other than the ordinary use. The ruling was consonant with the charge that a recovery could be only for an impairment of the easement of fight, air and access. The smoke, the gas, the cinders, the dropping, affected the easement, and may have impaired-it. Each one may have had an effect that lasted but a few minutes, but a repetition of them a jury had a right to find was a serious impairment of the easement.

The same considerations are to be applied to an objection made to another question of the same kind, that it should be confined to the effect of the structure itself upon rental value.

A witness had said, that rents began to fall off in the neighborhood of the place in question, about a certain time. Another question was then asked, “When did the diminution in the volume of business there commence ?” This was objected to, on the ground that the falling off of the volume of business is not an element of damage. The objection was overruled. The answer, however, was not injurious to the defendants.

The next question was, “Is there as much traffic now ‘as there was before the construction of the road? Are there as many people walking through the street ?” The witness said that he could not answer that. To a question to another witness, “What effect, if any, has it had upon the business of that street ? What effect has the road had on the business of the street, if any ?” the objection was taken to his stating the effect on the business, on the ground that the inquiry should be as to the effect on values. The question was allowed, and the witness answered that customers did not come there any more as they had, on account of the smoke, dirt, cinders and noise, etc. There was no attempt, in any part of the trial, by the plaintiff to recover for a loss of business. The rental value of the business would be likely to be affected by any cause that would for a continuous time keep customers from the shop. And the plaintiff was entitled to show what was the effect of the defendants’ acts upon anything likely to affect rental value, afterwards proving what was the rental value as so affected.

The question, “Was business ever before the construction of the road as bad as it was at the time of the commencement of this action ?” was calculated to call for a fact that the jury might properly consider in determining whether rental value had been lessened by defendants’ acts, It, with the last question considered,. would have been pertinent in rebuttal to meet a defense, alluded to in the judge’s charge, that if the diminution in rental value was caused not by the railway, but by the general flow of business higher up in ¡New York, the plaintiff was not entitled to recover. There were other exceptions of a like kind, that should not be held to be valid, but it is unnecessary to particularize them.

There were witnesses who testified to the rental value of the premises before and after construction and operation of the railroad. The judge was explicit in his charge that a recovery could be had only for a diminution of rental value, and that they must not give a verdict to plaintiff for any part of a diminution that resulted from the effect of the running of the road, excepting so far as that running was not an ordinary use of the street.

It is claimed that there was no evidence that the use of the street by the trains in running was not an ordinary and legitimate use. The court was not asked to inform the jury what were the legal qualities of an ordinary use of the street. The defendants allowed the jury to say whether, as matter of fact, the defendants’ use in the running of the trains was an ordinary one. For this purpose they could use their personal knowledge, which was common to all of them, of the manner in which streets are used, .in fact, ordinarily.

The plaintiff was allowed to prove that after the commencement of the action, the defendants placed under a point on the railway where the locomotives were in the habit of stopping, a dripping pan, to catch the drippings from the engine. This was objected to as tending to show damage after the action was begun, when the plaintiff had confined his demand to the beginning of the action. Probably the testimony did not affect the decision of the case one way or the other. Dripping and falling of ashes, from such a height as the defendants’ railway, cannot be deemed to be a part of the ordinary use of a street. Under the circumstances of this case, the jury would have had a right to find that the pan had been put up to remedy or prevent the injurious consequences of what had occurred before the action was begun.

There was on the trial an objection to a recovery of' more than nominal damages. The ground expressed for this was that no testimony in this case permitted the jury to find what, if any, diminution of rental value had been caused by the permanent structure of the defendants as distinguished from that caused by the operation of the railroad, if the jury fomid it to be only an ordinary use of the street. The jury had before them all the testimony of a substantial kind that the nature of the case admitted. It would apparently have been impossible to get an estimation of what would have been the rental value, if there had been the structure only, and what it would have been if in addition there had been smoke or cinders, but no gas, or there had been some other combination of circumstances, and which would have to be described to the expert, as one that was an extraordinary use of the street. The plaintiff would have to go without redress for his wrong, if it existed, if such testimony was necessary. Under such circumstances, of necessity, the jury must be left to judge for itself, on the testimony given, under proper instructions by the court.

The inequality of the damages assessed against the defendants respectively, is not ground for granting a new trial when the motion for it is made upon the judge’s minutes.

Judgment affirmed, with costs.


text:
    EMIL KANTER, Appellant, v. HENRY M. PEYSER, Impleaded, &c., Respondent.

      Decided March 2, 1885.

      Foreign executor-—equitable jurisdiction of courts of this state over.

    The courts of this state have no equitable jurisdiction over a foreign executor to compel an accounting, and enjoin the withdrawal of assets situate here, when the foreign executor is neither within, nor served with process in the state.
    Even if he be within, or served with process in the state, they have no such jurisdiction except in special cases; suchas when assets in this state are in danger of being lost or squandered before a proper representative can be appointed here to protect them, or a breach of trust, or some unjust and unlawful proceeding, or the like.
    The bare facts that the plaintiff is a residuary legatee, that the foreign executor has not accounted or paid over to him, that certain moneys of the estate in this state arc in the hands of his agent who is about to transmit them to him, and that he has no other property in this state out of which plaintiff’s claim could be satisfied, are insufficient.
    Before Sedgwick, Ch. J., and Truax and O’Gorman, JJ.
    Appeal by plaintiff from order dissolving injunction that had been obtained by plaintiff.
    The complaint was in substance, that the mother of the plaintiff had died in Germany, leaving a last will and testament, of which the defendant Kanter had been made executor, and he had duly qualified in Germany; that the plaintiff was one of the residuary legatees, that part of the estate consisted of certain described moneys ; that the defendant Kanter, executor, &c., had not accounted to the plaintiff for the same ; that another part consisted of certain moneys in the sum of $9,000, “ which is now or will be in the hands of the defendant Peyser as the agent or assignee of said defendant Kanter, in the city of New York, and that said fund is within the jurisdiction of this court; that said defendant Kantér has demanded of said defendant Peyser, the transmission to him to Germany of the unexpended portion of said fund, and that the said defendant Peyser is about to pay or transmit to said Eugene Kanter the said unexpended portion of said fund amounting to about $9,000 ;” that such payment or transmission would work great and irreparable injury to this plaintiff; and it demanded judgment, that the defendants account to plaintiff for the funds or moneys now in their hands in this city, and that defendant Kanter be enjoined from receiving from defendant Peyser, and the defendant Peyser from transmitting or paying to defendant Kanter, the money in Peyser’s hands, or which may come to them.
    An order enjoining defendants as demanded in the complaint, was served upon defendant Peyser, with the summons. Defendant Kanter was in Germany and was not served with any process.

      Charles Wehle, for appellant.

      Scudder & Carter, attorneys, and George A. Beach, of counsel for respondent,
    argued :—I. The facts show the case to be entirely outside of any claim for the equitable interference of the court (3 Redfield Wills, § 29, Third Ed. ; Beeler v. Dunn, 3 Head, 37 ; McNamara v. Dwyer, 7 Paige, 239 ; Brown v. Brown, 1 Barb. Ch. 187 ; Metcalf v. Clark, 41 Barb. 45; Hurlburt v. Durant, 21 Hun, 481). In Gulick v. Gulick (35 Barb. 92), an action was brought by an administrator appointed in this state, and can be sustained only on that ground. And no case can be found where an executor, a non- resident of the state, has been sued as an executor by a species of attachment of the funds of the estate.
    II. The executor had a right to assign to the defendant Peyser (Parsons v. Lyman, 20 N. Y. 103). No action can be maintained against the defendant Peyser as the agent of the executor (Colum v. Holbrook, 2 N. Y. 126).
   Per Curiam.

The plaintiff is not a creditor of the intestate. As a legatee he has, on the facts stated, no action at law against the defendant Kanter, the foreign executor. He has no interest in the fund so-called, which is very vaguely described in the complaint as a sum of money of about 89,000, “which is or will be in the hands of defendant Henry M. Peyser, as the agent or assignee of said defendant Eugene Kanter, in the city of New York, and that said fund is within the jurisdiction of this court. ” His only interest is his claim to a proper administration of the assets under the will. It is clear that the plaintiff has no equitable cause of action against the foreign executor in personam, in the courts of this state, irrespective of the existence in this state of the assets or a part of them. Our courts have no jurisdiction of foreign executors as such. As an exception to this rule, McNamara v. Dwyer (7 Paige, 239), held that the court of chancery had power to compel a foreign administrator to account for and pay over to the complainants their distributive share of the estate of the decedent, which had been received by him, in his character of administrator in Ireland, and which the defendant had brought into this state. To the exercise of such a power, the actual presence of the foreign administrator within this state was necessary ; for so long as he was without the state, the court recognized that his duty was to administer in the foreign forum, and the court could not, by serving him with process out of the state, create any obligation to the laws of this state. The obhgationkihust exist before the service of process. The endeavor to impound a fund recognized by our law as belonging to the foreign administrator, is an arbitrary act not based upon any principle of law. It is only compelling by force a debtor not to pay what he owes to his creditor at a time when the creditor is under no obligation to the plaintiff to abstain from collecting the debt.

The broader ground taken by the learned counsel for respondent is valid. It is that if the foreign executor had been served here, the case is not one where the court ■will interfere -with the foreign administrator. There are no special circumstances to show that justice to the plaintiff calls for the unusual remedy. In Murray v. Toland (3 Johns. Ch. 577), Chancellor Kent said, The inconvenience of following a man- to his place of residence abroad does not appear to me to be of itself a sufficient ground for departing from the settled doctrines of the court.” Order affirmed, with $10 costs, and disbursements to be taxed.


text:
    THE MERCHANTS' STEAMSHIP CO., Respondent, v. THE COMMERCIAL MUTUAL INSURANCE CO., Appellant.

      Marine insurance—sepa/t'ate valuations in policy—written and printed clauses “free from particular average”—“actual total loss’’-—premium notes.—Pleading—supplemental answer.—Appeal.

    Separate valuations in the policy of marine insurance indicate separate sub- , jects of insurance, and the contract is to he enforced distributively as to the particulars under each valuation considered as a whole. Thus, where a policy was, “ the said vessel, tackle, &c., hereby insured, are valued at §20,000, on hull, tackle, apparel and other furniture; $20,000, on boilers and machinery,” and the sum insured was $4,000 on vessel, free of particular average, and there was an actual total loss of the hull, tackle, apparel and furniture by a peril insured against, the sum of $4,000. was recoverable, although there was no loss of the boilers and machinery by a peril insured against.
    Written clauses restrict and modify printed ones whenever they are not con- . gruous. Thus, where there are printed clauses under which a technical total loss may be claimed, and a written one under which no claim, except for an actual total loss, can be made, the latter controls.
    Under the clause “ free from particular average,” a constructive (or technical) loss cannot be claimed ; and if the clause be written it controls all printed clauses under which a claim for a constructive total loss could he made.
    The evidence was such that it could not be affirmed that it showed that what was left, after the sinking of the vessel by a collision and her being raised, had the form of a vessel. Sold, that the fact that what was left was used as a coal barge, did not show that the materials had not become so far separated in their joint and relative positions, as to no longer constitute a part of a vessel, and yet have been capable of being used as materials for a coal barge by means of additional appliances not disclosed. Further held, that the finding of an actual total loss would not be disturbed.

      Decided March 3, 1885.
    Where the contract for insurance itself limits the amount to which the plaintiff may recover, by stipulating that the premium notes, if unpaid, shall first be deducted, it is not necessary to entitle a defendant to such deduction that he should set up the non-payment of such notes in the answer by way of set-off or counter-claim.
    Where there is a supplemental answer after trial and judgment for plaintiff, no proceedings having been taken below on it, it presents nothing to review, or that can be considered in connection with the judgment appealed from.
    Order allowing supplemental answer after trial and judgment for plaintiff, but denying that part of the motion by which leave to serve the answer was asked, which asked that the judgment and trial be opened to allow proof of the matters set up in the supplemental answer, from which plaintiff appealed but defendant did not, was, under the circumstances of this case, reversed.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from judgment in favor of the plaintiff, entered upon the findings of a judge sitting at trial term, without a jury.
    The action was for loss upon a policy of marine insurance.
    There were two policies, one for $4,000 on vessel, free of particular average ; the other for $2,000 on vessel, free of particular average. Each policy contained the clauses : “ the said vessel, tackle, &c., hereby insured, are valued at $20,000 on hull, tackle, apparel and other furniture; $20,000 on boilers and machinery; without any further account being given by the assured to the assurers, or any of them, for the same.” The judge found and decided that plaintiff was entitled to recover on the first policy $4,000 with interest, and on the second $2,000 with interest, less fifteen per cent, of the sum received from the sale of the wreck.
    Other facts appear in the opinion.

      Oliver Drake Smith, attorney, and David J. H. Willcox, of counsel for appellant,
    argued :—I. The contract of insurance was made “free of particular average.” The form of policy used did, indeed, contain printed provisions regulating claims, for partial loss, particular average, or technical total loss. But so far as these printed provisions are inconsistent with the written warranty “ free of particular average ” they are controlled thereby (Burt v. Brewers & Maltsters’ Ins. Co., 9 Hun, 383 ; aff’d, 78 N. Y. 400; Leeds v. Mechanics’ Ins. Co., 8 N. Y. 351 ; Harper v. N. Y. City Ins. Co., 22 Ib. 444 ; Bargett v. Orient Ins. Co., 3 Bosw. 385). There is, therefore, no liability for any damage less than a total loss (Bargett v. Orient Mutual Ins. Co., 3 Bosw. 385; Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Stephens & Benecke on Average, [Phillips] 341; 2 Burrill’s Law Dict. 277 ; Bargett v. Orient Ins. Co., 3 Bosw. 399 ; Lowndes Mar. Ins. Ed. 1881, § 267 ; 2 Phillips Ins. 767; Brooke, v. Louisiana Ins. Co., 4 Martin N. S. 640; S. C., 5 Id. 530 ; Murray v. Hatch, 6 Mass. 465 ; Wright v. Williams, 20 Hun, 320).
    II. There was no actual total loss of the property insured. An actual total loss takes place when the thing insured “ wholly perishes or its recovery is rendered irretrievably hopeless ” (Burt v. Brewers & Maltsters’ Ins. Co., 9 Hun, 383, aff’d, 78 N. Y. 400 ; Buchanan v. Ocean Ins. Co., 6 Cow. 318; Bryan v. Insurance Co., 25 Wend. 617 ; De Peyster v. Sun Ins. Co., 19 N. Y. 272, and cases there cited ; Poole v. Protection Ins. Co., 14 Conn. 47; Insurance Co. v. Fogerty, 19 Wall. 640 ; Dyson v. Rowcroft, 3 B. & P. 474 ; Cologan v. London Assurance Co., 5 M. & S. 447 ; Roux v. Salvador, 3 Bing. N. C. 266 ; S. C., 4 Scott, 1; Wallerstein v. Columbian Ins. Co., 44 N. Y. 204 ; McCall v. Sun Ins. Co., 66 N. Y. 505).
    The Falcon’s “planks still held together so that she retained the form of a ship” (6 Arnould Ins. 1013). Her cargo remained on board. She was reparable. The necessary repairs upon her hull would have cost $22,865, and the necessary repairs upon her machinery would have cost $2,300. But the injury to the machinery arose from causes not covered by the policies. And the policies provided that, in case of claim for loss or damage, the amount thereof should be ascertained by making a deduction of one-third from the cost of repairing. If this provision be applied to the cost of repairing the damage covered by the insurance—namely, $22,865—the actual net damage is ascertained to have been but $15,243. Even this, it should be observed, included cost of taking off sheathing, re-caulking and docking, for which, under the policy, defendant was liable, if at all, only in part.
    The value of the vessel was fixed by the policies at $40,000. It was provided that this valuation should be conclusive between the parties. This, too, is the general rule of law (Providence, &c. Co. v. Phenix Ins. Co. 89 N. Y. 559). The property insured, then, was worth $40,000, and was damaged to the extent of only $15,243. Still further, the property insured was thereafter sold at auction, and under an order of court, for $3,800, and purchased by plaintiff. The balance of the purchase money remaining after paying salvage and expenses has been paid to plaintiff. Steam could have been and actually was got up in her boilers. Plaintiffs, after taking her machinery out, disposed of her in part payment for another vessel. She is now in use as a coal barge, carrying cargoes of about nine hundred tons. The Falcon was, therefore, not an actual total loss within the rules of law upon the subject (Barker v. Janson, L. R. 3 C. P. 303, 305) 2 Arnould Ins. [Ed. 1872], 882 ; Murray v. Hatch, 6 Mass. 465 ; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50 ; Sewall v. United States Ins. Co., 11 Pick. 90 ; Peele v. Suffolk Ins. Co., 7 Pick. 254 ; Commonwealth Ins. Co. v. Chase, 20 Ib. 142; Insurance Co. v. Gossler, 96 U. S. 645). It is quite clear, then, that in the present case there was no actual total loss. Nor has the plaintiff ever claimed that there was. Its statement at the time was that the vessel was “practically a total loss ”—not actually. It accordingly attempted to abandon the vessel. That action would have been wholly 'unnecessary if there had been an actual total loss (Burt v. Brewers & Maltsters’ Ins. Co.,
      supra). And there is no suggestion in the complaint of any claim of an actual total loss. Plaintiff’s claim to recover can, therefore, be placed only upon the ground of a constructive or technical total loss.
    III. The property insured has not been damaged to such extent as to make a technical total loss. The vessel was valued in the application and the policies at $40,000. The estimated repairs rendered necessary by causes covered by the policy amounted to $22,865. If a deduction of one-third be made from these estimated repairs the ‘ ‘ net cost ” of the repairs will be found to be $15,243. But, as has been said, the insured value of the vessel in the policy is $40,000. The net cost of the repairs is, therefore, considerably less than a moiety of the insured value of the vessel, and, under the terms of the policy above stated, the loss must be deemed “partial only” (Bullard v. Roger Williams Ins. Co., 1 Curtis, 148). Some weight may be claimed for the circumstance that the valuation of the vessel is made up of separate values placed upon the hull, tackle, apparel, &c., and upon the boilers and machinery ; 'and the suggestion may be made that this brings the case within the principle sometimes asserted, that, where the subject of insurance consists of distinct and separate classes of objects, there may be a technical total loss of one class, although the damage is not sufficient to make a technical total loss of the whole. Although this rule was announced in an early English case (Davy v. Milford, 15 East, 559), the weight of authority is decidedly against it (Guerlain v. Columbian Ins. Co., 7 Johns. 527 ; Waln v. Thompson, 9 S. & R. 115 ; Newlin v. Insurance Co., 20 Pa. St. 312 ; Humphreys v. Union Ins. Co., 3 Mason, 429 ; Hernandez v. Sun Mutual Ins. Co., 6 Blatchf. 317; Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Biays v. Chesapeake Ins. Co., 7 Cranch, 415 ; Marean v. U. S. Ins. Co., 1 Wheaton, 219 ; Ralli v. Jansen, 6 Ell. & Bl. 422). But this doctrine has, at the utmost, been held applicable only where there were distinct and separate classes of objects insured. It has never been held that there could be a division of the contract of insurance among different parts of the same integral whole as to make a technical total loss of one component part where there was no such loss of the whole. It surely cannot be seriously claimed that, when the policy is upon a vessel, the hull can be regarded as one separate and distinct subject of insurance and the machinery as another. For, as was said in Oppenheim v. Fry (3 B. & S. 873), “the entire vessel consists of the ship and her machinery, which is as much part of the ship as her masts and rigging and as is said in Arnould on Insurance (1 Maclachlan’s Ed. 21), the term ship or vessel covers both hull and machinery.'
    IV. Even if there was a constructive total loss, defendant is not liable therefor. The text-writers are agreed that a policy “free of particular average,” or “against total loss only,” does not cover a constructive total loss (Philips Ins. 1767 ; 2 Parsons Mar. Ins. 3 ; Arnould Ins. [Maclachlan Ed. 900]; Barber Ins. § 130 [ed. 1882] ; Le Roy v. Gouverneur, 1 Johns. Cas. 226 ; Maggrath v. Church, 1 Caines, 195; Neilson v. Columbian Ins. Co., 3 Caines, 108 ; Saltus v. Ocean Ins. Co., 14 Johns. 138 ; Buchanan v. Ocean Ins. Co., 6 Cow. 318 ; Astor v. Union Ins. Co., 7 Ib. 202; Wadsworth v. Pacific Ins Co., 4 Wend. 33; Bryan v. New York Ins. Co., 25 Wend. 617; Ogden v. General Mut. Ins. Co., 2 Duer, 204; De Peyster v. Sun Mut. Ins. Co., 19 N. Y. 272). The case of Wallerstein v. Columbian Ins. Co. (44 N. Y. 204), has sometimes been supposed to have changed the rule thus uniformly laid down by the courts of this state regarding the effect of the warranty against particular average. But that case was decided upon the ground that the voyage was lost and that this constitutes a total loss. In Chadsey v. Guion (46 Super. Ct. 118), this court says that the Waller-stein case did not hold (as would have been inconsistent with the previous decisions), that an entire destruction of value was sufficient in itself to constitute an actual total" loss, and expressly refrains from deciding whether or not an insurer “ free from particular average ” is liable for a technical total loss (p. 123). That, the supreme court has recently said, involves “interesting questions of law” (Wright v. Williams, 20 Hun, 220). See also Burt v. Brewers’ Ins. Co. (9 Hun, 383 ; S. C., 78 N. Y. 400). The same rule prevails in the federal courts (Biays v. Chesapeake Ins. Co., 7 Cranch, 415 ; Marcardier v. Chesapeake Ins. Co., 8 Ib. 39 ; Morean v. United States Ins. Co., 1 Wheat. 219 ; Hugg v. Augusta Ins. Co., 7 How. 595). There are numerous cases to the same effect in other courts (Williams v. Kennebec Ins. Co., 31 Me. 455; Aranzamenta v. Louisiana Ins. Co., 2 La. 432 ; Skinner v. Louisiana Ins. Co., 19 Martin, 373 ; Brooke v. Ins. Co., 4 Martin N. S. 322 ; Willard v. Millers’ & Mfgrs. Ins. Co., 24 Mo. 561; Navone v. Haddon, 9 C. B. 30 ; Hotchkiss v. Commercial Mut. Ins. Co., 1 Robertson, 489 ; Morean v. United States Ins. Co., 3 Wash. C. C. 356 ; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220; Waln v. Thompson, 9 S. & R. 115 ; Skinner v. Western Ins. Co., 19 La. 273). It cannot be denied that there are some authorities in Massachusetts holding that a policy upon a ship written against total loss only, charges the underwriter with liability for constructive total loss. They are placed upon the curious ground that the same words—free of particular average •—when applied to perishable articles mean one thing, and when applied to vessels mean quite another. But this distinction is unfounded in principle and totally unsupported by authority.
    Y. If there be any recovery, the court erred as to its amomit. The answer alleged that the policies were issued in consideration of two notes, one for $521.25, and the other for $261.25, which were not yet due, and were unpaid. The policies provided that the amount of any note or notes given for premiums shall be deducted “ before payment ” of losses on the policies. The court has found that plaintiff is indebted to defendant for the aforesaid notes given for insurance upon the Falcon. Defendant requested a finding that it should be credited with the notes. This the court refused, and. found in plaintiff’s favor for the entire amount of the policies without making any credit for the notes. To this defendant duly excepted. This was in plain violation of the terms of the contract of the parties. Nor can it avail plaintiff to contend that defendant’s rights regarding the premium notes were not sufficiently set up in the pleadings. As has been seen, such notes were set up in the answer. And, in addition, the contract was that the amount due upon the policies should not be the whole amount thereof, but only the balance remaining after deducting the notes. That balance was the full measure of defendant’s liability, and it was error to give judgment against it for more. The plaintiff libeled the schooner Tryon for the damages sustained by the collision, and has recovered and collected $3,447. This defendant set up by supplemental answer, and claimed that, if it be hable on the policies, it should be credited with its proper proportion of the recovery. Plaintiff admitted the facts by faffing to reply to the supplemental answer, and the court found them. The court nevertheless found that plaintiff was entitled to judgment for the full amount of the policies without making this credit. To this defendant duly excepted. This was error. Plaintiff is claiming under an alleged abandonment. If this be effectual it vests in defendant the title to the property abandoned and subrogates it to plaintiff’s rights on account thereof (Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173), including any recovery of damages (Atlantic Ins. Co. v. Storrow, 5 Paige, 285 Yeates v. Whyte, 4 Bing. N. C. 272). Plaintiff clearly cannot recover on the theory that it has abandoned, and retain the damages collected on the theory that it has not abandoned. As it appears in evidence that the amount in question, $524.05, has been collected upon account of the property abandoned, defendant’s liability, if any, has beén diminished by that amount.

      Burrill, Zabriskie & Burrill, attorneys, and John E. Burrill and George Zabriskie, of counsel for respondent,
    among other things, argued :—I. The defendant claimed that, in determining the question as to technical total loss, the valuation of vessel, machinery and everything, must be regarded at $40,000, but we claim, and the court ( held, that while there was insurance only on the vessel there were two subjects of valuation—one, the vessel, hull, tackle, apparel, and other furniture valued at $20,000, and the other machinery valued at $20,000. The distinction between vessel and machinery is recognized by the policies, which not only place separate valuations on the two, but also provide for particular exemption from loss in respect to the machinery. It seems that the defendant used the ordinary printed form of policy, a part of which, relating to machinery, was inapplicable. The machinery is treated as entirely distinct from the vessel, and its value is not reckoned in counting the value of the vessel. The liability of the company for injuries to machinery is limited to injuries occasioned by stranding or fire, unless in the case of a total loss from other causes. In the event of the breaking of the main shaft, for example, in consequence of a collision, the company would not, where the machinery was insured, be liable for that injury ; while if the hull were injured by the same accident the company would, if it were a case for general average, be liable for the injury to the hull. Accordingly, the value of the machinery is not to be reckoned in computing the value of the vessel for purposes of abandonment. That the cost of repairing the vessel and putting her in the condition in which she was at the time of loss," exceeded her value when repaired, is proved by all the witnesses. As to the principles of law involved in the findings, see Suarez v. Sun Ins. Co. (2 Sandf. 482) ; McCall v. Sun Mutual (66 N. Y. 515) ; Wallenstein v. Col. Ins. Co. (44 Ib. 217); Center v. Am. Ins. Co. (7 Cow. 571).
    II. The finding that the subject of the insurance was, at the time of the abandonment, a total loss, is sustained by the evidence, and the exception was not well taken (Suarez v. Ins. Co., 2 Sandf. 484). The evidence clearly estabhshed that at the time of the abandonment the vessel was at the bottom of Chesapeake Bay. She ceased to be a steamer and never again became one. When she was raised by a salvage service she ceased to be a vessel, and was, in the language used in the case, “ a mere congeries of materials ” (McCall v. Sun Mutual Co., 66 N. Y. 505 ; Wallerstein v. Col. Ins. Co., 44 Ib. 206 ; Wright v. Williams, 20 Hun, 320 ; Bullard v. Roger Williams Co., 1 Curtis, 148 ; Cambridge v. Anderton, 2 Barn. & C. 691; Williams v. Hartford Co., 22 Alb. L. J. 256 ; Wright v. Williams, 20 Hun, 325 ; Roux v. Salvador, 3 Bing. N. C. 266 ; Ins. Co. v. Fogarty, 19 Wall. 640). Under this finding no notice of abandonment was necessary, as that is required only where the total loss is constructive.
    III. The use of the words “free of particular average ” did not exempt the defendant from liability for a constructive total loss, and the fifteenth exception, was not well taken (Wallerstein v. Columbia Ins. Co., 44 N. Y 204, 324; Wright v. Williams, 20 Hun, 320 ; Adams v. Mackenzie, 13 Com. Bench, N. S. 442 ; O’Leary v. Stymest, 6 New Brunswick, 289 ; Forwood v. North Wales Co., 9 Q. B. D. 539 ; Kettell v. Alliance Co., 10 Gray, 144; Heebnes v. Eagle Co., 10 Ib. 131; Green v. Pacific Ins. Co., 9 Allen, 217 ; 3 Arnould’s Ins. 856, 860 ; Roux v. Salvador, 3 Bing. N. C. 277). In the policies in suit the defendant recognized the fact that there was a liability for constructive total loss by inserting certain clauses to that effect in the policies. ■
    TV. The exception to the refusal to find that the “ bottom of the hull was in good condition ” was not well taken. The court properly refused to find that isolated fact, which by itself was wholly immaterial, and found very fully in regard to the condition of the vessel. Moreover, that evidence related to the condition at the time Roberts bought her, and not when the abandonment was made.
    V. The court was correct in refusing at the trial to allow the defendants by way of offset or counter-claim the amount of the premium notes mentioned in the proposed findings, because no such defense was set up in the pleadings, and because the notes include premiums on other policies (Phil. Ins. 489 ; Rider v. Ocean Co., 20 Rich. 259 ; Diehl v. Ins. Co., 1 Sandf. 251).
    VI. The court was also correct in refusing at the trial to allow the defendants any part of the amounts received from the proceeds of sale of the wreck, or for damages done to the Falcon, for the reason that these matters were not set up by way of defense in the pleadings.
    VIII. The special term order allowing the supplemental and amended answer to be attached to the judgment-roll did not disturb or interfere with the judgment, and the court refused to vacate, open or disturb the judgment. The defendant has not appealed from so much of the order as denied the motion to open the judgment. The plaintiff has appealed from the order because it was in their view improper to make it, as it was a cloud upon the judgment, and it could not be readily seen what use the defendant might hereafter make of it. The order was not necessary to protect the interests of the defendant, because, among other reasons the additional defenses rest on the claims which defendant may assert in an independent action without prejudice to himself, and it should require a very clear case to induce the court to interfere, as asked for by the defendant, by opening the judgments and trial so as to allow them to be interposed here.
   Per Curiam.

The policies described the subject of the insurance in the following terms : “On vessel, the body tackle and apparel, and other furniture of the good steamship called the Falcon. . . The said vessel, tackle, etc., hereby insured, are valued at $20,000, on hull, tackle, apparel and other furniture; $20,000 on. boilers and machinery. ” The two valuations indicate separate subjects of insurance, and the contract is to he enforced distributively as to the particulars under each valuation considered as a whole (Deidericks v. The Commercial Ins. Co. of N. Y., 10 Johns. 234; Wallerstein v. The Columbian Ins. Co., 44 N. Y. 204 ; Merrill v. Agricultural Ins. Co., 73 Ib. 452).

The policies, as usual, contained many clauses intended to be applied to different contingencies that might arise, according to the particular insurance and to the different circumstances of particular losses. Such of them as were in print were subjected to restriction or modification by such as were written, when the printed matter and the written matter were not congruous. It was provided in printing that in case of claim for loss or damage, c ‘ the usual deduction should be made of one-third new for old, etc., and that if a technical total loss be claimed, similar deductions shall be made from the estimated repairs, and unless the net cost thereof would exceed a moiety of the insured value of the vessel in this policy, after making such deductions, the loss shall be partial only.” This clause does not determine when a valid claim may be made for a technical total loss. The rest of the policy, and particularly the "written clause, c free from particular average, ” fixes what claim may be made. That under this claim a constructive total loss cannot be claimed is generally declared to be the law (2 Pars. Mar. Ins. 111, et seq. and notes). This is founded upon reason. The rule as to technical or constructive total loss was made from a necessity there was, many times, of determining whether, when some part of the thing insured remained after a loss, it could be correctly held that there was actual total loss. If what was left was inconsiderable as to any of the uses or advantages of the subject when whole, it would only be literally true that the loss was not total, while really the owner would be more likely to abandon the remnant, than try to save it. How large or great a quantity might be left and yet there be a total loss was determined, not by attempting to ascertain the value of the remnant directly, but by ascertaining what the loss was ; namely, the cost of repair after the deduction of new for old, and if the cost were more than one half of the value of the thing insured, then it was deemed that the remaining half, represented by the actual remnant, was not so considerable that its existence should prevent a legal conclusion that there was actual total loss. It was not denied that in such case the insurers paid for what was only a partial loss, indemnifying themselves by taking the remnant. In many cases there was no doubt that there was no total loss actually. If the parties contract against such a method of adjustment, the law will carry out their intent. The clause against particular average or partial loss, means that the insurer will not pay what is in fact a partial loss, under any circumstances, and therefore not for a constructive total loss, for the latter is really a payment for a partial loss, and for a constructive value of the remnants. There is no such thing as a constructive partial loss (2 Par. Mar. Ins. 111, et seq. and notes).

The inquiry as to the vessel, tackle, apparel and other furniture, is, whether there was a total loss of them. The case suggests that in some circumstances there could not be total loss, if anything separable from the rest of the particulars, under the valuation which was applied to them in the aggregate, had been saved in specie. This view of the possible case was not presented to the court on the trial or on this appeal, and probably the facts show that no separable part was in fact saved. When the vessel sank, and while she was on the bottom, and also when raising, the loose things were swept or fell from the vessel. The inquiry is to be confined, therefore, to the total loss of the vessel. The mere fact that the vessel sank in six fathoms of water, did not make her a total loss. That would depend upon the surrounding circumstances. It was good weather. She sank in the Chesapeake Bay, when the vessel had been out of Baltimore about six hours. The wrecking company began work on her within ' a very short time, and she was. lifted without difficulty. Nevertheless, the circumstances that have been adverted to, do not prove that she was not a total loss. The success in raising her may have disclosed the fact, that the vessel was no longer a vessel, in specie; that there was not mere deterioration, but such a dissolution of the continuity of the materials generally that were left, that there were only deteriorated materials for part of a vessel, but no vessel. The learned judge on the trial found that there was practically (by which is to be understood actually) a total loss. The evidence for this forbids that it shoiild be disturbed. The collision cut the vessel down to the water’s edge, where the schooner struck her. The judge found in particular, that by the collision and the sinking,'the steamer’s smoke-stack, mizzen mast, all the sails except the square-sail, all the deck-houses, and the furniture, and .appointments of the deck-houses, were carried away. The planking on the port side, extending about one hundred feet from the stern, was stripped off and carried away with the frame timbers and the between-deck waterways. The upper deck and the deck frame on the same side, and the between-deck water-ways were broken. The windlass side let was started. All the frame timbers of the ship, and all the planking which were not carried away, were started and loosened. The evidence in general, that is not particularly noticed by the judge, is to be construed in favor of this finding. One witness, no doubt credible, swore that the bottom of the vessel remained sound. The judge refused to find that this was the fact, in the words of the witness. His refusal cannot be reversed, for he perceived, better than an appellate court can, what in view of other established facts, the real sig- • nificance of the phrase used by the witness was. It cannot be affirmed that the testimony shows that what was left had the form of a vessel. It may have had the form of part of a vessel. "What was left was afterward used as a coal barge. This fact does not show that the materials left were used as a vessel to make the coal barge. The materials may have become so far separated in their joints and relative positions, as to no longer constitute a part of a vessel, and yet in that state be used as materials for a coal barge, by means of additional appliances which are not disclosed. There having been an actual total loss, there is no necessity of ascertaining whether an abandonment was made, so far as the vessel is concerned.

The facts concerning the boiler and machinery might lead to a different result as to them. They were raised with the wreck of the vessel and saved. The learned judge found that the engine was badly rusted, the rods bent and twisted, and its parts disarranged,” and further, that the machinery was removed from the wreck and the purchaser of said wreck cut down the sides of the hull where the same had been torn away by reason of the collision . . . and that the cost and expense of removing said machinery exceeded the value thereof, after it had been so removed, and that said machinery was of no value as machinery, but it only was valuable as old iron.”

It is unnecessary to make any reference to the loss upon the boiler and machinery farther than to say that as to them, other propositions than such as have been already adverted to, would perhaps call for examination. The policy provided that the insurers should be hable for loss on them only when occasioned by stranding. The learned counsel for appellant does not claim that if there were an actual total loss of the vessel, the defendants would not be liable for the gross sum insured, subject to deduction on other grounds.

The defendant claimed that there should be deducted from the amount claimed as loss, the amount of the premium notes. This being a valued policy, which in case of total loss, liquidated the damages, the premium notes might be set-off (Columbian Insurance Company v. Black, 18 Johns. 149). In this case, however, the contract itself limits the amount which the plaintiff may recover, by stipulating that the premium notes, if unpaid, shall first be deducted. Any part of a recovery that should represent the amount of the premium notes, would be unauthorized by the contract. The claim as to the premium notes it was not necessary to set up in the answer by way of set-off or counter-claim. The mere statement that such notes had been given and remained unpaid, was an assertion of a fact that put in issue the claim of the defendant to a part of the damages. The learned counsel for the respondent asserted on the argument that these notes were for other policies besides the present. It does not seem that there is any testimony for this. The amount of the promissory notes in evidence corresponds with the amount of premiums noted on the policies. The amount of the notes given for the premiums must be deducted from the recovery.

There was another claim for a deduction which the defendant did not make in the answer, upon which the action was tried. It was in the nature of a counter-claim for money had and received in a proceeding in which the plaintiff recovered damages against the schooner that struck the vessel in question, sinking her, and which was the loss under the policy. After the trial the claim was made in a supplemental answer. The leave to serve this was accompanied with a denial of the part of the motion which asked that the judgment and trial be opened, to allow proof of the matters set up in the supplemental answer. The plaintiff appeals from this order. The defendant does not, but says that as the plamtiff has not replied or demurred to the counter-claim, there should be a deduction from the amount of the judgment. As there has been no proceeding taken below on the supplemental answer, there is nothing to review, or that may be considered in connection with the present judgment. It stands like any other unanswered pleading, and some proceeding must be had upon it for review in this court. In order to prevent a litigation of very doubtful advantage to the defendant, it is best that the order granting leave to serve supplemental answer, be reversed, without costs.

The judgment should be modified by deducting the amount of the premium notes and interest, and as modified, should be affirmed, without costs of appeal to either party.