author: Opinion per Curiam.

text:
    ANN LITTLEWOOD, as Admrx., &c. v. THE MAYOR, &c., OF NEW YORK.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ,

      Decided May 2, 1881.

      Action by personal representatives, under statute, to recover for causing death by wrongful act, neglect or default—will not lie, when deceased has recovered a judgment, which has been paid, for the injuries causing his death.

    Exceptions of plaintiff ordered to be heard, at general term, in first instance, the complaint having been dismissed.
    The action was brought, under the statute, to recover the sum of $5,000 damages, claimed to have been sustained by the plaintiff, as widow of Patrick Little-wood, deceased, and by the next of kin of said Little-wood, by reason of his death.
    Such death resulted from injuries sustained by reason of the defective and unsafe condition of one of the streets of the city of New York, through which he was driving.
    The answer, among other things, alleged, as a defense, that the plaintiff’s intestate, during his lifetime, brought suit against the defendants for the injuries claimed to have been sustained by him at the time and place mentioned, in the complaint in this action; that such suit was tried and a judgment recovered by the plaintiff for the sum of $2,500, which was paid.
    The defendants’ counsel admitted on the trial that the plaintiff was duly appointed administratrix of the estate of Patrick Littlewood, and the plaintiff’s counsel admitted the paragraph of the answer in which was set up the recovery by Littlewood,in his lifetime.
    The judge thereupon dismissed the complaint upon the pleadings, ordering the exceptions to be heard in the first instance at the general term.
    The court, at General Term, said: “ Without passing upon the reasoning in the case of Dibble v. New York & W. R. Co. (25 Barb. 183), the judgment in it, is followed as authority which requires the overruling of the present exceptions.”

      E. D. Macarthy, for plaintiff, cited:

      Leggatt v. Great North W. R. Co. (1 Queen’s B. Div. 599); Whitford v. Panama R. R. Co. (23 N. Y. 465); Oldfield v. N. Y. & H. R. R. Co. (14 N. Y 320); Quin v. Moore (15 N. Y. 435); Smith v. Smith (79 N. Y. 634).

      W. C. Whitney and Arthur Martin, for defendant.

       See also opinion of Comstock, J., on appeal to court of appeals, reported in Whitford v. Panama R. R. Co. (23 N. Y. 484).

   Opinion per Curiam.

Exceptions overruled, and judgment for defendant ordered, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ADALINE T. SMITH, Respondent, v. EZRA H. LINLEY, et al., Appellants.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided June 13, 1881.
    Appeal from order granting plaintiff’s motion to amend complaint.
    Arnoux, Hitch & Woodford, for appellants.

      Charles 8. Jackson, for respondent.
   Per Curiam.

The court is of opinion that the order was within the discretion of the judge below, and that no reason appear for disturbing his exercise of that discretion.

Order affirmed, with $10 costs, and disbursements to be taxed.


text:
    JOHN R. VOORHIS, Appellant, v. STEPHEN B. FRENCH, et al., Respondents.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 6, 1881.

      Default—-presumption that same was regula/rly taken.—Calendar— non-puhlication of, not conclusive evidence that there was none.

    Appeal by plaintiff from order granting, upon condition of payment of $10 costs, plaintiff’s motion to open default at trial term.
    The court, at General Term, said: “The appellant’s counsel takes the position, that the motion below should have been granted unconditionally, inasmuch as he claims the fact to be, that the default was taken upon a day when the cause was not upon the day calendar for trial. It is not decisive as to this, that the Daily Register advertised no day calendar. The day before, it clearly appears that the case had been adjourned. No day of adjournment is given, but the usual course would have been for the case to go over to the next day, and as the court, of course, had judicial and personal knowledge of the calendar, his acting as if the default had been regularly taken, must' be deemed to be final. The terms imposed as a condition of setting aside the default, were the least possible, and were in his discretion.

      Chauncey M. Bruax, for appellant.
    . Elidm Root and Willard Bartlett, for respondents!

       See Ante, p. 364.

   Opinion per Curiam.

Order affirmed, with $10 costs, and disbursements to be taxed. :


text:
    GEORGE W. WHITE, Respondent, v. CHARLES WHITE, et al., Appellants.
    Before Sedgwick, Ch. J., and Freedman, ,J.

      Decided June 6, 1881.
    Appeal from order denying defendants’ motion to make certain parts of the complaint more definite and certain, or to strike them out as irrelevant and redundant.

      F. O. Bowman, for appellants. ,

      George H. Adams, for respondent.
   Per Curiam.

The order should be affirmed, witit costs.


text:
    PETER D. STRAUCH, et al., Respondents, v. CATHARINE WARREN, Appellant.
    Before Speir and Freedman, JJ.
    Decided June 6, 1881.
    Appeal from judgment and from an order denying: a motion for a new trial upon the minutes.

      S. F. Kneeland, for appellant.

      George W. Lord, for respondents.
   Opinion per Curiam.

Judgment and order affirmed, with costs.


text:
    DANIEL DUNNIGAN, Appellant, v. THOMAS HENDERSON, et al., Respondents.
    Before Speir and Freedman, JJ.

      Decided June 6, 1881.
    Appeal from judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes.

      Thomas <6 Wilder, attorneys, and E. P. Wilder, of counsel, for appellant.

      James K. Hill, Wing & Bhoudy, attorneys, and .Joseph A. Bhoudy, of counsel, for respondents.
   No opinion.

Judgment and order affirmed, with costs.


text:
    AUGUSTA BARTHOLOMAE, et al., Respondents, v. SIGISMUND KAUFFMANN, Appellant.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided June 13, 1881.

      Lease—liability on, of person who executes as agent for others without authority.—Amendment on the trial.

    Appeal from judgment against defendant.
    The action was to recover the rent covenanted to be paid by a certain lease between plaintiffs as lessors, and “the trustees of the German American Institute,” as lessees, and signed and sealed by the defendant; “for the Board of Trustees, by S. Kauffmann, treasurer.”
    The plaintiff, at defendants’ request, substituted in place of John Doe and Richard Roe, certain persons as defendants, as such trustees.
    On the trial, it appearing that the lease was obtained by the defendant, Kauffmann, who promised that plaintiffs should have his check every quarter day ; that the above-named organization was a mere voluntary association, and that said Kauffmann had no authority to bind his associates, the plaintiffs were allowed, under objection and exception, to amend their complaint to conform to the proofs, by dropping therefrom the names of the persons so substituted as defendants,- and a motion for the dismissal of the complaint being made and denied, a verdict was rendered against the defendant, Kauffmann.
    The court, at General Term, held : That the amendment was correctly allowed, and that the defendant, Kauffmann, having executed the lea'se as treasurer, without authority from the other defendants as patrons of the school, some of whose children had attended it, and there being no trustees, in fact, and only a mere voluntary association,—by such execution of the lease, he became liable.

      George N. Sanders and Lewis. Sanders, for appellant.

      Edward P. Orrell, for respondent.
   Opinion by Speir, J. ; Sedgwick, Ch. J.. and Freedman, J., concurred.

Judgment affirmed, with costs.


text:
    JOHN S. McGILL, as Receiver, &c., v. CHARLES HAGEDORN, et al.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided June 13, 1881.
    Appeal from order adjudging defendant guilty of contempt.

      Richard M. Bruno, for defendant.

      Charles JB. Williams, for plaintiff.
   Per Curiam.

The order must be affirmed, with costs.


text:
    WILLIAM EGGERT, Appellant, v. DANIEL B. BONNET, et al., Respondents.
    Before Sedgwick, Ch. J., and Van Yorst, J.

      Decided November 7, 1881.
    Appeal from order opening a default on condition of payment of costs and of plaintiff stipulating that issues be referred.

      James K. Hill, Wing & Shoudy, attorneys,-and L A. Shoudy, of counsel, for appellant.

      Charles W. Seymour, and Henry Q. Atwater, for respondents.
   Per Curiam.

In view of the general circumstances of the case, and of the particular fact that probably a jury is the proper judge of the material issues, the order below is modified by striking therefrom the condition that plaintiff stipulate to refer. The condition as to costs is retained.

The order appealed from is to be modified, as indicated, without costs to either party.


text:
    WILLIAM KELLY, Appellant, v. ANNA C. DEVLIN, as Admrx., &c., et al., Respondents.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided November 7, 1881.

      Copartnership—plaintiff seeking to establish copartnership by parol, with one deceased, is to be held to strict proof—when against public policy.

    Appeal from judgment dismissing complaint, with costs.
    The action was brought to establish, among other things, the existence of a parol contract of copartnership between plaintiff and defendant’s intestate.
    The court, at General Term, said: “Although there are in the case a number of particles of evidence, consisting mostly of loose declarations to the effect that Charles P. Devlin, in his lifetime, and the plaintiff were partners in reference to some things, yet, upon the whole case, the plaintiff failed to establish that in point of fact a partnership, such as that alleged in the complaint, ever existed between them in reference to the matters in issue. As to these matters the alleged partnership confessedly was a secret one and entered into for the purpose of circumventing the ordinances of the corporation of the city of New York against secret combinations in the procurement and execution of contracts for public work. If that, of itself, did not render the alleged partnership illegal, if it existed at all, because against public policy, which is a question not necessary to be determined now, then the plaintiff who seeks to establish it against the representatives of a dead man, should at least be held to strict proof. The burden rested upon him to clearly establish, not only that the relation which existed between him and Charles P. Devlin in respect to the particular contracts in controversy, - was a partnership, but also what its terms were. He did neither, and on several important occasions his conduct with regard to the matters in dispute was shown to have been wholly inconsistent with the theory that a partnership existed.”

      Edmund JR. Dodge, attorney, and Nelson J. Water - bury, of counsel, for appellant.

      Richard 8. Newcombe, attorney, and Albert T. Oardozo, of counsel, for respondent Anna C. Devlin.

      John H. 8trahan, for respondent John B. Devlin.
   Opinion per Curiam.

Judgment affirmed, with costs.


text:
    HENRY A. SIEBRECHT, Respondent, v. WILLIAM H. WEBB, Appellant.
    Before Speir and Freedman, JJ.

      Decided November 9, 1881.

      New trial on ground of excessive verdict—granted on condition that appellant pay costs.—Error of jury.-

    Appeal from a judgment of $4,398.33, entered upon a verdict in favor of the plaintiff, and from an order denying defendant’s motion for a new trial on the minutes, on the ground, among others, that the verdict was excessive.
    The court, at General Term, after stating the rule of law applicable to damages, said: ‘ ‘ Tested by this rule we think that upon the evidence before the jury their verdict is clearly excessive. The mere opinion of the plaintiff as to the amount of the loss, cannot prevail except so far as it is sustained by facts and circumstances.
    “The judgment and order should be reversed and a new trial ordered. But as the error was that of the jury, it must be on payment of the costs of the trial” (Morey v. Metrop. Gas Light Co., 38 Sv/per. Ct. 185).

      Flanagan & Bright, for appellant.

      Beach & Brown, for respondent.
   Opinion per Curiam.

Judgment and order reversed and new trial ordered, on payment of costs of trial.


author: Opinion per Curiam. By the Court.—Freedman, J.—This

text:
    CAROLINE H. CHURCH, et al., Respondents, v. AMERICAN RAPID TELEGRAPH CO., et al., Appellants. MALCOLM CAMPBELL, as Receiver, &c., Respondent, v. NEW YORK COTTON EXCHANGE, Appellant (1st Apeal). SARAH BOREEL, Respondent, v. I. WARREN LAWTON, Appellant. MALCOLM CAMPBELL, as Receiver, &c., Appellant, v. NEW YORK COTTON EXCHANGE, Respondent (2d Appeal).
    Before Speib and Freedman, JJ.

      Decided February 7, 1881.
    Before Freedman and Truax, JJ.

      Decided April 4, 1881.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided April 4, 1881.
    Before Speib and Freedman, JJ.

      Decided December 5, 1881.
    I. DECISION ON DEMURRER. APPEAL.
    1. Effect of. A decision which overrules a demurrer, with or without leave to withdraw the demurrer and answer or reply, or which sustains the demurrer, with sir without leave to amend the pleading demurred to, and directs judgment thereon, and directs either final or interlocutory judgment is an oedee.
    ' 2. Non-APPEAL ABILITY OF OEDEE.
    No appeal will lie until after final judgment.
    3. Appeal fbom final judgment only, effect of.

      Does not bring up for review the decision of the court below made on the demurrer.
    4. Review op decision below, how obtained.
    By an appeal from the final judgment specifying in the notice of appeal that order overruling or sustaining the demurrer is also
    APPEALED PEOJI.
   In the first of above cases final judgment was entered pursuant to an order overruling a demurrer to the complaint, with costs, with leave to answer. The defendant not having availed itself of the privilege, an appeal was taken from the judgment; but the notice of appeal did not specify that the order was also-appealed from. On this ground the judgment was affirmed, with costs, the court citing Cameron v. Equitable Life Ins., 45 N. Y. Super. Ct. 628.

Opinion per Curiam.

E. Luther Hamilton, for appellant.

Erastus New, for respondent.

In the second of the above cases an order was made overruling a demurrer to the complaint, with leave to defendant to withdraw the demurrer and answer. An appeal was taken from the order.

The appeal was dismissed, with costs, on the ground that it would not lie.

The court cited Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514; Garner v. Harmony Mills, 45 Super. Ct. 148.

■ Opinion by Truax, J.; Freedman, J., concurred.

Subsequent to this decision there was entered what was called an interlocutory judgment, from which an appeal was taken, the decision wherein will be found below.

Sutherland & Scott, for appellant.

Billings <6 Cardozo, for respondent.

In the third of above cases final judgment was entered upon an order sustaining plaintiff’s demurrer to the answer.

An appeal was taken from the judgment; but the notice did not specify that the order was also appealed from, and it was held that the judgment should for this cause be affirmed.

The court cited the above cases.

Opinion by Freedman, J.; Sedgwick, Oh. J., and Truax, J., concurred.

Edward H. HawTcs, for appellant.

Charles E. Crowell, for respondent.

In the last of above cases there was a demurrer to the complaint. The following order was entered :

“The above entitled action having been duly brought to trial upon the issue of law joined herein by the defendant, the New York Cotton Exchange, after hearing Francis M. Scott, Esq., of counsel for the said defendant, in support of said demurrer, and Michael H. Cardozo, of counsel for the plaintiff, in opposition thereto,

“Upon motion of Billings & Cardozo, plaintiff’s attorneys,

“It is ordered, that said demurrer be, and the same hereby is overruled, and that the plaintiff have judgment thereon; but with leave to the said defendant to withdraw his said demurrer and answer within twenty days, on payment of costs.

“And it is hereby further ordered and directed that if the said defendant fails to comply with the terms hereby imposed, that final judgment in favor of the plaintiff and against the defendant for the relief demanded in the complaint, be entered herein, with costs.”

Upon this the following was also entered.:

[ Title of the cause. ]

“The above entitled cause having duly come on for trial upon the issue of law raised by the demurrer of the defendant, the Hew York Cotton Exchange, at a special term of this court, held on the first Monday of January, 1881, Hon. John Sedgwick, Chief Justice, presiding, and a decision having been duly rendered on the 11th day of January, 1881, overruling said demurrer and directing that plaintiff have judgment thereon, but with leave to the said defendant, the Hew York Cotton Exchange, to withdraw its said demurrer and answer within twenty days on payment of costs, and the costs of the said plaintiff having been duly taxed at $62.41,

“ How, on motion of Billings & Cardozo, plaintiff’s attorneys,

“ It is adjudged that said demurrer of the said defendant, the Hew York Cotton Exchange, be and the same hereby is overruled; and that the plaintiff, Malcolm Campbell, as receiver of the property of Daniel W. Talcott, recover of the defendant, the Hew York Cotton Exchange, the sum of $62.41 costs, but with leave to the said defendant to withdraw its said demurrer and answer within twenty days, upon the payment of said costs.

“Dated April 21, 1881.”

An appeal was taken by the following notice:

“Please to take notice that the defendant the Hew York Cotton Exchange hereby appeals to the general term of this court from the judgment entered herein on the 21s D day of April, 1881, overruling the demurrer interposed by said defendant to the complaint of the plaintiff, and from each and every part of said judgment.

‘1 Dated New York, April 27th, 1881.”

Sutherland & Scott, for appellant.

Billings & Qardozo, for respondent.

By the Court.—Freedman, J.—This

is an appeal from an interlocutory judgment overruling defendant’s demurrer to the complaint, with costs, but with leave to withdraw the demurrer and answer upon payment of said costs. This is not a final judgment (Cameron v. The Equitable Life Assurance Society, &c., 45 N. Y. Super. Ct. 628; and 46 Id. 84). Moreover, the judgment appealed from conforms to the order directing its entry, and as the notice of appeal does not ask for a review of the order, the judgment, even if it were a final one, would for that reason have to be affirmed.

The judgment should be affirmed, with costs.

Speir, J., concurred.


author: By the Court.—Speir, J.

text:
    THE BANK OF BRITISH NORTH AMERICA, Respondent, v. THE MERCHANTS’ NATIONAL BANK OF THE CITY OF NEW YORK, Appellant.

      Smiles and banking—action by depositor—payment on forged indorsement—duty to examine check and pass-book.—Statute of limitations.

    The right of action against a bank to recover moneys on deposit, does not accrue until a demand and refusal of payment has been made, and the presentation and demand of payment of the depositor’s check by a wrongful’ holder, the payee’s indorsement thereon being forged, is not such a demand as perfects the depositor’s cause of action.

      It seems, that the depositor has no right of action against the bank, based solely upon the wrongful payment of his check upon a forged indorsement.
    A depositor is under no obligation to examine his pass-book and checks, for the purpose of discovering forgeries. He has a right, as between himself and the bank, to rely upon the indorsements as genuine.
    The plaintiff made and delivered his check to the order of H., in March, 1870, which was certified and subsequently paid upon the forged indorsement of H., and was thereafter returned as a voucher with plaintiff’s pass-book written up to date. In June, 1877, soon after discovering that the indorsement was a forgery, plaintiff tendered the check and demanded payment of the amount thereof from the bank, which was refused, and in November, 1877, this action was brought. Held, that no cause of action in plaintiff’s favor arose until demand by him, and that the statute of limitations did not affect this action.
    Before Sedgwick, Ch. J., and Speir, J.

      Decided December 5, 1881.
    Appeal by defendant from a judgment in favor of the plaintiff, entered upon a verdict for $21,915.81.
    The following facts appeared by the admissions in the pleadings and the testimony on the trial: On March 9, 1870, the plaintiff, keeping a bank account with the defendant, drew and delivered to William Thomas Thomson and William M. Ramsay a check for $17,500, which was made payable to the order of Mrs. Margaret Halpin. On the same day the check was certified by the defendant. The plaintiff had on deposit with the defendant sufficient to pay the amount. The check subsequently came to the possession of the defendant, and by it was returned as a voucher to the plaintiff when next the plaintiff’s pass-book was written up, and the plaintiff was charged in it with the amount of the check.
    The check purported to be indorsed by Mrs. Halpin. The plaintiff had no notice or knowledge that the indorsement was not genuine until about January 24, 1877. The indorsement, was a forgery. On January 26, 1877, the plaintiff gave the defendant notice that legal proceedings had been instituted, questioning Mrs. Halpin’s signature, and on August 10, of the same year, the plaintiff notified the defendant that a suit had been commenced' against it for the recovery of the amount of the check, and that if the plaintiff were held liable, it would be obliged to hold the defendant to its legal liability. The plaintiff, on June 20, 1877, demanded payment of the amount of the check, tendered the check, and defendant refused payment.
    In November, 1877, this action was brought. When the case was closed the defendant’s counsel moved for judgment in its favor, on the ground that the action was not brought within six years after the cause of action accrued, and that the action was barred by the statute of limitations. The court denied the motion, and defendant’s counsel excepted. No other exception in the case.
    Burrell, Davidson & Burrell, attorneys, and John E. Burrell, of counsel, for appellant, urged:
    I. The plaintiff’s cause of action accrued on March 9, 1870, when the money was wrongfully paid, and deducted from plaintiff’s deposits. If the check was wrongfully paid and charged, it amounted to a conversion of the money, for which an action at once accrued.
    II. The defendant having charged the money to the plaintiff as paid, and rendered an account, a demand was unnecessary (Bank of Missouri v. Benoist, 10 Mo. 521 ; Clark v. Moody, 17 Mass. 150; Watson v. Phœnix Bank, 8 Metc. 217; Farmers’ & Mechanics’ Bank v. Planters’ Bank, 10 Gill & J. 422).
    III. Even assuming that no cause of action arose in favor of plaintiff upon the payment by defendant of the check, nevertheless a cause of action did unquestionably arise when the defendant returned the check to the plaintiff, with the account in which it was charged, claiming that they had complied with the plaintiff’s demand. If this claim was invalid, because the payment had not been made to the person to whom the plaintiffs directed the payment to be made, but to some other and different person, there was then in law and fact a refusal by defendant to comply with the plaintiff’s demand, upon which a cause of action at once arose in favor of the latter. The ignorance on the part of plaintiff of the facts on which the defendants based their claim of payment does not affect the question.
    IV. In an action for the conversion of property the statute of limitations begins to run when the conversion occurred, and ignorance of the conversion or of plaintiff’s rights is no answer to the plea (Stafford v. Richardson, 15 Wend. 302; Allen v. Miller, 17 Id. 202). So, in general, the operation of the statute will not in any case be defeated in the absence of fraudulent concealment on the part of defendant by plaintiff’s ignorance (Troup v. Smith, 20 Johns. 33; Argall v. Bryant, 1 Sandf. 98). And when the statute has begun to run it will not be arrested or defeated by a new demand (Kelsey v. Griswold, 6 Barb. 436).

      John P. Kingsford, attorney, and John E. Parsons, of counsel, for respondent.

       See Thompson v. Bank of British North America (45 Super. Ct. 1; affirmed, 82 N. Y. 1).

   By the Court.—Speir, J.

The appellant lays much stress upon the fact that a balance had been struck on the plaintiff’s pass-book, which was written up by the defendant when the check was returned to the plaintiff. That was but the usual transaction of writing up the customer’s book, setting the debits or sums which had been paid upon his checks or drafts against the credits which were given on the book at the time when the deposits were made. It only rendered the account complete, up to the time when the balance was struck. In this case, as a fact, it has no other significance. It furnished no evidence of a change of the contract upon which the money was received in deposit. Nor did it, or the payment of the check to the wrong person, give a cause of action to the plaintiff on March 9, 1870, when, as defendant claims, the cause of action accrued to the plaintiff. It did not appear in strictness that the "defendant paid the check. Admitting that it did, the money paid was its own money, and, whatever it did with it, could be no cause of complaint which the plaintiff could make; nor would it be a cause of action accruing to , the plaintiff, much less a cause of action for a conversion of the money, as suggested on the argument.

The cause of plaintiff’s action is very simple. The money it had on deposit was sufficient to pay the amount of the check. It authorized Mrs. Halpin to make a demand for this sum, but she did not make any demand. The defendant was liable to pay it to the plaintiff, or its ord,er, on demand. The presentation of the check and demand of payment by any other person, through the forged indorsement of Mrs. Halpin, was not such a demand as would give to the plaintiff a cause of action upon which it could institute suit and recover. Before the plaintiff could bring an action for the amount of the deposit, a demand of, and a refusal by the defendant was necessary. This demand and refusal was made. The principle is now well settled upon which banks of deposit are able to do business. Howell v. Adams (68 N. Y. 314 ; see cases cited in the opinion), is so directly in point that a single quotation will serve. The learned judge (Andrews) says : “We think it is in accordance with the general understanding of the commercial community that a bank is not liable to depositors except after demand of payment. The fact that a certificate is given on a deposit being made, payable on return of the certificate, instead of leaving the deposit subject generally to check or draft, does not change the reason of the rule that the banker must first be called upon for payment before the action can be maintained. It would be unjust now to make a distinction between the cases and sustain the defense of the statutes of limitations in cases like this where parties have relied upon the doctrine announced in the cases cited.”

The jury found that the indorsement was a forgery. If the defendant paid the check, it paid a forged indorsement, and the mistake was its own, and can only be corrected by itself. It continued to hold the $17,500 of the plaintiff’s money, and until it failed to comply with a request for its payment from the plaintiff, the plaintiff was not at liberty to sue. The plaintiff was under no obligation to the defendant which required i,t to examine the pass-book for the purpose of discovering forgeries in the indorsements, and it had a right to rely upon the indorsement as genuine. It was the duty of defendant, before the check was paid, to ascertain that Mrs. Halpin’s indorsement was genuine.

Judgment should be affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Freedman, J.

text:
    FANNY DARROW, Respondent, v. JOHN T. WALKER, et al., Appellants.

      Contract—mutual promises—consideration—-final settlement of matters in controversy.—Statute of frauds.

    The slightest consideration is sufficient to support the most onerous obligation, and impeachment of .consideration can be extended only to fraud, mistake, illegality, or non-performance on the part of the promisee.
    Mutual promises between parties, by which it is agreed that defendauts shall assist in procuring a loan upon certain premises of plaintiff, and that the amount so obtained, after satisfying certain liens, shall be applied to the payment of notes of plaintiff’s husband held by defendant, furnish a sufficient consideration for each other. The rendition and acceptance of the services would be a sufficient-consideration to uphold plaintiff’s promise, though the promises had not been mutual from the start.
    Where, in such case, the services have been rendered, and the application upon the indebtedness of plaintiff’s husband actually made by defendants, pursuant to a claim of right under the agreement, and a settlement had with plaintiff, under which, with full knowledge of the facts, she accepted a check for the balance in her favor, and certain receipts, in settlement of the question in controversy— plaintiff cannot thereafter disaffirm the settlement, either upon the ground of inadequacy of consideration, or that the agreement was not in writing.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 5, 1881.
    Appeal from judgment of $2,234.66, entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial.
    The facts are stated in the opinion.
    Bristow, Peet & Opdyke, attorneys, and David J. H. Willcox, of counsel, for appellants.

      F. C. Bowman, for respondent.
   By the Court.—Freedman, J.

The action was instituted as one for moneys had and received by the defendants from the Mutual Life Insurance Company to the use of the plaintiff, and not fully paid over. At the trial the real contention of the defendants was that the defendant Walker received the sum in dispute, but that he received it upon plaintiff’s written order, and upon the express agreement with her that-it should be applied upon account of certain promissory notes of Edward Harrow, the husband of the plaintiff, then held by Walker; that in fact it was so applied, and a balance remaining over paid to the-plaintiff, who received the same in full satisfaction of all liability on the part of the defendants.

Upon the trial evidence was given on both sides, and the case was submitted to the jury, who found for the plaintiff.

On behalf of the defendants testimony was given tending to show, that in consideration of the agreement, on their part to assist plaintiff in getting a loan from the insurance company on the security of a large piece of land owned by the plaintiff, with which several mortgages resting upon the land were to be paid off, the condition of which agreement was that the plaintiff should pay any balance remaining after the satisfaction of such mortgages to Walker on account of the indebtedness, of plaintiff’s husband to him, the plaintiff had agreed that such application of the balance should be made, and that under such agreement the defendants had rendered their services and procured the loan. Further testimony was given, which, it was claimed, showed that such application was made by the defendants, and that thereafter a settlement was had with the plaintiff, under which the plaintiff, with full knowledge of all the facts, accepted a check for a balance remaining in her favor, and several receipts in settlement of the question in controversy.

Upon this testimony the defendants requested the court to charge fifteen propositions, the substance of which may be condensed as follows : 1. Any trouble or labor undertaken by one person at the request of another is a sufficient consideration to support a promise by the latter, and renders it binding. 2. If the defendant, Sproulls, undertook to endeavor to procure.the loan for plaintiff, provided the balance remaining over incumbrances was paid to Walker, such undertaking constituted a sufficient consideration for an agreement to pay the balance, and such agreement was valid and binding upon plaintiff. 3. If défendant Walker, at plaintiff’s request, undertook trouble and labor in the negotiation and closing of the loan, this constituted a sufficient consideration for an agreement by plaintiff to pay the balance to Walker, and such agreement, if made, was valid and binding upon her. 4. If plaintiff agreed, for valuable consideration, that Walker should retain the balance, she could not thereafter arbitrarily repudiate such agreement, and defendants should have a verdict. 5. If the final arrangement, by which plaintiff received the check and receipts, was made in settlement of the questions in controversy, plaintiffs could not thereafter disaffirm such settlement, and defendants should have a verdict.

The learned judge who presided at the trial refused to charge all of these requests. He charged, on the contrary, that, if the agreement was as the witnesses for the defendants said, it was for the jury to determine whether the services of the defendants were worth the sum of $1,300, which" was applied on account of the plaintiff’s husband’s indebtedness; whether the consideration was a proper one, and how much of that sum should be paid to the defendants for their services in getting the money. He also charged that if the consideration for plaintiff’s agreement was a payment upon her husband’s past indebtedness, the agreement could not be sustained in law, unless it was in writing.

The defendants duly excepted to these refusals and instructions, and I am of the opinion that in the main their exceptions are well taken.

Upon the theory and proof of the defendants the mutual promises of the parties were a sufficient consideration for each other (Coleman v. Eyre, 45 N. Y. 38).

Upon the same theory and proof the defendants performed the services, to be performed on their part under the agreement, and the plaintiff accepted the result. Such performance and acceptance would constitute a consideration sufficient to uphold plaintiff’s promise, even if the promises of the parties had not been mutual from the start (Marie v. Garrison, 83 N. Y. 14; Sands v. Crooke, 46 Id. 564).

The real question to be determined by the jury, if they found that the plaintiff made the promise as claimed by the defendants, was whether there was any consideration for the promise, and not whether there was an adequate consideration. The slightest consideration is sufficient to support the most onerous obligation, and the meaning of the rule that the consideration may be impeached, is only that fraud, mistake or illegality in the making of the agreement may be shown, or non-performance of the stipulations of the agreement on the part of the promise (Oakley v. Boorman, 21 Wend. 588).

“There is no standard,” says Church, Ch. J., in Earl v. Peck (64 N. Y. 596), “whereby courts can limit the measure of value in such a case, and an obligation is not wanting even partially in consideration, because the value is less than the obligation. A note for a thousand dollars, given for a horse confessedly worth but one hundred, cannot be successfully defended, in whole or in part, on the ground of a want or failure of consideration.”

The defendants were, therefore, entitled to have the jury instructed, to the effect that if they believed the witnesses for the defense, and upon their testimony should find that the plaintiff’s promise to apply a part of the moneys in question upon her husband’s indebtedness to Mr. Walker, constituted part of the original agreement under which and pursuant to which the defendants rendered their services, there was a sufficient consideration for plaintiff’s promise to make such application, and she was bound to make it or allow it to be made.

And the application having been actually made, the jury should have been further instructed that if such application was made by the defendants pursuant to a claim of right under the agreement under which the services were rendered, and the final arrangement under which the plaintiff received a check for the balance and some receipts, was made in settlement of the question in controversy, the plaintiff could not thereafter disaffirm such settlement. In such case it could make no difference whether the agreement was in writing or not.

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

Sedgwick, Ch. J., concurred.


text:
    SUTHERLAND TENNEY, Respondent, v. MARY A. BERGER, Appellant.

      Attorney and client—entirety of contract between—compensation—right of attorney to terminate relations, and how exercised.

    Where an attorney is employed to file and prosecute objections to a will to prevent its admission to probate, his employment ceases with the withdrawal, by his client’s consent, of the objections, and the entry of a decree admitting the will to probate, and the fact that under the contract of employment he had agreed to accept for his services whatever his client saw fit to give him, raises no presumption that a subsequent employment to obtain the revocation of such •probate, was made upon a like condition.

      Though an attorney be employed to conduct a certain proceeding as an entirety, he may, at any stage, for lawful cause and upon reasonable notice, terminate the relations between him and his client, and recover for the services rendered, no agreement in that regard having been made by him.
    That the-client, against the attorney’s consent, introduces into the proceeding, as counsel, one against whom the attorney has personal and professional objections, and with whom he is unwilling to be associated, is lawful cause for withdrawal.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided December 5, 1881.
    Appeal from judgment entered upon the report of a referee.
    The facts are stated in the opinion.

      Lindley & Lindley, attorneys, and John Lindley, of counsel, for respondent, urged:
    I. It was of the essence of - the second contract of retainer that the counsel in the case, if any, .should be those named, and when another was brought into the case the contract was broken.
    II. The plaintiff could, in any event, resign as attorney for the defendant in the will contest after giving due notice (Bathgate v. Haskins, 59 N. Y. 535 ; Gustine v. Stoddard, 23 Hun, 709).
    III. In Ogden v. Devlin (52 Super. Ct. 631), it is said by this court that a client may change his attorney of record at will upon complying with the necessary conditions. Why should not this rule work both ways ? The plaintiff not only had liberty so to withdraw, but he had good cause for withdrawing (Trust v. Repoor,15 How. Pr. 570).
    • IV. If the defendant relies upon a special agreement as a defense, the burden is on her to show it. It is conceded, that under the first retainer plaintiff was under a special agreement with the defendant with reference to the probate proceedings, that if that was a short matter and closed up quickly plaintiff would be satisfied with whatever defendant saw fit to give him. But when the decree was entered in the surrogate’s court against plaintiff’s client on March 13, 1877, plaintiff’s employment as attorney under the first retainer was ipso facto and by operation of law terminated (Cokes’ 2d Inst., fol. 378, note 5 ; Lusk v. Hastings, 1 Hill, 656 ; Walradt v. Maynard, 3 Barb. 584).

      Lord & Lord, attorneys, and Scott Lord, Jr., of counsel, for appellant, among other things, urged:
    I. Independent of any contract, the plaintiff’s retainer would continue until the end of the case (Bathgate v. Haskin, 59 N. Y. 533). The obligation of an attorney is to attend to a suit until it is determined, and if he has abandoned it without lawful cause, he cannot recover fees (Seymour v. Gager, 13 Hun, 29 ; C. & St. L. R. R. Co. v. Koener, 3 Brad. [Ill.] 248; Nichols v. Wilson, 2 Dowl. [Bail. Ct.] N. S. 1031 ; Creswell v. Byron, 14 Vesey, Jr. 271, 273 ; Opinion of Lord Eldon, 1 Tidd Pr. 86 ; Tangan v. Castleton, 30 Vt. 285 ; Davis v. Smith, 48 Id. 52; 2 Greenl. Ev. § 142; Bracy v. Carter, 2 Ad. & E. 373 ; Symes v. Nipper, Id. 373, note; Stokes v. Trumper, 2 Kay & T. 232; Vansandar v. Brown, 9 Bing. 402 ; Whitehead v. Lord, 21 Law J. R. N. S. Exch. 239 ; Weeks on Atts. §§ 255, 316). A party has the right to be represented by counsel, distinct from the privilege of appearing by attorney. “ The capacities are distinct” (Easton v. Smith, 1 E. D. Smith, 318). The ordinary retainer of an attorney does not authorize him to employ associate counsel (In re Bleakley, 5 Paige, 311; Cook v. Ritter, 4 E. D. Smith, 253; Dwight v. Dada, 12 N. Y. W. D. 302). The party is to employ the counsel. The attorney is not authorized to employ one (Briggs v. Georgia, 10 Vt. 68; Paddock v. Colby, 13 Id. 248; Scott v. Hoxie, Id. 50; Voorhees v. Harrison, 22 La. An. 85 ; Willard v. Danville, 45 Vt. 93; Weeks on Attys, § 356; also pp. 418, 430). Under a retainer as an attorney lie cannot perform the duties of a counsel and claim compensation therefor (Easton v. Smith, 1 E. D. Smith, 380). It is therefore respectfully submitted that the plaintiff had no reasonable or lawful cause for abandoning the case, and that in so abandoning it he relieved the defendant from any liability to him for his services as such attorney.
   By the Court.—Freedman, J.

This action was brought by the plaintiff to recover for services rendered to the defendant as attorney, and the referee gave judgment for the plaintiff. The parties' having stipulated that the finding of the referee determining the value of the services should not be disturbed on this appeal, I fail to discover in the remainder of the case any ground calling for a reversal of the judgment. •The other findings of fact appear to be sustained by the evidence, and to support the conclusions of law based thereon.

Under the retainer of February 34, 1877, the plaintiff was to file and prosecute objections to the will to prevent its admission to probate, and under a special agreement with the defendant with reference to the proceedings deemed necessary for that purpose, be consented that he would be satisfied with whatever defendant saw fit to give him. The contest ended with the withdrawal of the objections with defendant’s consent, and the entry of a decree on March 13, 1877, admitting the will to probate. With the entry of this decree the employment of the plaintiff as attorney came to an end, and the plaintiff is satisfied with the amount admitted by the defendant to be due to him up to this time, and so found by the referee.

When, in the following month of May, the defendant resolved to re-open the contest over the will, and again retained the plaintiff to procure a revocation of the probate, she employed him for a new, distinct and not only technically, but essentially, different proceeding. Upon this new retainer no allusion was made by either side as to plaintiff’s compensation, and the implication therefore is that the plaintiff was to be paid a reasonable value for his services. If the fact was otherwise, the burden is upon the defendant to show it, and this she has not done.

Now, it is true that this new contract was entire in the sense that the plaintiff, as the attorney retained, was bound to attend to the proceeding until its final determination, and that, if he abandoned it without lawful cause before that stage was reached, he cannot recover any compensation. But notwithstanding that, the defendant retained the right which every client has, to change at any time her attorney at her own volition, subject only to such conditions as, in case of dispute, the court might impose, and the plaintiff retained the right to terminate, at any stage of the proceeding, the relation existing between him and the defendant, for lawful cause and on reasonable notice. On withdrawing from the case at the time and in the manner he did, the plaintiff only exercised this reserved right. There is no question as to the sufficiency of the notice, and the evidence sufficiently establishes lawful cause. The relation between attorney and client requires great confidence and perfect harmony between the parties to it, and the introduction into the case by the client, against the attorney’s consent, of a gentleman as counsel, against whom the attorney has personal and professional objections, and with whom he is unwilling to be associated, constitutes lawful cause for withdrawal. In the case at bar the defendant was guilty of such conduct. This left the plaintiff at liberfcy to charge the reasonable value of his services up to the time of his withdrawal.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and Speir, J., concurred.


author: By the Court. — Freedman, J.

text:
    WILLIAM H. LEARNED, Appellant, v. WILLIAM E. TILLOTSON, Respondent.

      Discontinuance of action—right to.

    Plaintiff is not entitled to discontinue, as of course, on payment of costs, after verdict by jury or decision by the court. Erom the time a determination has been reached, defendant’s right to enter the formal judgment or decree becomes superior.
    Before Speir and Freedman, JJ.

      Decided December 5, 1881.
    Appeal by plaintiff from order vacating order of discontinuance.

      Stickney & Shepard, for appellant.

      Root & Martin, for respondent.
   By the Court. — Freedman, J.

Although a plaintiff may, in general, discontinue his action upon payment of costs as a matter of course at any time before judgment or decree, and notwithstanding a pending motion which has been ordered to stand over, yet there is no valid discontinuance of an action without an order to that end, and the court to which the motion for leave to discontinue is addressed, has a discretion, under all the circumstances of the case, whether or not to refuse it (Carleton v. Darcy, 75 N. Y. 375).

. The words “before judgment or decree ” mean before a determination has been reached. The plaintiff may, therefore, exercise his right during the trial or hearing. Perhaps he may even exercise it during the time the cause remains submitted and undecided. But after verdict by jury or decision by the court the plaintiff is too late. From that time the defendant’s right to enter the appropriate formal judgment or decree becomes superior. Especially in equity cases the rule was formerly strictly observed that, ‘ ‘ if the issue has been tried and determined in favor of the defendant, the plaintiff cannot move to dismiss, because the defendant may have it set down on -the equity reserved, in order to obtain a formal dismissal of the bill, so as to enroll it as a final judgment, and thereby make it pleadable.”

The present action is for an accounting for an alleged partnership adventure. Issues were tried by a jury and determined in favor of the plaintiff, and thereupon the plaintiff proceeded to the final hearing. Finally, upon all the proofs, the court at special term, in an opinion filed, announced as its decision that the complaint should be dismissed on the merits, with costs. The court did not direct notice of settlement of findings. Defendant’s attorney, however, gave such notice, but before the findings could be settled, the plaintiff entered ex parte an order discontinuing the action upon payment of costs. The defendant moved at once on an affidavit stating the facts for a vacation of the order. The motion was granted, and from the order entered thereon the plaintiff appealed. As the plaintiff had had the full benefit of his special verdict, and had prosecuted the action until he ascertained authoritatively what the final determination was to be, the defendant’s right to the entry of the appropriate formal judgment had attached and was properly protected.

The order should be affirmed, with costs.

Speir, J., concurred.


author: Freedman, J.

text:
    CORNELIA D. EARLE, Respondent, v. WILLIAM P. EARLE, Impl’d, &c., Appellant, et al.

      Testamentary trustees—acceptance and renunciation of trust—obligations and liabilities of trustees.

    Where the same persons are appointed by a testator executors and trustees, in the absence of express words to the contrary, the trust attaches to the office rather than to the person of the executors, and the probate of the will and acceptance of the executorship will be deemed an acceptance of the trust; á fortiori, this is so when the word “trustee ” is not used in the will, but the trust is imposed upon the executors therein named.
    Where testamentary trustees so appointed [have duly and properly acted under the trust to the time of their accounting as executors, and by the decree thereon are adjudged to be in possession of the trust funds and directed to invest the same as provided in the will, in the absence of a disclaimer by them on the accounting, or a renunciation with the due consent of the cestuis que trust or the sanction of the court, if such trustees thereafter perform only formal acts relating to the trust, and permit another, either as their employee or as an usurper, to assume the substantial control of the estate, which is by his bad management wasted and lost, said trustees are jointly and severally liable to account to the cestuis que trust for such person’s acts, though they may have supposed themselves released from the obligations of the trust by their accounting as executors.
    Where, shortly after such accounting, one of said executors and trustees, who was, before his acceptance of the trust, a non-resident, again leaves the State and continues thereafter to reside out of the same, and is for that reason removed as executor by the surrogate without prejudice to his co-executors, and thereafter ceases to act toward the estate in any capacity whatever, he may be deemed, in such an action by the cestuis qui trust against the remaining trustees, to have renounced the said trust without a discharge by the court, and the whole estate vested in the remaining trustees. Said person is not a necessary party to such an action, especially where it appears that the mismanagement complained of did not occur while tie was in office as executor.
    Before Sedgwick, Ch. J., and Speir, J.

      Decided December 5, 1881.

      Appeal by defendant, William P. Earle, from an interlocutory judgment rendered at special term, requiring him to account as executor and trustee.
    The facts as found by. the court are substantially as follows :—
    Morris Earle died May 7, 1859, leaving a large estate. He left him surviving his widow, Mary E. Earle, and seven children, Morris D. Earle, James Earle, William C. Earle, Mary E. Earle, afterwards the wife of John Jardine, and since deceased, Cornelia D. Earle, Ellen P. Earle, the wife of Charles H. Flagg, and Charles Earle.
    His will was admitted to probate by the surrogate of Hew York county, May 27,1859. By it, the executors were directed to invest one-third of the estate and pay the income to the widow during her life. The residuary estate was divided equally among the testator’s children, and the executors were directed to invest each share and apply the income, or so much as should be necessary, to the support and education of the child to whom the same was devised during his or her minority, and upon such child’s attaining twenty-one years of age to pay over to him or her $10,000 of the principal, and" thenceforward to apply the income of the residue of such share to the uses of such child until he or she should attain thirty years of age, when the further sum of $20,000 was to be paid over, the income of the remainder of the share to be applied to the use of such child until he or she should attain forty years of age, when the whole balance was to be paid over. William P. Earle, the brother of the deceased, Charles B. Dodd, his brother-in-law, and Mary E. Earle, his widow, were appointed executors and executrix, and duly qualified as such.
    In April, 1861, upon a petition filed by William P. Earle and Charles B. Dodd, an accounting was had before the surrogate, and in April 25,1861, a decree was made therein, by which it appeared thatthe executors then had on hand $206,807.36 of principal, and $5,472.24 of income, and it was directed that $74,741.09 be invested and the income paid to the widow during her life, and that $106,772.95 be invested for the benefit of Wm.C. Earle, Mary E. Earle, Cornelia D. Earle, Ellen F. Earle, and Charles Earle, infant children of the deceased, share and share alike, the principal and income to be paid to them according to the provisions of the will.
    On May 31,1861, the surrogate made an order upon the application of Morris D. Earle, removing Charles B. Dodd as an executor, on the ground that he had removed from the State and refused to give bonds, and after this time said Dodd ceased to have anything whatever to do with the management of the estate.' William P. Earle and Mary E. Earle were aware of the discharge of Dodd, and his removal to Hartford about the same time.
    The estate at the time of the removal of Dodd consisted of bonds and mortgages, cash deposited to the credit of the estate in the city bank and a small amount of State and city bonds. The deposit in the bank could be drawn against by checks signed by either one of the executors or the executrix. The securities of the estate were in a box in the name of the estate in the vaults of the city bank. The key of the box was kept at the office of Earle & Co., which had been the headquarters of the executors during the settlement of the estate. Neither of the remaining executors, at that time or thereafter, took actual possession of the funds, or took any steps whatever for the care, custody or investment of the same ; both wholly neglected to perform any of the duties of their position with respect to said funds.

      Mrs. Earle was, to the knowledge of William P. Earle, totally inexperienced in business.
    Thereafter moneys continued to be paid in for the estate at the office of Earle & Co., and Morris D. Earle, a partner in and the cashier of the fir pa, assumed charge of the estate funds, and attended to the receipt of the moneys. He was succeeded in the firm by his brother, James Earle, who from that time assumed the entire charge and management of the estate, in doing which he received no direct authority from either William P. Earle or Mary E. Earle, but both knew he was so acting, and neither made any objection. They permitted him to do as he pleased without inquiry. In all formal matters William P. Earle continued to act as executor, and signed checks on the estate account, and assignments and satisfactions of estate mortgages whenever requested by James Earle. Mrs. Earle did the same. James Earle took possession of the securities of the estate, and by means of the checks, assignments and satisfactions, so signed, he was enabled to collect the entire funds of the estate. These he kept in his own possession, and invested and reinvested as he saw fit. After a time he invested such moneys in second mortgages and mortgages upon unimproved Hew Jersey property, and engaged in real estate speculations with them, until finally substantially the whole estate was wasted and lost.
    Mrs. Earle never had any knowledge or information of James Earle’s investments in second mortgages until the fall of 1876, and after they had all been made.
    William P. Earle had learned, as early as April 12, 1873, that James Earle was investing the funds of the estate in second mortgages. Upon learning this fact William P. Earle took no steps to prevent James’s further acting for the estate, and did not inform Mrs. Earle.
    Plaintiff and defendants, Ellen F. Flagg and Charles Earle and Mrs. Jardine, had no knowledge of James’s transactions.
    William P. Earle’s only defense, other than that Charles B. Dodd was a necessary party, was that he acted upon the supposition that his liability ceased with the accounting before the surrogate. The court found that this was not according to the fact.
    Further facts appear in the opinion of the court below.
    Upon the facts the court found the following conclusions of law:
    “ I. That Charles B. Dodd is not a necessary party to this action.
    “II. That there should be a reference to a referee to be appointed to take an account, in which the defendants, Mary E. Earle and William P. Earle, shall be charged in favor of the said Cornelia D. Earle, Ellen F. Flagg, Charles Earle and John Jardine, as administrator of the said Mary E. Jardine, for their respective shares of the said funds, as hereinbefore fixed, with interest (except upon their shares of the said $74,741.09, to interest upon which they are not entitled during the life of the said Mary E. Earle) as follows: Where the said funds were kept invested in a mode which the said referee shall approve, at the rate actually received : and where not, at the rate of six per cent., with annual rests. And the said Mary E. Earle and William P. Earle are not to be credited with or allowed any loss caused by the action of the said James Earle or Morris D. Earle in dealing with the said funds, or making investments of the same, except where such investments were of a character that the said referee shall approve. And the said Mary E. Earle and William P. Earle are not to be credited with or allowed any loss which resulted from their neglect to keep and invest the said funds. And the said referee shall only approve such investments of such funds as were in accordance with what the law requires for the investment of trust funds, and furthermore as the said Mary B. Earle and William P. Earle would have made if they had been personally attending to the matter, and had employed such care and diligence as prudent men in general employ in their own like affairs, and directs judgment accordingly.”
    The following opinion was delivered at special term:
   Freedman, J.

The law, it is true, makes a distinction between the office of executor and that of a testamentary trustee. It is the duty of an executor, as such, to collect in the property, to pay the debts and general legacies, and to ascertain the residuum either for distribution or for the constitution of a trust fund. It is the duty of a trustee to deal with real property in trust, and to invest and manage the particular trust fund arising from personal property, when ascertained and set apart as such in accordance with the directions of the will. But where the same person is appointed executor and trustee, the probate of the will and acceptance of the executorship will be deemed an acceptance of the trust (Hanson v. Worthington, 12 Md. 418 ; Williams v. Conrad, 30 Barb. 524; Booth v. Booth, 1 Beav. 128; Williams n. Nixon, 2 Id. 472 ; Worth v. McAden, 1 Den. & Batt. Eq. 209 ; Judson v. Gibbons, 5 Wend. 226).

Such; at least, will be the case unless the office and duties of executor and trustee are só distinct from each other that the office of the one can be accepted and the other declined at the same time. In some States the trustee is required to give bonds, and if he -fails to do so he is deemed to have declined the trust. Under such circumstances, a different rule would obtain. But as a general rule the trust attaches to the office rather than to the person of the executor, and it requires express words to establish an intention on the part of the testator that the trust should attach to the person of the executor rather than to the office.

Merely proving the will without doing anything more, is not sufficient to constitute a person an acting executor. But if the will clothe the executorship with special trusts, as when a testator directs that his executors shall get in certain outstanding effects to be applied to a particular purpose, a person cannot make himself executor by proving the will, and then exempt himself from the trusts expressly annexed to the office (Lewin on Trusts, 230; Mucklow v. Fuller, Jac. 198). And if an executor be also trustee of real estate he cannot desert the situation of trustee and accept only that of executor ; the acting as executor is an acceptance of the entire trusteeship.

Where a person is appointed trustee, and he does not intend to accept the trust, great care must be had that no action on his part in respect to the trust property may fix him with the trust. Any act which would render it doubtful whether or not he intended to act as trustee would be liable to be construed against him. A refusal or disclaimer vests the estate or trust in the accepting or continuing trustee or trustees, for trustees as well as executors hold as joint tenants. In Hew York, this is expressly provided for by statute. Therefore before one who has been named as trustee consents to do anything in respect to the trust, he should first, unless he intends to' accept the same, make his refusal to accept so clear and definite, that by no possibility can the trust vest in him. Where a trustee has so disclaimed that the trust has vested entirely in those who accept it, no act of his can after that divest the accepting trustees of the title.

On the other hand, when a party has once fixed himself as trustee by acts which amount to an implied acceptance of the trust, he cannot afterwards divest. himself of that character by disclaimer or renunciation without the consent of cestuis que trust or the sanction of the court. To be available, a disclaimer must be made in such a way that it can be deemed to have been made at the time of the creation of the trust. For if the estate has actually vested in the trustee, he cannot divest himself of it by mere disclaimer (Reed v. Truelove, Ambl. 417; Stacy v. Elph, 1 Mylne & K. 195; Sheppard v. McEver, 4 Johns. Ch. 136; Crugar v. Halliday, 11 Paige, 314 ; Chapin v. Gwins, 1 Rice Eq. 133). There are exceptional cases, as Craig v. Craig (3 Barb. Ch. 76) ; Wood v. Brown (34 N. Y. 337), &c., in which it has been held that a trustee may resign as to certain particular trusts in a will, and another may be appointed therefor, and the original trustee remain as to the general trusts if' they are separable, and that a trustee may be removed as to some trusts and restrained as to others, but they are in harmony with the general rule stated.

So it may be conceded that at the time of the final accounting as executor pursuant to the statutes of this State, an executor may disclaim to act as trustee, and that wh ere such disclaimer is embodied in the surrogate’s decree, such executor is not liable thereafter by reason of any duty which otherwise would devolve upon him as trustee under the will.

In these exceptional cases relief is granted by the court upon special application for that purpose. In all other cases the trust conferred by the will can only be renounced by a disclaimer seasonably made as hereinbefore stated, and though it need not be in such form as to pass an estate in the property devised (Burritt v. Sillman, 13 N. Y. 93), it must nevertheless be clear and unequivocal.

In the case at bar the word “trustee” is not used in the will. The execution of the trust created by it was imposed upon the executrix and the executors named therein. The trust, therefore, attached to their office and not merely to their persons, and they not only proved the will, but qualified and acted under it. They must therefore be deemed to have accepted the trust, and they are accountable for its due execution, unless they renounced by a disclaimer sufficient for that purpose, or were relieved by the court. There is no pretense that they were relieved by the consent of the eestuis que trust. Most of them, in fact, were not in a position to consent.

The defendant, Mary E. Earle, having failed to answer, the complaint stands confessed by her.

As to the defendant, William P. Earle, it is conceded that he filed no renunciation or disclaimer ; that no such fact is noted in the surrogate’s decree, and that he was not relieved by the sanction of any court. Nor can I find in the evidence anything which could be" taken as a renunciation or disclaimer, if the fact could be proved by circumstantial evidence. His mere supposition or belief, to which he testified, that after the accounting he was not bound to do anything more, is clearly insufficient, and the fact is, that in some instances he continued to act. He must therefore be deemed to have accepted the trust, if it were necessary to show such acceptance, and the trust did not belong to him as executor.

This being so, the defendant, William P. Earle, whether considered as trustee or executor, was bound to use such care and diligence for the preservation of the estate as prudent men in general employ in their own like affairs. True, a trustee, as a general rule, is not held responsible for any losses occurring in the-management of the trust property, so long as he acted in good faith in the exercise of a fair discretion, and in the same manner as he would ordinarily do in regard to his own property (2 Story Eq. 154, § 1272). It has also been held that each of several trustees is not bound to take upon, himself the conduct of every part of the trust, and that where, according to the reasonable necessities of business, trust funds came into the hands of one trustee and a loss happened from the default of such trustee, the others were not liable, though for the sake of conformity they joined in the execution of a receipt or conveyance or other disposition of the trust estate. But this exemption from liability exists only when it is made to appear that the default of one occurred in spite of the exercise of the requisite care and diligence by those who seek immunity. The moment want of care and diligence is shown, which contributed to the loss, the case is taken out of the general rule and the liability attaches. It is the same in the case of executors. That in such a case executors are liable, has been held in Clarke v. Clarke (8 Paige, 153); Adair v. Brimmer (74 N. Y. 566); Croft, as Ex. &c., v. William (23 Hun, 102).

And that trustees are liable has also been repeatedly affirmed. Thus, in Townley v. Sherbourne (Bridg. 35), Lord Keeper Coventry, under the advice of the associate judges,- after deciding that a trustee was not liable for rents which had properly come into the hands of a co-trustee, and had not been paid over," said : “ but if, upon proofs or circumstances, the court should be satisfied that there had been any dolus malus or any evil practice, fraud or evil intent in him that permitted his companion to receive the whole profits, he should be charged, though he received nothing.”

So where two trustees, with power of sale, had conveyed the estate to the purchaser and had both signed the receipt for the money, yet one of them only had received it, and years thereafter died without having accounted for the money, and it was proved that his co-trustee was cognizant of the misemployment of the fund, but took no active measures to recover it, the court held that he had been guilty of a breach of trust and was answerable because, as soon as a trustee is fixed with a knowledge that his co-trustee is misapplying the money, a duty is imposed upon him to bring it back into joint custody of those who ought to take better care of it (Brice v. Stokes, 11 Ves. 319 ; Williams v. Nixon 2 Beav. 475 ; Booth v. Booth, 1 Id. 125). For a trustee is bound to manage and employ the trust property for the benefit of the cestui que trust with the care and diligence of a' provident owner (Hutchinson v. Lord, 1 Wis. 286; Higgins v. Whitson, 20 Barb. 141; Story Eq. § 1275 ; Oliver v. Court, 8 Price, 127).

The defendant, William P. Earle, was bound, therefore, to manage and invest the trust estate according to the directions of the will and of the decree of the surrogate, made in accordance therewith, for the benefit of the beneficiaries under the will, and to look after the investments, with the care and diligence of a provident owner. By the surrogate’s decree, made upon his petition for an accounting, he was adjudged to be in the possession and control of the trust estate, but he neglected to take actual possession and allowed Morris D. Earle and James Earle to do as they pleased. If he employed them, he is liable for their acts, for a trustee or executor cannot delegate his powers. If he did not employ them he is liable, because he did nothing to protect the estate against mismanagement. Even if he had transferred the whole trust estate to the executrix, Mary E. Earle, who was wholly inexperienced in business matters in his knowledge, and Morris D. Earle had acted under her special direction and with her approval in every instance, of which there is no proof, the defendant, William P. Earle, under the decision in Clarke v. Clarke (8 Paige, 153), would still be liable for waste which the exercise of the requisite care and diligence on his part conld have prevented. At least, the liability would attach in favor of such of the beneficiaries under the will as are not estopped by reason of their participation in or approval of the mismanagement, from insisting upon it, and in the case of the plaintiff, and the defendants, Ellen F. Flagg, Charles Earle and John Jar dine, as administrator of Mary E. Jardine, deceased, who have joined in the plaintiff’s prayer for relief, it is clear that no such estoppel exists.

Unless, therefore, Charles B. Dodd is such a necessary party to this action that without his presence the relief prayed for cannot be granted, the plaintiff and the three defendants named are entitled to the accounting sought, both as to the fund of $106,702.95, and the fund of $74,741.09, for they have an interest in both, though a different one in each.

Upon this point the evidence shows that Charles B. Dodd, at the time of the decease of the testator, was a resident of Hartford, Conn.; that shortly thereafter he came to the city of Hew York, and took part in the administration of ■ the estate ; that shortly after the executors, accounting and the decree of the surrogate made therein, he returned to Hartford ; that almost immediately thereafter, and on or about May 31,1861, by reason of his removal from the State, the surrogate of Hew York, on the ápplication of Morris D. Earle, made an order by which the letters testamentary to the said Charles B. Dodd were superseded and his authority and right to act as executor revoked, without prejudice, however, to the rights of the defendants, William P. Earle and Mary E. Earle, as continuing executor and executrix, and that from that time Charles B. Dodd wholly ceased to act in any character whatever. Under these circumstances and the trusts created by the will being attached to the office of the executors, as already shown, Charles B. Dodd may be deemed, upon the revocation of the letters to him, to have renounced the said trusts, and his discharge, by the court as trustee was not necessary, but the whole trust estate became vested in the defendants, William P. Earle and Mary E. Earle as continuing executor and executrix (In the Matter of Bull, 31 How. Pr. 69 ; Beekman v. Bonser, 23 N. Y. 298 ; In re Stevenson, 3 Paige, 420).

John M. Martin and F. N. Bangs, for appellant.

John H. Glover, for respondent.

Carlisle Norwood, Jr., for defendant Jardine, administrator.

Richard L. Sweezy, for defendant, Ellen F. Flagg.

Henry S. Glover, for defendant, Charles Earle.

Moreover, it affirmatively appears, and it is conceded, that up to the time of the revocation of the letters of Dodd there was no loss ; that none subsequently occurred by reason of investments made prior to that time; that, so far as he had participated in making investments, he had been careful and diligent, and that while he had discharged his duties, he had discharged them faithfully. Moreover, the revocation of the letters to him seems to have been considered by all parties as a termination of his right to act in any capacity. Upon the whole case, therefore, and the liability of executors and trustees, based upon a breach of duty or trust, being a joint and several one, Charles B. Dodd is not a necessary party to this action.

There must be judgment directing the defendants, William P. Earle and Mary E. Earle, to account in the manner, to the extent, and upon the principles set forth in my findings of fact and conclusions of law.

Per. Curiam.—Judgment affirmed with costs, on opinion of Judge Freedmax at- special term.


author: Sedgwick, J. By the Court.—Speir, J.

text:
    ELIZABETH R. COGSWELL, Appellant, v. THE NEW YORK, NEW HAVEN & HARTFORD R. R. Co., Respondent.

      Constitutional law.—Taking private property without compensation.— Railroad companies, liability for damage to adjacent property by noise, smoke, &c.—Franchise, grant of, carries as incident thereto, rights necessary to its use.

    A railroad corporation is not liable for consequential damages caused by acts authorized by the legislature and necessary to the exercise of its franchise, the consequences of which said acts lessen the value of the property of others, provided it use due care and skill in the exercise of such authority, and in the performance of such acts.
    The burden of proving neglect in this respect, is upon the party seeking redress.
    A provision in an act of the legislature authorizing a railroad corporation, organized under the laws of another state, to enter upon, and runs its cars and engines over the road of a company organized and in operation under the laws of this state, and to take, transport and convey persons and property upon the said road, «fee., by implication, authorizes the erection and maintenance of necessary engine-houses, &c., as incident to the use of the franchise granted ; and said foreign company is not confined to the use of such appurtenant structures and conveniences as the domestic company employs for the purpose of aiding the running.
    The above principles applied to facts showing that the value of plaintiff's premises was materially lessened and that her dwelling-house was and for a long time had been uncomfortable and unhealthy for habitation, by reason of the noise, smoke, cinders, &c., coming from an engine-house erected and maintained by defendant adjacent to plaintiff’s said dwelling-house ; and the court held, that defendant was not liable for such damage and that an injunction would not go against the acts complained of.
    Caro v. Metropolitan R. R. Co. (46 Super. Ot. 138), distinguished.
    Before Speir and Freedman, JJ.

      Decided December 12, 1881.
    Appeal from a judgment entered at special term, dismissing the complaint upon the merits-after a trial by the court without a jury.
    The complaint alleges that the defendant, a railroad corporation organized under the law of the State of Connecticut, by maintaining a locomotive engine-house adjoining the plaintiff’s house, creates a nuisance and damages her property. As a separate cause of action, it alleges that the defendants’ engine-house was so negligently constructed and it so negligently and carelessly used its premises as to unnecessarily injure the house and property of the plaintiff, by smoke, noise, soot, cinders and offensive vapors penetrating the house and premises of the plaintiff, to her damage of $25,000, and asks for an abatement of the alleged nuisance and an injunction against its continuance and for damages.
    The answer claims that the defendant exercised due care in the construction of the engine-house and in the use of its premises, and that its engine-house is a necessary incident in the operation of its railroad, and that it has full authority to own, and occupy its premises for the purpose and in the manner in which it is used.
    Further facts appear in the opinion of the court at special term, which is as follows :
   Sedgwick, J.

On the evidence the value of plaintiff’s house has been much lessened by the smoke, ashes and hurtful and offensive gases, that have poured from the defendant’s engine-house, the engine-house of the Hew York Central Railroad, and from the engines generally on the tracks near the house. They have made the house uncomfortable and unhealthy for habitation. The solid parts of the smoke fall in the inside of the house, keep it dirty, mar its appearance, and substantially injure it and the furniture. They have made the air of the- house unpleasant and unwholesome. The value of the house has. been affected also by the railroads in their general effects, and by the great fall in the prices of real estate of late years. What portion of the total diminution of value is to be assigned to the defendant’s engine-house, would be difficult to assess, if it could be assessed at all. This difficulty would not prevent the plaintiff’s having the protection in the future of an injunction, if the defendant has contributed to the acts from which she suffers, and if what it has done is a wrong to the plaintiff. Unless the defendant has been authorized by the legislature, to place the engine-house where it is, it seems clear that it is guilty of a wrong, but if the legislature has authorized it, it cannot be held responsible for the consequences of a legal act. Of course the acts on which the defendant justifies do not absolve it from the duty of using care and skill, in the construction and management of the engine-house, to prevent unnecessary damage to the dwellings near by. The burden of proving neglect in this respect, is upon the plaintiff. The testimony fails to show that any practicable change in the construction of the house or of its management, could be made so as to obviate the nuisance and lessen the damage.

In fact, the question is, does section 6 of the act of March 29, 1848, authorize the defendant to maintain the engine-house, upon the land where it now is. That section declares that “the New York and New Haven Rail Road Company,” to whose power the defendant has succeeded, “is hereby authorized to enter upon and run their cars and engines” . . . “over the road of the New York and Harlem Railroad Compan37” . . . and “to take, transport and convey persons and property upon the said Harlem Railroad, etc. ” Plaint the legislature here authorizes the run-ling to and fro of defendant’s engines. Its power to give this right is not questioned, nor is it questioned that whatsoever is necessary to the practical enjoyment- of this right has been impliedly and competently granted by the legislature. Between the trips to and from, the engines must remain for a time upon some place off from the tracks used for running, and should be under covering. An engine-house, or something of its kind, is therefore a necessary incident in the use of the franchise. The only objection made at this point by the learned counsel for the plaintiff is, that the implied authority to use an engine-house is not general, or at any convenient place to be chosen, even carefully, by the defendant, but it is confined by the terms of the act, properly construed, to the engine-houses and equivalent provisions of the Harlem road or its successors in right. The argument is, that the right to run being confined to running over the road of the Harlem Railroad Company, and as far into the city as the Harlem road may extend, the incidents of that right are meant to be confined to the -use of such appurtenant structures or conveniences, as the Harlem road employs for the purpose of aiding its running.

I do not understand that the plaintiff’s counsel claim that the defendant’s engine-house is an unlawful structure, because, as they insist, the defendant has not legal capacity to acquire title to the land on which it stands ; but the claim is that the want of that capacity and the fact that the engine-house and its land are not owned by the Harlem Railroad, show that the defendant is not exercising the incidental right intended by the act. I do not think that the legal capacity of the defendant to take title to the land on which the engine-house stands is in question. All would agree that it has. the right to use real estate to the extent that is necessary while the engines are waiting and getting ready to return. The question is, must the real estate on which the engines are to stand belong to the Harlem Railroad, or must the shelter or engine-house be such as the Harlem road previously used for the purpose. If it may be other real estate, then the value of the title to it is immaterial in this action.

The construction of the act must be reasonable and not strained. The literal meaning of the words is not decisive one way or the other. To run over the road of the Harlem company with engines and cars does not determine where the cars and engines are to be placed when they are not running. The nature of the subject-matter of the right granted is most important. What is the relation of such an incidental thing in the case of the Harlem road, to its running its own cars and engines ? The act was passed in light of the fact that it was the duty and right of the Harlem road to furnish for its engines, and business, houses and like structures sufficient for its own purposes. It could not have been supposed that, in looking at its own needs, it would accidentally do what would accommodate the defendants. Such an accommodation might happen, but it would not be usual, nor could it be foreseen that it would be continued. There is no indication that the act meant to make it an obligation on the part of the Harlem Railroad to furnish conveniences to the defendant, in a quantity and of an expense or economy suited to the condition of the defendant, and which should properly be regulated by its directors. On the other hand, the legislature did not mean to make the enjoyment of the right it gave to defendant conditioned upon the will and pleasure of the Harlem road, except so far as that is involved in its being necessary that there should be an agreement for the running.

When the act was passed, there was an improbability that the engine-houses of the Harlem road would be roomy enough, or fitted in other points to shelter the defendant’s engines. With this, too, is to be taken, that neither public policy nor the interest or comfort of private land-owners would be served by obliging the defendant to use the buildings of the Harlem road. The effects would be the same if the business was done in Harlem railroad property. If the engines of both companies were under one roof there would not be less smoke or dirt or gas. I am therefore of opinion that the act does not intend to confine the defendant to the use of such structures as the Harlem road had provided or would provide for its own business, nor to such structures as the Harlem road might voluntarily build for the purposes of defendant’s business. Under these considerations the complaint should be dismissed with costs and no allowance.

Lewis Johnston, attorney, and W. M. Ivins and John Reynolds, of counsel, for appellant, among other things, urged :

I. Since the decision at special term here appealed from, the general, term of this court, in Caro v. Metropolitan Elevated Railroad Company (46 Super. Ct. 138), has pronounced an opinion which is the direct contradiction in all respects of the judgment in the case at bar. II. A case very similar in its circumstances to the case at bar is Wesson v. Washburn Iron Company (95 Mass. 95 [1866]), in which the plaintiff succeeded. That the above case is correctly decided, see Campbell v. Seaman, 63 N. Y. 568; Mulligan v. Elias, 12 Abb. Pr. N. S. 259 ; Cleveland v. Citizens’ Gas Light Co., 5 C. E. Green [N. J.) 201; Galbraith v. Oliver, 3 Pittsburg Reps. 78 ; Appeal of Penn’a Lead Co., 23 Alb. L. J. 209 ; Ross v. Butler, 19 N. J. Eq. 294; Tipping v. St. Helen’s Smelting Co., 4 Best & Sm. 608 ; McKeon v. See, 51 N. Y. 300 ; Francis v. Schoellkopf, 53 Id. 152; Aldrich v. Howard, 8 R. I. 248. “The consideration is sometimes urged that the building of a railroad is a work' of great public convenience and benefit. This may afford an excellent reason for taking the plaintiff’ s land in the constitutional manner, but not for taking. it without compensation. If the work is one of great public benefit the public can afford to pay for it” (Eaton v. Railroad Company, 51 N. H. 518 ; citing Green, Chancellor, in Hinchman v. Paterson Co., 2 C. E. Green, 80). III. The injury here inflicted upon plaintiff’s property is such as to amount to a taking of private property under the constitutional clause, and to require compensation from the injuring party (Cooley Const. Lim. [4 ed.] 680, et seq.). Also see following cases, in all of which, as we believe, there were these three elements, viz.: 1. An express statutory authority to do the injurious act in precisely the way in which it was done. 2. A public work. 3. No negligence, but due skill and care (Pumpelly v. Green Bay Co., 13 Wall. 166 [1871]; approved in Bertholf v. O’Reilly, 74 N. Y. 5, 16; and Arimond v. Green Bay Co., 31 Wis. 331, 334 [1872]; Eaton v. B. C. & M. R. R. Co., 51 N. H. 504 [1872]; approved in Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321 [1874]; and Cooley Const. Lim. [4 ed.] 677; Harding v. Stamford Water Co., 41 Conn. 87 [1874]; Nevins v. City of Peoria, 41 Ill. 502 [1866]). Equally strong authorities are: Chicago R. R. Co. v. Hall, 99 Ill. 41 (1878); Tinsman v. R. R. Co., 26 N. J. L. 148; Hooker v. N. H. Co., 14 Conn. 146 ; Fletcher v. Auburn R. R., 25 Wend. 462 ; Gardner v. Village of Newburg, 2 Johns. Ch. 161; Trenton Co. v. Raff, 35 N. J. L. 335; Balt. R. R. Co. v. Reaney, 42 Md. 117 (1874); Delaplaine v. R. R. Co. 42 Wis. 214 (1877); Evansville R. R. Co. v. Dick, 9 Ind. 433; Stetson v. Faxon, 19 Pick. (Mass.) 158 ; Indianapolis R. R. Co. v. Smith, 52 Ind. 428 (1876); People v. Nearing, 27 N. Y. 306; Myers v. City of St. Louis, 14 Am. Law Review, 251 (1880); R. R. Co. v. Cumminsville, 14 Ohio St. 550; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321 (1874); Matter of Townsend, 39 N. Y. 171; Wager v. Troy R. R. Co., 25 N. Y. 526. The sovereign State of New York, conducting a public improvement pursuant to an act of its legislature, and conducting such work carefully and skillfully, in strict accordance with said act, is under a legal liability to make good in damages the injury inflicted by it (from the necessities of the work) upon the private property of one of its citizens, where none of that property was literally taken (Coster v. Mayor of Albany, 43 N. Y. 399). Even where the injury is merely accidental, unforeseen and temporary, the public agent who causes it, in executing the legislative authority, must make compensation, irrespective of any negligence (Hay v. Cohoes Co., 2 N. Y. 159: Tremain v. Cohoes Co., 2 N. Y. 163 ; McAndrews v. Collerd, 42 N. J. L. 189 [March, 1880]; Drake v. R. R. Co., 7 Barb, et seq.; Mahon v. R. R. Co., 24 N. Y. 658). IV. Unfortunately, the idea was promulgated in some courts, and adopted by some excellent judges, thirty or forty years ago, that, where a public interest was at stake, it was the duty of a public-spirited judiciary to be generous, and not to allow the private prop- • erty rights of a few obstinate individuals to obstruct or hinder the march of improvement. But a wiser theory of the true duty of a judge now prevails in almost every State, and certainly in New York, as the authorities above cited clearly show, and the earlier decisions looking the other way have been silently disregarded or squarely disapproved (see Widehamer v. People, 13 N. Y. 386, 387; Matter of Gilbert Elev. R. R. Co., 3 Abb. N. C. 449; see also language of Walworth, Chancellor, 18 Wend. 17; Guest v. City, 69 N. Y. 516, 517; see also, Nevins v. City of Peoria, 41 Ill. 5,11). V. Any injury to the private property of a citizen, caused in the execution of a public work, requires that just compensation be made for it; proyided it would have been an actionable injury if committed bp a private individual without statutory authority. To this effect are all the authorities which are constantly reasoning by analogy from the cases of injuries by individual wrong-doers to the cases of injuries by public agents, and vice versa (Eaton v. Railroad Co., 51 N. H. 520 ; Radcliffe v. Mayor, 2 N. Y. 200; Nevins v. City of Peoria, 41 Ill. 510; Hay v. Cohoes Co., 2 N. Y. 159 ; Garwood v. Railroad Co., 83 Id. 400). VI. This particular injury, of which we here complain, is of such a nature as to constitute a talcing within the literal verbal meaning of the constitution (Caro v. Met. El. R. R. Co., supra; Hay v. Cohoes Co., 2 N. Y. 159). Here the defendant claims the right to discharge his steam, smoke, dust and smells upon our premises, and the court below, in refusing to enjoin defendant, must necessarily have held that it had acquired this right. But such a right is an easement in our premises precisely similar in its legal essence to the jus stillicidii of the Roman law, by virtue of which one proprietor had the right to discharge water from his roof upon the premises of his neighbor (Cf. Arndt’s Pand. § 185). But an easement is clearly property in contemplation of law, and often very valuable property. Hence the judgment which denies us compensation, in effect also adjudges that defendant has acquired from us, without our consent; i. e., taicen from us, property, viz., this easement (People v. Haines, 49 N. Y. 590 [1872]; Eaton v. Railroad Co., 51 N. H. 541). VII. Defendant urges that this is a mere consequential injury, and therefore damnum absque injuria. “Incidental ” and “ consequential” injury is such as results from the operation of moral as opposed to material causes (Eaton v. Railroad Company, 51 N. H. 520 ; see brief Roger A. Pryor, in the Caro case, supra). VIII. The court below summed up, in a single sentence of its opinion, the proposition of law on which it decided this case, as follows : ‘ ‘ Unless the defendants have been authorized by the legislature to place the engine-house where it is, it seems clear that they are guilty of a wrong;, but if the legislature has authorized it, they cannot be held responsible for the consequences of a legal act.” This, it seems, is. begging the question. An unconstitutional act is as if it had never been passed by the legislature. It can confer no rights and afford no protection. IX. Thus far we have assumed, for the purposes of the argument, that defendant had an implied authority to erect this engine-house where it is, but it is clear that such cannot be the case. Defendant asks the court to imply not only an authority to inflict injuries, but to do so without compensation. It is well settled that such an implication will not be made (Tinsman v. Railroad Co., 2 Dutch. 166 ; Hooker v. N. H. Co., 14 Conn. 156 ; Crittenden v. Wilson, 5 Cow. 166 ; Auburn & Cato Co. v. Douglass, 9 N. Y. 444 ; Haskell v. New Bedford, 108 Mass. 208; City of Aurora v. Reed, 57 Ill. 29 ; Brigham v. Edmonds, 78 Mass. 359; Estabrooks v. Railroad Co., 66 Id. 224). Perhaps a more conclusive evidence that there can be no such implied authority here is that the sovereign State does not possess the power itself. It is obvious, therefore, that it cannot confer it (Coster v. Mayor, 43 N. Y. 399).

W. E. Barnett, attorney, and H. H. Anderson, of counsel, for respondent,

among other things, urged:— I. The defendant has explicit legislative authority to take, hold and use the land in question for the purposes of its business, (a) By virtue of its charter (Conn. Pri. Acts 1844, 59 ; N. Y. Session Laws 1846, c. 195 ; Conn. Pri. Acts 1846, 102 ; N. Y. Session Laws 1848, c. 143, § 6), and agreement with the N. Y. & Harlem R. R. Co. (N. Y. Session Laws 1831, c. 263; Id. 1859, c. 387, § 2 ; Conn. Pub. Acts 1871, c. 129 ; Conn. Pri. Acts 1873, 6). (b) By virtue of the general railroad law of New York (Laws 1850, c. 140, § 28; Laws 1850, c. 140, §§ 21, 49 ; as amended by Laws 1869, c. 237, and Laws 1877, c. 224; Purdy v. N. Y. & N. R. R. Co., 61 N. Y. 353). Under these and similar statutes, the courts have held, that railroad companies may properly acquire land for engine-houses, shops for the repair of locomotives, fuel yards, turn-outs and side tracks, as necessary incidents to the operation of a railroad (Opinion of Judge Sedgwick, In re N. Y. C., &c. R. R., 77 N. Y. 248, 263; N. Y. & H. R. R. v. Kip, 46 N. Y. 546; State v. Mansfield, [3 Zab.] 23 N. J. L. 510; Williams v. P. W. & B. R. R., 54 Pa. St. 103; People v. Utica Ins. Co., 15 Johns. 358, 380 ; Pierce on Railroads, 149, 150, 484, and cases there cited). - It was objected that these incidents are meant to be confined to the use of such appur-. tenant structures or conveniences as the Harlem Railroad furnishes. The argument supporting this objection is stated in the opinion below, and refuted. The location of the buildings and structures of the company is within the reasonable discretion of its managers (New York & Harlem R. R. v. Kip, 46 N. Y. 546). II. The court properly found ‘ ‘ that whatever damage has resulted to the plaintiff or her property by reason of defendant’s said use and occupation of its said premises is damnum absque injuria P Where the grantees of a franchise have not exceeded the power conferred upon them, and when they are not chargeable with want of due care, no claim can be maintained for any consequential damages resulting from their acts (Sedg. on Dam. 110 ; Pierce on Railroads, 197, 431; and cases there cited ; Sixth Av. R. R. v. Gilbert El. R. R., 43 Super. Ct. 315; Killinger v. Forty-second Street R. R., 50 N. Y. 206, 211 ; Plant v. L. 1. R. R., 10 Barb. 26 ; Boothby v. A. & K. R. R., 51 Me. 318; Richard’s Appeal, 57 Pa. St. 105; Washburne v. Worcester, 116 Mass. 458; Frankford T. P. Co. v. P. & T. R. R., 54 Pa. St. 345 ; Brand v. Hammersmith, 1 L. R. Q. B. 130 ; reversed, 2 L. R. Q. B. 233; which last was reversed and original sustained in House of Lords, 4 E. & I. App. L. R. 171 ; Mersey Docks v. Gribbs, 1 E. & I. App. L. R. 112.

By the Court.—Speir, J.

It is quite clear that the defendant has ample authority, by virtue of its charter, and the general railroad laws of Hew York, to take, hold and usé the land in question for the purpose of its business. It is equally clear that the courts have held, under these and like statutes, that railroad companies may acquire land for engine-houses, shops for the repair of locomotives, fuel yards, turn-outs, and side tracks, as necessary incidents to the operation of a railroad (Pierce on Railroads, 149, 150, 484 and cases cited).

Whatever the legislature has authorized the defendant to do, it will not be held responsible for the consequences of doing it. Such authority, as matter of law, neither directly, nor by implication, authorizes the infliction of the grievance complained of, nor does it appear to be necessary or incident to the exercise of corporate authority and power.

Under the issues framed in the pleadings and the principles of law governing the case, the plaintiff may concede that there are no restrictions as to the manner of building or operating the railroad, and that the damages which may be recovered must be for injuries directly or immediately caused by the construction or operation of the road in the manner in which it is constructed or operated, and not remote or consequential. It is not claimed that the defendant is in any manner released from the duty of using care and skill in the construction and management of the engine-house, coal-bins, and in the use of the premises to prevent unnecessary damage and injury to the adjacent dwellings. If there be any failure on the part of the defendant in this respect, the burden of proving its neglect to perform its duty is upon the plaintiff. A careful examination of the testimony fails to show that any practical change in the construction of the buildings or the use of the premises could be made by which the damages could be lessened or the nuisance abated.

The question of the legal capacity of the defendant to take title to the land on which the engine-house stands, was not put in issue by the pleadings, and does not appear to be controverted on the trial. The complaint alleges that the defendant is the owner in fee of the land on which the engine-house is built. The point made by counsel on the trial and also on the appeal was, that by the terms of its charter the defendant had no authority to erect the engine-house complained of, or any engine-house used by the Harlem railroad. The learned judge in his opinion makes this answer: “The legislature did not mean to make the enjoyment of the right it gave to the defendant conditioned upon the will and pleasure of the Harlem railroad, except so far as that is involved in, its being necessary that there should be an agreement for the running!”

We think the several requests of the plaintiff to find have been properly disposed of, and that the exceptions taken by the plaintiff on the trial to the rulings of the court upon the admission and rejection of evidence cannot be sustained.

The plaintiff’s counsel relies on the case of Caro v. Metropolitan R. R. Co. (46 Super. Ct. 138), as being identical with the case at bar. This we believe to be a misapprehension, and deserves some notice.

The Caro case presented questions of law arising on a demurrer where the alleged facts are admitted. The action was to restrain the committing a nuisance, and for the redress of wrongs and injuries inflicted by the defendant without ability to make reparation, and which would involve the plaintiff in continuing vexatious litigation, entitling to redress by injunction. The admission of the defendant of the facts alleged showed that the aggression, by the use of the railroad, had become a nuisance which proved to be permanent, and that the plaintiff was without an adequate remedy at law, by reason of the admitted insolvency of the defendant. In such a case, this court was competent to administer its equitable relief by injunction to prevent its continuance. In the case at bar the issue was controverted and a trial was had, and, the facts in dispute being found in favor of the defendant, there is no occasion to invoke the equitable principle for relief.

The judgment should be affirmed, with costs.

Freedman, J., concurred.