author: By the Court.—O’Gorman, J.

text:
    THE CUNARD STEAMSHIP CO. v. JOHN R. VOORHIES, et al., as Commissioners, &c.

      Department of Docks of New York—powers of as to ferry franchises.—Grants Tyy implication.—PvMic grants, rules as to.

    The Department of Docks of the City of New York has no power to grant a ferry franchise, or the exclusive use of piers or bulkheads to persons running a ferry without a franchise, or to erect, maintain, or reconstruct structures for ferry purposes. '
    Public grants should be interpreted most favorably to the public interest, and are not to be enlarged by doubtful implication. No distinct thing or right will pass by implication. In such case, the words should be construed by their most natural and obvious sense, and whatever is necessary for the enjoyment of the thing granted, will be implied in .the grant (Charles River Bridge Case, 7 Pick. 344 ; 3 Kent's Com. 421 ; Langdon v. The Mayor, 93 N. Y. 151).
    In the grant of the principal thing, an accessory thing necessary to its use may be implied, but the grant of the principal thing will not be implied from the special grant of the thing which is merely accessory.
    In the case at bar, the thing granted was the use of the side of a pier for erecting a ferry rack, a thing accessory to the use of a ferry.

      Decided April 7, 1884.

      Held-, that the franchise or privilege for the use of the land required for the erection and maintenance of a ferry-house could not be regarded as included by implication in that grant, even if the Dock Department had power to grant ferry franchises or the exclusive use of the bulkhead, or pier, or any part thereof, to persons running a ferry without a ferry franchise.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Submission of controversy without action on case agreed on by the parties named as plaintiff and defendants ; for the purpose of submitting the controversy to this court.
    The facts appear fully in the opinion.
    Lord, Day & Lord, for plaintiff.

      George P. Andrews, counsel to the corporation, for defendants.
   By the Court.—O’Gorman, J.

The contention in this case is as to the validity of a claim made by the plaintiff to the exclusivé use of a shed attached to the bulkhead between piers 40 and 41, N orth River.

On April 26, 1876, the Board of the Department of Docks passed the following resolution : “ Resolved : That the Central Railroad of New Jersey be, and they are hereby informed, that this department will grant a lease to the said corporation, for a term of ten years, of the northerly side of a pier to be built, wholly or in part, upon the premises now occupied by pier 48, N. R., for the purpose of erecting thereat a ferry rack, as soon as the pier shall be constructed or completed by this department, in conformity with the new plans adopted, or to be adopted, for the improvement of the water front, at a yearly rent of $7,500, but it is understood that the said corporation shall have no right to the use of any portion of the surface of said pier ; the department reserves the right to rebuild the said pier, and the bulkhead wall contiguous thereto, at such time as it may by said department be deemed expedient; and further, that until the department shall take possession of the said pier 48, for the purpose of re-building, the said Central Railroad of New Jersey, shall pay to this department for the use of the whole of the L, on the north side of said pier, and for the use of the water front adjacent to said north side, for ferry purposes, rent at the rate of $5,000 per annum ; but it is understood that the said corporation shall have no right, during such period, to the use of any portion of the surface of the said pier, excepting that of the said L, provided that the said Central Railroad of New Jersey,< shall within five days after receipt of this notice file in this office, its acceptance in writing of the terms hereof, and agree to execute a lease containing the usual covenants and conditions, and in conformity with the terms herein set forth, for the northerly side of the pier when so rebuilt, and ready for occupancy.”

A formal written acceptance of this resolution was, by the said Central Railroad of New Jersey, duly filed in the office of the Department of Docks.

One of the main questions to be determined, is what property, rights or privileges were granted to the said Central Railroad, by reason of this resolution. It consists of two parts, each part providing for a condition of affairs special and differing from that provided for in the other part, each part separate and distinct from the other. In the first part, the resolution makes provision for a lease to be executed after the occurring of an event, 11 in futuro,” that is to say, after the construction and completion by the department, of a pier to be built by'them, wholly or in part, on the premises then occupied by pier 48, North River ; after the occurrence of which event, the department was to grant a lease to the Central Railroad for a term of ten years, of the northerly side of such pier, as so built, for the purpose of erecting thereat a ferry rack. The yearly rent for the said northerly side of said pier was to be $7,500, the Central Railroad to have no right to use any portion of the surface of the pier. Until the construction and completion of this intended pier, these provisions of the resolution could not come into effect. From the terms of this part of the resolution, it is sufficiently clear that all that was intended to pass by the lease, when executed, was the right to the exclusive use of the north side of the proposed new pier, only in so far as was necessary for the putting up and using, ferry racks alongside of said pier, which exclusive use would necessarily prevent the public from using that side of the pier for shipping purposes, for instance, for making ships fast to it, or for any other such ordinary public use of a pier; and deprive the city of the emoluments derivable therefrom.

The second part of the resolution applied to a different state of things, and made provision for the relations between the said department and the Central Railroad in the interval of time before the department should take possession of said pier 48, for the purpose of re-building, etc.

During that interval, the Central Railroad was to pay for the use of the whole of the “ L” on the northerly side of pier 48, and for the use of the water front adjacent to said north side, for ferry purposes, rent at the rate of $5,000 per annum, the Central Railroad having, during that interval, no right to use any portion of the surface of the pier, excepting of the said “ L.” This part of the resolution applied only to pier 48 as it then stood, and not in any respect to the pier to be put in its place ; and by the terms of this resolution, the Central Railroad acquired no right to erect on the north side of pier 48, or anywhere else, a ferry-house, or other structure necessary for the use of a ferry. The resolution did not in either of its parts make any provision whatever for the use by the Central Railroad of any portion of the bulkhead, or slip north of the north side of the new pier when completed.

On November 1, 1880, the said Central Railroad having become insolvent, and fallen into the hands of a receiver, he assigned to the Cunard Steamship Company all their rights and.privileges under or by virtue of the said resolution of the Dock Department of April 26, 1876 ; and also any lease made by said department to the Central Railroad, pursuant to said resolution'. The Central Railroad further, through their receiver, covenanted to assign to the plaintiff the right of the Central Railroad in and to the water privileges referred to in said resolution. The Dock Department had never, in fact, executed any lease in pursuance of their said resolution.

On November 10, 1880, the Dock Department passed the following resolution :

“ Whereas this board under a resolution adopted on April 26, 1876, agreed to grant to the Central Railroad Company of New Jersey, a lease of the northerly side of a pier to be built wholly or in part upon the side of a pier then known as pier 48, North River, for a period of ten years from the completion thereof, at an annual rent of $7,500, for t,he purpose of erecting thereat a ferry rack, but with no right to the use of any portion of the surface of said proposed pier.

‘ ‘ And whereas since that date the said proposed pier has been erected, and is now known as pier new 40, North River, and has been occupied since the date of its completion, say May 1, 1879, by the said company.

1 ‘ And whereas, the receiver of the said company has this day advised this board in writing that, the court has authorized the assignment of the interests of said company in the above referred to lease to the Cunard Steamship Company, Limited.

“ And whereas, the said receiver has also this day asked in writing for .the consent of this board to such an assignment, and to allow the name of said steamship company to be substituted for that of the railroad company in any lease made pursuant to the aforementioned resolution of April 26, 1876, therefore,

“ Resolved: That the board governing the Department of Docks assents to such substitution, and hereby agrees to grant a lease of the premises referred to above, and now known'as the northerly side of pier new 40, North River, but with no right to the use of any portion of the surface of said pier, for a term of eight years and six months, from November 1, 1880, to the Cunard Steamship Company, Limited, at an annual rent of $7,500, payable quarterly in advance, and to contain a covenant for a renewal term of ten years, at an annual rent of $7,625, provided that the said steamship company shall, within ten days from the receipt hereof, file in this office, its acceptance in writing of the terms hereof, and agree to execute a lease containing the usual covenants and conditions, and in conformity with the terms herein set forth when notified so to do by this board.” Within the ten days specified in said resolution, the Cunard Steamship Company filed their acceptance in the office of the Department of Docks. The Cunard Steamship Company also, by letter, expressed their readiness to accept a lease of the northerly side of pier 40, upon the terms mentioned in said resolution, for a term of eight years, from November 1, 1880, at an annual rent of $7,625, with covenant of renewal.

The effect of these resolutions and this assignment, was to vest in the plaintiffs whatever right or license the Central Railroad had acquired to the use of the northerly side of pier 40, and to any lease to be made in pursuance of. the resolutions of April, 1876, by the Dock Commissioners. The plaintiffs, however, have acquired rights under the agreement between the Dock Department and themselves, set forth in the resolution of November 10, 1880, other and different from the rights assigned to them by the Central Railroad. By that agreement, they are entitled to a lease from that department directly to themselves of the northerly side of pier 40, from November 1, 1880.

They have expressed their readiness to execute that lease, and from November 1, 1880, they have paid rent for the same, and have been in full possession of the north side of pier 40, as provided for in said resolution.

The plaintiffs' claim, however, that in addition to the said use of said pier, they are also entitled to maintain and use a certain shed, set on piles, between piers 40 and 41, said shed "attached partly to the northerly side of pier 40, and partly to the bulkhead, and extending ninety-four feet north from the pier. This shed has been used by the plaintiffs since November 1, 1880, in storing the cargoes of their ocean steamships, and it is admitted that the plaintiffs are owners of the shed itself.

On February 24, 1882, the Dock Department gave the plaintiffs notice to remove the shed, or that in default of their doing so, the department would remove it. The Cunard Steamship Company threatened to commence an action to restrain the Dock'Department, and the parties have now submitted to the court the following questions:

I. “ Have the said Cunard Steamship Company the right to maintain and use said shed during the period for which said injunction is asked for ?”

II. “ Should the injunction be granted?”

The claim of the Cunard Steamship Company to the use and occupation of this shed can find no support in the terms of the resolutions referred to, or either of them, and in order to understand the ground of their claim to the exclusive use of this shed, it is necessary to consider the facts on the subject as they appear in the case submitted to the court.

The erection of the shed came about in this way. On June 21, 1876, two months after the passage of the resolution of the Dock Department first referred to, and on which resolution the plaintiffs rely, the Dock Department, on the application of the Central Railroad, resolved as follows: That permission be and the same hereby is granted to the Central Railroad of New Jersey, to drive piles in the slip adjacent to the north side of pier 48, North River, and erect thereon a platform and ferry-houses, together with such other structures, racks, bridges, etc., as may be necessary for use of a first-class ferry, and now in the course of erection, provided that all the said improvements shall be constructed in conformity with the plans as approved by the engineer-in-chief of this department, and the work of completion shall be done under his supervision, and that the said buildings shall be subject to the regulations of the superintendent of buildings, as required by law.”

This resolution referred only to the slip adjacent to the old pier 48, as it then stood, and did not apply to the intended new pier 40, or to the slip adjacent to it when constructed ; and as the assignment By the receiver of the Central railroad to the plaintiffs does not in any way refer to this resolution of June, 1876, or to any rights the Central Railroad might have thereunder, the plaintiffs cannot claim,” and, as I understand, they do not claim any benefit under or by virtue of that resolution of June 31, 1876.

The Central Railroad never obtained a ferry franchise from the city, but after passage of that resolution they erected on the north side of the then existing old pier 48, and adjoining the bulkhead, a ferry-rack and structures, being a ferry-house, platform, etc.

This was done with the assent of the Dock Department, and these structures were used by said Central Railroad for ferry purposes until sometime in 1878, when their use of them for ferry purposes was discontinued; and since that time no ferry has existed there.

In 1878, the Dock Department entered upon this old pier 48, North River, and built the new pier 40, removed the old bulkhead farther west into "the river, filling in behind and making the present bulkhead. In making such changes, these buildings put up by the Central Railroad were taken down, but at their request thezeasterly front of the ferry-house, including the covered platform used by them, was temporarily moved by the Dock Department at its own expense, and placed on the new bulkhead. No resolution of the Dock Department was passed authorizing such action. These changes were completed in May, 1879. This easterly front of the former ferry-house and this covered platform, which were, when moved, set on piles in the slip, now form the shed, the right to use which is now claimed by the plaintiffs. These changes in the waterfront were completed by the Dock Department in May, 1879, and were in accordance with the general plan for the improvement of the water-front adopted by the Dock Department in compliance with the provisions of chapter 574, Laws 1871.

From the time of the adoption of that plan, no wharf, pier, bulkhead, slip, etc., nor any wharf structure or superstructure could lawfully be laid out, built or rebuilt within the territory embraced in the plan, except in accordance with the plan (Id. ; New York City Consolidation Act, 276-7, §712).

This shed set on piles outside the ne\V bulkhead line adopted under the act, and extending over the water of the slip, was not in accordance with said plan, and the Dock Department had no authority to put it there, or to allow it to be put or maintained there. It was not a ferry-house or a structure used for any ferry purpose. No franchise for the operation of a ferry in that place had ever been procured by the Central Railroad, or by any one. The Dock Department had no authority to grant a ferry franchise. That power was vested exclusively in the Commissioners of the Sinking Fund ; and the Dock Department, in moving the remnant of the old ferry-house, which had been used without authority of law by the Central Railroad, to the new bulkhead on the north of the new pier 40, and in allowing it to project over the waters of the slip, acted in violation of the law. Having no right to erect such a structure, they had no right to permit it to be maintained and used by the plaintiffs exclusively. There is no resolution of that department permitting such use, and if it were claimed that their failure to object to such use may be regarded as a license, it was as a license revocable ; and the notice to the plaintiffs, of August 12, 1881, was a revocation.

On what ground then do the plaintiffs base their claim to the right to use this shed ? They do not base it on the resolution of the Dock Department, dated June 21, 1876, giving permission to the Central Railroad to drive piles in the slip, and to erect a platform, etc., for no right or privilege depending on, or arising out of that resolution, was assigned ’ to the plaintiffs, under the assignment to them from the Central Railroad, dated November, 1880, which was, in terms, confined to the rights and privileges which the Central Railroad acquired under the resolution of the Dock Department, dated April 26, 1876. And, in fact, the plaintiffs do not make any claim under the resolution of June, 1876. Their contention, I understand, to be substantially this : The Central Railroad, under the resolution of April 26, 1876, acquired the right to a lease of the northerly side of the pier to be built in place of the then existing pier 48, for the purpose of erecting- thereat a feny rack, paying therefor the yearly rent of $7,500. This lease of the northerly side of said pier for ferry purposes, as they claim, carried with it by implication the right to erect and maintain, during the period covered by the resolution, such structures as are suitable for the running of a ferry at that point; and the shed in question is such a structure.

I have read the able and ingenious argument of the learned counsel for the plaintiffs, wdth the care and attention it so much deserves, without, however, being able to agree in the correctness of this proposition.

The subject of grants by implication was considered in the Charles River Bridge case (7 Pick. 344, 362).

It was said there by Wilde, J., to be “a sound and wholesome rule of construction to interpret public grants most favorably to the public interest, and they are not to be enlarged by doubtful implication.” In the same case, Martin-, J., says, “ no distinct thing or right will pass by implication. The words should be construed in their most natural and obvious sense ; and whatever is necessary for the enjoyment of the thing granted will be implied in the grant.” When the use of a thing is granted, everything is granted by which the grantee may have and enjoy such use (3 Kent Com. 421; Langdon v. Mayor, 93 N. Y. 151). A grant of the use of a thing which is accessory to the use of the principal thing granted, may, sometimes, be implied in the grant of the principal thing ; but the grant of the principal thing itself will not be implied from the special grant of the thing which is accessory. The greater may carry with it the less, but -not vice versa. For instance, a grant of land may carry with it, by implication, a right of way, without which the land granted would be inaccessible; but a grant of the right of way would not carry with it a grant of the land.

In the case at bar, the thing granted was the use of the side of the pier for erecting a ferry rack, a thing accessory to the use of a ferry. The franchise or privilege for the use of the land required for the erection of a ferry-house, could not.be regarded as included by implication in that grant. The only thing granted was the side of the pier, and for the exclusive use of that, the rent was to be paid.

The use of the land necessary for ferry purposes, with license to erect ferry-houses, etc., thereon, was the subject of a different grant, given by a different resolution (the resolution of June, 1876) ; and that resolution would have been unnecessary, if the rights or license conferred on the Central Railroad by that resolution had been already conferred by the previous resolution of April 26, 1876. But the Dock Department had no power to grant either ferry franchises, or the exclusive use of the bulkhead or pier, or any part thereof, to persons running a ferry, without a ferry franchise, and the resolution of June, 1876, cannot be held to grant, by implication, a license which it was beyond the power of the department to grant, and which is a clear violation of law.

For these reasons, I am of the opinion that the Central Railroad, took by the resolution of April, 1876, no right or license to the exclusive use of any part of the bulkhead for any purpose, or any right or license to build thereon, or on piles driven into the waters of the slip, or to encroach on said waters by any structure overhanging the same. This conclusion, if correct, disposes of the proposition on which the plaintiffs’ argument mainly depends.

The rights which the plaintiffs now enjoy, to use the north- side of pier 40, for other than the erection of "a ferry rack, depend, not on the assignment from the Central Railroad, but on the direct agreement made, on November 10, 1880, by the Dock Department with the plaintiffs for a lease to them ; and plaintiffs under that agreement are entitled to use that side of the pier for any and all purposes that may be lawful. But under no resolution or agreement either in terms or by necessary implication, have they acquired any right to maintain or use the shed in question.

Entertaining these views, the conclusion seems inevitable that the first of the questions submitted to the court should be answered in the negative. The Cunard Steamship Company have not the right to maintain and use the shed during the period for which the injunction is asked.

As to the second question, viz.: should the injunction be granted 1 the plaintiffs argue, that whether the shed does or does not constitute an unlawful structure, the Dock Department have no power to remove it.

It is not necessary at present to examine this question.

A plaintiff appealing to a court of equity for protection in the use of real estate, to which he has not an undoubted right, can not be surprised if the court decline to ' exercise its extraordinary powers in his behalf, but leaves him to assert his rights, if he has any, in an action at law; and there is no reason to apprehend that in this instance, the plaintiffs cannot obtain compensation by way of damages for any violation of their legal rights which they can prove that they have sustained.

The second question is, therefore, answered in the negative.

The injunction asked for should not be granted.

Sedgwick, Ch. J., and Truax, J., concurred.


source: Caselaw Access Project

author: By the Court.—O’Gorman, J

license: Public Domain

text:
    MILES GEARON, Appellant, v. THE BANK FOR SAVINGS, &c., Impleaded, Respondent.

      False imprisonment.—Arrest of person other than one named in order.— Liability of plaintiff for aet of attorney in directing sheriff.

    In an action brought by the defendants against one Michael A. Gearon and others, a warrant of attachment issued to the sheriff directing him to attach the person of said Michael A. Gearon and produce him before the court. A clerk of the attorney of said defendants pointed out the plaintiff in this action to the sheriff as being said Michael A. Gearon, and the sheriff, under the directions of the clerk, arrested the plaintiff, and held him in custody over night, and discharged him in the morning on proof that he was not the Gearon named in the warrant, but his brother. The defendants never gave any authority or direction, express or implied, to their attorney or to the sheriff to arrest plaintiff, nor was there any ratification of the act of the sheriff.

      Decided April 7, 1884.

      Held, that defendants were not responsible for the arrest, and not liable to the plaintiff in this action for the tortious act of the sheriff.
    Cases considered and commented : upon Guilleaume v. Rowe, 48 Super. Ot. 170 ; Poucher v. Blanchard, 86 H. 7. 263 ; Welsh ®. Cochran, 63 Id. 182 ; Williams v. Preston, 47 L. T. Hep. 12. 8. 265 ; Smith i>. Keal, 46 L. T. Rep. H. 8. 770.
    Before Freedman and O’Gorman, JJ.
    Appeal by the plaintiff from a judgment in an action for false imprisonment, dismissing the complaint on the merits without costs.
    The facts in the case appear fully in the opinion of the court.

      Miles Gearon, appellant in person, and William H. Arnoux, of counsel.
    I. If the respondent had authorized its attorneys to arrest any person, that would be sufficient to make it liable for the arrest of the wrong person under the direction of its attorneys.
    II. The act complained of was chargeable to the respondent by reason of the relation existing between its attorneys, and because it was done by the attorneys in the course of their employment. The acts of an attorney’s clerk in the course of his employment are the acts of the attorney (Ostrich v. Gilbert, 9 Hun, 242).
    III. The general proposition of law is, that an attorney at law, in the conduct of a suit in which he has been retained, is not required to obtain the consent of his principal to the various steps taken- by him therein, and that the principal is bound by the acts of such attorney, taken without his knowledge and consent, under his general retainer, however unusual or extraordinary those- acts may be, providing such acts are taken in good faith. Ignorance of the acts of the attorney will not exonerate the principal.
    In Ostrich v. Gilbert (supra), where goods had been illegally seized upon an attachment, the court held the plaintiff in the action liable. Judge Davis, in his opinion, points out the distinction between Clark v. Woodruff, (83 N. Y. 518), and the case at bar, and shows that the rule that a principal is not liable for acts of an attorney done after the issuing of an execution is inapplicable to a case where the directions are given in the course of its prosecution. The same distinction has been pointed out in this court in Guilleaume v. Rowe (63 How. Pr. 175), in an able opinion written by Judge Freedman, and concurred in by the learned Chief Justice (48 N. Y. Super. Ct. 169, and affirmed Ct. of App. 18 W. D. 196). The case of Barker v. Braham (3 Wilson, 368), in the King’s Bench, also shows the same distinction between acts done by an attorney in the course of a case and acts done subsequent to the execution, and that the issuing of an illegal execution is an act .done in the proceeding of which the plaintiff is liable.
    The court held that trespass vi et armis for false imprisonment as well lies against an attorney as against his client who sues out, at the suit of his client, an illegal writ of capias ad sat. against a defendant, and causes such defendant to be imprisoned thereon.
    So in 6 Hun, 422, a judgment was entered pursuant to stipulation of attorney, in the cause of the action, which was sought to be set aside, denied, and affirmed at general term on ground that client is bound by act of attorney, without specific direction of client. If client suffers damage in such case, he must look to his attorney for indemnity.
    Bates v. Pilling (6 Barn & Cress. 38), was an action of trespass. A. employed B., an attorney, to enforce payment of a debt. B. directed his agent to sue. Before the return of the process the debtor paid the debt and costs to B. The agent, ignorant of such payment, afterward entered, up judgment, although the defendant had not appeared, and sued out an execution under which the goods of the debtor were seized, and it -was held that A. and B. were both liable as trespassers. See Barker v. Braham (2 W. Black. 866 ; 3 Wils. 368). Brown against Feeter (7 Wend. 305), “there are very few exceptions to the rule that the party on the record is responsible for whatever is done in his name, although some other person may be beneficially interested in the subject matter, and may also be liable on that ground, &c.’ ’
    In Griswold v. Sedgwick (6 Cow. 456), the right party was arrested by the marshal under the wrong name, and the plaintiff sued the marshal, his deputy and the attorneys for false imprisonment, and they were held liable. In Miller v. Foley (28 Barb. 630), a similar error occurred, and the court held that all concerned in the. arrest were liable for the false imprisonment. In Davies v. Jenkins (11 Mees. & W. 754), it was held in case a wrong person is arrested through mistake, all persons causing the arrest are liable for the injury. And the same was held in McMahon v. Green (34 Vt. 69). It is fully established by all the authorities that all the parties to a trespass are liable—the only question remaining being who are the parties. It was held in the case of Hibbard v. Erie R. R. (15 N. Y. 455), and in the Vanderbilt case, that the master was liable for the trespass only so far as it was necessary to protect his interests, bat in the later cases that distinction has been abolished, and when the servant acts in the business of the master, but wholly without warrant to do the act complained of, the master is liable. This is fully illustrated in Lynch v. Metrop. El. R. R. Co. (90 N. Y. 77), where the defendant was held liable for the false imprisonment of plaintiff "by one of its servants, who sought thus to compel plaintiff to pay his fare (Mott v. Consumer’s Ice Co.,73 N. Y. 543 ; Rounds v. Del. L. & W. R. R. 64 N. Y. 116).
    IV. In Dunston v. Paterson (2 Com. Bench [N. S.] 495), an action of trespass was brought against the sheriff for the detention of the plaintiff after notice that he was not the person liable to arrest under the process issued to the sheriff, and a recovery was had which was affirmed on appeal, the court holding that if a wrong person is arrested by mistake all persons causing, or aiding, or assisting, or directing the arrest are liable in trespass for the injury. Even if A., representing himself falsely to be B., against whom there is a warrant out, and is consequently arrested, gives notice while under arrest that he is not B., but A., he cannot lawfully be detained longer than may be reasonably necessary to ascertain which of the several statements he has made is true.
    The case at bar is clearly distinguishable from the case in 63 N. Y. 181; or rather, the principle therein announced from the facts is inapplicable to this case. - It must be held that an attorney has implied authority from his client to identify the person mentioned in the process, and direct the officer simultaneously with delivery of process to go with him and arrest a person whom he states to be the person mentioned in process.

      Strong & Cadwalader, for respondent.
    I. No person had a right to interfere with the sheriff to direct him whom to arrest, or to instruct him in the performance of his duty. Any citizen may assist him by opinions, but does not thereby become an original tort-feasor. It is not within the duty or employment of attorneys, much less of Lynn, a quasi volunteer, or of Stewart, or of the managing clerk, by verbal advice or direction given to the sheriff, to render the plaintiff in an action liable for the result of such advice or reduction (Averill v. Williams, 4 Den. 295 ; Welsh v. Cochran, 63 N. Y. 181 ; Guilleaume v. Rowe, 16 J. & S. 172; Clark v. Woodruff, 83 N. Y. 518; Smith v. Keal, 9 L. R. Q. B. 344).
    II. (1.) There is no distinction in this case, because the act was done during and not at the end of a litigation. The ground assumed in the case is, that an authority to arrest or to levy is authority only to levy on proper goods, or to arrest the right party, or to issue a writ of commitment to the sheriff, but never to commit a trespass. (2.) Nor is there a difference between directions to secure property and directions to arrest persons ; both are trespasses. In both the principal must be held, if at all, for the sheriff's acts, by his direction communicated through his solicitors, and such directions are held beyond the attorney’s authority. As to persons there is less reason to.hold the client, or permit the sheriff to shelter himself behind instructions, because he is presumed to know all persons in his county— his certificate of service of process is not required to be sworn to, nor is he required to certify that he knows the person. He is supposed to know him. When, therefore, he arrested the plaintiff he did no more than take expressions of opinion from the various persons, including Lynn’s, but not instructions.
   By the Court.—O’Gorman, J

.The material facts, as they appeared in evidence at the trial, are substantially these: An action was brought in the supreme court of this judicial department, by the Bank for Savings, the present defendant herein, on the ground that different persons had laid claim to a sum of money amounting to $1,469, which had been deposited in the Bank for Savings in 1827, by one Jacob Kniffer ; and in this action these several claimants, and also Michael A. Gearon, the attorney of one of them, named Lancaster, were made defendants. This Lancaster had been appointed administrator of Kniffer’s estate, and the money had been paid over to Michael A. Gearon, his attorney, and was in the possession of Gearon. A motion in this action for the appointment of a receiver was made and granted on December 27, 1882, and an order was also made requiring Michael A. Gearon to pay the money into the hands of the receiver within five days. Difficulty was experienced in making service of this order on Michael A. Gearon. At last, service was made on a person then supposed to be Michael A. Gearon, and the money not having-been paid into the hands of the receiver, in obedience to this order, a warrant of attachment was issued directing the sheriff to attach the person of. said Michael A. Gearon, and to produce him before the court. The sheriff’s officer having charge of the execution of this attachment, applied to the attorneys of the Bank for Savings, the plaintiffs in that action, for instructions, and they sent with him one of their clerks to an office in Pine street in this city, wffiere the sheriff’s officer, acting under the instructions of this clerk, arrested the plaintiff in the present action, being informed by said clerk that the person so arrested was Michael A. Gearon, and plaintiff was held in custody by the sheriff all night and until the next morning, when he was discharged on proof that he was not Michael A. Gearon, the person named in the attachment, but his brother Miles Gearon, the plaintiff in the present action.

There was no evidence of any special authority, either express or implied, from the Bank for Savings, the plaintiff in that action, to their attorney, or to the sheriff, to arrest Miles Gearon; nor was there any subsequent ratification by the bank, of the act of the sheriff, or of their attorneys, after knowledge of that event.

The trial judge dismissed the plaintiffs’ complaint in the present action, on the ground that there had been no proof of any authority from the Bank for Savings, the present defendant, to arrest Miles Gearon, the present plaintiff ; and the question now to be discussed, is whether, in the absence of such proof, the present defendant can be held responsible for the act of their attorneys in instructing the sheriff to arrest the plaintiff Miles Gearon, the order of attachment having directed that officer to arrest Michael A. Gearon.

The case of Guilleaume v. Rowe (48 Super. Ct. 169), although not in all its features resembling the case at bar, yet contains a valuable statement of the rules of law applicable to cases of this kind. The attorneys of the defendants there, in an action brought by them against Guilleanme, caused to be .issued, without any authority of law, an execution against his person, and under that execution Guilleaume was arrested and held in custody. He brought an action for false imprisonment against the persons who had employed the attorneys. The learned trial judge dismissed the complaint on the ground that, conceding the execution against 'Gruilleaume to be void for want of jurisdiction, there was no evidence showing that the defendants authorized the issue of the execution, or the arrest of the plaintiff Gruilleaume.

The court at general term held that the case should have gone to the jury, and ordered a new trial, on the ground that “ the evidence established that the attorneys who issued the execution against the person of Guilleaume, had acted as the attorneys of the defendants all through the litigation, before and after judgment, and that that was sufficient to make them prima facie the agents of the defendants ; for unless restricted, the attorney has plenary power in the prosecution of the suit to judgment and execution, and in these respects his acts bind and conclude his client.” The court further says, “ that in such a case, the authority may be8deduced from the nature of the employment, which is to collect the claim by legal process .... As a general rule, a principal is liable for such wrong of his agent as is committed in the course of his employment, as for the benefit of his' principal, and this, although no express command or privity be shown.”

In that case, this familiar rule of law, that the principal is responsible for the act of his agent acting within the scope of his authority, was properly applied, for the attorneys were employed to bring suit against Gruilleaume, and the wrong done him by his unlawful arrest was done in the course of that employment, and was within the attorney’s plenary power in the prosecution of that suit. But the court, in its opinion, goes farther, and describes the circumstances, in which the act of the attorney under the plenary power to conduct the suit, would not bind the client. “ It is only,” says the court, “when, after having issued execution, the attorney undertakes to give special directions for •its enforcement in a manner not warranted by the language of the writ, and when the officer may justly decline to take the responsibility, in the absence of indemnity, that the client can be held only on proof of special authority to the agent, express or implied, or of subsequent ratification, with knowledge of the facts.” In these terms, the court describes, as I think, the state of facts in the case at bar, and supplies the true test of the responsibility of the client for the act of his attorney, and marks out the limits within which the plenary power df the attorney, under his ordinary retainer, is confined.

In the case at bar, the attorneys were employed by the Bank for Savings to bring suit against Michael A. Gearon. If, in the course of that employment, they arrested Michael A. Gearon, and arrested him wrongfully, that act would have been within the course of their employment, and their clients would have been responsible (Poucher v. Blanchard, 86 N. Y. 263). But if they had brought suit, not against Michael A. Gearon, but against Miles Gearon, and caused Miles Gearon to be arrested, these acts would have been outside their employment, which was only to sue Michael A. Gearon, and their clients (the Bank for Savings) would not have been responsible. So also, if in the action properly brought by them against Michael A. Gearon, they had caused a writ to be issued against Miles Gearon by name, and caused him to be unlawfully arrested, that act would have been outside the course of their employment, and their clients would not have been responsible, because their clients had never employed them to molest Miles Gearon in any way.

In the case at bar, they caused an attachment issued by the court to take the person of Michael A. Gearon to be unlawfully executed by taking the person of Miles Gearon. That was, in my opinion, an act also outside the limits .of their employment, and for which their clients were not responsible.

Indeed, on the issue of the attachment and its delivery to the sheriff for execution, the employment of the attorneys, as to that attachment, ceased. They had done all their duty in that matter. It was no part of their duty to instruct the sheriff how the attachment should be fexecuted. That was the sheriff’s duty, not theirs. With the writ of the court in his hands, directing him to arrest Michael A. Gearon, he was bound, in the course of his employment as sheriff, to look to it that he arrested Michael A. Gearon, and no one else, under that writ. He was under no obligation to obey the orders of the attorneys for the plaintiff in that action as to that writ, but only the orders of the court; and if he arrested a wrong man, he was responsible, and the fact that the attorneys for the plaintiff in that action had told him to arrest a man other than Michael A. Gearon, would be no justification.

In my opinion, the case is one precisely- similar to that described in the latter part of the opinion of this court in Guilleaume v. Rowe (supra). Here, the attorneys of the Savings Bank, after having issued the writ, undertook to give special directions to the sheriff for its enforcement, in a manner not warranted by the language of the writ, and to enforce it in such a manner that the sheriff would have been justified in declining to take the responsibility in the absence of indemnity ; and here, as in the case supposed in the opinion in Guilleaume v. Rowe, the client (the Savings Bank), could be held only upon proof of special authority to their attorneys, express or implied, or of subsequent ratification. There is, in the case at bar, no evidence whatever of such special authority or ratification.

An analogy exists between cases of unlawful seizures of goods under process, and unlawful arrests of the person. In Welsh v. Cochran (63 N. Y. 182), the plaintiff sued for an alleged unlawful seizure and conversion of his property. It was seized under a warrant issued in bankruptcy proceedings, and directing the taking of goods belonging to persons other than the plaintiff. The defendants were the petitioning creditors, and the warrant was issued at their instance, and the marshal acted under the instructions of their attorneys in making the seizure. The trial judge directed a verdict for the plaintiff. The court of appeals reversed the judgment, and ordered a new trial. I find in the opinion of that court the following expressions, which apply to the case at bar: “ The warrant issued at the instance of the defendants only authorized the seizure of the goods of the bankrupt named therein, and not goods in possession of the plaintiff. The defendants were not present at the taking, «and did not in person, direct or interfere with the persons committing the trespass on the plaintiff. They may ,4have put the officers in motion, but the authority from defendants which the law would imply was only co-extensive with that conferred by the warrant, and to do only lawful acts pursuant to the warrant. The law will not presume an authority from the defendants to do an unlawful act .... The presence of the attorney for the defendants at the seizure of the goods, and his directions to the officers, did not make the defendants liable for the tortious act. In the absence of proof of special authority to an attorney, his acts in directing the levy on, or the taking of goods on process, are in excess of his general powers as an attorney, and do not subject his client to liability.”

Recent English decisions exhibit a similar tendency to the restriction of the implied authority of the attorney to impose liability on the client. The client is not held liable for a fraudulent defense put in by his attorney (Williams v. Preston, 47 L. T. Rep. N. S. 265). The client is not liable for the act of his attorney in directing the sheriff on what goods to levy (Smith v. Keal, 46 L. T. Rep. N. S. 770).

The cases cited by the learned counsel for the plaintiff, in his brief, do not, in my opinion, give any real or effectual support to the plaintiff’s claim in this action, and in none of them are the facts similar to those in the case at bar.

Here the action of the attorneys of the Bank for Savings, in directing the sheriff to arrest Miles Crearon, the plaintiff in this action, was outside the scope of their employment, and outside of the general authority presumed to have been conferred on them by the defendants. Their directing the arrest of a man, other than the man named in the order of attachment, was wholly unlawful, and defendants cannot be presumed to have authorized an unlawful act. The presumed lawful authority of the attorneys of the Bank for Savings, as to the order of attachment, was at an end the moment it was delivered to the sheriff for execution. The sheriff’s authority and his functions then began. They had no right to direct him in the execution of the writ, and he was not under their control as to the manner of executing it. In the execution of his official duty, he acted at his peril; and their direction that he should arrest the wrong man would be neither justification nor protection to him.

The facts, as they appeared in the evidence in this case, were clear, and no difference of opinion depending on different deductions or inferences could arise, requiring the decision of the jury.

The burden of „ proving special instructions from the Bank for Savings, the defendants here, to their attorneys, or to the sheriff, to arrest the plaintiff, was on the plaintiff, and no such proof was given. The dismissal of the complaint was, therefore, proper.

The judgment appealed from should be affirmed, with costs.

Freedman, J., concurred.


text:
    MARY C. RANK, Appellant, v. AUGUSTUS H. GROTE, et al., Respondents.

      .Real estate of partnership—title in one partner—difference in interest of partners in realty and in business.—Tenancy in common.—Ejectment.— Additional allowance of costs.

    Real estate purchased with funds of a partnership engaged in dealing in personal property, which real estate was purchased for partnership purposes, and which is used and treated as belonging to the firm, is deemed to be personal property, and the property of the firm, although it stands in the name of one partner. It is a question of intention to be determined by the evidence.
    The partner holding title is a trustee for the firm and its creditors, and when this trust is discharged by the payment of the debts, and the settlement of the claims of the partners as between themselves, the character of realty again revives.

      Decided April 7, 1884.
    Where real property is so purchased, used and treated, the mere fact that the respective interests of the partners in such real property differ from their interests in the business, does not justify the conclusion that such real estate is held by them as tenants in common, and not as partners.
    Iu this action of ejectment brought by a devisee and heir of one of the partners, held that the evidence was sufficient to show, as matter of law, that the real property in question was partnership property.
    In this case, the value of the particular lot in question was not given, the affidavit on that question giving only the value of such lot with others, in gross—Held, that an additional allowance to defendants, should not be made upon the whole value, but should only be based upon the .amount of damages claimed by plaintiff for withholding the property.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from, a judgment in an action of ejectment, entered on a verdict which the trial judge directed in favor of the defendants ; also from an order granting an extra allowance to the defendants’ attorneys.
    The facts are stated in the opinion.

      Redfield & Hill, and Nelson J. Waterbury, for appellant.

      G. W. Cotterill, for respondents.
    The following principles are well settled: 1. When land is paid for by a firm, it is regarded in equity as chattel. 2. It is entirely immaterial in whose name the legal title stands. 3. The possessor of the legal title holds the property in trust for the purposes of the partnership. 4. Upon dissolution, by death of a partner, the survivor takes the equitable title, and can not only dispose of it, but can compel the heir at law to join the conveyance ; and even the widow is not entitled to dower. 5. The resulting trust can be proved by parol. The surviving parties are charged with the duty of paying the debts, and it is absurd to take from them the means of paying it (Andrews v. Brown, 21 Ala. 437). Chief Justice Shaw says that the share of each is pledged to the other, and each has an equitable lien on the real estate requiring that it shall be held to pay the joint debts, then to repay the indebtedness to the partners before it shall be applied to their separate use. The creditors have more than an ordinary lien—the land is. impressed with a trust (Dyer v. Clark, 5 Metc. 562).
    As to above principles, see Fairchild v. Fairchild (64 N. Y. 477); Buchan v. Sumner (2 Barb. Ch. R. 165); Collumb v. Read (24 N.Y. 512); Delmonico v. Guilleaume (2 Sandf. Ch. 366); Shanks v. Klein (104 U. S. 23); Winter v. Eckert (Daily Reg. April 7, 1883).
    It was perfectly competent to show the purposes for which the property was bought, as also the understanding between the partners and the resulting trust in behalf of each of the partners to the other by parol evidence. The partners being trustees for creditors, the doctrine of resulting trusts does not apply, because it is a trust by operation of law. Neither is there any conflict with the statute, which says, that where the consideration is paid by one, and the conveyance taken by another, parol evidence is not admissible to show it. This consideration is paid, not by pne, but by all (Fairchild v. Fairchild, 64 N. Y. 471-479).
   By the Court.—O’Gorman, J.

The action is in ejectment, and was brought by the plaintiff as one of the heirs at law of Frederick Grote, deceased, who was in his life time seized in fee-simple, of sixteen undivided twentieth parts of a lot of land, with the buildings thereon, situate in Fourteenth street, opposite Irving Place, in the city of New York; and plaintiff claims in the complaint that the deceased in his lifetime, prior to 1880, made a will whereby he devised to her all his interest in the said lot and premises.

The defendants allege that the deceased made, at á later period, a valid will, on September 16, 1881, in which he revoked all former wills, and devised all his interest in said lot and premises to the defendants. This will has not been admitted to probate, but is the subject of a litigation now pending before the surrogate of the county of New York. The defendants also set up in their answer that the said lot was. during the lifetime of the deceased, owned and held by him and the defendants Augustus H. Giróte and a Joseph Kapp, as partners, comprising the firm, doing business under the firm name of “F. Giróteand that said lot and buildings thereon have been, and are now, occupied by the said defendants as survivors of said firm.

The learned trial judge ordered the issue as to whether the lot was partnership property or no, to be first tried.

After a careful examination of the. case, we are of the opinion that the preponderance of evidence is in favor of the conclusion, as a question of law, that the property in suit, although conveyed to the deceased Frederick Giróte by name, was, in fact, intended by him to be partnership property, and was so intended and so treated by the other defendants, who were then members of said firm.

The premises in question were conveyed to the deceased Frederick Giróte by deed executed by William Steinway, on December 10,1870. At that time the name of the firm was “Frederick Giróte,” and it continued to be so named until June, 1872, when the name of the firm was changed to “ F. Giróte & Co.” William Steinway testifies that in the negotiation about the purchase of the lot and premises, the deceased said that he wanted the property for the firm, to be occupied by the firm, to be used for the purposes of the firm—to hold it together—and that if they could make some money out of it by the rise, they would make it together. The purchase price of the lot was, to a great extent, paid by the firm. A building was erected on the lot for the business of the firm, and was used in that business; and the account books of the firm show that the expense of erecting that building was charged against the firm in their accounts. The first building was destroyed by fire within six months after its erection. It was rebuilt in 1873, by the firm at a cost of about $80,000, which was supplied by the firm, and paid for by checks of the firm drawn in the name of “F. Giróte & Co,” which had then become the name of the firm. The premises were insured in the name of “ F. Giróte & Co,” and the premiums were paid by that firm. The accounts of the firm were for some time not kept in accordance with exact rules of book-keeping. For seven years after the erection of this latter building, no rent was charged on the books of the firm for the use of the build ing. When entries of rent were made, a charge for rent was made in the profit and loss account of the firm. A purchase money mortgage of §10,000, was given to Steinway on the sale of the premises to Frederick Giróte. The deceased told the book-keeper of the firm that the firm was liable on that mortgage, and directed him to enter it on the bond and mortgage account, in the account book of “ F. Giróte & Co,” which was done.

From these and other facts in proof, it seems to be sufficiently clear that these premises were not purchased, held, used, paid for, or sustained by, or for Frederick Giróte, the grantee, alone, but by and for him and the other members then composing the said partnership. The trade in which the firm was concerned was dealing in ivory ; and it is to be noticed, that the interests of these several persons in the trade partnership business were different, from their interests as partners in this real estate. As partners in trade, they were entitled to share in the profits and loss of the firm thus : Frederick .Giróte, ££; A. J. Kapp, &; Augustus H. Giróte, As partners in the real estate, their shares were as follows: Frederick Giróte, f; A. J. Kapp, Augustus H. Giróte, That is to say, in both cases, Frederick Giróte had the same interest—one-fifth—and the remaining two-fifths were divided in the former case in unequal proportions, in the latter case in equal proportions, one-fifth belonging to all. From this fact, with others, the learned counsel for the plaintiff argued that Frederick Giróte, Augustus H. Giróte, ■ and A. J. Kapp held the real estate, not as partners holding partnership property, but as tenants in common, in which case, on the assumption that the deceased died intestate, she would be entitled, as one of his heirs at law, to inherit a share in his estate.

The fact of this difference in the proportions of interest in the trade partnership business, and as partners in the real estate, does not, in the face of the other evidence to the contrary, justify such a conclusion.

The only question in this case about which any doubt, in our opinion, should be entertained, is whether this issue, of whether or no this real estate belonged to the partners, as partners, should have gone to the jury as a question of fact. On consideration, we do not think that any error at the trial has been committed in this respect. On all the facts as they stand in the case, a question of law arises on this issue, and only a question of law, and the ruling made by the learned trial judge on that question is sustained by controlling authorities.

Real estate so purchased for partnership purposes, is deemed to be personal property, although it stands in the name of one of the parties (Hoxie v. Carr, 1 Sumn. 173 ; Tarbell v. Bradley, 7 Abb. N. C. 279). It is a question of intention to be determined by the evidence. The partner holding title is a trustee for the firm and its creditors, and when this trust is discharged by the payment of the debts, and the settlement of the claims of the partners as between themselves, the character of realty again revives (Fairchild v. Fairchild, 64 N. Y. 471; Collumb v. Reed, 24 Id. 505; Chamberlin v. Chamberlin, 44 Super. Ct. 116).

It also appeared that the surviving partners were in possession, as equitable mortgagees, for the advances out of partnership funds, and, therefore, entitled to maintain their possession until payment of those advances, if the real estate were not strictly partnership property.

This ejectment action, therefore, on the part of the plaintiff, cannot be sustained.

The exceptions as to the admission of testimony, do not appear to be well taken, or material.

As to the allowance, there was no proof given as to what was the value of the particular lot in question, the affidavit on the subject giving only the value of that lot with others in gross. The allowance should have been based upon the amount of damages claimed by plaintiff, that is $2,000. The allowance should be made one hundred dollars.

The judgment appealed from is affirmed, with costs; and the order denying a motion for a new trial is also affirmed, with ten dollars costs. The order granting the extra allowance is modified by reducing the amount to one hundred dollars.

Sedgwick, Ch. J., concurred.


author: By the Court.—O’Gorman, J. Sedgwick, Ch. J.

text:
    JOHN J. BROOKS, et al., Appellants, v. THE MEXICAN NATIONAL CONSTRUCTION CO., Respondent.

      Decided April 7, 1884.

      Foreign corporation.—Jurisdiction over in action by non-resident.—Waiver.— Who are non-residents.

    The court has no jurisdiction to entertain an action brought by a nonresident against a foreign corporation, except as provided for in Code Civ. Proc. § 1780, and this, though defendant has appeared generally and put in an answer in which such objection is not taken.
    There is nothing in Code Civ. Proc. §§ 263, 266, in regard to the jurisdicdiction of superior city courts which alters this rule. Said sections are to be construed together with and as adding to the conditions of section 1780. The sections of the code that refer to the superior city courts, distribute between local courts and the supreme court and others, upon the conditions named, the general jurisdiction described in section 1780, and are not intended to change any of the conditions of said section.
    Section 1780 is an expression of legislative intent that the courts of this state shall have no jurisdiction of such actions, except as herein provided, and consent of a defendant that a court may proceed with such an action, will not affect the duty of the court to carry out that intent, though the cause of action be of such kind as courts of this state in general have jurisdiction of.
    Where certain of several joint plaintiffs,—e. g., joint owners of a vessel,— for an injury to which beyond the jurisdiction of this state, the action is brought, are non-residents, and the remainder are residents, it cannot be said that the plaintiffs collectively are residents.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Re-argument of plaintiff’s appeal from order of the special term of November 8, 1882, vacating the attachment herein (see former appeal, 49 Super. Ct. 234). A motion was made before issue joined, upon the complaint and affidavit of plaintiff’s attorney, and all proceedings in the action previous to the notice of motion, to vacate the attachment. On the argument of the motion, plaintiff’s attorney read defendant’s answer and his own affidavit. It appears by these papers: that eleven of the seventeen plaintiffs are non-residents of the state ; that of the six plaintiffs residents of the state but twTo are residents of the city of New York ; that the defendant is a foreign corporation ; that the cause of action set out in the complaint is for damages alleged to have been sustained by the plaintiffs by reason of a collision through the alleged negligence of the defendant’s employees, of the brig “ James Miller,” with.the defendant’s steam lighter “ Allison,” on December 2, 1881, near Aransas Pass on the coast of Texas.

      Henry D. HotehJciss, for appellants.

      Theodore F. H. Meyer, for respondent.
    I. Where jurisdiction depends upon the residence of the parties to the action each party plaintiff must be competent to sue and maintain the suit, in the court where it is brought (Strawbridge v. Curtiss, 3 Cranch, 267 ; Coal Company v. Blatchford, 11 Wall. 172; Sewing Machine Co. Cases, 18 Wall. 574-5; Removal Cases, 10 Otto, 457).
    II. Section 266 cannot have the effect of extending the jurisdiction of superior city courts to cases which do not fall within either of the class of cases over which the jurisdiction of these courts extended by law at the time of the adoption of the constitutional amendment in 1869 (Landers v. Staten Island R. R. Co., 53 N. Y. 450). Prior to that amendment these courts had not jurisdiction over the subject matter in the class of cases to which this case belongs (McCormick v. Penn. R. R., 49 N. Y. 308). The effect of sec tion 266 contended fpr by appellants, would be repugnant to section 12 of article VI. of the constitution (Hoag v. Lamont, 16 Abb. N. S. 369 ; Landers v. Staten Island R. R. Co., 53 N. Y. 450).

      Sections 263 and 266 of the Code of Civil Procedure, contain special provisions relating to superior courts of cities, which are controlled in their application by the general provisions of the code ; they are applicable to actions which can be maintained, while this is an action which, under the general provisions of section 1780 of the Code of Civil Procedure, cannot, so far as non-resident plaintiffs are concerned, be maintained in any of the courts of this state ; and it must be borne in mind, that by the term non-resident plaintiffs in this connection, it is intended to designate those of the plaintiffs who do not reside in this state (Ervin v. Oregon Ry., &c. Co., 62 How. 490; Harriott v. N. J. R. R. Co., 8 Abb.Pr.284; McMahon v. Mut. Ben. Life Ins. Co., 8 Abb. Pr. 97).
    The defendant has not waived the objection to the jurisdiction of the superior court, by omitting to plead the objection in its answer (Davidsburgh v. Knickbocker Life Ins. Co. 90 N. Y., 526).
    Jurisdiction over the subject matter, over the cause of action, cannot be conferred on any tribunal by any act or omission of the parties in what form soever, .be it consent or waiver, express or implied (Dudley v. Mayhew, 3 Comst. 12; Burckle v. Eckhart, Id. 132 ; Roderigas v. E. R. Sav’gs Inst, 63 N. Y. 463 ; Chapman v. Phenix National Bank, 44 Super. Ct. 361; Davidsburg v. Knickerbocker Life Ins. Co., 90 N. Y. 526 ; Jones v. Norw. & N. Y. Trans. Co., 50 Barb. 193 ; Spring v. Domestic Sewing Machine Co., 14 Reporter, 711).
   By the Court.—O’Gorman, J.

The order appealed from must be affirmed for the reasons set forth by the learned judge at special term, in his opinion in this case (49 Super. Ct. 234); and because on the facts, and under sections 266 and 1780 of the Code of Civil Procedure, this court has not jurisdiction of this action.

Costs of this appeal to abide the event.

Sedgwick, Ch. J.

[Concurring.]—The case of McCormick v. Pennsylvania R. R. Co. (49 N. Y. 303), construed section 437 of the old Code of Procedure, which provided that an action might, be brought in the supreme court, superior court of the city of New York, or the common pleas of this city, by a resident of the state, for any cause of action, and by a non-resident, when the cause of action should have arisen, or the subject of the action be situated within the state. The opinion assumed for the purposes of the decision, that, contrary to the ruling of the court below, the plaintiff was a non-resident. The cause .of action did not arise within this state. The judge delivering the opinion, said in Gibbs v. Queen Ins. Co. (63 N. Y. 130), that McCormack could not have commenced an action at all against the defendant corporation in inmtum. The opinion in the McCormack case proceeded to consider that the defendant appeared and answered generally, and did not raise an objection that the court had no jurisdiction of the action, and the parties, until after issue was joined and the trial had begun. It was impliedly held, that if the objection to the jurisdiction had been taken by motion, or at the time of appearance, or in the answer, it would have been valid. The judge had said that the cause of action was of that nature, that although it had arisen, in another state, the court below had jurisdiction of the subject matter of the action, and held, “ that where the court has the jurisdiction of the subject matter or cause of action, that consent may confer jurisdiction of the person, and that such consent may be ex pressed by a foreign corporation, by appearing by attorney and answering generally in the action.”

If there be a defect in these propositions, it may be of the following kind. It is assumed, that because a person may waive a benefit from a provision of law, so far as it was made for his benefit, such a waiver will annul such a provision in its operation as a limitation of the functions or faculties of a court. The case admitted that, except for the consent of the defendant, section 437 was an expression of the legislative intent, that the courts of this state should have no jurisdiction of causes of action arising out of the state, between a non-resident plaintiff and a defen dan t, being a foreign corporation. The people of the state did not create the office, or choose the officer, or tax themselves for the purpose of determining litigations of that kind. A consent of a defendant, that a court might proceed, in opposition to the legislative intent, would not affect the duty of the court to carry out that intent, as soon as- the matter was called to its attention, even if a defendant had omitted altogether to take advantage of it. The court would not stop its action for the sake of the defendant, but because it had no power or right to adjudicate, excepting in cases committed to it by law.

And perhaps there was an ambiguity in the proposition that the court had jurisdiction of the subject matter or cause of action, looking apart from jurisdiction of the person. It certainly was true that, in general, the courts of this state had jurisdiction of causes of action of that kind, but whether it had jurisdiction of the particular cause of action depended upon whether the plaintiff was a resident, or the defendant a domestic corporation, as matter of fact, irrespective of whether the defendant had omitted to claim a right because it was anon-resident corporation ; and also whether the cause of action had arisen in this state.

The court distinguished Harriott v. New Jersey Trans. & R. R. Co. (2 Hilt. 262), by saying: “ There the court of common pleas of the city and county of New York had no jurisdiction of the subject matter,being confined by the Code, § 33, in such case, to a cause of action arising in this state.” It was certainly true that the common pleas had jurisdiction of the cause of action in the same sense as was said in the McCormack case. If the parties had been residents, the court could have proceeded, and the defendants did not plead want of jurisdiction. The common pleas, under section 33, were confined to a cause of action arising in this state, under the language of the section, that “its jurisdiction shall extend to the following actions,” and section 497 had said of it, as it had of the supreme court, in which the McCormack action was brought, that an action might be brought in it by a non-resident against a non-resident corporation when the cause of action had arisen in this state.

These remarks have been suggested by the later case of Davidsburgh v. Knickerbocker Life Ins. Co. (90 N. Y. 526). The McCormack case was not referred to in the opinion, but it was cited by counsel on the argument. The question concerned the jurisdiction of the city court of Brooklyn. The court had jurisdiction over causes of action of the nature of the one in suit. It had been begun by service upon the secretary of the defendant, who resided in Brooklyn. The defendant appeared and answered generally, without objectingfcto the jurisdiction. The court said, that although the defendant was a domestic corporation, the city court of Brooklyn had no jurisdiction of the action, because it was shown that the corporation was neither established in that city, nor did it transact its general business there. Chapter 470 of the Laws of 1870, limited the jurisdiction (§ 2, subd. 6), “ to actions against corporations created under the laws of this state, and transacting there general business within the said city, or established by law therein 4 at jurisdiction by the service upon the secretary was not secured, under section 2 of the act, “ where any of the defendants shall reside or be personally served with summons, within said city,” because the provision referred only to natural persons. It was further held, that the general appearance was not equivalent to personal service, approving Brauneck v. Knickerbocker Life Ins. Co. (1 Abb. N. C. 393), in which counsel had cited the McCormack case. Finally, the objection that the answer had not pleaded want of jurisdiction, was overruled. The point of time when the objection was taken was held to be immaterial. “ The court could not acquire jurisdiction by consent, and might, whenever its attention was called to the defect in the proceedings, refuse to exceed the powers conferred by the law of its creation. There are, no doubt, many cases, where the court having jurisdiction over the subject matter, may proceed against a defendant who voluntarily submits to its decision ; but where a state prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such a case, the particular condition or status of the defendant is made a jurisdictional fact.”

Section 1780 of the present Code is, as to the point under discussion, like the provisions in the case last cited. Without specifying any court, it declares that an action against a foreign corporation may be maintained by a resident of the state, for any cause of action, and by a non-resident in certain cases, none of which are like the present. The case last cited shows that so far as the section 1780 is concerned, the defendants do not waive any objection to the jurisdiction by not taking it, by answer or before. It is clear, to my mind, that the plaintiffs are non-residents. Some of them are, and some of them are not. But those that are have no action apart from those that are not. It cannot be correctly said that in this common law action, the plaintiffs coMectively are residents or non-residents.

The learned counsel for appellants argues, however, that, by the sections of the Code that have special reference io the superior court, the defendants- ’iy appearing and answering, without objection to the jurisdiction, cannot afterwards make it.

Section 263 provides that the jurisdiction of each of the superior.city courts extends to, among others, the following action, it being the one claimed by plaintiff; that is, to an action brought by a resident of the city, where the court is, against a foreign corporation, where a warrant of attach-men granted in the action has been actually levied, within that city, upon property of the corporation, or where the summons is served, by delivery of a copy thereof, within the city to an officer of the corporation, as prescribed by law.

Section 266 says, that “ the jurisdiction of a superior city court must always be presumed. It is not necessary to set forth in the complaint in such an action any of the jurisdictional facts specified in section 263 of this act, and where the defendant in the action appears the want of jurisdiction, by reason of the non-appearance of any of these facts, is matter of defense, and is waived by the appearance, unless it is pleaded in defense.” Attention to one objection to the jurisdiction will be sufficient for this decision. The defendants object that the plaintiffs are not residents of the state. The plaintiff argues that by not alleging that the plaintiffs are not residents of the city in the answer, the want of jurisdiction on that ground is waived.

The argument for the plaintiff would have formal force, if section 263 were meant to repeal pro tanto section 1780, but no force, if it were meant to add to the conditions of section 1780. For instance, section 1780 says impliedly, that-no court shall have jurisdiction of an action against a foreign corporation, where the cause of action arose without the state, if the plaintiff be a non-resident. If section 263 meant to repeal this, so far as the superior courts are concerned, then the jurisdictional objection has been waived. If section 263 meant that besides the plaintiff being a resident of the state, it must, as a condition of jurisdiction in the superior city courts, be the fact that the plaintiffs are residents of the city, then the objection to the jurisdiction for want of residence in the state is not waived, by omitting to aver in the answer that the plaintiffs are not residents of the city. There is no inconsistency between the sections. Section 1780 says that a condition of jurisdiction of the courts of this state generally, over an action, irrespective of where the cause of action arose, or of what it related to^is that the plaintiffs should be residents of this state ; and by section 263, if'they reside in the city of New York, then the superior courts may entertain the action, upon certain other conditions, which it is not necessary to specify. If omitting to aver in the answer, waives the condition of residence in the city, there is no provision of the Code that the fundamental condition of residence in the state is waived. In substance, the sections that refer to the superior city courts distribute between local courts and the supreme' court and others, upon the conditions named, the general jurisdiction described by the 1780th section, an d are not intended to change any of the conditions of the section.

Order affirmed, with $10 costs of this re-argument, and also the costs of the former argument, and of notice for re-argument.

Freedman, J., concurred.


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    WILLIAM J. SYMS, et al., as Executors, &c. Appellants, v. THE MAYOR, &c. of N. Y., Respondents.

      Reformation of lease—Laches—Covenants for renewal—Perpetuities.—Statute of Limitations.

    Plaintiffs’ testator, S., was in possession of certain premises under a lease from the city of New York, which contained a covenant fora new lease for 21 years, at the expiration of the term granted, such new lease to contain “a like covenant for future renewals . . . as is contained in the
    present indenture.” On the expiration of the first lease in 1840, anew lease was executed containing a covenant for a single renewal for 21 years, and about the time of the expiration of said second lease, in 1861, another lease was executed containing no covenant for renewal. In an action for the reformation of said last two leases by inserting therein covenants which would secure to plaintiffs a further renewal of 21 years from the expiration of the last term, upon the ground, among others, that said second lease should have contained a covenant for renewals in conformity with the provisions of the first lease, instead of a covenant for a single renewal.

      Held, that plaintiffs were not entitled to relief.
    That the fact that plaintiff’s testator held under said leases till the time of his death in 1868, without objection, is evidence of acquiescence, or of such laches, as to place the relief asked, within the discretion of the court.
    That before the reformation of an instrument in writing can be decreed, it must be proved that both parties agreed to something different from what was expressed, and the proof should leave no room for doubt.
    That the construction of the covenant in the first lease, contended for by plaintiffs, would create a perpetuity, which is not favored by the law.
    That such an action is barred by the .expiration of ten years from the time the cause of action accrued, viz., when the defect was discovered; which in this case was when plaintiff’s testator accepted the second lease containing the alleged insufficient covenant as to renewal.

      Decided April 7, 1884.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal from judgment in favor of the defendants, and for costs; and also appeal from an order denying motion for a new trial.
    The judgment was entered on a verdict rendered by a jury in accordance with the instruction of the trial judge.
    The facts appear in the opinion.

      Isaac Van Winkle and H. Brewster, for appellants.
    I. The covenant in the original lease runs with the land. In fact, the covenant is with P. Lorillard and his assigns (Taylor's Landlord & Ten. §333 ; Piggot v. Mason, 1 Paige, 412; Wood’s Landlord & Ten. 667 to 679).
    II. It was abreach of that covenant not to provide for renewals in the plural in the covenant of 1840. At all events, the part performance did not prevent the lessee from relying on the residue of the covenant and insisting on its performance (See §§ 334 to 340).
    III. The omission of a covenant for renewal from the lease of 1861 is not to be construed as depriving the lessee of his rights under the covenant in the original lease. The statute did not ran for the reason that possession was held by plaintiffs (Miner v. Beekman, 50 N. Y. 338 ; Wood’s Limitation of Action, 348 to 352).
    IV. The limitation of ten years has no application to a covenant under seal. And the twenty-year limitation is not pleaded. The statute of limitations must be pleaded, or time does not affect our right.

      George P. Andrews, counsel to the corporation, and B. Henry Lacombe, for respondents.
    I. The reformation could only be made by holding that the original covenant secured to the lessee a perpetual renewal. To insert such perpetual covenant in leases which do not contain them is contrary to the policy of the law (Carr v. Ellison, 20 Wend. 178; Banker v. Brakes, 9 Abb. N. C. 412; Piggott
      v. Mason, 1 Paige Ch. 412; Rutgers v. Hunter, 6 Johns. Ch. 215 ; Hyde v. Skinner, 2 P. Wms. 196).
    II. There is no evidence before the court which will warrant the reformation of either lease. The grounds upon which this relief is granted are well settled. There must be either mutual mistake, or fraud on one side and mistake on the other. But, as was said in a recent case, “ before any reformation of a written instrument can be had upon parol evidence of mistake or fraud, such evidence must be very clear and satisfactory” (Albany City Sav. Inst. v. Burdich, 87 N. Y. 50).
    III. The action is barred by the statute of limitations. Actions to reform instruments are within the ten-year limitation (Code, § 388 ; Cramer v. Benton, 4 Lans. 294). This suit was begun February 4, 1882. The cause of action arose when the covenant plaintiffs now seek to have inserted was omitted. This was in 1840 as to one lease, in 1861 as to the other.
   By the Court.—O’Gorman, J.

On April 10, 1810, a lease was executed by the defendants to Peter Lorillard, of a lot of land, in the sixth ward of the city of New York, for the term of twelve years from the first day of May, 1828. This lease contained the following covenant: “ And the said Mayor, Aldermen and Commonalty of the city of New York, for themselves, their successors and assigns, do covenant, grant and agree to and with the said Peter Lorillard, his executors, administrators and assigns, that they the said Mayor, Aldermen, and Commonalty of the city of New York, their successors and assigns, shall and will at the expiration of the term hereby demised, again demise, and to farm let the above premises in pursuance of this present lease, unto the said Peter Lorillard, his executors, administrators or assigns, for and during the term of 21 years thereafter, with a like covenant for future renewals of the lease, as is contained in this present indenture, and upon such rents and other terms and conditions as shall be agreed upon between the parties, or as shall be determined by two sworn appraisers one of whom to be chosen ■ by each of the said parties, unless the said premises or some part thereof, shall at the expiration of the said term hereby demised, be required for public purposes ; in which case the said term shall not be renewed, but the said May- or, Aldermen and Commonalty of the city of Hew York, their successors and assigns, shall and will pay to the said Peter Lorillard, his executors, administrators br assigns, the value of such buildings as shall be erected in pursuance of this lease, such value to be ascertained by two sworn appraisers to be chosen as aforesaid.”

On April 13, 1839, said Lorillard, with the consent of the defendants, assigned this lease to John Syms, the testator of the plaintiffs. On April 1, 1840, the term of the lease being about to expire, the defendants executed and delivered to said John Syms, a second lease for the term of 21 years from May 1, 1840. In this lease appears the following covenant: “And the said parties of the first part, for themselves, their successors and assigns, do covenant, grant and agree to and with the said party of the second part, his executors, administrators and assigns, that they, the said parties of the first part, their successors and assigns, shall 'and will at the expiration of the term hereby demised, again demise and to farm let the abone premises in pursuance of this present lease, urdo the said party of the second part, his executors, administrators or assigns, for and during the term of twenty-one years, and thereafter upon such rents as shall be agreed upon between the parties, or as shall be determined by two sworn appraisers, one of whom to .be chosen by each of the said parties, and in case of disagreement, by a sworn umpire, to be agreed upon between the said parties, or chosen by the said appraiser.”

This covenant, it will be remarked, differed in language and effect from the covenant in the former lease, in this that in the lease of 1810, the covenant provided a new lease of 21 years, with a covenant for future renewals, whereas the covenant in this latter lease of 1840, provided only for one renewal by one additional lease for a farther term of twenty-one years.

The plaintiffs claim in this action, that this lease of 1840, purporting to be in pursuance of the former lease of 1810, should, be construed, as if it had in terms provided for future, renewals, instead of the one renewal actually provided for.

Before the expiration of the term of this lease of 1840, a third lease of said premises was made and delivered by the defenants to said Syms, for a term of twenty-one years to begin on May 1, 1861. This lease contained no covenant of renewal. Both of these leases, that of 1840, and that of 1861, were put on record, and said Syms occupied and used the leased premises until Ms death, which happened in December, 1868. Since Ms death, they have been used by his executors—the plaintiffs herein—nnil April 1880, when the defendants caused the lot and premises to be sold at public auction.

This action was begun in October, 1880. The plaintiffs pray that the leases of 1840 and 1861 be reformed by inserting therein a covenant for a further renewal of twenty-one years from May 1, 1883, and that plaintiffs may have such renewed lease, etc. As to the lease of 1861, they base their claim for reformation on the ground that the provision for future renewals was omitted.by mistake, or-by an intent to rely on the covenant in the original lease, or else was done by a design to deceive and defraud said John Syms. ' No evidence has been offered to sustain any charge of fraud, and there is no evidence of any negotiation, transaction, collateral agreement or conduct from which mutual mistake of the parties to the lease can be deduced or inferred, and which would authorize a court of equity in reforming the leases as prayed for.

A court of equity cannot undertake to make contracts for parties, which they have not made for themselves, and which, from all that appears, they never intended to make. Before the reformation of an instrument in writing can be decreed, it must be proved that both parties agreed to something different from what was expressed in the writing, and the proof should be so clear and convincing as to leave no room for doubt (Mead v. Westchester Ins. Co., 64 N. Y. 455; Nevius v. Dunlap, 33 Id. 676; Albany City v. Burdick, 87 Id. 40). In the case at bar, such proof is not made.

There is no reason for the assumption that the defendants and Syms, their lessee, did not intend what their lease purported on its face that they did intend.

The fact that Syms for above twenty-five years held the lease of 1840 without making any objection as to its - terms, and held the lease of 1861 until the time of his death, without objection to its terms, and without taking any step for the reformation of either of them, is evidence of acquiescence or of laches, so flagrant, that the propriety of granting the relief prayed for in this action has become a question of discretion for the court (Hay v. Star Ins. Co., 77 N. Y. 240).

The plaintiffs, I think, have presented no case that entitles them to the exercise of this discretionary power of the court in their favor.

The construction of the covenant in the lease of 1810, for which plaintiffs contend, would, if carried out to its logical result, tend to create a perpetuity, and that is not favored by the law.

It is urged on the part of the defendants that the cause of action in this case, if any, occurred in 1840, when the second lease was made, not containing any covenant for renewals, and that this action is barred by section 388 of the Code of Civil Procedure. A right of action for reformation of a written instrument accrues when the defect is discovered, which the court is called on to remedy. Syms, the lessee in this case, must be presumed to have known and understood the terms of the leases, which he accepted, executed in counterpart, and put on record, and their meaning and legal effect; and, in my opinion, the section of the Code referred to (388), applies (Cramer v. Benton, 4 Lans. 294).

The judgment appealed from should be affirmed, with costs, and the order appealed from should be affirmed, with ten dollars costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


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    EMMA HEINTZE, Appellant, v. THE MAYOR, &c., of NEW YORK, Respondents.

      Decided April 7, 1884.

      Municipal corporations—liability of city of New York for condition of sidewalk in front of public school building.—Notice.—Oity ordinances.

    In an action against the City of New York to recover damages for personal injuries sustained, by slipping upon ice which had formed on the sidewalk in front of a building the title to which was in the city and which was used as a public school building:

      Meld, that notwithstanding the city ordinance requiring owners or occupants of dwellings to remove snow or rain which shall freeze on the sidewalk, within four hours, under penalty, etc.—the city cannot be held in such an action as this, without proof of actual or constructive notice of i? the condition of the sidewalk before the happening of the accident ; and further, that the mere fact of ownership by the city raises no presumption of notice.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from judgment of trial term, dismissing the plaintiff’s complaint with costs
    The facts appear in the opinion.

      Wehle & Jordan, for appellant.

      George P. Andrews, counsel to corporation, for respondents.
   By the Court.—O’Gorman, J.

This action is brought for the recovery of damages from the defendant for an "injury received by the plaintiff by falling on ice which had accumulated on the side-walk in front of a public schoolhouse in this city, of which the defendants were the owners. The accident occurred on January 17,1882, between two and three o’clock in the afternoon. The plaintiff’s counsel in his opening, said he was not able to prove the precise hour when the snow had ceased to fall; but that at all events there was glare ice in front of the building. He also said, in answer to the question from defendant’s counsel: ‘ ‘ This action against the city is based on the neglect of its corporate duties, of keeping the side-walk clear, and the element that the city is the owner of the property, is invoked for the purpose of strengthening the position that the general duty of the city is to keep all the sidewalks clear. On the question of notice, we shall rely solely and exclusively on the fact that the legal title is in the city.” The plaintiff’s counsel put in evidence, sections 317, 318, of the Revised Ordinances of the city of New York, requiring owners or occupants of dwellings to remove snow or rain which shall freeze on the sidewalk, within four hours after it shall have fallen, under a penalty of three dollars for every such neglect, and also in case the ice or snow shall be congealed, &c., to throw ashes or sand on it, under penalty of one dollar.

The learned trial judge, on motion of the counsel for the defendants, dismissed the plaintiff’s complaint on the opening.

The questions to be examined are, whether in case of the existence of ice on the side-walk in front of a house in the city of New York, occupied and used as a public school, the legal title to which, however, is vested in the defendants, and a passer-by being injured by falling on said ice, the defendants can be held liable in damages to the person so injured without proof of notice to the defendants actual or constructive, before the accident, of the existence of such ice, and whether the mere fact of the legal title to the school house being vested in the defendants, warrants the presumption that they had received notice of the existence of the ice before the occurrence of the accident.

Both of these questions should be, in my opinion, answered in the negative.

The mere ownership of the property does not subject the owner to liability for failure to remove ice from the adjacent sidewalk (Moore v. Gadsden, 87 N. Y. 84). The building being a school-house, the custody and control of it was in the hands of the trustees of the ward (Laws 1853, chap. 101, § 10; Laws 1804, chap. 351, § 19). The defendants had no control over the use of the building.

The accident was the result of natural causes, not permanent in their nature, and which defendants had no part in creating. In such cases, negligence is not imputable to the owner, and he is not liable in damages for the mischief that may ensue (Swords v. Edgar, 59 N. Y. 36).

The legal ownership by the defendants, of a school house, used exclusively for school purposes, and under the exclusive control of the Board of Education, does not create any liability in defendants for any injury occurring by reason of the negligence of said board or its servants in the use or care of the premises (Ham v. Mayor, 70 N. Y. 459; Maxmilian v. Mayor, 62 Id. 167). The fact that the owner of a house is liable to a fine, for failure to comply with the city ordinance as to removing snow or ice from the sidewalks, does not create any liability in said owner, to persons injured by his failure to remove said snow or ice, or strengthen the claim of any one so injured, against him.

The violation of a corporation ordinance, gives no right of action which did not exist before. (Fuchs v. Schmidt, 8 Daly, 318). Moreover, a municipal corporation cannot be held liable in tort for failure to obey its own ordinances, (Fowle v. Alexandria, 3 Peters U. S. 409).

The fact then that the legal title to the school-house was vested in the defendants did not create any liability on defendants for injury occurring by reason of snow or ice on a sidewalk adjacent to the school-house.

Apart from the claim of liability in defendants, made by the plaintiff’s counsel, by reason of ownership of the premises, there is not any evidence that would warrant a finding of constructive notice of any kind in defendants of the dangerous condition of the sidewalk (Blakely v. Troy, 18 Hun, 167; Evers v. Hudson R. R. Co., 18 Id. 144).

Without proof of such notice, express or constructive, negligence cannot be imputed to the defendants (Todd v. Troy, 61 N. Y. 506).

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., concurred.