author: Milleb, J.

text:
    James McClenahan, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York et al., Respondents.
    The department of docks of the city of New York leased to plaintiff for a term of years the right to collect wharfage at a pier in said city. The department was to make such repairs as it deemed necessary prior to the commencement of the term, “ or as soon thereafter as practicable,” the premises to be taken, however, in the condition they were at the commencement of the term; and it was agreed that no claim should be received or. considered by the department “ for loss of wharfage or otherwise * * * consequent upon the premises being occupied for repairing or dredging purposes.” The department occupied and had possession of the pier in making repatos for about six weeks after the commencement of the term. In an action wherein plaintiff sought to be. allowed for rent paid in advance for the period the pier was thus occupied, held, that as no provision was made for the suspension of rent while repairs were being made, plaintiff was not entitled to any deduction.
    The lease provided that if the department desired during the term to occupy for its own use all or any part of the premises, or should conclude to change the bulk-head line, it could do so, and plaintiff, on being served with a written demand, would vacate the whole premises or the portion demanded. In case of a temporary occupation of a portion or the whole by the lessor as so authorized, it was agreed that a reasonable deduction should be made in the rent. Meld, that these provisions had no reference to an occupation for repairs.
    (Argued March 10, 1886;
    decided March 26, 1886.)

      Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 28, 1884, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term:
    This action was brought among other things to compel the defendants to allow a rebate on rent, under the following state of facts:
    At an auction sale made by the department of docks in the city of New York plaintiff bid off the right to collect wharfage at a pier on the Hudson river in said city for a period of three years, from May 1, 1881, at an annual rental of $4,500. The sale was made under and pursuant to certain terms and conditions of sale, among which were the following:
    “ The department will make, either prior to the commencement of the term of lease in each case, or as soon thereafter as practicable, such repairs to any of the above-named premises, in the judgment of the commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the terms for which leases are to be sold (except that no repairs will be made to any of the above-named premises where it shall be announced by the auctioneer at the time of the sale that they will not be repaired by the department), but all the premises must be taken in the condition in which they may be on the date of commencement of said terms, respectively, and no claim that the property is not in suitable condition at the commencement of the lease will be allowed by the department, and all repairs and rebuilding required and necessary to any of the premises during its terms of lease are to be done at the expense and cost of the lessee.
    * * * * * *
    “No claim will be received or considered by the department for loss of wharfage or otherwise consequent upon any delay in doing the work of repairing or dredging, or consequent upon the premises being occupied for repairing or dredging purposes.”
    * * * ■* % #

      Plaintiff signed a memorandum of the purchase as follows:
    “ Hew York, March 22, 1881.

      “ The undersigned having purchased, at public sale held this date, the right to collect wharfage at pier at West Fortieth street, H. B., for an annual rental of $4,500, during the period for which said right was then sold, subject to all the terms and conditions set forth in the published notice for said sale:
    “ It is hereby agreed that the necessary lease for the said right at the above-named premises, the printed form for which has been duly examined, will be executed as soon as notice shall be given that it is prepared and ready for signature; and it is further understood and agreed that, until the said lease shall be executed, all the terms, conditions and covenants contained therein shall be held to be as binding and of the same effect as though the lease was signed and completed.”
    The lease referred to in said memorandum contained the following provisions:

      “And the said part of the second part do further covenant and agree that if, at any time during the said term of years, the said parties of the first part shall decide to occupy for their own use all or any portion of the herein granted premises, or shall conclude to extend or project or change the present bulk-head line in accordance with the provisions of law now existing, either municipal or State, or which may, at any time hereafter during the continuance of said term, be enacted, then and in such case the said part of the second part, upon being served with a notice in writing describing the premises or portion thereof which the parties of the first part have so decided to occupy, or setting forth the extent of the damage decided upon and demanding the vacating of all or any portion of the premises hereby granted, shall and will vacate the said granted premises, or the portion thereof so demanded, without delay, and the part of the second part shall not claim, nor shall the parties of the first part be liable to pay any damages on account of such surrender and vacation of the said premises or any portion thereof, nor on account of any structures and improvements that may have been erected by the part of the second part.

      “ And it is further mutually covenanted and agreed that if at any time during the said term of years the
    parties of the first part shall decide to alter or extend all or any portion of the hereby granted premises, they shall have the right to enter upon said premises and to make such alteration or extension.
    , * * * * * *

      “ And the said parties hereby covenant and agree that the said parties of the first part shall and may, in accordance with the covenants and stipulations herein contained, declare this grant terminated and brought to an end, subject, however, to the following condition, that should the said parties of the first part require the said premises or any part thereof, in accordance with any provision herein contained, the said part of the second part shall not be subject to the payment of the rent herein agreed to be paid after the day whereon the possession of the premises shall have been surrendered; and in case only a portion of the said granted premises shall be required, or only a temporary possession of a portion of the whole of the said herein granted premises shall be required by the said parties of the first part, in accordance with the agreements herein contained, then and in such case the said parties of the first part shall make a reasonable deduction from the rent herein agreed to be paid for such temporary taking and occupying of any part or the whole of the said granted premises as herein provided.” No lease was in fact executed. Plaintiff paid a quarter’s rent in advance. The pier was occupied by the city for about six weeks in making repairs; plaintiff claimed the right to deduct the amount of rent for the time of such oecunation from rent subsequently accruing..

      E. More for appellant.

      D. J. Dean for respondents.
    The plaintiff, in order to excuse himself from the payment of rent, must show an eviction, or that he was legally entitled to quit the possession and has done so in an unqualified manner, else he is bound by his covenant to pay such rent. (MacKellar v. Sigler, 47 How. 20 ; Lounsberry
      v. Snyder, 31 N. Y. 516.) .Trespass does not bar a claim for rent. (Edgerton v. Page, 20 N. Y. 281; Campbell v. Shields, 11 How. 565; Ogilvie v. Hull, 5 Hill, 52; Lawrence v. French, 25 Wend. 445.) Alterations by a landlord, pursuant to a provision authorizing them, is not an eviction. (Mathews v. Mayborg, 4 Hun, 78; affirmed, 63 N. Y. 686.) It is no defense to the claim for rent that the defendant had not full enjoyment of the premises in consequence of his own contract with the lessor. (McKinney v. Holt, 8 Hun, 336; Vanderpoel v. Smith, 4 Abb. Ct. App. 461; affirming 1 Daly, 311.) Interrup- • tian by a landlord with his tenant’s possession, without an eviction, does not suspend the rent either in whole or in part. (Campbell v. Shields, 11 How. 565; Giles v. Comstock, 4 N. Y. 270; Healey v. McManus, 23 How. 238.) Plaintiff is, therefore, bound by the covenants and conditions expressed in the writings in evidence and cannot prevail in the action unless his contention is sustained by such covenants. (N. Y. & N. H. Steamboat Co. v. Mayor, etc., 78 N. Y. 1; Wilson v. Deen, 74 id. 531; Riley v. Brooklyn, 46 id. 444.) Money voluntarily paid to one who asserts a right to it when there is no mistake or misrepresentation of fact, cannot be recovered back. (Sprague v. Birdsall, 2 Cow. 419; Mut. L. Ins. Co. v. Wager, 27 Barb. 354; Clark v. Dutcher, 9 Cow. 674; Onondaga v. Briggs, 2 Denio, 26.)
   Milleb, J.

The plaintiff had a right to collect wharfage for three years on the payment of rent quarterly in advance in accordance with the terms of sale and the agreement entered into upon such sale. The plaintiff agreed not to make .any claim consequent upon the premises being occupied for the repairing purposes provided for in the terms of sale. By the memorandum signed at the time, the plaintiff agreed to be bound by the terms and conditions of the published notice of sale. Among these terms was the provision for making repairs prior to the commencement of the term of the lease, or as soon thereafter as practical, but such premises, however, were to be taken in the condition in which they might be at the commencement of the term for which they were leased, and no claim was to be allowed that such premises were not in a suitable condition, and it was expressly provided that no claim for loss of wharfage or otherwise, should be made consequent upon the premises being occupied for repairing or dredging purposes.

The repairs were made under this provision.

This agreement would seem to be conclusive upon the plaintiff’s right to relief in this action.

The appellant states that he makes no claim for the loss of wharfage or otherwise, but claims that where the landlord takes exclusive possession of the demised premises he cannot have rent for such time, and he relies upon the clause in the lease by which it is provided that in case the defendant shall take temporary possession of a portion or the whole for its purposes, it shall make a reasonable reduction of the rent.

The provisions in the lease for the taking of the premises by the dock department are, First, that if the dock department during the term decides to occupy, for its own use, all, or any part of the premises, or shall conclude to change the bulkhead line, then upon being served with a written demand, the lessee will vacate the whole premises or the portion demanded, and, second, the dock department has the right to enter the premises to make alterations or extensions of the same.

Keither of these provisions bring the case considered within the covenant for the deduction of the rent.

The occupation of the dock department for the purpose of repairs was not a taking for its own use, nor for a change of the bulk-head, nor for an alteration or extension of the premises within the provisions cited. The provision which relates to the deduction of the rent is intended for a case where possession is taken by the arbitrary exercise of the power reserved by the dock department to resume the possession of the premises for its own purposes. Such a possession was not taken, and all that was done was to enter for repairs under the agreement made by plaintiff in accepting the terms and conditions of sale, and for the benefit of the plaintiff and of the property. Ko provision being made in the lease for the suspension of rent while repairs were being made in accordance with the terms of the lease, the rule undoubtedly is that the tenant can have no deduction for the same during that period. Giving a reasonable construction to the agreement between the parties, the conclusion is irresistible that the plaintiff has no legal right to a deduction from the rent' and cannot maintain this action.

The judgment should be affirmed.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The People, ex rel. H. Delos Johnson, Appellant, v. The President and Board of Trustees of the Village of Whitney’s Point, Respondent.
    The board of trustees of a villlage incorporated under the general act for the incorporation of villages (Chap. 391 of the Laws of 1870 as amended by Chap. 870, Laws of 1871), in laying out a street under the provisions of said act, have no right to change the location of the proposed street from that described in the petition; they are bound to lay it out on the precise line therein designated and follow the precise description contained in the petition. If they vary therefrom the proceedings are void.

      It seems that if at any time after the presentation of the petition before final action the trustees find it necessary to change the line or route or to take other land not specified in the petition, the proceedings should be abandoned and new proceedings commenced.
    The consent of the owner of the land to the change does not validate the proceedings, and he cannot compel the trustees to levy a tax to pay the award made for lands so taken.
    (Argued March 11,1886;
    decided March 26, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, made the first Tuesday of Hay, 1884, which reversed a judgment in favor of plaintiff, entered upon the report of a referee. (Mem. of decision below, 82 Hun, 508.)
    This was a proceeding to compel the defendant by mandamus to make an assessment and levy a tax to pay damages awarded the relator for lands alleged to have been taken for a street in the village of Whitney’s Point.
    The material facts are stated in the opinion.

      Samuel Hand for appellant.
    The owner’s consent takes away all objection to proceedings for laying out a road,- and that consent may be oral. (Embury v. Connor, 3 N. Y. 518; People v. Goodwin, 5 id. 568 ; Baker v. Brannan, 6 Hill, 47 ; Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill, 472; Buell v. Trustees of Lockport, 3 N. Y. 197; Dyckman v. Mayor of New York, 5 id. 434; Matter of Cooper, 93 id. 507, 512; Porter v. Purdy, 29 id. 106.) The objection of -want of notice is personal, and any owner may waive it. Johnson could not plead want of notice to others to avoid the proceedings as to him, neither can defendants. (Buell v. Lockport, 3 N. Y. 197; Snyder v. Trumpbour, 38 id. 355, 361; Snyder v. Plass, 28 id. 465, 479; Porter v. Purdy, 29 id. 106; McCarthy v. Whalen, 19 Hun, 506-7; Matter of Cooper, 93 N. Y. 507.) If the proceeding was one to open the road through Johnson’s land, he could not defend by showing the irregularity of the proceedings to take land of another owner, and if he could not, then the converse must be true that the defendants cannot. (Snyder v. Trumpbour, 38 N. Y. 355, 361 ; Snyder v. Plass, 28 id. 465, 479; Buell v. Lockport, 3 id. 197; 8 id. 55 ; Porter v. Purdy, 29 id. 106.) The fact that a road ran through improved lands not described in the petition does not establish a variance sufficient to render the proceedings void. (Snyder v. Trumpbour, 38 N. Y. 355, 359.) An irregularity as to laying the road over other lands iá not an objection for Johnson against the proceedings for laying the road on his lands, and, therefore, cannot affect the proceedings as to him. (Snyder v. Trumpbour, 38 N. Y. 355, 361; Snyder v. Plass, 28 id. 465-479; McCarthy v. Whalen, 19 Hun, 506-7; Nelson v. Eaton, 26 N. Y. 415; People v. Goodwin, 5 id. 568.) Had Johnson consented to the laying of the road orally or otherwise he could not raise objections to the proceedings afterward. (Buell v. Lockport, 8 N. Y. 55-60; 3 id. 197; Embury v. Connor, id. 518; Porter v. Purdy,
      29 id. 106.) The fact that a road is laid through lands or on a line not described in the petition does not establish a variance sufficient to render the proceedings void, if the variance is without objection from the land-owners, and does not increase the damages. (Snyder v. Trumpbour, 38 N. Y. 355, 359 ; Snyder v. Plass, 28 id. 465, 479; Buell v. Lockport, 3 id. 197; McCarthy v. Whalen, 19 Hun, 506-7.) Appealing from an assessment, or bringing suit to recover an award, is a ratification of the prior proceedings, and a consent to the laying of the . road. (Buell v. Lockport, 8 N. Y. 55-60; 3 id. 197; Embury v. Connor, id. 518; Bouton v. Brooklyn, 2 Wend. 395 ; Sherman v. McKeon, 38 N. Y. 266, 274 ; Dyckman v. Mayor of New York, 5 id. 434.) If the party against whom the proceedings are had waives the irregularity the other party cannot object. (Porter v. Purdy, 29 N. Y. 106; Buell v. Lockport, 11 Barb. 602; S. C., 3 N. Y. 197; 8 id. 55, 59 ; Sherman v. McKeon, 38 id. 266, 275.) Both the trustees and Johnson having appeared before the jury and litigated the question of damages, by so doing waived all previous irregularities, and ratified the previous proceedings. (Buell v. Lockport, 3 N. Y. 197; 8 id. 55-60; Buell v. Trustees of Lockport, 11 Barb. 602; Embury v. Connor, 31 N. Y. 518 ; Dyckman v. Mayor of New York, 5 id. 434; Sherman v. McKeon, 38 id. 266, 274; 93 id. 407, 572.)

      O. W. Chapman for respondent.
    As soon as the board of trustees went outside of or beyond their statute authority, in their proceedings to layout this street, their jurisdiction ceased. (16 Hun, 498; affirmed, 78 N. Y. 362; 71 id. 309, 313; 16 Hun, 500; 3 Denio, 595; 3 Hill, 458, 460; 46 N. Y. 110; Ex parte Clapper, 3 Hill, 460.) The trustees exceeded their jurisdiction when, by the resolution of July sixth, they changed the center line of the street across Johnson’s land to a line different from that described in the petition and notices served and posted. (1 R. S. [7th ed.] 901, 902 ; 2 R. S. 1239, § 59.)
   Earl, J.

A judgment was entered in this action, upon the report of a referee, commanding the defendant to levy and collect a tax to pay the plaintiff an award made for lands taken for a street, in the village of Whitney’s Point. Thetlefendants refused to levy a tax to pay the award, upon the ground that the proceedings for laying out the street for which the lands were alleged to have been taken were illegal and wholly void, so that no obligation to pay the award was ever imposed upon the village. The General Term sustained the contention of the defendants, and reversed the judgment of the referee,holding that the proceedings for laying out the street were wholly void for various" reasons stated in the opinion there pronounced. We think the judgment was properly reversed, and we base our decision upon a single ground, without considering the others alleged.

The village of Whitney’s Point was organized under the general act for the incorporation of villages (Chap. 291, of the Laws of 1870). It is provided in section 1 of title 7 of that act, as amended by chapter 870 of the Laws of 1871, that the trastees of the village shall havé power to lay out streets; that for that purpose they may take and appropriate any lands; but that no street shall be opened unless all claims for damages on account of such opening shall be released without remuneration, except on the written petition of at least ten freeholders, residing in the village, which petition shall specify the improvment to be made, describe the land to be taken, and state the owner or owners thereof; that on the presentation of such petition the trustees shall meet and examine the same, and if they decide the improvement shall be made, that they shall so decide by resolution, to be entered in the minutes of the board; that they shall thereupon post up in five public places in the village a correct description of the lands to be taken to make such improvement, and a notice that the trustees, at a place and time therein specified, will meet and hear any objections that may be made to the taking of such lands or making such improvement, a copy of which notice must be served on the owner or owners of such lands, at least five days before such meeting, unless the owner is a non-resident of the village ; but any person interested may be heard and introduce testimony before the board of trustees as to the matter on the day specified in the notice, or on such other days as the board may appoint; .that after such hearing the trustees may deny the petition, or approve and declare by resolution, to be entered in their minutes, their intention to make said improvements and proceed to [obtain possession of the land described in the manner provided by the act.

The last two courses of the center line of this street as described in the petition are as follows: “ running easterly, six rods or thereabouts to Jabez Johnson’s land ;-thence southerly, fifty-seven rods or thereabouts to Main street in said village, about twenty feet west of said Johnson’s house.” In the notice posted and given by the trustees, the street is described in the same way. In laying out the street the last line, at its northerly end, was moved one rod further to the east, and the two last lines of the street, as finally laid out, areas follows: “ running easterly six rods or thereabouts, to a point one rod east of the east line of said railroad company’s land; thence southerly fifty-seven rods or thereabouts, in a straight course to Main street in said village, at a point twenty feet west of Jabez Johnson’s house on Main street.” This last line was purposely changed by the trustees after the hearing provided for in the notices given by them; and the street as finally laid out takes more land from Johnson and less land from the railroad company.

We think the trustees had no power to make this change. They were bound to lay out the street upon the precise line designated in the petition. The petition was required to describe the lands to be taken; the notices which the trustees were to post and serve were required to contain a correct description of the lands; and the notices were to state that at a particular time "the trustees would meet to hear objections to the taking of such lands. The object of the hearing was, not to determine the line or route of the street, but to determine whether or not the petition should be granted; and after the hearing, the trustees could deny the petition or declare by resolution their determination to make the improvement and proceed to obtain possession of the lands described. If, upon the hearing, or at any time after presentation of the petition before final action thereon and before the road was actually laid out, the trustees found it was necessary to change the line or route or to, take other land not specified in the petition, then the proceedings should have been abandoned, and a new petition filed, and proceedings commenced de nova. It is true, that the variation here is not great; but if a change in the cen ter line of the road for one rod can be justified, if the trustees had jurisdiction to make such change, then it is difficult to perceive how their power could be limited. They might change the road for two rods or three rods, and thus take lands not described in the petition or in the notice which they were required to give, and the only limitation upon their power would probably be that they were to lay the street in substantially the same direction as that mentioned in the petition, and through the same lands. We think the safer and better rule, the application and operation of which can cause no great inconvenience or embarrassment, is to hold that the trustees in such cases must follow the precise description contained in the petition.

It matters not that Johnson, the owner of the land, consented to this change in the fine of the street through his land. He is not the only person interested. The change increases the amount of land to be taken from him and might have enhanced the expense of the street. It is a question of power and jurisdiction. If this street was not legally laid out, if Johnson’s land was not legally taken, if the entire proceeding was void, and the statute was so far departed from as to deprive the trustees of jurisdiction, then any taxpayer could raise the objection when it was attempted to levy a tax to pay the awards made for the land taken; and the trustees could not be compelled to levy and pay a tax which the taxpayers could not be compelled to pay, and which they could not enforce.

We are, therefore, of opinion that the order of the General Term should be affirmed, and judgment absolute rendered for the defendants, with costs.

All concur.

Order affirmed and judgment accordingly.


author: Daheorth, J.

text:
    John H. Smith, Respondent, v. Henry Alker, Appellant.
    . A party to a building contract may waive a stipulation therein that the final payment to be made by him shall not be required unless the architect shall certify that the contract has been fully performed to his satisfaction ; an acceptance of the building as under a completed contract is such a waiver, and entitles the contractor to recover the sum due, although no certificate has been given, and although the architect is not satisfied.
    The denial by a trial court of an application to postpone or put off a trial is not the subject of an exception or available upon appeal to this court.

      It seems it is proper for consideration on motion of a new trial, and by the General Term on appeal from order denying such a motion.
    Where a contract provided that differences between the parties shall be submitted to arbitrators selected as prescribed, held, that, in the absence of evidence that defendant took steps for the selection of arbitrators, the provision was no defense in an action upon the contract.
    (Argued March 11, 1886 ;
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 9, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    The nature of the action and the material facts are stated in the opinion.

      Samuel Hand for appellant.
    The discretion of the judge sitting at the trial of a cause, with reference to the granting or refusing of a motion to postpone, is not an uncontrolled or uncontrollable one ; but that power must be exercised according to the established rules and principles of law. His decision, if erroneous, is a cause for reversing the judgment. (Brill v. Lord, 14 Johns. 341; Ogden v. Bayne, 5 Cow. 15 ; Hooker v. Rogers, 6 id. 577; Howard v. Freeman, 3 Abb. Pr, [N. S.] 292; Brooklyn Oil Works v. Brown, 7 id. 382.) In the case at bar, the refusal to postpone was clearly error, and affected a substantial right of the defendant. (Pulver v. Hiserodt, 3 How. 49; Ogden v. Payne, 5 Cow. 15; Hooker v. Rogers, 6 id. 577; People v. Vermilyea, 7 id. 369, 383; Onderdonk v. Rautlett, 3 Hill, 323; The King v. D'Eon, 1 Wm. Bla. 510 ; S. C., 3 Burr. 1513 ; People v. The Superior Court, 5 Wend. 125 ; Giraudat v. Korn, 8 Daly, 406; Gregg v. Howe, 5 J. & S. 420.) As the certificates of the architect are to precede the payment by the defendant, it is incumbent on the part of the plaintiff to show a compliance with those conditions precedent before he can maintain his action. (Butler v. Tucker, 24 Wend.. 447.; Smith v. Brady, 17 N. Y. 173, 176; Wyckoff v. Meyers, 41 id. 143; Wangler v. Smith, 90 id. 38, 43.) The parties having, by the agreement, selected the person who was to determine when the defendant should be called upon to make the last payment, and what should be certified, the plaintiff cannot recover, except by showing a determination by the party or parties, and in the manner specified. (Grey v. Central R. R. of New Jersey, 11 Hun, 70, 73; Tyler v. Ames, 6 Lans. 280; Smith v. Brady, 17 N. Y. 173; Wyckoff v. Meyers, 41 id. 173; Wangler v. Smith, 90 id. 38; D. & H. Ganal Co. v. Pa. Goal Co., 50 id. 250.) There was no waiver of the conditions precedent by the defendant. (Smith v. Brady, 17 N. Y. 173; Krone v. Levi, 1 Hun, 171; Crane v. Kimble, 43 How. 389.) There was no evidence of waiver of performance on the part of the defendant. (Shute v. Hamilton, 4 Daly, 471; Barber v. Rose, 5 Hill, 76 ; Delacroix v. Buckley, 13 Wend. 75; Lattimore v. Harsen, 14 Johns. 330; Hasbrouck v. Tappen, 15 id. 200; Little v. Holland, 3 Term R. 590.) There can be no waiver of a condition precedent except there be in the case an element of estoppel. (Underwood v. Farmers' Joint-Stock Ins. Co., 57 N. Y. 506; Ripley v. Ætna Ins. Co., 30 id. 136; Palmer v. Kelly, 56 id. 637.)

      Eugene ByJlvngame for respondent.
    A substantial performance of a contract of the kind in suit is all that is required. (Woodward v. Fuller, 80 N. Y. 312; Hickman v. Pinckney, 81 id. 211; Phillips v. Gallant, 62 id. 256; Glacius v. Black, 50 id. 145; Nolan v. Whitney, 88 id. 648.) The evidence shows sufficiently that a demand was made for the last certificates, that they were refused, and that the certificates were unreasonably withheld from plaintiff) which dispenses with their production. (Nolan v. Whitney, 88 N. Y. 648; Bowery Nat. Bk. v. Mayor, etc., 63 id. 336; Kingsley v. City of Brooklyn, 7 Abb. N. C. 28-45 ; Mechanics’ Lien Law, Kings and Queens Act, §§ 3, 7, 8, chap. 478, Laws of 1862.) The question, whether or not defendant did accept this building, is a question of intention of fact to be determined from all the facts and circumstances in the case and was properly left to the jury. (Smith v. Brady, 17 N. Y. 173.) If defendant accepted the work plaintiff is entitled to recover. ( Woodward v. Fuller, 80 N. Y. 312; Hickman v. Pinckney, 81 id. 211; McKenzie v. Dicker, 23 Daily Reg., No. 137; Mansfield v. N. Y. C. & H. R. R. R. Co., 16 Weekly Dig. 275 ; Duplex Safety Boiler Co. v. Gorden, 23 id. 113.) If the defendant caused a delay in -the work by not furnishing the colors for painting so the plaintiff could proceed with the work, or if he became the cause of delay in any way, then plaintiff is discharged from any liability for liquidated damages in not completing the building within the time specified. (Week v. McCarthy, 89 N. Y. 566 ; Stewart v. Keteltas, 36 id. 388; Hickman v. Pinckney, 81 id. 211.) The clause in the contract as to arbitration is not a bar to the prosecution of this action. (Hurst v. Litchfield, 39 N. Y. 377; Pres. D. & H. C. Co. v. P. C. Co., 50 id. 250; Seward v. City of Rochester, 23 Week. Dig. 65 ; Gibbs v. Continental Ins. Co., 13 Hun, 611.) . It was as much the duty of the defendant, if he had wanted arbitration in this matter,"to have said so to the plaintiff, as it was the plaintiif’s business to have proposed it. (Gibbs v. Continental Ins. Co., 13 Hun, 611.) Defendant’s motion to dismiss the complaint at the close of plaintiff’s evidence was properly denied. If there was a defect of proof at that time on the part of plaintiff, and it was afterward supplied by either party, the defect is cured and a new trial will not be granted. (7 Wend. 377 ; 11 N. Y. 102 ; 6 Duer, 382, 412; Leslie v. Knickerbocker Co., 63 N. Y. 27.)
   Daheorth, J.

The action is brought upon a building contract for the balance due, and also for extra work. It was a condition of the contract that the building should be complete and perfect in every respect by the 1st of May, 1882, to the satisfaction of N. LeBrun & Son, architects,” “ and that no payment should be made until a certificate of the architects that the payment is due has been presented to the owner, nor the last payment be required until the building is complete and perfect, nor unless the architects shall also certify that the contract has been fully performed, and the work finished, complete and perfect in every respect, and to his satisfaction.” It was also provided that any dispute concerning the construction, or meaning of the plans, “ shall be decided by the architects,” and their decision be final and conclusive, and that any other difference between the parties shall be submitted to the arbitration of two competent and disinterested persons selected in a manner prescribed by the contract. The contract also provides for penalties to be imposed upon the builder for delay in the completion of the work. It appears by the evidence that the work was not completed at the time specified in the contract ; that from time to time fault was found by the owner with the slow progress of the work, and its character, but it was also in evidence that afterward he moved into and continued to occupy the house, and two questions were submitted to the jury: First, did the defendant accept the house as a complete building under the contract; second, if it was so accepted, was the delay in its completion occasioned by the defendant’s own fault.

It cannot be doubted that under the terms of this contract no claim could be made for payment for any work or services, unless accompanied by a certificate of the architects. This provision is repeatedly inserted in the contract, and it was the obvious intention of the owner to be protected at all points by the judgment, skill and opinion of the architect to whom had been intrusted the supervision of the building. The certificates were not given, but as it was in the power "of the owner to impose as condition of liability that the certificates should be procured, so it was in his power to waive their production, and if, by any act of his, he prevented the architect from certifying, or interfered with him in a conclusion which might justify and require a certificate, he cannot complain if the builder is permitted to recover without its production.

In the case before us it appeared that the builder applied to the architect for his certificate in regard to the character and cost of the extra work, but he refused to give it, and this refusal was put upon the ground that the owner had instructed him to give no more certificates. This evidence was received without objection, and it was not controverted. It also appears by the evidence of the plaintiff that he finished the house about the first of July, and by the evidence of the defendant that the plaintiff called upon him, and requested payment, and at that time he said, “ Mr. Smith, the work is not done yet. Go on and finish the work; your money is ready whenever the house is done.” The builder replied, “Well, what do you want me to do ? ” The defendant said, “ Finish the doors, look at the trimming of the house, where the plastering is, look at the cracks.” The plaintiff replied, “Well, I will attend to that.” It was put off from time to time. The defendant then adds: “ The last time Mr. Smith called upon me for settlement I told Mr. Smith,£ I am ready to settle with you, but I have a claim against you; under your contract you are under a penalty for stipulated damages for every day after the first day of May that you have delayed me in having my building; ’ he asked me what is that? I replied, ‘You can calculate, you called Mr. LeBrun to make a final inspection of the building on the thirtieth of August, by that you admit thát the building was not completed until that time; now you can calculate from that time, I will charge you nothing after that, and fix the amount. I will give you a check for it.’ ”

Mow the jury might well find from that evidence that the work was considered as completed and finished to the satisfaction of the owner, at any rate as early as the thirtieth of August. That is the admission of the owner. The only question raised by him was as to the. penalty for delay in the completion of the building. Upon this evidence, therefore, the judge was justifled in leaving it to the jury, saying as he did, that if this was accepted as a completed contract, the only remaining question was whether the delay after the first of May was occasioned by the defendant’s own fault, or whether the claim based upon it was waived by him, at the same time stating the amount of the plaintiff’s claim as established, to be $5,368.57, provided he was not at fault, or if the defendant waived the condition as to its completion within the specified time; otherwise, he said, you will deduct from that amount the sum of $2,950, being the aggregate penalty for delay from the first of May to the thirtieth of August.

On the other hand it was contended on the trial by defendant’s counsel that in no event, no matter how complete the satisfaction of the defendant, a recovery could not be had without the production of the architect’s certificate and refusal on defendant’s part to pay according to its terms; without that, he claimed, there could be no breach, consequently no right of action. The view of the court was to the contrary. It held, and so instructed the jury, that the defendant could waive the stipulations he had introduced into the contract for his own benefit, and that if he accepted the house as under a complete contract, the plaintiff would be entitled to recover although no certificate had been given, and even if the architect was not satisfied. This was the principal question presented; it was, we think, rightly decided, and the verdict of the jury was. a complete answer, not only to the matter of defense, but also to the counter-claim.

Some other points are made by the appellant: First, that the trial judge improperly denied the defendant’s application to postpone, or put- off the trial. This fact was proper for consideration upon motion for a new trial, and by the General Term upon appeal from the order denying it, but is not the subject of exception, or available upon appeal in this court. Second, that the difference between the parties should have been submitted to arbitrators under the clause in the contract relating to arbitration. Mo evidence was given that the defendant took any steps for their selection. It was not more the duty of the plaintiff than that of the defendant to do so. We need not inquire, therefore, how far, if at all, such defense would have availed.

We think the judgment should be affirmed.

All concur.

Judgment affirmed.


author: Danforth, J.

text:
    Peter R. Kelly, Respondent, v. Horace F. Burroughs, Appellant.
    Where a second indorser of a promissory note has paid and taken it up, he becomes a holder for value and may maintain an action to recover the amount thereof of the first indorser although both are accommodation indorsers.
    The plaintiff in such an action is not precluded-by thfe death of the maker of the note from testifying as a witness in his own behalf, as to the" circumstances of the indorsement; the defendant is not of the class of persons protected by the provision of the Code of Civil Procedure (§ 829), prohibiting a party from testifying in certain cases as to personal transactions with a deceased person.
    The mere fact that the sole evidence as to a material fact in issue in an action is the testimony of a party, when there is no conflict in the evidence or circumstances from which an inference against the fact so testified to can be drawn, does not require the submission of the question to the jury.
    (Argued March 15, 1886;
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 10, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 33 Hun, 349.)
    The complaint states that on the 30th of November, 1881, one Evans made and executed 'his promissory note, payable four months after date to the order of the defendant for $600; that the defendant indorsed the note; that so indorsed, and before maturity, the note was transferred to the plaintiff for value. It alleges presentment for payment, protest and notice of non-payment, and that plaintiff is the owner of, the note.
    The defendant answered, but denied none of the allegations of the complaint. He set up, however, that his indorsement was without consideration, and for accommodation; and upon information and belief that it had no legal validity until it was discounted at the plaintiff’s .request, at the Commercial Bank, and the proceeds paid to him. For a second defense the defendant alleges that the note was paid. Upon the trial the plaintiff put in evidence the note, signed by Evans as maker, indorsed first by the defendant, and second by the plaintiff. But- he also proved that the Commercial Bank had recovered a judgment against the maker and himself upon the same note ; that he paid its amount to the bank and had the judgment satisfied as to himself. It was proven also that the note was the property of the bank at the time suit was brought against Evans and Kelly. The defendant then testified that' he indorsed the note at the request and- for the accommodation of Evans, the maker, and returned it to him; that the plaintiff procured the note to be discounted, had the money placed to his own credit, and on the same day drew the money. The plaintiff then testified that he indorsed the note and procured it to be discounted at the request of the maker, and gave the proceeds to him. Other evidence was given to the same effect. The defendant’s counsel asked to go to the jury upon the testimony. The plaintiff’s counsel requested the court to direct a verdict in favor of the plaintiff. The court refused the defendant’s request, and directed a verdict in favor of the plaintiff for the amount'claimed. The defendant afterward made a motion for a new trial, which was denied. From that order and from judgment upon the verdict an appeal was taken to the General Term.

      A. E. Lamb for appellant.
    A verdict cannot be directed where the only testimony to sustain it is that of the person asking the verdict, testifying on his own behalf. ( Wohlfahrt v. Bickert, 92 N. Y. 490; Ellwood v. W. U. Tel. Co., 45 id. 553 ; Kavanagh v. Wilson, 70 id. 177 ; Guildersleeve v. Landon, 73 id. 609.) The defendant was not competent, under section 829 of the Code, to give evidence as to his transactions with the deceased on which this verdict was finally directed. (People, ex rel. Twenty-third Street R. R. Co., v. Commissioners of Taxes, 95 N. Y. 557.)

      J. Stuart Boss for respondent.
    Defendant being a prior indorser to the plaintiff, on production of the note by plaintiff and proof of the payment by him of the judgment recovered by the bank against him, was entitled to judgment. The fact that plaintiff and defendant were both accommodation indorsers was immaterial. (Daniels on ISTeg. Inst. [3d ed.] 631, § 703.) Any testimony by the defendant or in his behalf, concerning the making, indorsement or discount of the note, was evidence concerning the transaction or communication with the deceased maker, and under section 829 of the Code would have justified the testimony by the plaintiff on rebuttal as to the same transaction. (Sweet v. Eddy, 28 Hun, 432; Markell v. Benson, 55 How. 300, 363; Lewis v. Merritt, 98 N. Y. 206; Pinney v. Orth, 88 id. 447; Wadsworth v. Hermans, 85 id. 639.)
   Danforth, J.

We think the appeal must fail. Conceding that both indorsers became so at the request, and for the accommodation of the maker, the defendant was still liable, as first indorser, to the plaintiff, as second indorser, and when the latter paid the amount of the note to the bank, and took it up, he became a holder for value, and entitled to indemnity from the defendant. Concerning the facts there was no dispute, and consequently no occasion to present them to the jury. The mere fact that the plaintiff, who testified to important particulars, was interested was unimportant in view of the fact that there was no conflict in the evidence, or any thing or circumstance from which an inference against the fact testified to by him could be drawn. The cases cited by the appellant lack this element, while Lomer v. Meeker (25 N. Y. 361) sustains the ruling of the trial court.

It is claimed, however, by the appellant that the plaintiff was improperly allowed to testify to the transaction between himself and Evans. Evans was dead, and the contention is put upon section 829 of the Code. I am unable to perceive that the defendant is of the class of persons protected by that section.

The other exception seems to have neither substantial nor technical merit. The defendant suffers from a relation to the note, which, at the request of Evans, he voluntarily assumed, and not from any error of the court in enforcing his liability.

We think the judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    Charles H. Greenleaf et al., Respondents, v. The Brooklyn, Flatbush and Coney Island Railroad et al., Appellants.
    A'defendant against whom an inquest has been taken by default may not obtain relief from the j udgment by motion to set aside the inquest because of insufficiency of the evidence to sustain the findings, at least where there is any evidence to sustain them; he should appear and raise the question on the taking of the inquest, and upon decision against him except to the ruling, and then on appeal from the judgment, the question may be presented.
    Assuming such a question may properly be raised on motion to set aside the inquest, it is within the discretion of the General Term to affirm or reverse an order denying the motion, and its determination is not re viewable here.
    (Argued March 16, 1886 ;
    decided March 26, 1886.)

      Appeal from order of the General Term of the Supreme Court, in the second judicial department, made September 30, 1885, which affirmed an order of Special Term, denying a mm tian to set aside a judgment entered herein upon an inquest.
    This was an action- of ejectment. The defendant did not appear on trial, and an inquest was taken.
    The motion to set aside' the judgment was made on the ground that the evidence was insufficient to sustain it.

      William O. De Witt for appellants.
    The motion to set aside the judgment because founded upon insufficient proof was the proper mode of procedure. (Flake v. Van Wagenen, 54 N. Y. 25; Bliss’ Code, §§ 1282, 1294; Innis v. Purcell, 58 N. Y. 388, 390.) Under the Code the judgment, although had upon inquest, cannot be upheld in the absence of proof of seizin or possession by the plaintiff or his grantors. (Code, §§ 365, 368; Haines v. Davies, 6 How. 118.)

      Mornay Williams for respondents.
    The order of the General Term is not appealable. The court below has control over its own judgments, and a motion to vacate is addressed to the discretion of the court and is not the subject of appeal. (Granger v. Craig, 85 N. Y. 619 ; Watrous v. Kearney, 79 id. 496 ; Lawrence v. Farley, 73 id. 187; Marvin v. Universal L. Ins. Co., 85 id. 278; Direct U. S. Cable Co. v. Dominion Tel. Co., 84 id. 153; Snebly v. Connors, 78 id. 218; Noyes v. Children's Aid Soc., 70 id. 481; Bryce v. Lorillard F. Ins. Co., 55 id. 240, 242; Sheldon v. Sheldon, 51 id. 354; Smith v. Peter, 70 id. 13.) Defendants, if dissatisfied with the judgment, should have appealed from it directly on exceptions taken to the findings. (Code, §§ 994, 1282, 1283, 1346 ; Dana v. Howe, 13 N. Y. 306; Meyer v. Appel, 2 Sweeney, 729 ; Hallgarten v. Eckert, 1 Hun, 117; Haines v. Davis, 6 How. 118 ; Flake v. Van Wagenen, 54 N. Y. 25.)
   Milleb, J.

We think that the motion made at Special Term to set aside the inquest was properly denied. Motions of this kind are usually made on the ground of irregularity, or for some valid excuse in allowing the default to be -taken, and in case there is .any evidence whatever to support the findings, the court will not set aside the inquest. The practice is well settled that a party, in order to avail himself of any objection to any proceeding upon the trial, should .appear and raise the question before the judge, and, upon a decision against him, except to the ruling made.

We have held in a very recent case that upon a trial before \ judge, where the defendant claims there was no evidence to sustain the decision made against him, he should present the question and take an exception to the ruling had. Applying this rule to the case considered, it is difficult to soc how the defendants here could obtain any relief by á motion to set aside the inquest. Their remedy was to appear upon the trial, make the proper objection, and take an exception to the ruling of the court; if adverse to then* claim. Upon appeal from the judgment the questions raised on the trial could then be presented and determined.

In this case exceptions were taken to the findings of the court, and the defendants could either have appealed or taken a new trial under the statute upon payment of costs. As they clearly had the latter remedy, it is not important to determine whether the right to appeal existed.

Assuming, however, that the motion was properly made, as an appeal to the General Term was taken from the order denying the motion, it was a matter of discretion with the General Term to determine whether the order should be affirmed or reversed, and it having exercised that discretion, no appeal lies to this court.

The appeal should be dismissed.

All concur, Rügee, Oh. J., and Eael, J., in result.

Appeal dismissed.


text:
    John S. Perry, Respondent, v. The Board of Missions of the Protestant Episcopal Church in the Diocese of Albany, Appellant.
    The Diocesan Convention of the Protestant Episcopal church of the Diocese of Albany appointed a committee to take steps for procuring a residence for the bishop of the diocese. Plaintiff, under the advice of the bishop, and with the consent of the committee, purchased certain premises for the purpose specified; and at the request of the bishop commenced making necessary repairs and improvements. At the annual meeting of the convention in 1870 the committee made a report stating the fact as to the purchase, and referring to the repairs and improvements, which was adopted, and a resolution passed directing a transfer of the title to the property to defendant, to be held and used as a residence for the bishop, and authorizing and directing defendant to execute a bond and mortgage thereon to secure the payment of a prior mortgage, and “ of the sum advanced for the repairs and fitting up of the same for the Episcopal residence.” Defendant, by its charter, is authorized to take and hold property used for diocesan purposes, and is made “subject to the directions and instructions which shall he given to it by the said convention.” (Chap. 18, Laws of 1870.) At the time of the passage of the resolution the work of repair was in progress, hut only a small portion thereof had been paid for. Plaintiff went on and completed the work, advancing the money to pay for the same. The premises were conveyed to defendant as directed, and at a regular meeting of the board a resolution was passed accepting the conveyance, and directed the execution of a bond and mortgage for a sum specified, to be applied to the payment of the prior mortgage, and the expenses of the repairs and improvements. This was done, and the moneys realized thereon were applied as directed, but were insufficient to pay the whole amount so advanced by the plaintiff. Held,, that plaintiff was entitled to a lien in the nature of a mortgage upon the premises for the balance, both because of the special agreement embodied in the resolution of the convention, and under the general doctrine of equity, which gives a right equivalent to a lien, when the rights of parties cannot be otherwise secured; that the said resolution was not limited to the sums already advanced, but included as well all subsequent advances for the purposes specified; also that in an action to have an equitable lien declared, a judgment directing a sale of the property, as in case of a mortgage foreclosure, was proper.
    Also held,, the fact that defendant’s relation to the property was that of trustee did not affect plaintiff’s right to the relief sought; that to subject the premises to the cost of the repairs, through which alone the purposes of the trust were accomplished, would be no violation of the condition^ upon which the premises are held.
    (Argued March 1, 1886;
    decided April 13, 1886.)

      Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 4,1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was brought to have a lien declared in the nature of a mortgage upon certain premises, the title to which is in the defendant, for moneys advanced by plaintiff to pay for repairs and improvements upon said premises.
    The material facts are stated in the opinion.

      E. Countryman for appellant.
    Even if plaintiff) had furnished the money to make the purchase of the property it would not entitle him to an equitable lien. (Marquat v. Marquat, 7 How. 417, 418; Stansell v. Roberts, 13 Ohio, 149, 157 ; Crause v. Caldwell, 14 Ill. 468 ; Jeneson v. Gordon, 29 id. 199 ; Nolte's Appeal, 45 Penn. St. 361, 363, 365 ; Woodridge v. Scott, 69 Mo. 669; Lea v. Fabri, 13 J. & S. 361.) The doctrine of equitable lien upon -land should not be extended beyond the vendor and vendee and privies in estate or law, and then only for the unpaid purchase-moúey. (McKillip v. McKillip, 8 Barb. 522, 557-559, 560; Taylor v. Baldwin, 10 id. 626, 635.) The doctrine of compensation or lien only applies to the.possessors of property who have in good faith made valuable improvements thereon under a claim of title which turned out to be defective, or under some mistake concerning their rights, or who were induced to incur such expenditures by deception of the real owners, which, were subsequently attempting to dispossess them, and thus obtain the benefits thereof. (Putnam v. Richie, 6 Paige, 391, 402-406; Taylor v. Baldwin, 10 Barb. 626, 631-635; Hassard v. Rowe, 11 id. 22; Wilson v. Wilson, 13 id. 252; McMulkin v. Bates, 46 How. 405 ; Mickles v. Dillaye, 17 N. Y. 80, 87, 88 ; Schmidt v. Schmidt, 16 J. & S. 520.) The trustee could not invest the fund in a bishops’ house in connection with other funds of his own, advanced by him for that purpose, and perfect the title under such a trust," and at the same time reserve the right to himself to destroy the trust and misapply the original trust fund for his own protection or to enable him to reclaim the money thus advanced by him whenever he elected to do so. (1 Perry on Trusts, §§ 268, 274, 383a, 401; Diefendorf v. Spraker, 10 N. Y. 249, 250; Thatcher v. Candee, 4 Abb. Ct. of App. Dec. 387; Brennan v. Wilson, 41 N. Y. 502, 506 ; Story v. El. R. Co., 90 id. 124, 157.) The courts have no power to destroy or impair a valid trust, nor to authorize the fund to be alienated or diverted from its proper purpose. (Douglas v. Cruger, 80 N. Y. 15; Lent v. Howard, 89 id. 171, 181; Harvard College v. Soc., etc., 3 Gray, 280, 301.) An act" of the legislature would be equally inefficient to accomplish such a result. (Stone v. Framington, 109 Mass. 303; Shulenberg v. Harrison, 21 Wall. 59, 64; Swan v. Lindsay, 70 Ala. 507, 521.) When the title to the property was finally perfected in the defendant as permanent trustee, it became liable to the same rules and restrictions. It cannot voluntarily violate the trust, nor permit the plaintiff to do so, nor can the court authorize such a violation of duty. (Darke v. Williamson, 25 Beat. 622; French v. Griswold College, 60 Iowa, 482.)

      Hamilton Harris for respondent.
    An equitable lien may be created by any writing or agreement from which the intention to create it may be shown. (Seymour v. C. & F. R. R. Co., 25 Barb. 284, 302; In re Howe, 1 Paige, 125,130 ; Chase v. Peck, 21 N. Y. 581; Paine v. Wilson, 74 id. 348, 351.) Plaintiff is entitled to a lien upon the property for the balance due him for his expenses in repairing and fitting it up as a residence, and equity should decree him such lien. (Brown v. Brown, 1 Barb. Ch. 217.) A court of equity will enforce an equitable lien, either upon a legal or equitable estate in lands, and the usual way of enforcing a lieu in equity is by a sale of the property to which it is attached. (Price v. Palmer, 23 Hun, 507.) The debt of the plaintiff for his advances being a just debt against the trust estate, with no personal covenant for the payment of the same, which can be enforced in law, and there being no way in which the plaintiff can be indemnified, except by a lien upon the property, equity will declare such lien. (Fowler v. Mut. L. Ins. Co., 28 Hun, 195 ; Story’s Eq. Jur., § 1237.)
   Danforth, J.

Upon trial before a referee the plaintiff has been declared entitled to. a lien in the nature of a mortgage upon certain premises on Elk street, in the city of Albany, for a balance due him for advances made for improvements and repairs thereon and for interest on an existing mortgage, amounting to the sum of $4,677.38, besides costs, and in case the same is not paid within a certain time, that said real estate be sold in the same manner as sales °are made upon mortgage foreclosure, and, of the proceeds of such sale, the plaintiff be paid the amount of said lien, with interest as aforesaidj together with his costs and disbursements. Upon appeal to the General Term the judgment upon this report was affirmed.

Some objections were made by the defendant to the admission of certain testimony, but it is not now contended that the facts found by the referee are not warranted by the evidence, or that they were not within the issues raised by the pleadings. The contention is against the referee’s conclusion of law. It appears by his report that in September, 1869, the Right Reverend William Croswell Doane was bishop of Albany, and at that time by the action of the convention of the Protestant Episcopal church in that diocese a committee was appointed to take such steps as they might deem expedient for procuring a residence for the bishop; that in February, 1870, the vestry of St. Peter’s church, in that city, appointed a committee, of which the plaintiff was chairman, to solicit subscriptions for the above purpose, and in that character he received moneys from various persons, in all to the amount of $12,825, and in June, 1870, under the advice of the bishop, and with the consent of the diocesan committee, he bought the premises above referred to at the price of $18,000 (of which $5,000 was in a then existing mortgage). He paid the residue, and upon like consent caused the property to be conveyed, subject to the mortgage, to a corporation called “ The Trustees of the Episcopal Fund of the Diocese of Albany; ” that thereupon “ plaintiff, at the request of the bishop, commenced making various improvements, alterations and repairs in the dwelling upon the premises so purchased, all of which were necessary and proper to make it a suitable and convenient residence for him, and the plaintiff advanced the moneys required to pay the bills for such improvements and repairs; that at the annual meeting of the diocesan convention, in September, 1870, the diocesan committee made a report which stated the manner in which the title was taken, described the property and referred to the repairs and improvements. This report was, on motion, accepted.” And at the same time the convention, with the consent of the trustees of the Episcopal fund, directed them to transfer the title to said property to the defendant herein, to be held and. used for the support of the Episcopate, and be a place of residence for the bishop of the diocese, and that the said board of missions be authorized and directed to make a bond and mortgage on the premises to secure the payment of the incumbrance thereon, of $5,000, and also the payment of the sum advanced for the repairs and fitting upjof the same for the Episcopal residence,” intending thereby to provide for and coyer all the expenditures incurred by plaintiff for the improvements and repairs then in progress, and contemplated and included, as well the sums thereafter advanced as those which had then been actually paid.

The defendant is a corporation having power, among other things, to take and hold property used or intended to be used for “ diocesan institutions, or purposes in the said diocese,” and is subject to the directions and instructions which shall be given to it by the said convention. (Laws of 1870, chap. 13.)

At this time the repairs and improvements were in progress, and only the sum of $173.92 had then been advanced by plaintiff in payment therefor. On the 20th of October, 1870, in accordance with the above directions, the trustees of the Episcopal fund of the diocese of Albany conveyed the premises to defendant in trust as a residence for the bishop of Albany, and on the same day, at a regular meeting of the board, the following resolution was passed:

“Resolved, That this board do, in accordance with the direction of the convention, hereby accept the conveyance of the said premises, to be held in trust for the uses and purposes above mentioned, and further that the president of this board, the Rt. Rev. William Croswell Doane, S. T. D., Bishop of Albany, be and is hereby in its name and behalf to execute and affix the corporate seal of' this board to a bond and mortgage upon the said premises for a loan not to exceed $8,500, with interest, the proceeds of which shall be applied to the payment of the said existing mortgage of $5,000 thereon, and the said expenses of the said repairs and improvements,” and in pursuance of said resolution on December 30, 1870, defendant, by its president aforesaid, executed and delivered to one Earl L. Stimson a bond with a mortgage upon the premises aforesaid for the sum of $8,500, which sum was loaned and advanced to it by said Stimson, and was by it paid over to plaintiff, who paid out of the same the mortgage of $5,000, and the interest thereon, then unpaid, amounting in all to the sum of $5,220.47, and the same was canceled of record, and the balance of said sum was credited and applied by plaintiff in his account for the advances made by him as aforesaid toward the purchase-price of said premises, the expenses incident to the same, and for said improvements and repairs.

Other facts are found which require no special mention, but which show that the amount for which a lien was declared was justly due for advances made under the circumstances above stated.

It is objected by the appellant that the plaintiff is not, by reason of any of these facts, entitled to an equitable lien upon the premises for the benefit of which they were made. We are of a different opinion.

The principle upon which a court holds that a vendor who has not been paid is entitled to a lien on the land sold is that it would be contrary to natural justice to allow a purchaser to retain an estate which he has not paid for, and it seems very clear that there is a like natural equity in favor of the plaintiff. It is- true he did not sell the estate, but he added to it, and by his expenditures upon it fitted it for the purpose for which it was intended. A hen for the price of an estate sold exists without any special agreement and by virtue of a doctrine merely of a court of equity. Here there is a special agreement and also a case to which the doctrine applies:

First. The special agreement. It may be found in the resolution of the convention of 1870; by which the defendant was required in substance to provide by bond and mortgage for the payment of the sum advanced for the repairs and fitting up of the Episcopal residence ” — the one in question. The learned counsel for the appellant seeks to limit this expression by the rules of grammar, and confine the security to the sum then or already advanced, to the exclusion of all advances subsequent thereto. We do not think, however, that the framers of the resolution selected the word for the purpose of marking either present or future time, but to denote a fact which might include various transactions requiring the expenditure of money by some person other than themselves, the whole, by whomsoever or whenever made, constituting £< the sum advanced,” in rendering the place fit and suitable as a residence for the bishop of the diocese. The resolution in question was in writing; it was entered in the journal of the convention, and the defendant was bound to conform to it. (Chap. 13, Laws of 1870, supra.)

Second. The plaintiff’s case is within the general doctrine of equity, which gives a right equivalent to a lien, when in no other way the rights of parties can be secured. The advances were directly for the benefit of the real estate; they were approved by the convention by whose directions the title was conveyed to the defendant, but neither the convention nor the defendant have incurred any corporate liability, and while it may be said that the advances were made on the promise of, or in the just and natural expectation that, a mortgage would be given, it is also true that they were made on the credit of the property, for the improvement of which they were expended. The repairs and improvements were permanently beneficial to it, made in good faith, with the knowledge and approbation of the parties interested, and accepted by them, not as a gratuity, but as services for which compensation should be given. The plaintiff’s right to remuneration is clear, and unless the remedy sought for in this action is given, there will be a total failure of justice.

It would seem to follow that no error was committed by the referee in directing a sale of the property, and the application of the proceeds to the payment of the plaintiff’s claim. But the learned counsel for the appellant argues that as the defendant’s relation to the property is that of trustee, such enforcement of the lien would destroy the trust, and so defeat the very object of the conveyance through which they derive title. The trust was for the habitation and use of the bishop of the diocese; it was accepted with notice that the improvements were necessary to fit the buildings for occupation, and had been begun under proper authority. It was the duty of the defendant to allow them to be finished, and it will be no violation of the conditions upon which the premises are held, to subject them to a charge for the cost of the repairs through which alone the purposes of the trust were accomplished. If the building should now be burned, it might with the same force be urged that the mechanic who might repair or reconstruct it could acquire no hen, because enforcing it might diminish or even absorb the property. A statutory lien would be no better than the plaintiff’s lien in equity.

The usual course of enforcing an equitable lien is by a sale of the property to which, it is attached, and we find nothing in this case to take it out of the general rule. The appellant’s remaining p>°ffit is a sweeping one relating to various items of evidence of the bishop’s declarations, letters and acts in connection with the purchase and repairs of the house. Under the circumstances disclosed in the record, they were properly received, either as acts of agency, or part 'of the transaction.

We think the decision of the referee was warranted by the facts before him, and that the judgment appealed from should be affirmed. a

All concur.

Judgment affirmed.


author: Finch, J.

text:
    Peter D. Conklin, Appellant, v. The New York, Ontario and Western Railway Company, Respondent.
    Where the power and duty of changing the grade of a highway is conferred by law upon' others than the highway commissioners, although the necessity for the change springs.from another public purpose, however much it may inconvenience the abutting owner, it takes from him no property right for which he is entitled to compensation.
    A railroad corporation, having acquired the right to cross a highway, did so below grade, and for the purpose of restoring the highway as required by the General Railroad Act (Chap. 140, Laws of 1850 ; chap. 133, Laws of 1880), bridged its tracks and graded up the highway to the bridge level. Plaintiff owned land adjoining the land of the corporation and to the center of the highway, the grade of which was thus raised. The change thus made was all within the original lines of the highway. In an action to recover damages, held, that plaintiff’s fee in the highway was not subjected to any new or different use, and that he was not entitled to recover.

      Story v, N, 7, E, It. It, Co, (90 N. Y. 122), distinguished.
    (Argued March 3, 1886;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 13, 1881, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.
    This action was brought to recover damages for alleged unlawful acts in entering upon a highway in front of plaintiff’s premises and erecting an embankment thereon. Plaintiff owned the fee to the .center of the highway.
    Defendant having acquired the right, under the General Railroad Act, to cross the highway with its road, did so below grade, through a cutting made across the highway, and, to restore it, bridged its road, and by embankments on each side graded up’the highway to the bridge level. The embankments were within the original lines of the highway.

      Abram A. Demarest for appellant.
    The plaintiff’s land could not be taken, or used, or injured by either company (except under a grant by him or by operation of law) without compensatian, whether such land lay under the highway or not; nor could his use of such highway be impaired or obstructed. (Story v. N. Y. E. R. R. Co., 90 N. Y. 122.) An action lies by the owner of land against a railroad company if in the construction of its road upon or across a public highway it raises an embankment by which the owner of the land is obstructed in passing to and from the road, and his property is otherwise rendered less valuable. (Fletcher v. Auburn & Syracuse R. R. Co., 25 Wend. 462; Davis v. The Mayor of New York, 14 N. Y. 521; Brown v. Cayuga, etc., R. R. Co., 12 id. 487; Robinson v. N. Y. & E. R. R. Co., 27 Barb. 520; Kellinger v. Forty-second Street R. R. Co., 50 N. Y. 211; Bloomfield Gas-light Co. v. Calkins, 62 id. 386; Williams v. N. Y. C. & H. R. R. R. Co., 16 id. 97.) • The owners of land lying upon highways are generally,- whether owners of the fee of the highway or not, held to have an interest in the highway and rights of access and use, at least so long as it is maintained, which, though subject to regulation and modification for the purposes of repair and improvement, require compensation, when they are seriously obstructed by private corporations acting under public authority. (Pierce on Railroads, 195 ; 8 Dana, 289, 294 ; 10 Bush, 302, 380; 7 Ind. 38; 9 id. 467; 38 Mich. 62, 71.) Where real estate is actually invaded by superinduced additions of water, earth, sand or other material, only having an artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution. (13 Wall. 166, 181; 14 Conn. 146; 15 id. 312; 2 Stockt. 211, 229; 3 Harrison, 200; 7 Vroom, 335 ; 4 Stewart [N. J.], 706, 726, 730 ; 3 id. 185; 54 N. H. 545 ; 58 id. 108 ; 58 Me. 481; 14 Bush, 87, 93; 13 Minn. 324; 31 Wis. 316 ; 30 Mich. 308 ; 35 id. 296; 9 Ind. 433 ; 16 id. 441.)

      Calvin Frost for respondent.
    The track of a railroad constructed by a company under or over the track of the highway as may be found most expedient, and the company, with a view to a more easy ascent or descent, may change the line of the highway and take additional land for the purpose, on making compensation, etc. (Laws of 1850, chap. 140, § 1.) The grade of the railroad is left to the discretion of the corporation and not re viewable by the courts, when exercised in good faith. (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302, 305.) The statutes were intended to vest in the corporation the powers of commissioners of highways in the construction and improvement of highways, when it was charged with the duty of restoration of the highways crossed, to their former usefulness. (People, ex rel., etc., v. D. & C. R. R. Co., 58 N. Y. 166.) The commissioners of highways of the town would not have been liable in such a case. (Graves v. Otis, 2 Hill, 466; Wilson v. Mayor, etc., 1 Denio, 595; Benedict v. Goit, 3 Barb. 459, 469; Dexter v. Brost, 10 id. 337; Kavanagh v. City of Brooklyn, 38 id. 232 ; Radcliff v. Mayor, etc., 4 Comst. 195, 205; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Corey v. B. & N. Y. R. Co., 23 Barb. 482 ; Robinson v. N. Y. & H. R. R. Co., 27 id. 520; Barnes v. S. S. R. R. Co., 2 Abb. [N. S.] 415; In re N. Y. C. & H. R. R. R. Co., 15 Hun, 64.) When the plaintiff dedicated his land to, or it was taken by law for the use of a public highway, while he retained the legal title to the land, he surrendered all claim to damages for any use thereof for highway purposes. (Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 48; Selden v. D. & H. C. Co., 29 id. 642.) The plaintiff having conveyed a part of his land to the railway company, he cannot claim damages from it, by reason of its use of such land for its purposes, or doing any acts which the law imposed on it, as a duty, without alleging and proving negligence. (Rood v. N. Y. & E. R. R. Co., 18 Barb. 80 ; In re Utica, etc., R. R. Co., 56 id. 464 ; In re N. Y. C. & H. R. R. R. Co., 15. Hun, 68.)
   Finch, J.

Railroad companies are authorized to cross public highways upon the condition that they restore them to their former state, or so as not to impair their usefulness. The tracks may cross at grade, or above or below it, and the necessities of the railroad govern the choice. The West Shore crossing is not, in this case, complained of. It took for that purpose no land of the plaintiff, and inflicted upon him no injury. What lies at the basis of the action is not the crossing, but the restoration of the highway to its usefulness as such, under the command of the statute. The law assumes that the crossing will be upon a grade which the convenience or needs of the railroad may require, and that, as a consequence, changes will become necessary to preserve the public right, and the duty of such restoration is imposed upon the railroad company. (Laws of 1850, chap. 140, § 28; Laws of 1864, chap. 582, § 1; Laws of 1880, chap. 133, § 2.) An order of the court is a necessary preliminary td the exercise of the right, so that its necessity or propriety may be questioned or adjudged, and notice of the application is to be given to the commissioners of highways, in order that they may be heard on behalf of the public interest. The statute which confers the right of crossing a highway expressly permits the latter to be carried under or over the track as may be found most convenient, and if the consequent cutting or embankment gives the roadway too great an ascent or descent, the line of the highway may be changed and additional lands taken, which, when paid for, become part of the highway. (Laws of 1850, § 24.) The acts require compensation to bo made only when additional lands have been taken, and the duty of restoration need not be to the original condition of the highway, but may be to one different which does not impair its usefulness. The West Shore company crossedbelow the grade of the highway, making a cutting in its passage and so preventing the public travel. The difficulty could have but one of two remedies. Either the highway upon each side of the crossing must be sloped down to the grade of the track, or the cutting must be bridged at a height sufficient for the passage of trains, and approaches made by a gradual lifting of the roadway to reach the bridge level. The last was the manner chosen, and in view of the dangers consequent upon grade crossings, the choice was prudent and proper, both for the safety of the public and the trains. The highway was thus restored to its original use, and within its original lines, and the only alteration effected was a change of its grade. The plaintiff’s fee in it to its center line was not subjected to a new or different use involving a new or added compensation, but it remained unchanged as the public highway originally laid out in everything but its grade. If it became such by dedication, compensation for the easement was expressly waived. If taken by right of eminent domain, the compensation paid covered all the damages sustained, among which were necessarily embraced such as might flow from a change of grade required for the public use and convenience. That might be altered by any lawful authority, and whatever of injury or inconvenience should result to the abutting owner, was either waived by the dedication, or paid for by the' original compensation, so that a change of grade upon a highway invades no private right. The contrary doctrine, once held (Fletcher v. Auburn & Syracuse R. R. Co., 25 Wend. 462), has been effectually overruled. (Radcliff’s Exrs. v. Mayor, etc., 4 Comst. 195; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Selden v. D. & H. Canal Co., 29 id. 634.) The appellant here relies upon Story v. N. Y. Elevated R. R. Co. (90 N. Y. 122). That case was not intended to thus unsettle the law, for it expressly excluded from its operation injuries resulting from changes of grade.

Its doctrine, if applicable to this highway, that a right of property in the street belongs to the .abutting owner which cannot be taken away from him without compensation by the erection of obstructions not essential to or consistent with the normal use and condition of the street as such, is wholly inapplicable to the case here presented; and this for the double reason that the character of the street as an unobstructed public ,,highway remains unaltered, giving equally as before to the abutting owner, full opportunity for light and air and means of access by modifying his own grade, and leaving the street wholly to its natural and normal use, so that no property of the abutter is taken; and if taken by any refinement of construction, it is a taking embraced in and paid for by the original compensation, or contemplated by the original dedication. Beyond a doubt any change of grade by the authorities charged with the public duty of working and maintaining the highway, however it may inconvenience the abutting owner, takes from him no property right for which he has not been compensated; and that is equally true, although the power and duty óf changing the grade is conferred by law upon others than the highway commissioners and the need of it springs from another public purpose. The right of the legislature to permit a railroad company to cross a public highway, and either upon the same or a different grade, is of course conceded. In the latter case a corresponding change in the grade of the highway becomes necessary. That change the commissioners of highways would have a right to make and so restore the road to the public use without any responsibility to abutters. But that 'duty is imposed by statute upon the railroad company, and the expense charged upon them; and in the process of restoration they simply stand in the place of the highway commissioners, having for the purpose of the restoration and so far as needed all their official rights, and charged with all their duties. It- was so held in Bellinger v. N. Y. Central R. R. Co. (supra). The court said: Where persons are authorized by the legislature to perform acts in which the public are interested, such as grading, leveling and improving streets and highways and the like, and they act with proper care and prudence, they are not answerable for the consequential’ damages which may be sustained by those who own lands bounded by the street or highway. The doctrine is equally applicable to the construction of a railroad by a private corporation; for the enterprise is considered a public one, and the authority is conferred for the public benefit.” The same doctrine was involved in Uline v. N. Y. Cent. & H. R. R. R. Co. (101 N. Y. 98). There, as here, the crossing of a city street had been followed by a change of grade of the highway in front of plaintiff’s premises, for which she sued and recovered both present and prospective damages. We reversed the judgment, holding that if the railroad company changed the grade by a valid authority the plaintiff could not recover at all, but if without such authority, was liable only for the accrued damages, as in case of trespass. Of course, if her property was taken, the last ruling was wrong. If the law permitting a highway crossing required the road to be restored to public use by the commissioners and the railroad company to reimburse the necessary expense, there could be no question of the right of the commissioners to change the grade without any accountability to the abutting owners, and the case is not changed when instead the railroad company is itself compelled to make the restoration. A change made by the commissioners is deemed an incident to the existence of the road as a public highway, and is assumed to be dictated by the public necessity, and justified by the resultant public benefit. The same assumption governs when a railroad crossing compels the change, as the Bellinger Case expressly decides. The crossing itself is permitted, not as a boon to a private corporation, but as a public purpose which comes into collision with another public purpose, and requires an adjustment to harmonize the two; and the same policy prevails when the situation is reversed, and the highway seeks to cross the railroad. It may do so without compensation to the corporation whose land is occupied and whose convenience is disturbed, and the sole justification is that it may properly be treated as a public corporation engaged in the accomplishment of a public purpose. So that, when, under the statute, a railroad company, as-it is commanded to do, enters upon the restoration of a highway, it becomes for the time and at the place the constituted public authority to make the restoration ; and if it does so with reasonable prudence and skill encounters no greater liability than would attend the same change if made by the usual public authority. No question of negligence in the manner of making the restoration is raised in the case.

The judgment should be affirmed, with costs.

All concur, except Danforth, J., not voting.

Judgment affirmed.


text:
    Moses Kessel, Respondent, v. Andrew Zeiser, Appellant.
    A person rightfully entitled to an office, who has been ejected therefrom, may, after his reinstatement, recover of the usurper the salary or emoluments of the office received by the latter.
    The right to recover is not affected by the fact that the usurper was put in possession of the office under a judgment of the Supreme Court, where such j udgment was reversed and final j udgment rendered in favor of the rightful incumbent.
    The doctrine protecting in certain cases rights acquired under and upon the faith of a judgment, although it is subsequently reversed, is not applicable.

      S. F. 0. Go. v. Gordon (2 Abb. [N. S.] 479), Gray v. Brignardello (1 Wall. [IT. S.] 627), distinguished.
    (Argued March 4, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made June 16,1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.
    This action was brought to recover of defendant the salary of the office of commissioner of charities of the county of Kings, received by the latter while in possession of that office, the complaint alleging that plaintiff was rightfully entitled to the office and defendant an usurper.
    The facts are sufficiently stated in the opinion .

      B. F. Tracy for appellant.
    The judgment of the Supreme Court actually ousted Kessel, and excluded him from the office. (Mc Veany v. Mayor, etc., 80 N. Y. 195, 196 ; Welch v. Cook, 7 How. Pr. 282 ; People v. Conover, 6 Abb. 220.) The rendition of official service must precede a right to demand and recover the compensation given by law to the officer. (Mc Veany v. Mayor, etc., 80 N. Y. 193, 194; Connor v. Mayor, etc., 5 . id. 285; Smith v. Mayor, etc., 37 id. 518; Butler v. Pennsylvania, 10 How. [U. S.] 416; Hoboken v. Gear, 3 Dutch. [N. J. Ch.] 278; Dolan v. Mayor, etc., 68 N. Y. 274.) The subsequent reversal of the judgment of ouster did not give Kessel any right to recover, or any property in, the salary to Zeiser for the services rendered by him under that judgment. (People v. Thatcher, 55 N. Y. 525 ; 1 Edm. 112, § 34.) The appellant Zeiser having been adjudged by the judgment and decree of a court of competent jurisdiction to have been duly elected, and entitled to the office, was bound to accept the office and discharge its duties. (1 Bish. Crim. Law, §§ 543, 912; 5 Comyn’s Dig. 135; King v. Denison, 2 Kenyon, 259; King v. Woodrow, 2 T. R. 731; King v. Lowe, 2 Stra. 920; King v. Bettsworth, 2 Sho. 75; King v. Burder, 4 Durn. & E. 778; King v. Poynder, 2 Dowl. & Ry. 258; King v. Bower, id. 842; Bogardus v. Trinity Church, 4 Paige, 198; City of Brooklyn v. Scholes, 31 Hun, 111; 1 Edm. [2d ed.] 319, § 25.) The appellant Zeiser having been adjudged by a court of competent jurisdiction entitled to the office had a right to enter thereon, and upon taking the official oath, and filing his bond, became eo instanti actually invested with the office, and having performed the services thereof, was entitled to the salary. (Code of Procedure, § 437 ; Welch v. Cook, 7 How. Pr. 282 ; People v. Conover, 6 Abb. 220; Day v. Beach, 87 N. Y. 61; Palmer v. Foley, 71 id. 109; Simpson v. Hornbeck, 3 Lans. 53; Kissock v. Grant, 34 Barb. 144; Waldo v. Selden, 4 Week. Dig. 370; Wood v. Peake, 8 Johns. 69, 71; Beach v. Furman, 9 id. 229; Savacool v. Boughton, 5 Wend. 170.) To sustain such an action as this the plaintiff must show title in himself. (Supervisors of Dutchess Co. v. Sisson, 24 Wend. 387.) This action was not maintainable under the common law. (Stuhr v. Curran, 15 Vroom [44 N. J.], 181.; Platt v. Stout, 14 Abb. 178 ; Dolans. Mayor, etc., 63 N. Y. 274; Terhune v. Mayor, etc., 88 id. 251; Nichols v. McLean, 63 How. 448; People v. Pease, 30 Barb. 591 ; People v. Thacher, 55 N. Y. 530; Code of Pro., § 434; People v. Fairchild, 67 N. Y. 334; People v. Ryder, 12 id. 433; People v. Perly, 80 id. 624.) Judgment could have been rendered ousting Kessel from the office without adjudging that Zeiser was entitled thereto. (People v. Thacher, 55 N. Y. 530; Code of Pro., § 436; 1 Edm. 112, § 34.) On the entry of judgment in the quo warranta proceedings, Zeiser was legally entitled to enter upon the discharge of the duties of the office of charity commissioner. (Code of Pro., § 437; Welch v. Cook, 7 How. 282; People v. Conover, 6 Abb. 220.) The judgment of the Supreme Court, made pursuant to the statute, effects a legal transfer of the title of the office from Kessel to Zeiser, making the latter de jure while the judgment was in force. (South Fork C. C. v. Gordon, 2 Abb. [U. S.] 479; Grey v. Brignardello, 1 Wall. [U. S.] 627.) Zeiser having been adjudged by the judgment and decree of a court of competent jurisdiction to have been duly elected, and entitled to the office, was bound to accept the office and discharge its duties. (1 Edm. [2d ed.] 319, § 25; 1 Bish. Crim. Law, §§ 543, 912; 5 Comyn’s Dig. 135; King v. Denison, 2 Kenyon, 259; King v. Woodrow, 2 T. R. 731; King v. Lowe, 2 Stra. 920 ; King v. Bettsworth, 2 Sho. 75; King v. Burder, 4 Durn. & E. 778; King v. Poynder, 2 Dowl. & Ry. 258 ; King v. Bower, id. 842; Bogardus v. Trinity Church, 4 Paige, 198; City of Brooklyn v. Scholes, 31 Hun, 111.) A judgment though subsequently reversed for error protects the party, as well as third persons, for all acts done under it. (Day v. Beach, 87 N. Y. 61; Palmer v. Foley, 71 id. 109; Simpson v. Hornbeck, 3 Lans. 53 ; Kissock v. (Grant, 34 Barb. 144; Waldo v. Selden, 4 Week. Dig. 370.)

      William B. Hurd, Jr., for respondent.
    An action for money had and received lies to recover the profits of an office by him'who has a right to them against him who has received them upon pretense of title. (Dolan v. Mayor, etc., 68 N. Y. 274, 279, 280, 282, 283; Nichols v. McLean, 63 How. 448, 450; affirmed, 32 Hun, 239 ; Platt v. Stout, 14 Abb. 178; Terhune v. Mayor, etc., 88 N. Y. 247, 251; Pettit v. Rousseau, 15 La. Ann. 239; Segur v. Crenshaw, 10 id. 297; Beyer v. Dodsworth, 6 T. B. [D. & E.] 681, 683 ; Lawler v. Alton, 8 Irish R. Com. Law, 160 [1874-5]; Hunter v. Chandler, 45 Mo. 452; Douglas v. State, 31 Ind. 429; Dorsey v. Smith, 28 Cal. 21; United States v. Addison, 6 Wall. 296 ; Auditors of Wayne Co. v. Benoit, 20 Mich. 178; Howard v. Wood, 2 Lev. 245 ; S. C., T. Jones’ Rep. 126-128; 2 Showers, 24 ; Glosbeck v. Lyons, 20 Ind. 1; People, ex rel. Benoit, v. Miller, 24 Mich. 459 ; 1 Com. Dig. 287 [ed. 1824] ; Bac. A.br., title “ Assize Miner’s Abr., title “ Assize,” 166 ; Jacobs’ Die., title “ Office Vaux v. Jeffernan, 2 Dyer, 114; Arris v. Stuckley, 2 Mod. 260; Lee v. Drake, 2 Salk. 468; Webb’s Case, 8 T. R. 45 ; Green v. Hewett, Peake, 182; 1 Selw. N. P. 81; 2 Chitty on Cont. 948.) The certificate of election obtained by the plaintiff is conclusive upon the defendant as to the right of the former to take office, exercise its powers and perform its duties, and receive its emoluments. (People, ex rel. Daily, v. Livingston, 80 N. Y. 66, 70; United States v. Addison, 6 Wall. 296 ; Auditors of Wayne v. Benoit, 20 Mich. 176; Rochester, etc., R. R. Co. v. Clark Nat. Bk., 60 Barb. 235, 248; Mayor, etc., v. Flagg, 6 Abb. 302.) As defendant never received the certificate of election and never impeached or set aside the certificate that plaintiff received, he was not the officer de jure. (Rochester R. R. Co. v. Clark Nat. Bk., supra, 302; Mayor, etc., v. Flagg, supra) As to himself and the plaintiff, the defendant was an usurper. (Vaux v. Jeffernan, 2 Dyer, 114; Douglas v. State, supra; People v. Miller, supra) The measure of damages was correct. (Dolan v. Mayor, etc., supra, 280; People, ex rel. Swinburne, v. Nolan, 32 Hun, 612; Douglas v. State, supra; People v. Miller, supra; United States v. Addison, supra.) The exclusion of an officer de jure from his office is a wrong for which an action for the salary will lie. (Nichols v. McLean, 101 N. Y. 526 ; People, ex rel. Swinburne, v. Nolan, id. 539.) The judgment of ouster did not effect a change of title, and could not “ until the action had come to an end in a valid and abiding judgment.” (People, ex rel. Daily, v. Livingston, 80 N. Y. 66.)
   Danforth, J.

The case shows that Moses Kessel, the plaintiff, and Andrew Zeiser, the defendant, were in the fall of 1877 rival candidates for the office of commissioner of charities in Kings county. Kessel received the certificate of election, qualified as required by law, and took possession of the office. In January, 1878, an action in the nature of quo warranta, in which Zeiser was joined as relator, was brought against Kessel by the attorney-general, to determine the title to the office. At the Circuit the decision was in favor of Zeiser. Kessel then withdrew from the office, Zeiser qualified, took possession, discharged its duties, and drew its salary for a year and a half. Kessel appealed from that judgment. It was reversed ití his favor. Zeiser withdrew and Kessel again took possession. Zeiser appealed to this court, where on the 17th of January, 1882, the appeal was dismissed, and in the Supreme Court final judgment was rendered in favor of Kessel. This action is brought by Kessel to recover from Zeiser the salary received by the latter while discharging the duties of the office, and he has thus far succeeded. The appeal to this court is by Zeiser.

We think the decisions lately made by us in Nolans Case and in MacLearHs Case, require us to dispose of this appeal in favor of the respondent. In the first, Nolan was in office by virtue of a certificate of election ; in the second, MacLean was in office under an appointment duly made by the mayor of the city of New York. They discharged the duties of their respective offices, but in each of the cases we held, upon a full examination of the questions involved, that the relator, who was rightfully entitled to the office, should also recover from the defendant, as usurper, its salary. The distinction suggested in favor of the present case is more formal than real. Kessel has at all times been rightfully entitled to the office, and the fact that Zeiser was in for a short time under a judgment of the Supreme Court is of no importance, because _that judgment was subsequently held to be erroneous, and the final judgment was in favor of Kessel. It was thus established that the judgment in favor of Zeiser was wrong from the beginning and his position no better than the one he occupied when, at the close of the election, Kessel was declared elected, and, receiving the certificate of the canvassers, went into office. (1 R. S. 118, § 17.) The final judgment accords with the adjudication of the board. Zeiser made a false claim, and it would be strange indeed if he could profit by "the temporary error of the courts induced thereby.

The case is not like one where rights acquired at a judicial sale are protected." The court did not appoint to office, nor did the appellant take any thing on the faith of its order. On his invocation the court declared that he was already entitled to the office, and sought to remove the obstruction to its enjoyment. The subsequent reversal shows that declaration to have been a mistaken one — that he had in fact no title, and its effect was to leave the status of his adversary as it was before the action and himself in no better condition than if his claim to office had never been heard or decided by any court. Of course he can claim no advantage by virtue of the erroneous judgment. He took it at his peril. The cases cited by the appellant (South Fork Canal Co. v. Gordon, 2 Abb. [U. S.] 479; Gray v. Brignardello, 1 Wall. [U. S.] 627) do not apply. They relate to property rights which have been changed by the enforcement of a judgment, and hold that as to them the purchaser shall be protected, but even then, it is added that “ the unsuccessful party in the court below shall be restored by reversal to all things which he lost by the erroneous judgment, if the title to them has not passed by such enforcement, and in such cases he is to have a right of action for a money equivalent.” Here it is plain the title to the office did not pass ; nor did"the right to the emoluments ; but if it were otherwise, the defendant would, even in that view, be required to pay the equivalent, and this, as is well settled, is’the amount of salary received by him during the time he deprived the plaintiff of it. (Nolans Case, supra ; Mac Lean’s Case, supra.)

We think, therefore, the appeal must fail and the judgment be affirmed, with costs.

All concur.

Judgment affirmed.