text:
    The People of the State of New York ex rel. The Kings County Gas and Illuminating Company, Respondent, v. Charles A. Schieren, as Mayor of the City of Brooklyn, John R. Sutton, as Auditor of the City of Brooklyn, and George W. Palmer, as Comptroller of the City of Brooklyn, Appellants.
    Nos. 1 and 2.

      Peremptory manda/mus — not issued to compel a judicial determination in a particular way —• contract with the bocvrd of improvement of the town of New Utrecht — enforaible against the city of Brooklyn.

    Courts will not command an inferior tribunal or a ministerial officer to decide a question in a particular manner when the duties which are required to be performed are in their nature judicial. All acts which depend upon the decision of a question of law or the ascertainment and determination of a fact are judicial.

      A subordinate body can be directed to act, but cannot be directed to act in a particular manner, in a matter as to which it has the right to exorcise its judgment.
    In a proceeding instituted by mandamus to compel the auditor of the city of Brooklyn to audit the claims presented by the Kings County Gas and Illuminating Company at specified sums, and to compel the mayor and comptroller of said city to approve said claims and to draw and certify warrants for said sums upon the city treasurer, it appeared that the claims were for gas furnished by the said company to the town of New Utrecht pursuant to a contract made ' with the board of improvement of said town; that the town of New Utrecht was annexed to the city of Brooklyn on July 1, 1894, by chapter 451 of the Laws of 1894, and that the money raised by taxation to defray the expense of supplying said town with gas for that year had been, pursuant to the provisions of said annexation act, paid over to the treasurer of the city of Brooklyn and was in his possession. No question was raised as to the validity of the con-' tract nor was the fact denied that the gas was supplied pursuant to the provisions thereof.

      Held, that the relator was entitled to have its claims examined and audited by the officers of the city of Brooklyn and to enforce such duties by a writ of mandamus.
    In such mandamus proceedings it further appeared that the city officers of the city of Brooklyn stood in the place of the board of improvement of the town of New Utrecht, and that by the contract the board of improvement was charged with the duty of determining the quality of the gas furnished and the number and condition of the lamps lighted and burning during the period covered by the claims of the company.

      Held, that this duty involved the consideration of the evidence upon the subject, and the determination of the fact, including the amount actually due to the company for the gas furnished under the contract, which were in their nature judicial, and that a peremptory mandamus directing the mayor to draw and certify warrants upon the treasurer should not be granted, and that a peremptory mandamus should not be issued to the auditor of the city of Brooklyn commanding him to audit the claims presented by the gas company at specified sums and directing the mayor and comptroller of said city to approve said claims and to draw and certify warrants for said sums upon the city treasurer, but that a peremptory mandamus should be issued directing the comptroller and auditor forthwith to examine said claims and the auditor to certify to the services performed by the company and the value thereof according to the contract.
    Appeal by the defendants, Charles A. Sehieren, as mayor of the city of Brooklyn, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of April, 1895, directing that a peremptory writ of mandamus issue out of and under the seal of the Supreme Court directed to John R. Sutton, as auditor of tire city of Brooklyn, commanding liinr to audit tire claim presented by the relator, and directed to Charles A. Schieren, as mayor, and to George "W. Palmer, as comptroller of the city of Brooklyn, directing them and each of them to approve the said claim of the relator and to draw and certify a warrant upon the city treasurer for a specified sum.
    ■ Also, appeal by the defendants, Charles A. Schieren, as mayor of the city of Brooklyn, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the ■office of the clerk of the county of Kings on the 20th day of April, 1895, directing that a peremptory writ of mandamus issue out of and under the seal of the Supreme Court directed to John R. Sutton, as auditor of the city of Brooklyn, commanding him to audit ■the claim presented by the relator, and directed to Charles A. Schieren, as mayor, and to George "W". Palmer,* as comptroller of the city of Brooklyn, directing them and each of them to approve the said claim of the relator and to draw and certify a warrant ■.upon the city treasurer for a specified sum.

      Alfred E. Mudge, for the appellants.

      William J. Kelly, for the respondent.
   Brown, P. J.:

We have before us two appeals in proceedings entitled as above, both from orders directing that a peremptory mandamus issue to the .auditor of the city of Brooklyn, commanding him to audit the claims presented by the relator at specified sums, and directing the mayor and comptroller of said city to approve said claims and to draw and certify warrants for said sums upon the city treasurer.

The claims are for gas furnished by the relator to the town of New Utrecht pursuant to a contract made with the board of improvement of said town, and cover the two quarter years ending respectively June 30 and September 30,1894.

The town of New Utrecht was annexed to the city on July 1, 1894, and t’lie money raised by taxation to defray the expense of .supplying said town with gas for that year has been, pursuant to the provisions of said annexation act, paid over to the treasurer of said city and is now in his possession. (Chap. 451, Laws 1894.)

No question arises upon the papers before us as to the validity of the contract between the relator and the said board of improvement, nor is the fact denied that gas was supplied pursuant to the provisions of said contract during the periods named in the relator’s bills, and we are of the opinion that the facts clearly entitled the relator to hare the claims examined and audited by the officers of the city.

The contention of the appellants, that the relator should be left to pursue its remedy by action against the city, is clearly unsound. I think that no action at law could be maintained against the city upon the contract itself. The 4th section of the annexation act provides that “ the city of Brooklyn shall not be or become personally liable to pay any debt of the town of New Utrecht, or any part or body thereof, contracted- or incurred prior to the time this act shall take effect; nor shall any property within the limits of said city, as constituted’prior to the passage of this act, be taxed to pay any such debt, liability or obligation.” So far as the bills before the court are concerned, the money to pay them has been collected from the property of the town and paid over to and is now in the possession of the treasurer of the city. The bills must be paid from that fund, and it is held by the treasurer as a special trust. With reference to its disbursement the appellants had ministerial duties only to perform, and it is incumbent upon them to ascertain and inform themselves as to the terms of the coutract and to execute it with reasonable diligence. To the enforcement of such, duties the writ of mandamus is the proper remedy.

We are of the opinion, however, that the court erred in determining the amount at which the bills should be audited and paid.

It is a settled rule applicable to the remedy by mandamus that courts will not command an inferior tribunal or a ministerial officer to decide a question in a particular manner, when the duties which are required to be performed are in their nature judicial, and all acts which depend upon the decision of a question of law or the ascertainment and determination of a fact are considered judicial. In People ex rel. Francis v. Common Council of the City of Troy (78 N. Y. 33) the rule is stated as follows: “ The office of the writ of mandamus is in general to compel the performance of mere ministerial acts prescribed by law. It may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide' in a particular manner. It is not, like a writ of error or appeal, a remedy for erroneous decisions. (Judges of Oneida Common Pleas v. People, 18 Wend. 92-99, and cases cited.) This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.”

In Howland v. Eldredge (43 N. Y. 451) a mandamus was issued directing the defendants, who were assessors of the town of Spring-port, to make and swear to their affidavit that a majority of the taxpayers of said town, owning more than one-half of the taxable property therein assessed and appearing on the assessment roll, had duly assented in writing to the issuing of town bonds in aid of the construction of a railroad. This order was reversed in the Court of Appeals, Judge Gboveb saying, in his opinion, that however clearly it was made to appear to the court that the requisite consents had actually been obtained, a mandamus would not be granted to compel the assessors to make such an affidavit; that the power was given to them to examine the evidence upon the question, and it was upon their conclusions that the power to bond the town depended, and not upon that of any other tribunal; that, consequently, they could be compelled to proceed and determine the matter, but could not be conq^elled to decide in any particular way.

To the same effect are numerous authorities (People ex rel. Phœnix v. Supervisors, 1 Hill, 362; People ex rel. Myers v. Barnes, 114 N. Y. 317; People ex rel. Johnson v. Supervisors, 45 id. 196; People ex rel. Gardenier v. Supervisors, 134 id. 1); and it is said by a learned text writer that there is not a case where the Court of King’s Beueli lias ordered an inferior court to render a particular judgment.

The respondent cites the case of The People ex rel. Ready v. The Mayor & Common Council of Syracuse (144 N. Y. 63) as sustaining: the orders in this respect. In that case, however, the contract provided that the engineer should make up his final account of the work and return it to the common council duly verified by him, whereupon, the common council should review, and, when satisfactory, approve the same. Such a certificate had been given by the engineer, and had never been impeached or attacked by the city, and the court held that it was binding and conclusive upon all parties, and could not, in an application for mandamus, be assailed by the ministerial officers of the city. It will be observed that in that case it does not appear that the officers proceeded against had any duties to perform which were in their nature judicial, and it was not sought to enforce the performance of any such against them.

Of course, it is not claimed that the rule under discussion has any application to a case where the amount due to the relator is fixed by law or by the operation pf any provision of the contract.

In the case before us, the power of the court is limited to compelling the appellants to carry out and execute the terms of the contract with the relator, so far as duties in reference thereto have devolved upon -them by the annexation act. In respect thereto they stand in the place of the board of improvement of the town, and, if it appears from the contract that that board was charged with the determination of any fact which it is essential to ascertain in order to determine the amount due to the relator for gas supplied to the town, then we may compel the appellants to exercise their functions, but we cannot require them to determine that a particular amount is due and unpaid.

The contract contains the following provisions, which are material upon the questions under discussion. The party of the second part (being the relator) agrees :

“ Sec. 6. To furnish a fixed or permanent illuminating gas of such quality and supplied at such pressure as to secure the consumption throughout the entire town of New ITtreeht of the amount and quality contracted for, and which shall have an illuminating power of not less than twenty (20) candles when tested at the place of manufacture by the improved form of Benson photometer, using the most improved burner and standard candles.”
“7. To allow the party of the first part to ascertain at any time, by actual experiment', the rate of pressure, the size of burners, the .amount of gas supplied and the quality thereof, and any person authorized by the party of the first part shall be allowed to test the illuminating power of the gas at the works or office of the said party of the second part. * * * The party of the first part also reserves the right to test the quality, specific gravity and pressure of gas and size and capacity of the burners at any time and in any portion of the town, and the party of the second part hereby agrees to pay all expenses connected with or arising from such tests.”
8. In case of default in either the amount or quality of the gas supplied, from whatsoever cause, a corresponding reduction shall be made in the quarterly bills rendered.”
14. The number of lamps to be lighted as now estimated is five hundred, but the party of the first part reserves the right to increase the number of lamps to be lighted at any time, and the party of the second part hereby agrees to extend the mains as required from túne to time, and to receive, as full compensation for all gas furnished and services performed, an amount equal to the product of the number of lamps actually lighted multiplied by the price as stated in this contract for furnishing gas to each lamp.”

Section 16 is a timetable for lighting and extinguishing street lamps, varying for every fifteen days throughout the year.

“17. The party of the first part shall have power to employ inspectors, whose duties shall be to patrol the streets, avenues and highways, and report to the party of the first part the actual number of lamps lighted and the condition of lamps, posts, burners, glass and appurtenances, the actual number of and location of lamps unlighted and the reason therefor ; and the party of the first part is hereby authorized by the party of the second part to make pro rata deductions, when payments are made, for all unlighted lamps, and although the lamps may have been lighted, that shall not be considered any evidence that they continued to burn; and if, through the inspectors, lamps are reported unlighted during the hours fixed for lighting, deductions shall be made; it being the duty of the party of the second part to keep all lamps in such condition that they will continue to burn.”
“ 24. Upon the full and satisfactory completion of the work to be done under this contract and specifications, the party of the first part agrees to pay or cause to be paid to the party of the second part the sum of twenty-eight (28) dollai’s per lamp per annum for each and every lamp lighted and maintained in the manner hereinbefore provided for.”

It will be observed that the reports of the inspectors, as to unlighted lamps, is made binding upon the relator, but is not conclusive upon the board of improvement. Also, that deductions for failure to comply with any of the provisions of the contract are to be made by the board of improvement, when payments are made, which times by the 25th provision of the contract were fixed for the tenth days of April, July, October and January. One needs only to read these provisions of the contract to see that the board of improvement was charged with the duty of determining the quality of gas furnished, and the number and condition of lamps,lighted and burning during the period covered by any bill of the relator. This duty involved the consideration of the evidence upon the subject and the determination of the fact, including the amount actually due to.the relator for the services rendered under the contract. This duty has, by the annexation act, been devolved upon the officers of the city, and is to be performed in accordance with the provisions of the city charter. The method prescribed by the charter for the payment of bills against the city is substantially as follows: All claims must be presented to the comptroller of the city, specifying the details thereof, who may require the claimant to appear before him and be examined on oath, submit to his inspection all books, papers and documents in reference thereto. (§ 30 of title 22 of cliap. 583 of the Laws of 1888, as amended by chap. 568, Laws 1894.) It is the duty of the auditor to examine all bills presented against the city for payment, and no claim can be paid until he shall certify that the services have been rendered, and that the charges are reasonable or according to contract. (Laws 1888, chap. 583, tit. 5, § 1.)

Money is drawn from the treasury upon warrants signed by the mayor and comptroller jointly, and upon vouchers examined and allowed by the auditor and approved by the comptroller, examined and certified by the mayor. (Tit. 5, § 2; tit. 3, § 11.)

"We agree with the respondent that but one presentation of a claim against the city is necessary, and when a bill has been presented to the comptroller, and is in his possession, it is the duty of the auditor to examine it. How and when he shall obtain possession of it is a matter to be regulated in the finance department and is no concern of the claimant. In neither of the cases before us is it denied that the claims in suit were presented to the comptroller more than thirty days before the proceedings were instituted, and the failure of the auditor and comptroller to act upon them entitled the relator to a mandamus. But the duties which appellants are required to perform in reference to the relator’s bills are clearly judicial in their character, and they cannot be directed to audit or certify the bills at a particular amount. They are entitled to exercise their own judgment upon the evidence before them, and to determine therefrom the number of lamps for which the relator is entitled to be paid for the periods covered by its bills and to make the proper deductions therefrom.

It is also apparent from the provisions of the charter referred to that the orders appealed from cannot be sustained against the mayor. The examination of the bills, and the determination of the amounts due thereon by the auditor and the comptroller, precedes any duty imposed upon the mayor. Until the voucher is allowed by the auditor and approved by the comptroller he is not required to act, and cannot be declared to be in default, and it must be assumed that when a proper voucher is presented to him, he will examine and certify to it, and sign the necessary warrant for its payment.

The claim of the relator, that the mayor and comptroller should have signed a warrant for the bill for the quarter ending June thirtieth, upon .the audit of the board of improvement of the town, cannot be sustained. That claim was overruled by Justice OulleN on the first application for a mandamus, and we agree with his conclusion that the bill not being due until July first, the board of improvement had no power to aqt upon it.

The orders appealed from, so far as they direct the mayor to draw and certify warrants upon the treasurer, are reversed, and in other respects are modified so as to direct the comptroller and auditor forthwith to examine said claims, and tlie latter to certify to' the services performed by the relator, and the value thereof according to the contract, and as so modified the orders are affirmed, without costs.

In case No. 1, Dykman and Pratt, JJ., concurred.

In case No. 2, Dykman, J., concurred; Peatt, J., not sitting.

Orders reversed, so far as they direct the mayor to draw and certify warrants, and in other respects modified, so as to direct the comptroller and auditor forthwith to examine the relator’s claims, and the latter to certify to the services performed by the relator, and the value thereof under the contract, and as so modified affirmed, without costs.


source: Caselaw Access Project

author: Noah Davis, Referee:.

license: Public Domain

text:
    Peter De Witt, Respondent, v. Agricultural Insurance Company of Watertown, New York, Appellant.

      Fire insurance policy — construction of indorsements thereon — when cm agreemen\ that the policy shall he void if other insurance is obtained, does not apply — who is, the insured in a policy — when an insurance company is estopped from objecting U proofs of loss.

    Courts are bound to construe indorsements upon policies oí fire insurance in such manner as to give them full vigor and effect for the purposes for which they were made and intended.
    Upon the trial of an action brought to recover damages occasioned by a loss by fire under a policy of fire insurance, it appeared that the policy was issued by the Agricultural Insurance Company to one Lockwood who was then the owner of the property insured. Lockwood subsequently conveyed the property ta one Smith, and took from Smith a mortgage to secure the payment of a portion of the purchase price, and thereupon the insurance company, with full notice of that fact, made an indorsement on the policy as follows: “Warren E. Smith is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided, and loss, if any, first payable to Hanford Lockwood, mortgagee, as interest may appear. ” This policy contained the following clause: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered, in whole or in part, by this policy.”
    Afterwards, Smith contracted to sell the insured property to George E. Nichols, who entered into possession of the same under his contract of sale, and commenced making repairs to the same, but bad not received a conveyance oí the property. On December 22, 1892, Nichols applied to the Liverpool, London and Globe Insurance Company for insurance on the buildings, and obtained a policy which was in full force when the insured property was destroyed by fire. Five days after the issuance of the policy of insurance to Nichols, the Agricultural Insurance Company, at the request of Lookwood, made another indorsement upon the policy as follows: “ George' E. Nichols is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided.” This indorsement was obtained and made without the knowledge of Nichols at the time it was made.
    On January eleventh the insured property was wholly destroyed by fire, and in due season the proofs of loss were served by Nichols upon the Agricultural Insurance Company. These were kept and retained by the company without objection that they were not served by the proper party or were not proper in form or substance. Nichols was also the assignee of all the rights of Lockwood under sucli policy.

      Held, that Nichols occupied no such relation to the policy held by Lockwood as “ the insured" at the time he obtained the policy of insurance from the Liverpool, London and Globe Insurance Company; that he was no party to the contract, though he might be incidentally benefited by it if a loss had occurred and had been paid by the company to Lockwood under the indorsement then existing on the policy;
    That even though the indorsement made by the Agricultural Insurance Company five days after the issuance of the policy to Nichols by the Liverpool, London and Globe Insurance Company recognizing Nichols as the owner of the policy put him'at that time in the position of “ the insured," that could not operate to-make him “ the insured" as of the date when he took the insurance from the Liverpool, London and Globe Insurance Company; that the law gives no such retroactive effect to such an indorsement for the purpose of destroying a policy of fire insurance, although it will give such effect when necessary for the purpose of preserving from, that or similar consequences;
    That what the Agricultural Insurance Company did in recognizing Nichols as owner of the policy as well for his benefit as the benefit of Lockwood, the mortgagee and holder, must be construed as making Nichols “ the insured" as of that date, if at all, and not as bringing- him into that relation for the purpose of annulling the policy under the clause above mentioned;
    That Nichols was not the insured under the policy of insurance issued to Lockwood when he took the insurance in the Liverpool, London and Globe Insurance Company; that his act in taking that insurance did not vitiate the policy held by Lockwood; that the consent of the Agricultural Insurance Company to regard him as the owner of the policy by the indorsement subsequently made thereon had no other effect than to bring him into such relations as those reo gnized and accepted by the company afterwards when it received from him and retained the proofs of loss required by the policy to be made by the party-entitled to the insurance;

      That when Nichols took his policy of insurance in the Liverpool, London and Globe Insurance Company he had an insurable interest in the property by reason of his contract to purchase, which policy attached to such insurable interest and was not within the prohibition clause contained in the policy issued to Lockwood;
    That there was no such breach of the conditions of the policy by Lockwood or Smith or Nichols as justified the Agricultural Insurance Company in refusing to pay the loss;
    That the Agricultural Insurance Company was estopped from asserting that the proofs of loss were not served or made by the proper person, and that it was liable for the full amount of the loss under the policy without apportioning the loss with the policy issued to Nichols.
    Appeal by the defendant, the Agricultural Insurance Company of Watertown, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of September, 1894, upon the report of a referee.
    The action was brought to recover under a policy of fire insurance ; the fire occurred on January 11,1893, and the property was wholly destroyed.

      A. H. Sawyer, for the appellant.

      Theron G. Strong, for the respondent.
    Present — Brown, P. J., Dykman and Pratt, JJ.
   Judgment affirmed, with costs, on opinion of referee.

The opinion of the referee was as follows:

Noah Davis, Referee:.

This case is, in my judgment, distinguishable in its facts in some respects, from all the great number of cases that have been called to my attention by counsel or examined'by me.

No question is made or suggested but that the policy issued by defendant to 'Hanford Lockwood was a valid and obligatory instrument in his hands. It was made on the 27th day of June, 1892, and it is not suggested hut that every requirement and condition of the policy were then fully met and complied with. Lockwood was then the owner of the property insured. He subsequently sold and conveyed that property to one Warren E. Smith; and thereupon defendant, with full notice of that fact, made an indorsement on the policy in these words:

“ Warren E. Smith is now recognized as owner of this policy, and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided; and loss, if any, first payable to Hanford Lockwood, mortgagee, as interest may appear. Twenty thousand dollars incumbrance is hereby permitted.
“ Dated at N. Y. City, August 18th, 1892.”

Afterwards, and on the 23d day of November, 1892, Smith bargained and sold the insured property to George E. Nichols (who, it seems, took possession,and commenced repairing the buildings).

Mr. Lockwood still held the policy of insurance for the purpose of the security of his mortgage in case of loss, as permitted by the indorsement of the company. Afterwards, and on about the 27th of December, 1892, Lockwood applied to the defendant company, and presumably upon a statement of the existing facts, the company made another indorsement on the policy in these words:

“George E. Nichols is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless, to ail the rules and conditions of this policy, none of which are hereby waived or avoided.

Dated at N. Y. City, Dec. 27th, 1892.”

This indorsement was obtained and made without the hnowledge of Mr. Nichols at the turne it was made. Its obvious purpose was to keep the policy in full vigor for the benefit of Mr. Lockwood, to whom the loss, if any, was made payable by the former indorsement. Courts are bound to construe such indorsements in such manner as to give them full vigor and effect for the purposes for which they were made and intended.

In my judgment the manifest intent in this instance was to keep the policy in full force for the benefit of all concerned, as security for the payment of the mortgage held by Mr. Lockwood, and that necessarily involved the benefit of the property owner

It is shown that at the time of the making of this indorsement Mr. Nichols, .the purchaser' of the property from Smith, did not know of the indorsement then made on the policy, and is of course not chargeable with any misrepresentation, if any were made; but it is not alleged or claimed that there was any fraud or misrepresentation on the part of any one.

On the 22d day of December, 1892, Nichols (who had entered into* possession of the property purchased from Smith and 'was engaged in making repairs, etc., but had not yet received a conveyance) applied to the Liverpool, London and Globe Insurance Company for insurance on the buildings, and obtained a policy in the sum of §3,500 on the dwelling, and $1,500 on the stable, which policy was in full -effect when the insured property was destroyed by fire.

This insurance, it will be observed, was obtained by Nichols fioe days before the indorsement last above set forth was made by the defendant upon the Lockwood policy. The original policy of defendant contains a clause in these words: “ This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether Vahid or not, on property covered in whole or in part by this policy.”

Such a condition is to be strictly construed because of its severe nature as a penal one. It will be observed that it only applies by its terms to “ the insured,” that is, the person actually occupying the position of “ the insured ” under defendant’s policy at the time the policy issues, or at the time the additional insurance is taken.

On the 22d day of December, 1892, Nichols occupied no such relation to the policy held by Lockwood as “ the insured.” lie was then no party to the contract, though he might be incidentally benefited by it if a loss had occurred and been paid by the company to Lockwood under the indorsement then" existing on the policy.

What his equities may have been, if any, in that regard, is not shown. Dut it does appear with absolute certainty that on the 22d day of December, 1892, when he took out the policj^ of the Liverpool, etc., Company, ho was not “ the insured” under the policy of defendant. No forfeiture could, therefore, attach by reason of the act of Nicliols in taking the new insurance, nor could the rights of Lockwood be destroyed or impaired by such act on his part under the then condition of the policy.

But if it be granted that the indorsement made by the company five clays afterwards on the policy recognizing Nichols as the “owner of the policy ” put him at that time in the position of “-the insured,” that could not operate to make him “the insured” as of the date when he took the Liverpool insurance, because the law will not give any such retroactive effect to the indorsement for the purpose of destroying the policy. Such an effect is never given to such acts' for the mere purpose of destruction, though often given when necessary for the purpose of preserving from that or similar consequences.

What the company did, therefore, in recognizing Nichols as owner of the policy as well for his benefit as the benefit of Lockwood, the mortgagee and holder, must be construed to make Nichols “ the insured” as of that date, if at all, and not as bringing him into that relation for the purpose of annulling the policy under the clause now considered.

If Nichols at that time became “ the insured,” the only consequence would be his responsibility as such for future breaches on his part, if any occurred, of the provisions of the policy.

The gravest injustice would result from regarding him as “the insured” five days before the company consented to regard him as the owner of the policy, and holding that by the very act of so accepting him, the company entitled itself to nullify its policy for something done by him before he became “ the insured,” or liad been accepted as the owner of the policy.

In my opinion, therefore, Nichols was not “ the insured ” under the policy in suit when he took the insurance in the Liverpool Company; and that Ms act in taking that insurance did not vitiate the defendant’s policy; and that the consent of defendant to regard him as the owner of the policy by the indorsement subsequently made on the policy had no other effect than to bring him into such relations as those recognized and accepted by the defendant afterwards, when it received from him and retained the proofs of loss required by the policy to be made by the party entitled to the insurance.

But another answer to this defense is found in the fact that when Nichols took his policy in the Liverpool, etc., Company, he hacl an insurable interest in the property by reason of his contract with Smith of purchase and sale, and agreement to convey at a fixed day, accompanied by possession, etc. That policy must be held to attach to sncli insurable interest, and not to be within the clause of defend' ant’s policy now under consideration.

In Adams v. Greenwich Insurance Co. (9 Hun, 45) one of the defenses was that plaintiff could recover, if at all, “ only fro rata with another policy; that is, two-thirds of the amount of loss.”

The court held that other insurance mentioned in such a clause “ does not include an insurance made by a mortgagee upon his interest as such ” (Id. 48), and the court cited with approval, amongst other cases, Acer v. Merchants’ Insurance Co. (57 Barb. 68).

In that case the language was :

“The plaintiff’s policy has this condition, 'if the assured, or any other person or parties interested, shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire, on the property hereby insured, not consented to by this, company,’ &c., then this insurance shall be void and of no effect,’ &c. This is a general provision, and the question is, whether the ‘other persons or parties interested,’ specified in the condition, refers merely to parties interested in the plaintiff’s insurance, or to^ other parties who may have a different interest in the property from that held and owned by the plaintiff, and who may obtain insurance upon their interests in the same property. I am clearly of the opinion that the condition is limited to the former class, and that it was not the understanding or intention that any other person who might have a separate interest in the property, and not connected in interest with the plaintiff, and having no interest in his insurance, might avoid the plaintiff’s contract by obtaining an insurance of his own interest in the property without the plaintiff’s knowledge or consent. * * * I think the interpretation I have adopted is not only more in consonance with justice, but with the rules of language. By this rendering, the parties interested’ is construed to mean those interested with the plaintiff in his contract, instead of outside persons who might have some distinct and separate interest in the property. The same construction was given to similar language in the case in 12th and 16th Wend., before cited, and also in The Mutual Safety Insurance Co. v. Hone (2 N. Y. Rep. 235). In that case such words were held to apply only to a double insurance of the same interest.”

The question in that case, it would seem, was quite analogous to the one now under consideration, and the court there held that the plain tiff’s policy in that case was not affected by a policy issued to one Curtiss, to whom the plaintiff had contracted to sell the property. Curtiss occupied the same relation to the property in that case as that in which Nichols stood at the time he took the insurance in the Liverpool Company.

The case of Adams v. The Greenwich Insurance Co. was after-wards affirmed by the Court of Appeals (10 N. Y. 166), the court distinctly concurring with the opinion of Judge Learned on the question now under consideration.

The case of Sanders v. Cooper (115 N. Y. 279) is not hostile to these views. The main question in that case was as to the effect of a provision avoiding the policy in suit if a prior insurance existed when it was issued and that fact was not disclosed. The effort was to avoid the effect of that condition, when it appeared that there was a prior insurance, by showing that the agent who took the policy was put upon inquiry, or might by the exercise of diligence have ascertained the truth ” as to the existence of such former insurance. The court held that this was no answer to the defense. No such question is in this case. Another defense in that case was that the building burned was not the one described in and insured by the policy. The court held it not competent to show that the building destroyed was the one intended to be described in the policy, and that by mistake another which was not intended to be insured was the one described. The contract was held to be conclusive upon that question. I am at a loss to see any controlling bearing of that case upon the one now under consideration.

Nor in my opinion is the case of Moore v. H. F. Insurance Co. (141 N. Y. 219) decisive of the questions here involved. In that case the court held that notice to an agent that an action of foreclosure of a mortgage of the insured premises was about to be commenced, and his verbal assent thereto, did not constitute a waiver of a provision of the policy in a case where the policy provided that “no officer, agent or other representative * * * shall have power to waive cmy proviston or condition of this policy * * * unless such waiver, if a/ny, shall he written upon or attached hereto.” * If this case be within the ruling of the court in Moore v. H. F. Insurance Co., my duty is veiy plainly to follow and apply the ruling in that case, which I should certainly do for two reasons : First, because it is the decision of the court of last resort; and, second, it is manifestly correct in law.

The difference between that case and the present is that the waiver or change in the policy alleged in that case was not indorsed upon the policy as required by its plain terms; in this case the indorsements upon the policy were made by a competent officer, and the question is upon the effect, force and meaning of such indorsements.

If the indorsements can be legally or equitable construed to sustain the alleged liability of the defendant for the loss of the property insured, in my judgment they clearly ought to be so construed.

Their construction must be made in the light of the surrounding circumstances and with a view to seeing what the parties intended to accomplish by them.

"When the first indorsement was made, to wit, that of August 18, 1892, Lockwood, the insured owner of the property, had sold the same to Smith, but wished to keep the policy alive and in full force so that Smith should be its owner, but in case of loss it should be first pa/yable to himself as mortgagee as his Interest might appear. To carry this desire of Lockwood into effect was manifestly the purpose and intent of the indorsement, both on the part of Loek-vood and of the company. Examine carefully the language of the indorsement.

“Warren E. Smith is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided,-and loss, if any, first payable to Hanford Lockwood, mortgagee, as interest may appear. Twenty thousand dollars incumbrance is hereby permitted.
“Dated at N. Y. City, August 18th, 1892.
“C. PATTERSON & SON, Geril Agents.”

No question is made that this indorsement is not to be deemed the act of the company. It is, therefore, the defendant’s act, and it is to be carried into effect by the court giving to it such construction as will fully accomplish its manifest intent and purpose.

If to do so requires changes in the policy, consistent with law and competent for the parties to make, they are to be made or to be deemed made, as the legal rights and the equities of the parties require. Lockwood is to be recognized and deemed not as owner any longer, but as mortgagee of the insured property, which may be incumbered by the present owner to the amount of $20,000. (A mortgage to that amount doubtless then covering tliis with other parcels of land.) Smith is to be recognized as the legal or equitable owner of the policy, subject, of course, to Lockwood’s right to receive the loss, if one occurs, and the insurance is to remain mutatis mutandis, as though originally made in that form. All rules and conditions of the policy are kept in full force, except as necessarily modified or changed by these new relations.

Afterwards Nichols became a purchaser of the premises from Smith, subject to the mortgage of Lockwood. He entered into, possession under his contract of purchase and commenced making repairs. His contract of purchase gave him immediate possession as owner, but the conveyance ivas to be made to him at a later date, which happened to be a short time after the fire.

When these things occurred Mr. Lockwood again applied to the general agents of the company, who made this indorsement upon the policy:

George E. Nichols is now recognized as owner of this policy and the property mentioned as insured hereiuunder, subject, .nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided.
“ Dated at N. Y. City, Dec. 21th, 18SL2.'
“ C. PATTERSON & SON, CPI AgmtsP

This was done at the request of Mr. Lockwood, still holder of the mortgage secured by the policy, with the full assent of the company. There was no intent to deprive Lockwood of that security or his rights under it, but, on the contrary, to maintain and protect his rights, and his title to receive payment of any loss that might occur. Its legal and equitable effect and object were to recognize the change of ownership, legal or equitable, of the assured property, in such form and with such force as should continue the policy as a valid instrument, notwithstanding, and subject to,the change in ownership of the property and in the relations of the parties to it, and toward the policy. The purpose was to keep alive the insurance in full force and effect for the benefit of Lockwood as mortgagee, and Nichols, the new purchaser, notwithstanding the changes made in the ownership of the property.

This new consent was procured by Lockwood and delivered to him ; its purpose was to have Nichols substituted, as owner of the property and of the policy, for Smith, and to maintain in full vigor the rights of Lockwood as mortgagee, entitled to receive the proceeds in case of loss, and whatever stood in the way of those objects was to be modified or removed, so that the intended purpose would be accomplished. No deception was practiced to mislead or deceive the defendant,on the part of either of the persons concerned.

It has already been shown that Nichols had previously applied and taken out a policy in another company for the sum of $3,500, before he became the owner of the defendant’s policy with its consent, or had any legal right therein as the insured in law or equity. This act could not avoid the policy of defendant of which Smith had been, by the company’s consent, made owner, with loss, if any, payable to Lockwood.

The act of Smith in contracting to sell to Nichols the insured property did not, and could not, operate to make Nichols the insured. He held the property only by contract of sale and purchase to be consummated by subsequent conveyance, and the indorsement of the company recognizing him as owmer of the property and policy is satisfied by his equitable relation and ownership, since the sole purpose was to keep in life and vigor the right of Lockwood to receive as mortgagee the proceeds of any loss.

If the indorsement on the policy did not have that effect it had none, but left Lockwood’s rights under the first indorsement in full force, unimpaired by any act Nichols had done, either in taking out the policy in the Liverpool Company or in making the contract of purchase and sale.

There was, therefore, no such breach of conditions of the policy, either by Lockwood or Smith or Nichols, as justified the defendant in refusing to pay the loss.

Another defense strenuously urged is that the proofs of loss were not served on defendant by the proper party. The policy requires such proof to be served by the insured within a prescribed period.

In due season the proofs of loss were served by Nichols. These proofs were kept and retained without objection that they were not served by the proper party, or were not proper in form or substance.

Under the circumstances of this case, I feel bound to hold that the . defendant is estopped by receiving and keeping these proofs from Nichols, in' the manner and form shown, from asserting that they were not served by the proper party, or that Nichols did not occupy a relation to the company which entitled him to make whatever service of proofs of loss were requisite to give his claim a-standing in court under the policy. The company by its own act had put Nichols in a position where his equitable rights were, in my opinion, such as entitled him to serve the proofs.

So far as affects this question, the company had made Nichols “ the insured ” when they recognized him as owner of the policy and property,” the loss, if any, to be paid upon the obligation to Lockwood which he had assumed and which was a lien on the insured property.

Nichols was also the assignee of all the rights of Lockwood to recover in this action, and may, as such assignee, assert all those rights. His own rights were so connected with those of Lockwood that his action, in making and serving proofs of loss under the circumstances, Lockwood could assert, under the consent of the company indorsed on the policy, as a basis of his own right to collect the loss. Under such circumstances, the company is estopped from asserting that the proofs, etc., we^p not served or made by a proper person. If they had been refused or returned in proper season on any ground of that kind, they could have been renewed by another party also in interest.

If these views be right, the defense wholly fails in respect to the several questions discussed.

It is insisted, however, that there was a fraudulent overvaluation of the loss sustained in the claim presented.

This is a question of fact upon the evidence. I am of opinion that such alleged fraud is not proven. The assured procured a valuation by competent persons, whose testimony shows that it was made in good faith. My finding upon the evidence must be against the alleged fraud.

The only remaining question is the amount plaintiff is entitled to, recover.

This question depends upon one already considered, to wit; whether the policy taken by Nichols in the Liverpool, etc., Company was upon the same interest insured to Lockwood. In its bearing upon another question that point has already been considered. His policy was upon a different interest, and it seems clear that the company could not compel Lockwood, had he been plaintiff suing as mortgagee, to apportion his claim by any policy Nichols had taken in another company upon the interest he had acquired in the property.

Nor do I think that Nichols on becoming, with the consent of the company, the owner of the policy issued to Lockwood, subject to Lockwood’s claim to receive any loss thereon, as mortgagee, subjected that policy to diminution under the clause relied upon. That was. not the intention of any of the parties, and is not the necessary effect or construction of their acts.

The plaintiff is assignee of Lockwood’s interests as well as of those of Nichols in the Lockwood policy. He is entitled to recover the full amount, to wit, $6,000 and interest, amounting in all to $6,510, with costs. Judgment is directed accordingly.


author: Brown, P. J.:

text:
    The People of the State of New York ex rel. Michael J. Dady, Appellant, v. The Supervisor of the Thirty-first Ward of the City of Brooklyn, formerly the Town of Gravesend, Respondent.

      Mdndamius — when it will not be granted, to compel a municipal corporation to issue bonds — grading commissioners of Gravesend — when their appointment is invalid.

    The court will not grant a mandamus to compel the issuance hy a municipal corporation of bonds to pay for a public improvement if it is apparent that a serious question will arise as to their validity.
    In a proceeding instituted by mandamus to compel the supervisor of the thirty-first ward of the city of Brooklyn, formerly the town of Gravesend, to issue bonds of the town in compliance with, the provisions of chapter 118 of the Laws of 1893, as amended by chapter 171 of the Laws of 1893, it appeared that the relator was engaged in the work of grading Neptune avenue, in the town of Gravesend, under a contract entered into with the grading commissioners of said town; that the power of directing such improvement was committed by the Legislature to the board of supervisors of Kings county, and that on June 13, 1893, by a resolution of said board, authority was given to open and grade the avenue “from West Sixth street to the westerly line of old lot 47, excepting that portion between Shell road and West Eighth street.”
    ■This resolution provided for the appointment of opening commissioners to estimate and award damages to the owners of property taken for the street, and to assess the same upon the property benefited, and that the report of the commissioners should be confirmed by the court after due notice to all parties concerned.
    It also further provided that, after the confirmation of the report of the opening commissioners, the supervisor of the town of Gravesend should appoint three grading commissioners, who were empowered to cause the street to be graded, constructed and improved as a public highway, and to assess the expense thereof upon the lands and premises which, in their judgment, should be benefited by the improvement, which report was required to be confirmed in the same manner as the report of the opening commissioners.
    The report of the grading commissioners in this case stated that they were appointed by the supervisor of the town for the grading and improvement of the avenue from West Fifteenth street to the westerly line of old lot 47, and it appeared that they were not appointed as such commissioners for that portion of the avenue between West Sixth street and West Fifteenth street.

      Held, that the supervisor of the town of Gravesend had no power to appoint the commissioners except in strict accordance with the resolution of the board of supervisors, passed June 13, 1893; that such supervisor had no power under such resolution to appoint grading commissioners for a part of the street, and that such appointment and all proceedings thereunder, including the contract for the doing of the work, were void;
    That the order confirming the commissioners’ report did not cure such defect in ■ the proceedings, the error being jurisdictional and the order of confirmation not affecting the order of appointment.
    Appeal by the relator, Michael J. Dady, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of April, 1895, denying his motion for a writ of peremptory mandamus.

      James C. Church, for the appellant.
    H. B. Hubbard, for the respondent.
   Brown, P. J.:

Tlie relator, under a contract with grading commissioners, is engaged in the work of grading Neptune avenue in the town of Gravesend, and seeks a peremptory mandamus to compel the respondent, as supervisor of said town, to issue bonds of the town in compliance with the provisions of chapter 118 of the Laws of 1892, as amended by chapter 111, Laws of 1893. The power of directing the improvement in question was committed by the Legislature to the supervisors of Kings county, and on June 13, 1892, by a resolution of said board, authority was given to open and grade the avenue “from West Sixth street to the westerly line of old lot 41, excepting that portion between Shell road and West Eighth street.” The resolution provided for the appointment of opening commissioners to estimate and award damages to the owners of lands, buildings and other improvements taken for the street, and to assess the same upon the property benefited, and that the report of said commissioners should be confirmed by the Supreme Court or County Court of Kings county after due notice to all parties inter-estec[. It further provided that after the confirmation of the report of said opening commissioners the supervisor of the town should appoint three grading commissioners, who were empowered to cause the street to be graded, constructed and improved as a public highway, and to assess the expenses thereof upon the lands and premises Avhicli in their judgment should be benefited by the improvement, and the report of the grading commissioners as to such assessment Avas required to be confirmed by the court in the same manner and upon like notice as the report of the opening commissioners.

The report of the grading commissioners, which is attached to and made a part of the affidavit of the respondent, states that they were appointed by the supervisor of the toAvn for the grading and improvement of the avenue from West Fifteenth street to the westerly line of old lot él, and it appears that they were not appointed as such commissioners for the portion of the avenue between West Sixth street and West Fifteenth street.

The supervisor had no power to appoint commissioners except in strict accordance with the resolution of the board of supervisors. The resolution of the board established the procedure to open the street, and alone conferred jurisdiction upon the supervisor to act, and tbe intent of tbe resolution of June thirteenth was to open and grade tbe whole street as therein designated in one proceeding, and tbe expense thereof was to be assessed upon tbe lands and premises benefited by tbe improvement as a whole. To divide tbe street and grade it in sections and make a separate assessment of the expense of each section upon property benefited by that section might work great injustice, and would be in direct conflict with the resolution of the board of supervisors, and overthrow absolutely the intent of the board in the assessment of the expenses of opening the street.

We are of the opinion, therefore, that the supervisor of the town had no power, under the resolution of June thirteenth, to appoint grading commissioners for a part of the street, and that such appointment and all proceedings based thereon, including the contract with the relator’s assignor, were void. The order confirming the commissioners’ report did not cure this defect in the proceedings. The error was jurisdictional, and the order of confirmation does not reach the order of appointment. Its validity was not necessarily a question before the court on the motion to confirm the commissioners’ report. The appellant contends that this defect was cured by a subsequent resolution of the board of supervisors, passed December 12, 1892. That resolution changed the location of Neptune avenue between West Sixth and West Fifteenth streets by shifting it forty feet to the south. The northerly part of the original street was to be closed, and the resolution provided for proceedings to acquire title to the land included in the new strip. It did not establish a new proceeding for the grading of the full width of the avenue between the streets named. In terms it is made applicable only to the southerly one-half of the avenue as changed. Section 1 of the resolution provides for the opening of the southerly one-half * * * as thus changed, and the closing of the northerly one-half as opened.”

Section 2 provides for the appointment of three opening commissioners for the purpose of opening said southerly one-half of Neptune avenue.” And section 18 provides for the appointment of three grading commissioners who shall enter upon the lands and premises taken for said avenue as aforesaid and cause the same to be graded.”

There is no reference in this resolution to the resolution of June thirteenth, and no refei'ence to any other proceedings or lands taken for the street, and the words’ “lands and premises taken for said avenue as aforesaid,” plainly have reference to the lands named in section 2, viz., “ the southerly one-half of the avenue as changed,” and which were to be taken for said avenue by the opening proceedings provided for in that and subsequent sections of the resolution. The effect of the resolution of December twelfth was, therefore, to repeal the prior resolution of June thirteenth only so far as it applied to the northerly one-half of the avenue as opened, but left it in full force as to the southerly one-half as opened. And it provided an entirely new proceeding for the opening and grading of the southerly one-half as changed.

The appointment of the grading commissioners with whom the relator’s contract was made should, therefore, have included the northerly half of the avenue as changed between Sixth and Fifteenth streets, and that omission is fatal to the validity of the relator’s contract.

It is very likely that there would have been practical difficulties in the way of grading the avenue between the streets named and assessing the expense thereof upon the property benefited in two separate proceedings. But such difficulties arise from the resolutions of the board of supervisors, and that body is the only tribunal that can correct them.

The bonds, which it is sought to compel the respondent to issue, are, by the statute authorizing them, made payable out of the assessments for grading the street, and the court should not issue a mandamus to compel their issue, if it is apparent that a serious question would arise as to their validity.

The order must be affirmed, without costs.

Dykman and Pratt, JJ., concurred.

Order affirmed, without costs.


author: Dykman, J.:

text:
    Roxanna Kelley, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York and Michael T. Daly, as Commissioner of Public Works of the City of New York, Respondents.
    Nuisances— their hinds and, the abatement thereof — no right to maintain a public nuisance can be obtained by prescription — rights of riparian owners in streams — chap. 189 of 1893 — not in violation of the Constitution of New York or of tJie United States — the commissioner of public works of New York eity can abate nuisances under said act.

    Nuisances are of three kinds: public, private and mixed. They are public when they violate public rights and produce a common injury. They are private when the injury resulting from them violates only private rights and produces damage to a few persons only. Mixed nuisances are those which are both public and private in their effect, public because they injure many persons, hud private in that they also produce special injury to private rights.
    In the State of New York no person can obtain a prescriptive right to maintain a public nuisance.
    The abatement of a nuisance detrimental to public health is one of the ordinary functions of the police power of the State.
    It is the legal right of every riparian proprietor to have a stream of water, which passes through his land, flow in its natural condition, with its channel unchanged and its purity unimpaired.
    Upon the trial of an action brought to restrain the commissioner of public works of tbe city of New York from further interfering with the property of the plaintiff, it appeared that the plaintiff was the owner of about 100 acres of land, through the westerly portion of which ran the middle branch of the Croton river; that said stream was embraced within the watershed of the valley of the Croton river, from which was derived the water supply of the city of New York, and that so far as property rights can be acquired in water actually appropriated to practical use' for domestic and other purposes, such right had been acquired in the waters of the Croton river by the city of New York ; that plaintiff’s barn and horse stable were on the east side of the stream, in close proximity to the bank, and her house was on the west side of the stream a short dis. tance from it; that the drainage of her house, including that of the water closet, was let into the stream by a soil pipe and was emptied there, and had been for many years; that the commissioner of public works of the city of New York directed the removal of the barnyard, stables, etc., upon the premises of the plaintiff, and caused a cesspool to be constructed upon her land, and the soil pipes to be conducted into the cesspool, so that the drainage from the house would run into it and not into the stream.

      Held, that the plaintiff could not acquire a right by prescription to drain into the stream ; that she had created a public nuisance, which the commissioner of pub-lie works of the city of Hew York was authorized to abate by chapter 180 of the Laws of 1898, which authorized him to take such measures as might be necessary to preserve from pollution all the sources of the water supply of the city of Hew York, and at any time within three years to enter upon all lands contiguous to any such source, and abate and remove the cause of any such pollution; that the objection to said act, that it undertook to vest the title to the property taken or injured in the city of Hew York before the granting of the final order for the confirmation of the report in the condemnation proceeding provided for in said act, was untenable, as a certain and adequate provision was made, by which the owner could obtain compensation through the judicial tribunals or otherwise, without unreasonable delay; that said statute was a valid exercise of the legislative power, and was not violative of the Constitution of the State of Hew York or of the United States.
    Appeal by tbe plaintiff, Roxanna Kelley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Putnam on the 27th day of April, 1894, upon the decision of the court, rendered after a trial at the Putnam Special Equity Term, dismissing the plaintiff’s complaint upon the merits.

      A. S. Hutchins, for the appellant.

      Francis M. Scott, Theodore Connoly and T. Farley, for the respondents.
    Present.— Brown, P. J., and Pratt, J.; Dykman, J., not sitting.
   Judgment affirmed, with costs, on opinion at Special Term.

The opinion of the Special Term was as follows:

Dykman, J.:

The water supply of the city of New York is derived entirely from the valley of the Croton river. The watershed embraces an area of about 300 square miles in extent, and is drained by the three branches of the Croton, designated as the eastern, middle and western. These branches unite in the upper part of Westchester county, and the river runs on for several miles until it receives the Muscoot river, which brings the water from Lake Mabopac and then it flows into Croton lake.

"When it had been determined that the valley of the Croton should be utilized for the procurement of water for the municipality the Legislature passed a law authorizing the city to acquire title to land by right of eminent domain for the construction of a dam and reservoir at the southerly end of the watershed for the impounding of the water, and an aqueduct to convey the water to the city under that legislative authority; the dam, aqueduct and reservoir were constructed and the title, to the land covered by water was acquired. The reservoir is known as Croton lake It is a narrow crooked body of water-about four miles in length. The different branches of the Croton are augmented by numerous smaller streams, and upon their banks and along the sides of the three branches are barnyards, privies, pigsties, and other places where filth is collected and washed into the streams.

These places for the collection and deposition of filth and putrefaction became so numerous and so extensive and. so polluted the water as to cause a great alarm and anxiety among the inhabitants of the city.

Scientific and medical skill united in declaring the danger to health and life very great and very imminent, and in addition to the demand for the adoption of some measure which might avert the peril by the removal of the cause, the Legislature of the State, in March, 1893, passed an act entitled “ An act to provide for the sanitary protection of the sources of the water supply of the city of New York.” (Chap. 189, Laws of 1893.)

By section 1 of that act it was made lawful for the commissioner of public works of the city of New York to acquire or take in the manner thereinafter set forth title to all real estate and acquire or extinguish any interest therein of which the acquisition, taking or extinguishment might be necessary for the sanitary protection of all rivers and other watercourses, lakes, ponds and reservoirs in the counties of Westchester, Putnam and Dutchess, so far as they then were or thereafter might be used for the supply of water for the city of New York.

The mode of acquiring title and the extinguishment .of interests is prescribed in the law from section 2 to section 26 inclusive, and they are the usual constitutional methods. By section 27 of the act the commissioner of public works is authorized to take such measures as may be necessary to preserve from pollution and defilement all the sources of the water supply in the three counties already mentioned and to enter upon all lands near or adjacent or contiguous to any of the sources of water supply and. to abate and remove tbe cause of any snob pollution or defilement. All damages and. injuries to property occasioned by any act under that section were to be ascertained and paid in accordance with the provision of the previous section of the act.

The plaintiff in this action owns about 100 acres of land in the town of Carmel, and the middle branch of the Croton runs through the westerly portion of her farm from north to south. Her barn and horse stable are on the east side of the stream, in close proximity to the bank, and her mansion is on the west side of the stream, a short distance from it. The drainage of her dwelling house, including that of the water closet, is let into the stream by a soil pipe, and is emptied there, and has been for many years.

Upon the ascertainment of such facts the commissioner of public works directed the removal of the barnyard, stables, pigsties and outside privies upon the premises of the plaintiff, and caused a cesspool to be constructed upon her land and the soil pipes to be conducted into the cesspool, so that the drainage from the house would run into it.and not into the stream of water.

Thereupon the plaintiff commenced this action for the purpose of restraining the city and its officers from further interference with her property.

The action is based upon the theory of the unconstitutionality of the act of 1893, already mentioned.

It will be profitable to ascertain the rights of these parties prior to that statute.

It is the legal right of every riparian proprietor to have a stream of water which passes through his land flow in its natural condition, with its channel unchanged and its purity unimpaired.

Such a right was vested in and pertained to the city as the owner of the bed of Croton lake and the banks by which it was environed. That lake is, in fact, a running stream, through which 100,000,000 of gallons of water run daily in its onward progress to the city.

The pollution of the water by the sewage from the plaintiff’s house and the wash from the outbuildings was an invasion of the rights of the city, and also constituted a nuisance.

Nuisances are of three kinds, public, private and mixed. They are public when they violate public rights and produce a common injury; when they injure or annoy that portion of the public which necessarily comes in contact with them. They are private when the injury resulting from them violates only private rights, and produces damage to a few persons only.

Mixed nuisances are those which are both public and private in their effects; public because they injure many persons or all the community, and private in that they also produce special injnry to private rights. (Wood on Nuisances, 22.)

It is not always easy to determine the class to which any given injury is to be designated.

In this case it is plain that the injury is not a mere private nuisance.

Its injurious effects and.fatal consequences fall upon all who use the polluted water, and that may include not only the million and a half inhabitants of the city, but all who visit there.

The nuisance created and continued by the plaintiff is either public or mixed, and, in my judgment, it is public, because it corrupts and poisons water which all have a right to use. It is in its nature and consequences an injury to all who come within the sphere of its operations, and that may be millions of human beings.

The question is only important in reference to the right of the plaintiff to prescribe for the nuisance, for in this State no person can obtain a prescriptive right to maintain a public nuisance. (Wood on Nuisances, 743.) It is presumed the same rule applies to a mixed nuisance as that is in one sense public.

I think, therefore, that the plaintiff cannot acquire a light by q>re-scription to drain into this stream.

But even if she can, she has not introduced proof sufficient to. establish the same.

To do that it was necessary for her to show that her use of the stream has actually invaded the rights of the defendant, and that the use and invasion of the right have produced an injury equal to and of the character complained of. (Wood on Nuisances, 726.)

The fact that a noxious trade or a harmful use has been continued for twenty years does not establish a prescriptive right to its exercise.

It must be shown further by the party asserting the right that for the entire period tlie pollution has been as vile and extensive as that complained of, and further, that the user, at the time of the action,, is not substantially in excess of that exercised during the period requisite to acquire such right. (Wood on Nuisances, 726, 728.)

In no view, therefore, has the plaintiff established any prescriptive right to defile the water in question.

This plaintiff holds her property in subordination to the rule of law which requires her so to use it as not to interfere with the rights of her neighbor. That rule is the foundation of the police power of the State, which authorizes the Legislature to pass laws for the protection of the health and safety of the public, a power sufficient to warrant the destruction of property for the protection of the public health without compensation. (Van Wormer v. The Mayor, 15 Wend. 262; Meeker v. Van Rensselaer, Id. 398.)

Prior to the interference of the municipal authorities the house sewerage from the residence of the plaintiff, including human excrement, was drained into the middle branch of the Croton river. These discharges from the human system are very poisonous, and the sewage is poisonous if taken into the stomach. According to the testimony in this case it is a germ carrier, that is, it carries disease germs-from the human system to the water; that these germs have the power of multiplying in the water, and a small number of them, added to a large quantity of water, will serve to infect the entire large body of water. It is, therefore,’ one of the most dangerous sources of pollution.

The plaintiff insists that the commissioner of public works has no power to interfere with the plaintiff, a citizen of Putnam county, in the enjoyment of her right to drain her premises into the running stream, but that contention is faulty, first, because the plaintiff never had the absolute right free from all restriction to drain her sewage into the stream as I have already stated. '

In the next place it is not the commissioner of public works who is interfering. It is the Legislature of the State that has interfered for the preservation of the public health.

The case is novel. The city of New York has acquired the right to conduct the waters of the Croton river to that city for public use, and in all the statutes providing for the acquisition of land or the extinguishment of riparian rights it has been the declared purpose of the Legislature to furnish the city of New York with a supply of pure and wholesome water.

It must be assumed, therefore, that the city has the right to the water in its purity, free from all defilement, free from all pollution, and fit for all domestic uses.

It may be assumed that millions of people use this water in the city .every year and thus the public health and safety was jeopardized to an extent that justified the interposition of the Legislature by virtue of the police power of the State to arrest the evil.

The abatement of a nuisance detrimental to public health is one of the ordinary functions of the police power of the State, and the nuisance created by the plaintiff is of a flagrant character. The power is, therefore, adequate to afford an effectual remedy. (Renwick v. Morris, 7 Hill, 575; Fertilizing Co. v. Hyde Park, 97 U. S. 667.)

The enormity of the offense will be more readily discerned if it be assumed that all the riparian proprietors within the Croton watershed have the right to commit the same nuisance as the plaintiff has perpetrated and that the water is sent to the city freighted with the seeds of disease and death with which it would be thus impregnated. The disastrous, results can hardly be conceived by the imagination.

It is from an apprehension of such evils and in order to preserve the public health and to avert the danger to human life that the Legislature has interfered for the sanitary protection of the sources of the water supply in the counties named. It is because the entire public is concerned.

The commissioner of public works is selected as the appointed executor of the statute probably because he has the requisite machinery at his command for its.execution.

There seems, therefore, to be sufficient reason for permitting the commissioner of public works to execute this law in the counties named therein.

As I have already said, it is the State which has interfered for the sanitary protection of - the sources of the water supply of the city, and has authorized the commissioner of public works to take such measures as may be necessary to preserve from pollution and defilement all the sources of the water supply, and at any time within three years to enter upon all lands contiguous to any such source of supply and abate and remove the cause of any such pollution or defilement.

Then follows a provision for compensating all damages and injuries to property occasioned by any act under that section of th'e statute, and the commissioner of public works is required to institute proceedings under the provisions of that act within ten days to ascertain the damage and in jury to property occasioned by the abatement of the causes of pollution.

If such proceedings be not so instituted, then any person injured may commence an action for the recovery of the damages sustained.

The money to pay for the property taken and rights extinguished and all damages and.expenses, to the extent of $500,000 a year, is to be raised by the issuance of bonds by the comptroller.

The board of aldermen of the city is directed to raise from time to time, by tax upon the real and personal property in the city, the sum of money required to pay the interest upon such bonds and to pay them at maturity.

So far as property right can be acquired in water actually appropriated to practical use for domestic and other purposes, such right has been acquired in the waters of the Croton river by the city of New York. The purpose is a public one, and the power to exercise the right of eminent domain for its acquisition, and for the acquirement of the land and for the extinguishment of rights necessary for its control and utilization, has been delegated to the mayor, aldermen and commonalty of the city of New York.

The great objection raised against the statute in question is that it undertakes to vest the title to the property taken or injured in the city before the final order for the confirmation of the report in the condemnation proceedings, but the objection is invalid.

As law is settled in this State at the present day it is within the power of the Legislature to authorize municipal corporations to take private property for public use without first making payment, provided a certain and adequate provision is made by which the owner can obtain compensation through the judicial tribunals, or otherwise, without unreasonable delay. (2 Dillon on Mun. Corp. § 615; Cooley’s Const. Lim. [5th ed.] 694.)

The same question was presented and decided by the General Term in this department in the case of The Mayor v. Wright (12 N. Y. Supp. 20) under a provision in the act for the construction of the new aqueduct, whicli was precisely like the provision in the statute, and it was there held that the constitutional requirement of the compensation was satisfied by a provision for certain and adequate payment which can be made available by the owner.

The same question was decided the same way in The Matter of the Mayor (99 N. Y. 569).

The synopsis of the statute given above is sufficient to show that it provides a certain, definite and adequate mode of payment to the plaintiff for all damages she may sustain. It must be borne in mind that it is the intention and scheme of this act to pay for all property taken, for all injury or damage done, and for all rights extinguished.

My examination conducts me to the conclusion that the enactment of the statute in question was a valid exercise of legislative power and is not violative of the Constitution of the State or of the United States and that its execution ought not to be arrested by the courts.

This action is destitute of merits and the complaint of the plaintiff should be dismissed, with costs.


author: Dykman, J.: Dykman, J.: Babtlett, J.:

text:
    August Roediger, Respondent, v. Patrick J. Gleason and Rodey S. Brassell, Appellants, Impleaded with Another. Marie A. Jahn, Respondent, v. Patrick J. Gleason and Rodey S. Brassell, Appellants, Impleaded with Another.

      Receiver in a pan'tition action— when prohibited from buying the property — when the vendor can avoid a sale made to such receiver.

    •One Louis Roediger died seized and possessed of certain real estate and appurtenances situated at Long Island City, New York. Among liis heirs at law were August Roediger and Mai-ie A. Jahn, who each inherited a one-seventh interest in his real estate. Subsequent to his death one of the heirs at law instituted a suit for the partition of the real estate of which Louis Roediger died seized, in which action the defendant Patrick J. Gleason was appointed receiver of the premises pendente lite, with power to collect rent. Gleason qualified as such receiver, took possession of the property in question, and collected the rents. He has never accounted as receiver, nor been discharged. Subsequent to the appointment of Gleason as receiver, August Roediger and Marie A. Jahn, at the request of one Thomas F. Donnelly, who was their attorney in the partition action, executed two deeds, by which they conveyed to Rodey S. Brassell their interest in said real estate in consideration of the sum of $100 paid to each of them. Neither of them understood that they were not to receive more for their Interests. Brassell, the grantee named in the conveyance, was really the agent of Gleason to effect the purchase of the property. This fact was not known to either Roediger or Mrs. Jahn, nor did they know anything about Brassell. The property was subsequently conveyed by Brassell to Gleason, who held the title thereto at the time of ijie commencement of these actions, which were brought to set aside and declare void the deeds above mentioned.

      Held, that the receiver occupied-a position which prohibited him from buying the property for himself from those who did not know he was the purchaser;
    That if there were no other evidence as to the value of the property, the fact that $1,000 was paid to the widow for her right of dower was enough to indicate that Brassell was obtaining the fee at far less than its real value;
    That the vendors, who had thus sold their interests for less than the actual value of the property, were at liberty to avoid the sale upon repaying to Brassell the amount which they received from him.
    Appeal by tbe defendants, Patrick J. Gleason and another, from a judgment of the Supreme Court in favor of the plaintiff in the first above-entitled action, entered -in the office of the clerk of the county of Queens-on the 22d day of March, 1895, upon the decision of the court rendered after a trial at the Queens County Equity Term, with notice of an intention to bring up for review upon such appeal an order made at the Queens County Special Term on the 18th day of March, 1895, and entered in said clerk’s office, granting the plaintiff an extra allowance.
    Prior to his death in 1889, Louis Roediger owned certain premises, which may be conveniently designated as the city hall property in Long Island City. Among his heirs at law were August Roe-diger, Marie A. Jahn and "Wilhelmina Messnik, each of whom inherited a one-seventh interest in the premises mentioned. Wilhelmina Messnik instituted a suit for the partition of the property in the County Court of Queens county, and in that suit Patrick J. Gleason was duly appointed receiver of the premises, pendente lite, with power to collect the rent. He qualified as such receiver, took possession, collected the rents, and lias never accounted as receiver nor been discharged, so far as appears. The partition action seems never to have been discontinued, although there is no evidence that anything ever was clone therein after the appointment and qualification of the receiver.
    Subsequently, on the 19th day of July, 1889, at the request of Thomas F. Donnelly, Esq., who was their attorney in the partition suit, Mr. Roediger and Mrs. Jahn executed deeds, whereby they conveyed to Rodey S. .Brassell their interest in the city hall property at Long Island City. The consideration which they received for this conveyance was $100 each, which was much less than the actual value of the interest of each at the time. Although Mr. Donnelly told Mr. Roediger and Mrs. Jahn that the papers which they signed were deeds of the property, neither understood that they were to receive no more for their interest. Mr. Brassell, the grantee named in the conveyance, was really the agent of Mr. Gleason to effect the purchase of the property. Neither Mr. Roe-diger nor Mrs. Jahn knew this, nor did they know anything about Mr. Brassell.
    The property was subsequently conveyed by Mr. Brassell to Mr. Gleason, who held the title thereto at the time of the trial of these actions.
    These actions were brought to set aside the deeds of August Roe-diger and Marie A. Jahn to Rodey S. Brassell, and of Rodey S. Brassell to Patrick J. Gleason.
    Appeal by the defendants, Patrick J. Gleason and another,'from a judgment of the Supreme Court in favor of the plaintiff in the second above-entitled action, ente2’ed in tbe office of tbe clerk of tbe county of Queens on the 22d day of March, 1895, upon the: decision of the court rendered after a trial at the Queens County Equity Term, with notice of an intention to' bring up for review upon such appeal an order made at the Queens County Special Term on the 18th day of March, 1895, and entered in said clerk’s office, granting the plaintiff an extra allowance.

      George W. Stephens, for the appellants.

      H. Randolph Anderson, for the respondent.
   Dykman, J.:

This is an appeal from a judgment and order entered upon a decision of a justice of this court after a trial at the Special Term.

The judgment and order should be affirmed, with costs, upon the opinion of the trial judge.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.

The opinion of the trial judge will be found at page 257.

George W. Stephens, for the appellants.

H. Rcmdoljph Anderson, for the respondent.

Dykman, J.:

This is an appeal from a judgment and an order entered upon a decision of a justice of this court after a tidal at the Special Term.

The action is brought to set aside a deed of conveyance of real property.

The action received the proper disposition at the Special Term, and the judgment should be affirmed, with costs, upon the opinion of the trial judge.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.

The opinion of the trial judge was as follows:

Babtlett, J.:

The formal decision filed herewith, under section 1022 of the Code, as amended last year, contains a sufficient statement of the facts.

The evidence leaves no doubt whatever in my mind of the correctness of the conclusion that the defendant Gleason was really the purchaser of the city hall property in Long Island .City, which he held at the time as receiver in the partition suit. The proof seems to me equally plain that the considerations paid to each of these plaintiffs was utterly inadequate. If there were no other evidence as to the value of the property, the fact that $1,000 was paid to the widow for lier right of dowor, is enough to indicate that the purchaser was obtaining the fee at far less than it was really worth, when he paid the heirs at the rate of less than $100 for their combined interest.

It is manifest that the receiver occupied a position which prohibited him from buying the property for himself from those who did not know he was the purchaser.

The rule which he violated is clearly stated by Chancellor Walworth, in the case of Van Epps v. Van Epps (9 Paige, 237), where he says: “.The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase, is not * * * confined to trustees or others who hold the legal title to the property to be sold, nor is it confined to a particular class of persons, such as guardians, trustees or solicitors. But it is a rule which applies universally to all who come within its principle, which principle is that no party can be permitted to purchase an interest in property and hold it for his own benefit where he has a duty to perform in relation to such .property which is inconsistent with the character of a purchaser on his own account and for his individual use.”

Now, there was a plain conflict here between the interest of Mr. Gleason as an intending purchaser of this property from the heirs and his duties as a receiver of the property in the partition suit. As receiver he was bound to get as much rent as possible. As an intending purchaser it was to his interest to have the receipts for rent fall off so that the apparent value of the property might decrease and the owners be induced to sell for a loAver price. As receiver he was bound to manage the property as a whole in such a way as to maintain and, if possible, to increase its value, real and apparent. As an intending purchaser it was to his interest to manage it in such a way as to decrease its apparent value until it joassed into his own hands. The equitable principle to which I have referred clearly applies to a person situated as he was, and under such circumstances, the vendors who have sold their interests for far less than the property was actually worth, are at liberty to avoid the sale upon repaying to the purchaser the amounts which they have received from him. In the brief for the defendants it is argued that the form of the complaint is such that no relief can be granted in the absence of a finding of actual fraud on the ground that Mr. Gleason was disqualified to purchase by reason of his position as receiver. I think, however, that the allegations of the complaint in each case are quite sufficient to sustain the judgment in favor of the plaintiff upon the grounds stated in the formal decision. Each complaint expressly alleges the appointment of Mr. Gleason as receiver.

There should be judgment for the plaintiffs setting aside the deeds conveying the respective interests to the defendant Bi'assel upon the payment by them to the defendant Gleason of the amounts which they respectively received. Plaintiffs must also have costs.


author: Pratt, J.:

text:
    Patrick Hart, Respondent, v. The Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, Appellants. George Waldie, Respondent, v. Same Appellants. Mary Ann Wright, Respondent, v. Same Appellants. Stephen Ryder, Respondent, v. Same Appellants.

      Elevated railroad — damages for easements tahen by it and an injunction — when an action therefor will not be stayed or sent to the Circuit for trial.

    In an action brought against an elevated railroad company to recover damages because of the defendants’ having deprived the plaintiff of light and air and depreciated in value the plaintiff’s property by the building and operating of a railroad in the street fronting plaintiff’s premises, and for equitable relief by an injunction restraining a continuing trespass, a motion was made to send the case to the Circuit or for a stay of proceedings until the determination of con-, demnation proceedings.
    The railroad had been built and operated about eight years and no move had been made by it to acquire the easements in the street until after the commencement of the action.

      Held, that the long delay was a sufficient cause to justify the plaintiff in seeking relief, and under all the circumstances the court at Special Term properly denied the motion.
    Appeal by the defendants, The Brooklyn Elevated Railroad Company and another, from an order of the Supreme Court, granted at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of January, 1895, denying the defendants’ motion to stay each and all of said actions pending condemnation proceedings and to send the claims for damages to the Circuit Court.

      William H. Page, Jr., for the appellants.

      Stephen M. Hoye and Francis R. Whitney, for the respondent.
   Pratt, J.:

These actions were for damages for depriving the plaintiffs of light and air, and depreciating in value the plaintiffs’ property by the building and operating of a railroad in the street fronting plaintiffs’ premises.

Under all the circumstances the court at Special Term was justified in denying defendants’ motion. The complaint asked for equitable relief by an injunction restraining a continuing trespass.

From an examination of the pleadings it cannot be said that the case does not come under the head of equitable jurisdiction. It is a familiar rule that a court of equity once having obtained jurisdiction it can dispose of all the issues in the case and give such relief as the facts warrant. It is true that the practice formerly was to send such cases before a commission and to stay the chses until the coming. in of the report of such commission; and it was within the power of the court to have taken such course with these cases, but, we think, it was discretionary whether to do so or not.

The railroad has been built and operated about eight years, and no move had been made by the defendants to acquire the easements in the street until after the commencement of these suits.

This long delay was a sufficient cause to justify the plaintiffs in seeking relief and the court in denying the motion. Notwithstanding the demand of the defendants, the remedy of going before a commission, it is plain, does not furnish as speedy or as adequate relief as an immediate hearing before the court.

There have been many cases like these in the last few years, but I have been referred to none or heard of none where a similar one has been dismissed as not within the powers of a court of equity to entertain. Had the defendants sought under the statute to acquire tbe right, the court would have probably stayed the suits until such proceedings were completed, but the plaintiffs having first commenced suit, jurisdiction attached, and the motions were properly denied.

The order should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.