author: By the Court—Hoffman, J.

text:
    Isaac N. Stoddard, Plaintiff and Respondent, v. Samuel Rotton, Defendant and Appellant.
    0. an owner of land, conveyed it by a deed, absolute on its face, to W, and W at the same time executed and delivered to O a written defeasance which made the deed, as between the parties to it, a mortgage; the deed was recorded as a deed, and the defeasance was not recorded. W subsequently conveyed in fee to the plaintiff, who paid the agreed price, and recorded his deed, without having any notice of the defeasance.
    1. jBeld, that the plaintiff, having bought in actual good faith, acquired a title perfect as against O, and as against the defendant, 0's remote grantee under deeds subsequent to the plaintiff’s deed, notwithstanding the defendant took Ms deed and paid the consideration without actual notice of the deed from W to the plaintiff, or of the defeasance.
    2. That 1 Revised Statutes, (p. 756, § 3,) which is to the effect that a grantee in a deed intended as a mortgage, unless he records it as a mortgage, and also records therewith and at the same time the writing operating as a defeasance of the same, shall not derive any advantage from the recording thereof, cannot be construed as operating to defeat the title which the plaintiff thus acquired from W.
    3. Where, on the trial of an action of ejectment, the defendant is permitted to amend his answer, and allege that his possession is that of a mortgagee in nossession, the plaintiff may, in the discretion of the Court, amend his complaint so as to convert the action into one to redeem from the defendant as a mortgagee in possession. (Per Hoffman, J.)
    4. Held, also, that the defendant could not be treated as a mortgagee in possession, by force of the deed from his immediate grantor, although such grantor, subsequent to receiving a deed from C, and before conveying to the defendant, had a mortgage assigned to him which was a lien on the premises when C conveyed to W, and remained partly unpaid; that such mortgage was extinguished by the conveyance with warranty to the defendant, as between the latter and his immediate grantor.
    5. The Beferee having treated the defendant as a mortgagee in possession under said mortgage, and having decided that the plaintiff pay to the defendant the amount found due thereon, as a condition of recovering possession : Held, on an appeal taken by the defendant, that there was no error to the prejudice of the latter, and that the judgment be affirmed.
    (Before Hoffman, Pibrrepont and Moncrief, J. J.)
    Heard, October 21st;
    decided, November 26th, 1859.
    This is an appeal by the defendant from a judgment entered on the report of J. C. Bancroft Davis, Esq., as Referee.
    The complaint, as originally framed, states that the plaintiff, on the 3d of September, 1854, was seized in fee of certain real estate therein described, being a lot in Eighteenth street, between Second and Third avenues, New York city; that the defendant, on the 6th of June, 1856, entered into possession, and unlawfully withholds possession, to plaintiff’s damage, and prays that plaintiff “be adjudged to recover of said defendant the said real property and the possession thereof,” with costs.
    The answer, as originally framed, first, denied each and every allegation of the complaint. It alleged, second, that the defendant, “ on or about the 5th of June, 1856, became seised in fee and possessed of the real property referred to in the complaint, and ever since has been and now is the owner thereof, and entitled to its possession.”
    The action was referred on the issues thus joined; and, during the trial, the answer was amended, on defendant’s motion, against plaintiff’s objection and exception; and, thereupon, the complaint was amended against defendant’s objection and exception. The nature of such amendments is hereinafter stated.

      From the facts found by the Referee it appears that the lot in question is part of the Stuyvesant estate; that it was conveyed by Gerard Stuyvesant and wife, December 1,1848, to William Smith, Brown, who gave back to Stuyvesant a mortgage for $4,700, which mortgage was in force and unpaid when this suit was brought. Such deed and mortgage were recorded December 12,1848.
    That, on the 1st of June, 1850, 'Brown, having a perfect title, subject to the mortgage for $4,700, by a deed signed by himself and wife, conveyed the premises to Edward Crane in fee, who executed a mortgage to Brown for $4,800, part of the consideration money; which deed and mortgage were recorded on the day of their date.
    Crane and wife, by a deed dated September 27,1852, conveyed the lot to H. Willis in fee, for the expressed consideration of $10,000, which was duly recorded as a deed October 2, 1852. Willis, at the same time, executed and delivered to Crane a paper, writing or defeasance, not sealed, which made the deed from Crane to Willis, as between the parties to it, in effect a mortgage. This defeasance was never acknowledged or recorded.
    On the 25th of August, 1854, Willis, by deed of that date, conveyed the lot in question to the plaintiff, which deed was duly recorded September 2d, 1854. The plaintiff, on receiving such deed, paid the consideration in full, and had no knowledge or actual notice of the defeasance until some time after the deed to him had been recorded. These conveyances constitute the plaintiff’s title.
    On the 1st of June, 1850, William C. Burke and wife—William C. being a brother-in-law of said Edward Crane—went into possession of the lot, and continued in possession, with Crane’s assent, until March 17, 1855, and from that date until June 12, 1856, claimed that Burke’s wife owned the lot in fee.
    On the 17th of March, 1855, said Crane and wife, by deed of that date, conveyed the premises in fee to Sarah Elizabeth Burke, the wife of said William C. Burke, which deed was recorded on the 25th of April, 1855.
    On the 18th of April, 1855, William Smith Brown, by deed, assigned the said mortgage for $4,800 to one Charles Ely, there being then $1,000 and some interest due thereon. That assignment was recorded on the day of its date.

      On the 3d of May, 1856, the defendant and William 0. Burke entered into an agreement for the purchase by the former of the lot in question.
    On the 31st of May, 1856, Ely, by deed, assigned to said Sarah Elizabeth Burke the said mortgage for $4,800; and that deed was recorded on the day of its date.
    On the 4th of June, 1856, Burke and wife, by deed of that date, containing full covenants against everything except the said $4,700 mortgage from Brown to Stuyvesant, conveyed the lot in question to the defendant in fee, who thereupon paid the agreed value in full. He did not know of the deed from Crane to Willis, or from Willis to the plaintiff, until after he had paid for the lot. Since the 12th of June, 1856, the defendant has been in possession, receiving the rents and profits.
    By the amendment of the answer which the defendant was permitted to make during the trial, he alleged and, having thus amended, proved, the facts before stated as to the execution of the mortgage by Crane to William Smith Brown for $4,800; the transfer of it by Brown to Ely, and by Ely to said S. E. Burke, and that the latter was in possession when it was so assigned to her; the amount owing thereon; and the deed from Burke and wife to the defendant.
    The amendment which the plaintiff was permitted to make to his complaint is to the effect “ that the value of said premises is $10,000, or thereabouts, and the value of the yearly rents and profits is $1,000;” with the addition, to the prayer for relief originally stated, of a prayer for general relief.
    The Referee took evidence as to the amount due on the said mortgage for $4,800, and as to the rents and profits received by the defendant, and his disbursements on account of the premises while he was in possession; and found that the balance due on said mortgage, at the date of his report, (April 25, 1859,) was $113.60.
    He found, as conclusions of law, that the plaintiff acquired a perfect title, subject to the two mortgages for $4,700 and $4,800; that the title to the $4,800 mortgage and the moneys due had been vested in the defendant, and that the balance due to him must be paid before the plaintiff recovered possession; that the defendant, at the time this suit was commenced was, and "since June 12,1856, had been, in possession, and was and is accountable as a mortgagee in possessionthat the plaintiff recover possession on paying the balance due on the $4,800 mortgage; and that the plaintiff also recover his costs of the action. • The defendant duly excepted .to the decision of the Referee: some exceptions, which were taken during the progress of the trial, are not stated, as they are not discussed in the opinion delivered.
    From the judgment entered according to the decision, the defendant appealed to the General Term.

      O. O. Langdéll and F. W. Burlce, for appellant.

      William Alien Butler, for respondent.
   By the Court—Hoffman, J.

The first and main question is, what was the effect of the omission of Crane to record the defeasance given to him by Willis ?

Both parties eláirn under Crane, who, it is admitted, was seised in fee after June 27, 1850, subject to the mortgage of $4,700 given by Brown’to Stuyvesant.

The deed of Crane to Willis of September 27th, 1852, and the defeasance of the same date made by him, constituted, as between those immediate parties, a mortgage, or conditional sale. (1 R. S., 756, §53; James v. Johnson, 6 John. Ch. R., 417.) So long as bona fide purchasers under either party did not intervene, their rights would" be governed by the deed and defeasance, whether either were recorded or not.

But Willis records Crane’s deed to him on the 2d of October, 1852, in the book of deeds; and Crane omits to record the defeasance at all, or to have" it acknowledged or proven.

ThenWillis conveys to the plaintiff, for valuable consideration, on the 25th of August, 1854. This deed was recorded September 2d, 1854. The Referee finds that the plaintiff was a purchaser for value, and had no notice of the memorandum, of defeasance, until some time after his deed was recorded and the consideration paid. This finding is "supported by the evidence. Crane subsequently conveys to the grantor of the defendant, aiid the latter is in possession.

The provisions of the statute which bear upon the present question are the 2d and 3d sections of the act “ of recording conveyance,” &c. (1 R. S., 756.) By the second section, “ different sets of books are to be provided by the clerks of the several counties for the recording of deeds and mortgages; in one of which sets all conveyances, absolute in their terms and not intended as mortgages, or as securities in the nature of mortgages, shall be recorded; and, in the other set, such mortgages and securities shall be recorded."

The 3d section provides “ that every deed conveying real estate which, by any other instrument in writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage; and the person for whose benefit such deed shall be made shall not derive any advantage from the recording thereof unless every writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage or conditional deed, be also recorded therewith and at the same time.”

Under this provision, Willis, for whose benefit the deed was made, could not derive any advantage from the record thereof, unaccompanied with the record of the defeasance. If, for example, Crane had afterwards conveyed or mortgaged the property to a bona fide grantee, Willis might have been set aside in favor of that grantee, (notwithstanding the record of the deed to him,) upon discovering the defeasance. The record, per se, would not protect Willis; although actual notice of the deed, with actual notice of the defeasance, would, I presume, do so, so as to give him the rights of a mortgagee.

These points seem settled under the former registering acts by the cases of Dey v. Dunham, (2 John. Ch. R., 188; 15 Johns. R., 555;) White v. Moore, (1 Paige, 551;) James v. Johnson. (6 Johns. Ch. R., 417; 2 Cow., 247.)

But a bona fide purchaser from Willis finds this deed on record, recorded in the proper book, as an absolute conveyance. He knows nothing to contradict the import of the deed and record, viz.: that Willis was the owner in fee.

It is not contended that Willis could have set up any right against his own grantee. How could Crane do so on his own behalf? He takes the defeasance without acknowledgment, con.ceals -it,. arid thus enables Willis to exhibit himself on- the deed ' and the yecord, as absolute owner.

....How'can Crane’s subsequent grantee be in a better situation? He finds an absolute deed from Crane to Willis on record, and an absolute deed from Willis to the plaintiff. He is chargeable with notice, unless, as the counsel of the plaintiff observes, the effect of the statute is, to annul the record for every purpose; to make the case the same as if there had been no record at all. '

This, we apprehend, cannot be concluded, and we think the case of Mills v. Comstock (5 John. Ch. R., 214,) is sufficient to cover and decide the present question. The purposes and scope of the statute are answered, when it is held, that Willis could not support his title against a bona fide grantee of Crane, by virtue merely of his recorded deed, and that Crane could not defeat a bona fide recorded grantee of Willis by any subsequent grant of his own.

2. It is urged that the possession of Burke, (who was in possession from June, 1850, to June, 1856,) was the possession of Crane, and that when Willis conveyed to the plaintiff Stoddard in 1854, this possession charged the plaintiff with knowledge of Crane’s legal position under the defeasance, and there was therefore an adverse possession in Crane which defeated Willis’ deed to the plaintiff. (2 R. S., 739, § 147.)

Several answers may be given: a purchaser may be treated as chargeable with notice of the nature of the title of one in actual possession of the land, but we apprehend the rule has never been carried further. If Burke’s title would not defeat him, he need not go further. Burke’s possession was not under any title which can affect the plaintiff. And the defendant claims under Burke by deed two years after the plaintiff’s title accrued, by the deed to him.

Again, to hold that the plaintiff was affected in 1854, by a virtual constructive possession of Crane, with notice of Crane being mortgagee in possession, would be to enable Crane fraudulently to defeat the bona fide grantee of his recorded bona fide grantee.

Again, in no proper sense within the statute referred to, avoiding a grant, when the lands are held under a title adverse to that of the grantor, can the possession of a mortgagee be deemed adverse to that of Ms mortgagor. Crane’s possession ccMlltliSiv® been no more than this, if he had been in actual possesstqij^

3. Two other points of the defendant • may be considered’.^'' together, viz., the fifth point of those signed by Mr. Langdell, and the first of those of Mr. Burke, adopted by him. It is contended that the Referee erred in holding that the defendant was accountable in this action, as mortgagee in possession, for the rents and profits of the premises, and that the plaintiff was entitled to recover upon paying to the defendant the balance found due upon said mortgage. The effect of this decision was to convert an action of ejectment into a bill in equity to redeem. The second proposition is, that the defendant was assignee of an unpaid mortgage, in possession when the action was brought, and cannot be dispossessed by ejectment.

A statement of the course of the pleadings is necessary to understand these points.

The complaint and answer, as originally served, are set out in full in the statement of the case.

[The opinion here states the application made by the defendant to amend his answer, and the proceedings then had in respect to the amendment of that, and also of the complaint, and then proceeds as folloVs:]

The defense thus set up by way of amendment was substantially this: Third, That Crane, in June, 1850, executed a bond and mortgage to Wm. Smith Brown for $4,800, and such mortgage was duly recorded the 27th of June, 1850; that on the 13th of April, 1855, Brown assigned such bond and mortgage to one Ely ; that on the 31st of May, 1856, Ely assigned them to Sarah E. Burke; that Mrs. Burke, being in possession after condition broken by reason of the non-payment of the sum of $1,00Q, the last installment and interest, with her husband conveyed the premises, by a full covenant deed, with warranty, to the defendant, by deed of the 5th of June, 1856, and that Mrs. Burke was, at the date and delivery of such deed, in possession.

The Referee, as appears by his finding, took testimony upon and considered all the questions which could arise under such pleadings; took an account of the rents and profits on the one side, and of the amount due upon the Brown mortgage on the other; found a balance of $113.60 due upon the mortgage, and gave judgment for possession, upon the plaintiffs paying that sum and the costs of the suit.

These facts present some points of interest.

It is undoubted law, that “ when a mortgagor under whom a plaintiff claims has made default, the estate is forfeited at law; the interest which remains in the grantee of the mortgagor is but an equity of redemption; and the owner of such equity could not, after forfeiture, sustain ejectment against the mortgagee in possession, or any one holding under him. He has only the right to redeem in equity.” I use the language of Deistio, J., in delivering the opinion of the Court in Pell v. Ulmar. (18 N. Y. R., 141.)

But, all the cases cited express the rule as applicable to actions of ejectment before the Code. The case itself does not raise or determine the present question under the Code.

The pleadings, and the testimony admitted, and the facts found by the Referee, present a case which embraces every element of a proper bill to redeem mortgaged premises, in the possession of the mortgagee, or persons under him. There is the allegation and proof of a title in the plaintiff sufficient to authorize him to redeem. There is an allegation and proof of the rents and profits amounting to a certain sum, received by the assignee of the mortgage. There is an allegation and proof of the amount due upon the mortgage. There is a demand for the recovery of possession, and there is a judgment that it shall be recovered upon payment of a balance found due on the mortgage. In this the plaintiff acquiesces. It is the same as if he sought it.

It was settled as long ago as the time of Lord Haedwicke, that • upon a bill to redeem from a mortgagee in possession, the Court, after decreeing redemption, would not drive the party to ejectment to recover possession, but would compel the surrender by its own process. (Yates v. Hambly, 2 Atk., 360 ; Seaton on Decrees, 145-147, citing Onely v. Moor, 25th Oct., 1742, and Miller v. Beaty, 12th Dec., 1746.)

We have under the Code the distinction between legal and equitable remedies abolished, and a uniform course of proceeding in all cases established. (Preamble to Code.) We have the dis tinction between actions at law and suits in equity extinguished, and but one form of action to enforce private rights. (§ 69.) We háve' it provided that the plaintiff may unite in the same complaint several causes of action, whether they be such as have been denominated legal or equitable, or both, in (among other specifications) transactions connected with the same subject of action. (§ 167.) And we find that any relief may be granted consistent with the case made by the complaint and embraced within the issue. (§ 275.)

The amendments by which the complaint was changed and the issues enlarged, have, in fact, converted the case into an action for redemption, and there does not seem to exist any substantial, ground in the justice of the case for defeating the plaintiff and and dismissing the present action.

In the case of Davis v. Conklin, before the present Chief Justice of this Court, an action of ejectment was brought by one who stood in the situation of mortgagor unforeclosed,, against parties claiming under a foreclosure which was adjudged invalid. Those parties, however, stood in the situation of mortgagees or assignees of a mortgagee, in possession after forfeiture, and thus could defeat ejectment. The complaint was thereupon dismissed, without prejudice to the right of the plaintiff to bring such new action as he might be advised. The Court suggested that a suit to redeem was the only proper remedy.

No application to amend the pleadings was there made.

The cases of Marquat v. Marquat, (2 Kern., 336,) and Phillips v. Gorham, (17 N. Y. R., 270,) seem to sanction an amendment of this nature. Yet in Walter v. Bennett, (16 N. Y. R., 250,) it was held that a right to recover upon a contract is wholly distinct from a right to recover as for a wrongful conversion of personal property; and if an action has proceeded to trial upon one ground unsuccessfully, it cannot be sustained upon the other.

But if this view is untenable, another appears to me clear. ■ The exception to the amendment moved for by the defendant,", and to the testimony under it, was well taken. The defendant claimed to be assignee of the Brown mortgage, by reason of a deed to him, with full covenants from the holder of such mortgage. It is certain, as 'I think, that a bona fide holder, by assignment of that bond and mortgage before the deed, could now assert a claim upon the property under it. I know of no rule of law or equity which would effectually transfer the mortgage to the grantee as against such a purchaser.

But, again, the operation of the covenants could not be higher than a virtual equitable assignment of the mortgage to the grantee; and it would seem that a merger would then be effected of such incumbrance in the fee; that this would clearly be the case at law, and that there was not sufficient to bring the case within the equitable rule, by which an incumbrance is sometimes held not to have been extinguished. (James v. Morey, 2 Cow., 246 ; 4 Kent’s Com., 102, and cases.)

There is, however, a yet more decisive view of the point found in the principle decided in Mickles v. Townsend. (18 N. Y. R., 575.) It was held that when a party granted land with warranty, and afterwards acquired a mortgage given by a former owner, he took such mortgage for the benefit of his grantee, and the lien was discharged and acquitted. The line of reasoning pursued by Mr. Justice Strong, is as. pertinent to show that a mortgage in the hands of a grantor at the time of his grant, shall be extinguished as fully as a mortgage subsequently obtained.

It is true that both this learned Judge and Justice Denio do not consider the doctrine of merger as strictly applicable to the case, because it might be that the grantor intended to keep the mortgage alive, within the case of James v. Morey. (2 Cow., 246.) But the doctrine of estoppel did apply, and the subsequent right passes by it.

Whatever be the principle of the decision, it seems to me that the deed with warranty produced between the parties an extinction of the lien at law, and that nothing could have kept it in force but some act of the grantee recognizing and continuing its legal being. Nothing of this kind is in the case, and no presumed intention is warranted.

. The result is that the plaintiff was entitled to his judgment even after the amendments of the answer allowed by the Referee. He has consented to modify this absolute right by paying a certain sum to the defendant; consented to put him in a position as if he were mortgagee in possession. The defendant can hardly complain of this.

Several exceptions were taken to the rulings of the Referee during the trial, but none are noticed upon the points.

The judgment should be affirmed.

•Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    John S. Giles, Plaintiff, v. William B. Crosby et al., Defendants.
    1. Where a bond is given by several persons, by the terms of which they obligate themselves to pay a sum therein named, “ on the completion of the opening of Canal street and the widening of Walker street, according to the plan now in the hands of Commissioners,” &c., and the plan is subsequently, without the consent of the obligors, so changed that a gore of land at the part of Canal street, bounded by Centre, Walker and Baxter streets, instead of being taken and converted into a park, as the original plan contemplated, is not taken, but is left to be built upon, and Canal street is extended an additional distance, and the work is completed according to the modified plan, such obligors are not liable upon said bond.
    2. The question of their liability on such bond is not affected by the fact that the change of plan made the improvement less expensive than it would have been if completed according to the plan referred to in the bond.
    (Before Hoeeman, Pierrepont and Moncrief, J. J.)
    Heard, October 26;
    decided, November 26, 1859.
    This action is brought by John S. Giles, as plaintiff, against Wm. B. Crosby, John C. Beekman, Henry R. Remsen, William Remsen and Frederick Schuchardt, as defendants. It was tried before Chief Justice Bosworth and a jury, on the 9th of March, 1859.
    It is brought by the plaintiff against the defendants to recover the sum of $10,000, with interest from March 24th, 1854, and is founded on a bond executed by the defendants to the plaintiff, dated November 8th, 1851, conditioned for the payment by the defendants of $10,000, on the completion of the opening of Canal street and widening of Walker street, according to the plan then (£. e., November 8th, 1851,) in the hands of Commissioners, for the opening of Canal street into Walker street, and the widening of Walker street. The condition of the bond declared that “ these presents are given under the express condition that before the said obligors, or either of them, or either of their heirs, executors or administrators, shall be called upon or bound to pay the above mentioned sum, satisfactory evidence shall be given to them that the said sum of ten thousand dollars was necessarily paid or incurred in order to carry out said plan ; the manner of its expenditure or distribution shall also be exhibited and shown to them.”
    The complaint states that the said opening of Canal street and widening of Walker street was completed according to the said bond and the condition thereof, about September 11, 1854, and that satisfactory evidence was furnished of the actual and proper ■expenditure of the sum of $10,000.
    ' The answers of all the defendants, except that of William Remsen, deny these allegations.
    The complaint also contained a statement of a second cause of action for alleged work and labor and money paid and expended for the use of the defendants, but no evidence was offered in relation to any subject but the bond and the liability of the defendants thereon.
    The answer of the defendant, William Remsen, alleges that the improvement mentioned in the condition of said bond was never carried out, according to the plan therein referred to; but that, after the date of said bond, the plan was materially altered, and without his consent; and that he is absolved from all obligation under said bond, and denies that any evidence was furnished to him of the expenditure of any part of the $10,000.
    On the trial, it appeared that the plan in the hands of the Commissioners at the date of the execution of the bond, was as described in a resolution of the Common Council of New York, passed 1848.
    It also appeared that after the execution and delivery of the bond, the plan was, during the year 1852, altered.
    That the difference between the original plan and the one subsequently carried out, was:
    That the gore of land shown on the map, at the part of Canal street bounded by Centre, Walker and Baxter streets, which was, by the original plan, to be thrown into the street, was not taken and made a park by the subsequent plan ; and that Canal street was continued beyond Rutgers street to East Broadway. The width of the street, which was to be seventy-five feet, and its course were not otherwise altered. The changes were, leaving the gore to be built upon, and the continuing of Canal street beyond Rutgers street, a distance of part of a block, to East Broadway.

      It was also proved that the plaintiff received notice from the defendants of this change of plan, before the confirmation of the report of the Commissioners, and that they would not assent to it, and considered themselves absolved from all liability by reason of the change; that the plaintiff in reply insisted that they were not discharged from liability.
    The plaintiff offered to prove “ that by not taking the gore, the cost of the improvement was lessened to the amount of one hundred thousand dollars, and the improvement not injuriously affected thereby.” The evidence was excluded, and the plaintiff excepted to the decision.
    The defendants, at the trial, moved for a dismissal of the com- • plaint, on the ground that the condition of the bond was not fulfilled, because the plan in the hands of the Commissioners at the date of said bond was not carried out, the gore not being taken in, and Canal street being continued to East Broadway.
    The Judge granted the motion, and the plaintiff excepted. The Judge then ordered that the questions of law arising at the trial be first heard at General Term, and that the, entry of judgment in the meantime be suspended.
    The plaintiff now moves for a new trial on the exceptions, and the defendants for judgment absolute.

      William Curtis Noyes and John B. Scoles, for plaintiff.
    " I. The condition of the bond was fulfilled. What the defendants contracted for was a street seventy-five feet in width, from Centre street to Rutgers street. This they got. That by a subsequent resolution of the corporation of the city of New York, this street was extended half a block further to East Broadway, does not alter it. There was no change of plan in the widening of Walker street, or the extension of Canal street to Rutgers street. It was not an addition to the original plan, but an independent measure, by which the street was carried half a block further, although embraced in the same enterprise about which the plaintiff contracted.
    II. The gore of land to be made into a park was no part of the street, nor of opening a street. It was something contemplated to be added to the street. Not taking the gore therefore did not change the plan of the street, or abridge or in any way affect or diminish its value as a street. All that the defendant contracted for was a street seventy-five feet wide, according to the plan then in the hands of the Commissioners of Estimate and Assessments, and this they obtained. In truth the non-taking of the gore was an advantage to the defendants, as it lessened the expense.
    III. The exclusion of the gore of land, and the extension from Eutgers street to East Broadway, were, by resolutions of the mayor, aldermen and commonalty of the city of New York, over which the plaintiff had no control, and were matters entirely disconnected with the opening of the street contracted for. As they were no part of the opening, and not connected with plaintiff’s contract, they cannot prejudice it.
    IV. The Judge erred in excluding evidence, that by not taking the gore the expense of the extension and widening was diminished, without injuriously affecting the improvement. Admitting, for the sake of argument, that this was a variance from the original plan, the question is, whether the condition of the bond was not substantially complied with. An immaterial change in the plan, not affecting the value of the improvement, but essentially benefiting the parties who were to pay for it, cannot legally absolve these defendants from the payment of the money seemed by the bond. Suppose there had been a change of a few inches in some part of the street proposed to be widened, would that vitiate the bond ? It was a question for the jury, whether the defendants had received in substance what they contracted for. The evidence offered by the plaintiff went to show that they had. It was for the defendants to rebut it, and show, if they could, that the alleged change of plan was a material alteration, and injuriously affected the improvement. Covenants are to be construed according to their spirit and intent, and it is sufficient if they are performed according to their spirit and intent, although not according to the letter. (Marvin v. Stone, 2 Cow., 781, 786, and cases there cited by Talcot, arguendo; Com. Dig., title “Covenant” E.)
    V. The bond constituted an agreement between the plaintiff and the defendants for work and labor, in procuring the street to be opened; and the clause in the condition of the bond, that the sum agreed upon was to be paid “on the completion of the opening of Canal street and widening of Walker street, according to the plan now in the hands of the Commissioners for the opening of Canal street in to Walker street, and the widening of Walker street,” did not create a condition within the common law rule upon that subject.
    1. Such a condition is inapplicable to a contract for work and labor, operating to do injustice, and as a penalty. Penalties under contracts between parties are created only by clear and express words, never by implication.
    2. To make it operate as a strict condition, is to make it operate unequally, as well as harshly; for though the defendants have all the street they contracted for, and the consequent benefit stipulated to be given to them, yet the plaintiff is to obtain no compensation, though he has performed all the services his contract called for. (Campbell v. Jones, 6 T. R., 570; Hall v. Cazenove, 4 East., 477; Constable v. Cloberlie, Palmer’s R., 397; McAuley v. Billenger, 20 Johns., 89; Ritchie v. Atkinson, 10 East, 295; Kemble v. Wallis, 10 Wend., 374.)
    3. To construe it as a covenant for work and labor, demanding only a substantial compliance by the performance of the services contemplated, is to carry into effect the intention of the parties, and to do justice to the plaintiff, while no injustice is done to the defendants, as they have received all the advantages to their property they contemplated.

      John Van Burén, for defendants,
    Insisted, that inasmuch as it was proved that material changes of the plan were made after the bond was given, without the consent of the defendants, the condition of the bond was never fulfilled, upon which alone the defendants chose to become liable on the bond.
    That the testimony offered, as to the effect of the change of the plan upon the expense of the improvement, was properly rejected. That the defendants were the sole and exclusive judges of what plan would benefit them, and for the completion of which they, would pay.
    That judgment should be ordered for the defendants, according to the decision at the trial.
   By the Court—Hoffman, J.

The plaintiff offered no evidence under the second cause of action stated in his complaint, and it may be dismissed from our consideration.

One express condition of the bond was, that before the obligors should be called upon to pay, satisfactory evidence should be given to them, that the sum of $10,000 was necessarily paid or incurred in order to carry out the plan; the manner of its expenditure or distribution shall also be exhibited to them.

The complaint alleges that this satisfactory evidence was furnished, and this exhibition made before the commencement of the action. The answer of all the defendants except William Eemsen, by not denying, may be taken to admit this. Eemsen puts it in issue. No evidence touching the matter was given on the trial. It would seem to be entirely fatal to the plaintiff’s case as against Eemsen, that no such proof was given. It is very clear that this was a condition precedent to a recovery, and should have been proved as well as averred.

The answer given to this objection was, that the point does not arise, and cannot be considered here, because the learned •Judge had dismissed the complaint on one particular ground, a ground different from that in question.

The course on the dismissal of the complaint is thus stated: “ The counsel moved for a dismissal of the complaint on the ground that the condition of the bond was not fulfilled, because the plan in the hands of the Commissioners at the date of the bond was not carried out; the gore not-being taken in and Canal street being continued to East Broadway.”

“ His Honor the Judge granted the motion on the ground that the gore was not taken in, and Canal street was continued to East Broadway, which was not according to the plan of the Commissioners at the date of the bond.”

Assuming for the present case, that the Court may not enter upon any other ground which would have justified a dismissal, upon a bill of exceptions, but must limit its view to the question of error or no error in the precise point, we proceed to examine that point.

It seems to us clear that the alteration in the plan, particularly by the omission to take the gore, one side of which was on Centre street, was a material alteration. It was a deviation from the plan originally resolved "upon, and on the execution of which the defendants were to be bound for a sum of no slight character. No one could pretend to say, that it was so indifferent and unimportant as that the conclusion would be irresistible, that the defendants, had it been so proposed originally, would have entered into the same contract. This appears to me to be the true question to be solved.

If a jury had given a verdict for the plaintiff upon the question being left to them, whether the change was material in view of the condition of the bond, it would have been set aside. The case of Pullman v. Corning, (5 Seld., 93,) and the cases there cited contain the principle governing the present. A partial fulfillment of a contract, a deviation from a contract has been held in some leading cases to preclude a recovery where, undeniably, much injustice was done by the strict enforcement of the rule. We are left to conjecture as to the positive loss or injury sustained in the present case.

That the plaintiff neither procured the alteration nor could have prevented it is no reply to the objections against his recovery. His undertaking implied the power to accomplish the work in the mode prescribed, or made payment to depend upon the success of his efforts. It would have been different had the defendants been accessory to the change.

The judgment must be ordered for the defendants, with costs.

Judgrpent for the defendants,


author: By the Court—Woodruff, J.

text:
    Traverse H. Read et al., Plaintiffs and Respondents, v. Morrell B. Spaulding, Defendant and Appellant.
    1. A party doing business under the name and style of “ Spaulding’s Express Freight Line,” and in that name receiving goods at New York “ to be forwarded by Spaulding’s Express to ” Louisville, without liability for damage, “if delivered at Louisville depot in good order,” without liability “for wrong delivery of goods marked by initials, or, “ for wrong carriage of goods that are imperfectly marked,” and in case of loss or damage for which Spaulding’s Express may be liable, stipulating that the latter shall have the benefit of any insurance affected by the owner, is a carrier of goods and not a forwarder merely, notwithstanding he employs the conveyances of third parties only, (Railroad Companies, &c.,) in the performance of his contract.

      2. Where goods in a railroad depot near a river were injured by an extraordinary flood, rising higher than any flood had ever risen before, which it was no negligence not to anticipate, and from which, when the rise of the water became apparent, the goods could not be delivered, if- the carrier in the due discharge of his duty had the goods in the regular and usual course of transportation so that their being in the depot at the time was proper, the injury is by the act of God in such sense that the carrier is excused.
    3. But it is the duty of the carrier to carry and deliver within a reasonable time, and if, when the goods were in the depot and the flood came, he had violated his duty and was under the actual pressure of fault and neglect, without which the goods would have been safe, he is not excused.
    4. A carrier is liable for injury to goods caused by inevitable accident, or what is termed- the act of God, if by his culpable negligence or unexcused and unreasonable delay in the transportation, he unnecessarily exposes the goods to the peril.
    (Before Woodruff, Pierrepont and Moncrief, J. J.)
    Heard, February 18tli •

    decided, November 26th, 1859.
    This action was tried before Boswobth, Gh. J., and a jury, on the 21st day of October, 1858, and was brought to argument pursuant to an order then made that the exceptions taken on the trial be heard in the first instance at the General Term.
    The action is brought against the defendant as the proprietor of, or person doing business under the name and style of “Spaulding’s Express Freight Line” to recover for the injury and damage to certain goods of the plaintiff while in course of transportation from the city of New York to Louisville, Kentucky, owing, as alleged, to the negligence of the defendant and delay in the transportation.
    The answer alleged that the defendant was a forwarder only, and not a common carrier; it denied any negligence or unreasonable delay; and averred that whatever injury the goods sustained was caused by an extraordinary flood, and that all that human foresight and skill could do was done to avoid damage and guard against said flood. Without further particular statement of the pleadings it is enough to say that they were sufficient to raise the questions discussed and decided.
    On the trial numerous witnesses were examined, and the case prepared for the argument at the General Term, states that:
    “ After the evidence was closed, the following facts were agreed upon by the counsel for the respective parties and taken down by the Court. It is admitted that the plaintiffs by their agents, Flagg & Baldwin, of New York, delivered to the defendants at New York, 84 cases of the goods in question on the 27th day of January, 1857, and that all the goods, excepting five cases, which were damaged, arrived in Louisville in twelve or fourteen days from the time of their delivery in New York.
    “ That all these goods were, when delivered to the defendant, the property of the plaintiffs, and they were partners, and that the goods were delivered to the defendant and received by him on the 27th day of January, 1857, at the city of New York, and were so delivered and received under a contract, of which the following is a copy:
    “SPAULDING’S EXPRESS FREIGHT LINE,
    “ Office in New York, 267 Broadway.
    Mark packages 1 Spaulding’s Express,’ And ship by Harlem Rail Road,
    and the route they are to go. Cor. White & Centre sts.
    New York, Jan. 28, 1857. Received from Flagg & Baldwin the following packages (contents and value unknown) in apparent good order, viz.: eighty-six cases straw goods, supposed to be marked and numbered as per margin, contents and value unknown, to be forwarded by Spaulding’s Express, to the place named m the Bill of Lading, upon the following condition, to wit: that the owner or shipper hereby assumes the risk of loss or damage, by Lake or River Navigation, Fire, Leakage of all kinds of Liquids, breakage of all kinds of Glass and Glassware, or articles packed in Glass, Stoves and Stove Furniture, Castings, Machinery, Carriages, Furniture, Musical Instruments of all kinds, damage or loss of any article, the bulk of which renders it necessary to be shipped in open cars, and damage from unavoidable delays. All property shipped on this Bill of Lading will be subject to necessary cooperage; and will be delivered at the depots of the Company or Steamboat landing. It is also expressly agreed between the parties, that the said Spaulding’s Express, shall not be held accountable for any damage or deficiency in packages of goods if delivered at Louisville depot in good order, and that no liability will be assumed for wrong delivery

      CONTENTS OF PACKAGES UNKNOWN.

    No risk taken over $200 on any single package. No liability will be assumed for wrong carriage or wrong delivery of goods that are marked with initials, numbers, or imperfectly marked.
    R. A. & Co., Louisville, Ky.
    Via Indianapolis. Subject to charges to New York.
    BILL OP LADING PROM NEW YORK TO LOUISVILLE DEPOT.
    1st Class Goods 178 cts. per 100 lbs.
    2d Class Goods____cts. per 100 lbs.
    3d Class Goods____cts. per 100 lbs.
    4th Class Goods____cts. per 100 lbs.
    New Furniture, 1-J first class rate____cts. per 100 lbs.

      Chains, boxed, double 1st class rate.. cts. per 100 lbs.
    Carriages, boxed, IJ
    1st class rate.... cts. per 100 lbs.
    Wagons, single .... cts. per 100 lbs.
    Pianos, owner’s risk cts. per 100 lbs.
    Baskets, double first class rate........cts. per 100 lbs.
    Cradles, ..........cts. per 100 lbs.
    Sleighs, boxed, lj 1st class rate........cts. jjer 100 lbs.
    Toys, boxed, 1J first class rate.......cts. per 100 lbs.
    Wagon, toy, double first class rate ... cts. per 100 lbs.
    of goods marked by initials, or for wrong carriage of goods that are imperfectly marked. And in case of loss or damage of any of the Goods named in this Bill of Lading for which Spaulding’s Express may be liable, it is agreed and understood that they shall have the benefit of any insurance effected by or for account of the owner on said goods, and in case of loss on the Lakes, the freight and charges to or at Buffalo shall be paid by the owner of said goods. In witness whereof, the Agent hath affirmed to 3 Bills of Lading, all of this tenor and date, one of which being accomplished the other to stand void.
    M. B. SPAULDING, Agent. V. W.
    “ That the five damaged cases reached Albany on the 7th of February, 1857, and four of these were forwarded from Albany and reached Louisville on the 14th of March, then next.
    “That the fifth case left Albany on 21st April, 1857, and reached Louisville on the 6th of May then next.
    “ That the goods in question were damaged at depot 1D.’ by water, on the night of the 8th and morning of the 9th of February, 1857, to the amount, including interest, of $681.83. Albany, by the route of the Harlem Railroad, is 160 miles from New York city, and freight cars were running on that road from New York to Albany, daily.
    “ That on the night and morning aforesaid, there was a heavy flood in the Hudson river, the water suddenly rising during the night and morning, some four feet higher than it had ever risen before, and that by said flood the goods were wet and damaged as aforesaid.
    “ That depot‘D ’ was constructed with its floor at such an elevation above high water mark as would not injure goods on it, by water, from any flood such as had ever before occurred at Albany.
    “ There was no negligence or omission of duty on the part of the defendant in not anticipating the occurrence of flood; and from the time it was apparent there would be a rise of water, the goods could not have been prevented from being wet as they were. The goods so wet and damaged were in five cases. The damages oh the goods in four cases amount, exclusive of interest, to $178.69-100, and the damages on the fifth case, marked No. 184, amount to $438.88-100, without interest. The fifth case, No. 184, contained 17 packages, consisting of wooden boxes, each closed up and holding goods. The case containing these 17 packages was in a rough box, having openings wide enough to insert one finger, and through which the packages could be seen. Interest may be computed from the 10th of February, 1857, on such sums as the plaintiffs are entitled to recover.
    “ It also appeared in evidence that the said 8th of February was on Sunday, and that the said five cases of goods were brought from the depot of the Western Railroad to the depot of the New York Central Railroad, on Saturday, the 7th, and according to the custom of business, were placed in depot ‘D’ to be forwarded.
    “ It also appeared in evidence that the average time occupied in the carriage of goods from the city of New York to Louisville, Ky., was about 15 days; and that the defendant had no interest in or control over any of the routes or railroads mentioned in said bill of lading over which said goods were transported.
    “ The counsel for the defendant then moved the Court to non-suit the plaintiff upon each of the following grounds:
    “ 1st. That from the evidence the defendant was not a common carrier, but a forwarder merely, and having well discharged his duty in that character, was not liable in this action.
    “2d. That by the admitted facts in this case, the injury and damages complained of were occasioned by the act of God, to wit.: the unprecedented flood, and without any negligence or want of care on the part of the defendant. And, therefore, the plaintiffs were not entitled to recover.
    “ 3d. That it could not be concluded as matter of law from the facts in this case that the goods in question had been unreasonably delayed. And if it were otherwise, the alleged delay and detention of the goods before their arrival at Albany, had no connection with the cause of the injury, to wit: the flood, and this being the act of God and the sole cause of the injury complained of, the defendant was not liable.
    “4th. That by terms of the bill of lading the liability of the defendant was restricted to that of a mere forwarder, and having discharged his duty as such, and the injury having accrued without his fault, he cannot be made liable in this action.
    “ 5th. That upon the whole case, the plaintiffs have not made out a cause of action.
    “ 6th. That in any view of the case, the plaintiffs could not recover under the terms and conditions of a bill of lading a greater sum than $200 for the damage sustained by injury to the goods in Case Five, marked No. 184.
    “ The Court overruled each of the above grounds, and refused to nonsuit the plaintiffs.
    “ To this ruling and refusal, the counsel for the defendant then and there duly excepted.
    “The Court-thereupon directed the jury to render a verdict in favor of the plaintiffs for $681.88, and accordingly the jury did render then and there a verdict for that amount for the plaintiffs and against the defendant.
    “ To which direction the counsel for the defendant then and there duly excepted. An order was made by the Court, and duly entered, directing that the exceptions be first heard at General Term, and that in the meantime all proceedings on the part of the plaintiffs be stayed.”
    Some facts were testified to by the witnesses, which are noticed in the points of counsel or in the opinion of the Court, which it is not necessary here to repeat.

      Gilbert M. Spier, for plaintiff.
    I. The defendant was guilty of great negligence and carelessness in detaining the damaged goods twelve days before their arrival at Albany, when they should have been, with the undamaged goods, delivered to the plaintiffs at Louisville. The defendants received all the goods at the same time.
    There is no excuse offered in evidence for this delay.
    II. The defendant was a common carrier, and liable as such, excepting so far as his liability was limited by the contract between the parties. A common carrier need not have any interest in, or control over, the means or route of transportation. (Dorr v. New Jersey Steam Navigation Co., 1 Kern., 485; Moore v. Evans, 14 Barb., 524; Fairchild v. Slocum. 19 Wend., 329; McArthur & Hurlbert v. Sears, 21 id., 190.)

      The true meaning of the phrase, “ the act of God,” is very clearly stated in 1 Smith’s Leading Oases, 270.
    III. The defendant is clearly liable, from the facts disclosed, as bailee. Every bailee is responsible for loss, even by accident or force, however inevitable or irresistible, if it be occasioned by that degree of negligence for which the nature of his contract makes him generally answerable. (2 Kent Com., 597; 1 Cow. Tr., 60; Teall v. Sears, 9 Barb., 317; Scovill v. Griffith, 2 Kern., 509.)
    IV. The clause in the bill of lading, that “ no risk would be taken over $200 on any single package,” should not prevent the plaintiffs from recovering the amount of damages suffered on the seventeen packages inclosed in the rough open box.
    These seventeen packages were as distinctly visible as if they had been thrown together in a pile. They were inclosed merely for the convenience of transportation. There was no fraud, as in the case of Batson v. Donovan. (4 Barn. & Ald., 21.)
    The object or intention was to guard against liability upon small packages of goods of great value; and to diminish the risk of insurance without a corresponding compensation for transportation. The bill shows that the defendant received 178 cents for every one hundred pounds: this sum was written in the printed form. . He received pay, therefore, for -seventeen packages, and not for one package only. Besides, the popular and ordinary meaning of package is not a rough open box or case, inclosing packages.
    This clause is not to be regarded as stipulating for willful misconduct, negligence, or want of ordinary care. The foundation of the contract, or undertaking, between the parties, rests upon a legal implication that the bailee shall be responsible for these. (New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. U. S., 344; Story on Bailment, § 570; Camden Co. v. Burke, 13 Wend., 628; Lyon v. Mells, 5 East., 428.)

      John H. Reynolds, for defendant
    I. The defendant was not a common carrier, but -was a mere forwarder, and can be made liable, if at all, only-in that character, and by the rules applicable to that relation. He was an express-man, or forwarder of goods, by the conveyances of others. (Hersfield v. Adams, 19 Barb., 577:; Blossom v. Griffin, 3 Kern., 569.)

      1. It appears that the defendant had no interest m,-or control over, any of the railroads over which the goods were transported; This gave him the character, and imposes the liability, of a forwarder merely.
    2. By the very terms of the contract, he-was a mere forwarder as to the goods in question. They were received “to-be forwarded by Spaulding to the place named in the'bill of lading,” to wit, to'“R. A. & Co., Louisville, Ky., via Indianapolis.”
    3. The goods were delivered by the plaintiffs’ agent to the Harlem- Railroad Company, and receipts taken, which were surrendered at the Express office, and the bill of lading taken. This method of doing, business indicates that'it was well understood by the plaintiff’s agent that the defendant, in the transportation of the goods, assumed the obligations of a mere forwarder.
    4. The defendant, therefore, 'was only responsible for diligence and good, faith,' and- the plaintiffs had the onus to show some want of care on the part of the defendant.
    ■■ - 5. There was no -proof of negligence. The goods were' delivered to- the Harlem railroad, which was a proper conveyance of the goods in question to their destination.
    6. It does not appear when the goods were loaded into the Harlem cars, nor is it shown why they failed to reach Albany until the 7th of -February. Whatever may have been the cause, it furnishes no ground of complaint against the defendant.
    7. There is nothing in the case from which, as a matter of law, it can be determined that the goods were unreasonably delayed. It is apparent that the entire injury arose from the flood at Albany, and for this the defendant is not liable, whether he was a forwarder or a carrier.
    - 8,. While the average time of-transportation between New York and: Louisville was about fifteen days,-it depended upon weather, season of the year, quantities shipped, &d, and sometimes the passage required thirty days. In the present case there was no agreement to deliver in any certain time, and hence the shipment was made subject to all the contingencies incident to the mode of conveyance, the season of the year, and the various circumstances attending the transportation of property; and to found a claim against the defendant upon any ground of delay, the plaintiffs must have given proof to show a delay arising from negligence

      9. And if the defendant is liable only as a, forwarder, he is not liable whether the injury at Albany was the result of carelessness or of inevitable accident.
    II. The injury to the goods'was the result of inevitable- accident, and the defendant is not liable in any capacity.
    1. It is impossible to imagine a case of an injury by the act of God or inevitable accident, if this be not one.
    2. It was the result of the action- of the elements, beyond' human control. It was, in no proper sense, occasioned by the act of man, but in opposition to it, and it was am injury arising •from a cause against which human foresight and sagacity could not guard. (Redfield on Railways, 232; 233; Forward v. Pittard, 1 Term R., 27; McArthur v. Sears, 21 Wend., 192; Williams v. Grant, 1 Conn. R., 487; Smyrl v. Niolon, 2 Bailey, 421 ; Faulkner v. Wright, 1 Rice, 108; Bowman v. Teall, 23 Wend., 306; Parsons v. Hardy, 14 id., 215 ; Harris v. Rand, 4 N. H. R., 259; Crosby v. Fitch, 12 Conn. R., 410; Morrison v. Davis, 20 Penn. R., 175 ; 1 Parsons on Contracts, §§ 635-687.)
    3. In the present instance the flood was sudden, and the water was four feet higher than ever before known. It was a result contrary to all human experience, and there was no negligence in not -anticipating or guarding against it. The warehouse in which the goods were deposited was sufficient, in all respects, to protect the goods from- injury by water against any flood then before known.
    4. There- was, therefore, no negligence on the' part of the carrier or forwarder, by which the goods were unnecessarily exposed to injury.
    5. There can be no recovery on the ground-of-delay between ■New York and Albany; where the goods were overtaken by the flood. The delay was not the proximate cause of the peril.(Morrison v. Davis, 20 Penn. R., 175.)
    6. The delay in forwarding the injured packages after their injury is not shown to- have subjected the plaintiffs to any special damage, or the goods to greater injury, and it cannot be inferred as a matter of law. The damage was occasioned solely by the water. If the goods were made worse by delay in sending them on, it was a matter of proof, and the plaintiffs gave no proof on the subject.

      7. By the contract, no damage beyond $200 can be recovered upon the package Ho. 184.
    It is submitted that, upon the facts of the case, the plaintiffs were not entitled to recover, and a new trial should be granted.
   By the Court—Woodruff, J.

It was admitted on the trial of this action that the goods in question were delivered by the plaintiffs and received by the defendant at the citj of Hew York, under the contract set forth in the case and called a bill of lading.

By that instrument, the defendant declares that he received the goods to be forwarded to the place named in the bill of lading, Louisville; and that all property shipped on that bill of lading will be delivered at the depots of the Company or steamboat landing; and in providing against liability for deficiency in packages, it is agreed that no such liability shall exist if the goods “ are delivered at Louisville depot in good orderand the stipulation in respect to amount of freight plainly embraces the compensation to be made to the defendant for the entire transportation from Hew York to Louisville.

The admission on the trial that the defendant received the goods in connection with this contract, imports that the expression, “ Spaulding’s Express Ereight Line” and “ Spaulding’s Express,” mean the defendant, M. B. Spaulding.

’ I. Upon these facts we have no hesitation in saying that the defendant undertook to carry the goods, and was not a mere forwarder whose duty consisted only in receiving and delivering the goods to others to be carried.

The observations made in The Mercantile Insurance Company v. Chase, (1 E. D. Smith, 121,) where goods were delivered and received under a contract in terms very similar to that before us, are apt to express our views of the present case on this point.; and Wilcox v. Parmelee, (3 Sandf. S. C. R., 610,) is to the like effect. The use of the term “ forward ” in the contract is controlled by the nature and extent of the actual undertaking, and did not make the defendant a forwarder in the technical sense of that word. An agreement “to forward from Hew York to Louisville” embraced carriage. It became the duty of the defendant to deliver the goods at Louisville. Whether the ■defendant used the term “carry,” or “ transport,” or “forward,” the goods from New York to Louisville is wholly immaterial, so long as he undertook the reception of the goods here and their1 delivery there. His duty embraced everything necessary to be done to accomplish a delivery of the goods at the place designated, and the compensation stipulated for in the contract was an expressed equivalent for the whole service. Whether the defendant used his own means of transportation in the service to be performed, or made his own private arrangement with others to perform the actual transportation, did not affect his relation to the owners of the goods with whom he had agreed to receive and deliver them. The fact proved, viz.: “that the defendant had no interest in or control over any of the routes or railroads mentioned in the said bill of lading, over which said goods were transported,” does not therefore affect the relation of the defendant to the plaintiff in this respect, since the defendant assumed to deliver, and it thereby became his duty to provide the means; and because, also, the bill of lading did not, expressly or by implication, specify any such routes or railroads otherwise than simply to say that the goods should be carried “ via Indianapolis.”

Again, the provision that in case of loss from any cause for which Spaulding’s Express should be liable, they shall have the benefit of any insurance thereon, and in case of loss on the lakesj. the freight and charges to or at Buffalo shall be paid by the owner, plainly shows that the defendant’s own understanding of' the contract contemplated liability for loss-in the course of transportation, which is obviously inconsistent with the claim now made that his duty was performed and his liability terminated by a mere delivery to others to be carried.

The only case in which a contrary doctrine has been held, is Hersfield et al. v. Adams et al., (19 Barb., 577, N. Y. Special Term,) and there the decision is mainly placed on the ground that the defendants were, by special contract, relieved from liability for the cause of loss there proved. So far as it declares that the defendants were not common carriers, the foregoing reasons forbid our concurrence therein.

II. The next and only other question urged upon our attention by the counsel for the defendant, is whether the injury to the goods happened under circumstances or from causes for which the defendant is responsible.

Unreasonable and unexcused delay in the transportation, and actual injury resulting therefrom, are the grounds upon which it is sought to charge the defendant.

By the agreement of the parties made on the trial, it is conceded that the actual injury arose from the goods being wet in the railroad depot at Albany; that the goods were, when wet, upon a floor in the depot at such an elevation above high water mark that goods thereon would not be injured by any flood such as had ever before occurred in the Hudson river at Albany; that the flood by which they were in fact injured, was a sudden rise in the water of the river, during the night, some four feet higher than it had ever risen before; that there was no negligence or omission of duty on the part of the defendant in not anticipating the occurrence of the flood; and that from the time it was apparent that there would be a rise of water, the goods could not have been prevented from being wet as they were.

Under this admission it is clear that if the defendant was without fault in exposing the goods to the action of the flood, he is not liable for the injury arising therefrom. If, in the due discharge of his duty, he had the goods in the regular and usual course of transportation, so that their being in the depot at the time was proper, then injury by the action of an extraordinary flood, rising higher than any flood had ever risen before, which it was no negligence or breach of duty not to anticipate, and from which, when the rise of water became apparent, the goods could not be delivered, is an injury by the act of God in such sense that the carrier is excused.

But the defendant had violated his duty and broken his contract, and was under the actual pressure of fault and neglect, without which the goods would have been safe.

The goods, in all consisting of eighty-six cases, were delivered to the defendant on the 27th day of January, 1857, to be carried and delivered to the plaintiff at Louisville. Eighty-one of these cases were carried and delivered within twelve or fourteen days after they were received in Hew York; that is to say, they reached Louisville on the 8th or 10th of February.

It was the duty of the defendant to deliver all the goods within a reasonable time, and according to the usual course of business over the route by which they were to be transported. There is nothing in the case to indicate that the eighty-one cases which were so delivered were forwarded with any extraordinary or unusual speed, but the proof is that from, ten to fifteen days is the usual time of conveyance. The presumption is, therefore, that if the defendant had performed his duty the five cases, which are the subject of controversy, would have reached Louisville at or about the same time with the others.

But these five cases were brought from the depot of the Western Railroad to the depot of the Central Railroad, at Albany, on Saturday, the 7th of February, when, as before suggested, they ought to have been at or near their destination, Louisville, Kentucky. Whether this delay arose from the detention of the goods in New York, or at the depot of the Western Railroad, or at any intermediate point, is not stated. Nor is any explanation of the cause of delay given or attempted; while it is agreed'that freight cars run daily from New York to Albany on the road by which these goods were to leave New York. If any explanation of this delay could be given, it was the duty of the defendant to give it. Enough was shown to east the burden of proof upon him. He had undertaken to carry, and the delay was, prima facie, not only unreasonable, but apparently the result of gross negligence and want of attention, either in not beginning the carriage in due time or in delaying the progress of the goods after the transportation’ was begun. It is not for the defendant to require that the plaintiffs should show the cause of the delay.

The result is, that the defendant was grossly negligent in the performance of his duty; this delay was a breach of his contract to carry and deliver within a reasonable time; and while so in fault, the goods in his charge were, in the night of Sunday, the 8th, or on the morning of the 9th of February, reached and inj ured by the extraordinary flood already mentioned.

But the defendant insists that, if the defendant was in fault in respect of the delay which had occurred, he is, nevertheless, not liable for the damage complained of; that, in such case, though the carrier be liable for delay, he is only liable for the immediate consequences of delay: by which he is understood to claim that he is liable only for such damages as the plaintiffs sustained irrespective of the injury to the goods by being wet in the flood at Albany; and, therefore, his damages are to be ascertained by assuming, for the purposes of the assessment, that the goods arrived safely, though not until long after the time when they should have been delivered.

This claim rests upon the ground that the delay was not the proximate cause of the injury. “ Causa próxima non remota spectatur."

The delay certainly did not cause the flood. But we think that the defendant cannot find protection in this view of his responsibility. His unexcused neglect of duty did expose the goods to the peril; and when the defendant was found in actual fault, he lost the protection from liability by inevitable accident which the law extends to the carrier in the due performance of his undertaking. From the moment his faulty negligence began, he became an insurer against the consequences which might result therefrom, whether ordinary or extraordinary.

It is true that, in Morrison v. Davis, (20 Penn. R., 171,) where goods carried in a canal boat were injured by the wrecking of the boat caused by an extraordinary flood, it was held that the carriers were not rendered liable merely by the fact that, when the boat was started on its voyage, one of the horses attached to it was lame, and that, in consequence thereof, such delay occurred as prevented the boat from passing the place where the accident happened, beyond which place it would have been safe. In considering the question, the Court liken the carrier to an insurer against loss by perils of the seas, who are said to be not liable for a loss immediately arising from another cause, although, by perils of the sea, the ship had sustained an injury without which the loss would not have taken place.

Possibly a question might be suggested whether, in that case, the mere fact that one of the horses was lame was enough to charge the defendants; but it must be conceded that, in the view taken by the Court, the case is strikingly like the present. We are, nevertheless, constrained to say, that, in so far as the principle of the decision tends to exonerate the present defendant, we cannot give it our assent.

A common carrier, in order to claim exemption from liability for damage done to goods in his bands in course of transportation, though injured by what is deemed the act of God, must be without fault himself: his act or neglect must not concur and contribute to the injury. If he departs from the line of duty and violates his contract, and while thus in fault, and in consequence of that fault, the goods are injured by the act of God, which would not otherwise have caused damage, he is not protected.

The defendant was bound -to deliver the goods in a sound condition. If prevented by the act of God, he is excused; but if his own misconduct contributed to the injury by exposing the goods needlessly or improperly to the peril, his excuse fails. All ordinary perils from even the act of God he was, even while engaged in the faithful performance of his duty, bound to foresee and guard against by the exercise of a care and diligence proportioned to the danger. He was not bound to anticipate and guard against extraordinary perils which human foresight would not anticipate; but it was his duty to do nothing which should expose the goods to any perils which would not arise in the proper and diligent prosecution of the journey which he had undertaken. And if he, by needless delay, subjected the goods to damage, from whatever cause concurring or cooperating therein, he is liable.

This we believe to be in accordance with sound policy, just in its operation, and sustained by the weight of authority.

Thus, if a carrier by water deviates from his voyage and the ship and goods are lost, he is liable, although the loss was by a peril of the sea. He is not at liberty improperly to encounter mischief, even from such a cause. In principle, it can make no difference whether his deviation is intentional or negligent; it is sufficient that he is in fault, and that subjects him to liability.

So, where a carrier by land deviated from the direct and principal route, and the goods were lost by a cause which might, had he been without fault, have excused him on the score of inevitable accident, he was held liable because the loss happened in consequence of his own improper conduct: he had no right so to deviate.

The observations of TlNDAL, Oh. J., in Davis v. Garrett, (6 Bing., 716,) apply with much force to the present case. There the carrier had deviated from his voyage, and a loss occurred by a peril of the sea. He says: “Ho wrongdoer can be allowed to apportion or qualify his own wrong; and as a loss has actually happened while his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up, as an answer to the action, the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done.”

In Williams v. Grant, (1 Conn. R., 492,) the true rule is stated as we think, and it covers the present case; after stating the exemption of carriers from liability for losses caused by inevitable accident, G-ould, J., says: “It is, however, a condition precedent to this exoneration that they should have been in no default; or, in other words, that the goods should not have been exposed to the peril or accident which occasioned the loss by their own misconduct, neglect or ignorance. For, though the immediate or proximate cause of á loss, in any given instance, may have been what is termed the act of Grod, yet, if the carrier unnecessarily exposed the property to such accident by any culpable act or omission of his own, he is not excused.” (See also 12 Conn. R., 410; 4 Wharf, 204; Harp. [S. C.] R., 262, 468; Wilcox v. Parmelee, 3 Sand., 610.)

The defendant is, we think, liable, and the plaintiffs were entitled to recover.

A point was suggested on the hearing of the exceptions, though not argued by the counsel, relating to the amount of the damages. An entry on the margin of the contract, called the bill of lading, was in these words: “Ho risk taken over $200 on any single package.” One of the five cases which were injured contained seventeen packages, and the damage to the whole seventeen packages amounted to $438.88. It is claimed that no more' than $200 should be allowed for the injury to the whole seventeen packages.

It is obvious that, according to the very terms of the memorandum, $200 being allowed on any single package, that sum might, within the provisions of the contract, be allowed on each of the seventeen packages, unless the word “ package ” is used in a different sense in the statement of the facts agreed upon by counsel, from its meaning in the contract, which forms a part of that statement. This we cannot say.

Again, the packages thus forming one case were inclosed in a rough box, having openings through which the packages could be seen. The defendant, therefore, knew when he was receiving the case that he was receiving several packages, though inclosed. It does not seem to us that securing several small packages in this manner, so that they were more conveniently carried, when the carrier knew, or might, by ordinary inspection, have known that he had received, not one single package, but seventeen small packages, should render the liability of the defendant any less than it would be if the seventeen packages had been separately delivered.

And, finally, on this point we incline to the opinion that the term risk, in the memorandum in question, has reference to perils which occur without the actual fault of the defendant, and do not exempt him from liability for losses resulting from his actual negligence.

The plaintiff should have judgment on the verdict.

Ordered accordingly.


author: By the Court—Hoffman J.

text:
    Platt Adams, Plaintiff and Respondent, v. Simeon Leland et al., Defendants and Appellants.
    1. Where the evidence as to the diligence of a Notary to find the makers of a note in order to demand its payment at maturity from them personally, is free from conflict, the question of its sufficiency to establish due diligence in that behalf is one of law.
    2. The evidence given on the trial of this action, to establish due diligence, stated, considered and held sufficient to make a prima facie case of due diligence.
    3. Statements made to the Notary by persons to whom he was referred at the makers’ last known place of business, as having knowledge of the makers, in answer to questions as to where the makers resided or could be found, held competent upon the question of the Notary’s diligence to find the makers.
    (Before Hoffman and Woodruff, J. T.)
    Heard, November 7th;
    decided, November 26th, 1859.
    This is an appeal by Simeon, Charles and Warren Leland, the defendants, from a judgment in favor of Piatt Adams, the plaintiff, rendered on a trial had before Chief Justice Bosworth and a jury, on the 23d of Mav. 1859.

      The suit is against the defendants as indorsers of a note dated “New York, February 12, 1857,” for $6,000, payable on the 20th of June then next, without grace, to the order of James Moore, indorsed by him to P. 0. Ward, by the latter to the defendants, and by the defendants indorsed in blank and delivered to John Thompson, and assigned by the latter to the plaintiff in August, 1857, under a general assignment by Thompson of his property.
    The note is made by Seymour, Moore & Co., a firm doing business, at the time it was made, at 110 Broadway, New York city.
    The principal questions related to the sufficiency of the demand of payment, and to evidence bearing on those questions. The facts are stated in the opinion of the Court.
    A verdict was ordered for the plaintiff for $4,379.87, the balance due on the note, and from the judgment entered on the verdict, this appeal is taken.

      S. B. Gushing, for appellants,
    Insisted that as there was no conflict of evidence as to the diligence of the Notary, its sufficiency was a question of law, and that the evidence was insufficient to prove due diligence, or excuse the necessity of making a personal demand of the makers, or a demand at their residence, whether it was in this State or out of it, or at their place of business, and cited and commented on 6 Metc., 290, and Taylor v. Snyder, 3 Denio, 149; Chitty on Bills, 12 Am. ed., 395, 353; 7 Barb., 143 ; 14 Johns. R., 114; 16 Pick., 392, and 5 Hill, 232.

      E. More, for respondent,
    Contended that as Seymour occurred in the name of both firms, and Seymour, Morton & Co. were represented to be successors of the makers, payment was in fact demanded at the place of business of one or more of the makers.
    That if this position was untenable, then the only question was, whether due diligence had been used, and that Taybr v. Snyder, (3 Denio, 152,) warranted the decision made at the trial.
   By the Court—Hoffman J.

The action is brought upon a note dated the 12th of February, 1857, for $6,000 drawn by Seymour, Moore & Co., in favor of James Moore or order, payable on the 20th of June ensuing, without grace, with interest at the rate of seven per cent.

The payee, James Moore, and one P. 0. Ward, and the defendants by their firm name of Simeon Leland & Co., indorsed the note, and it was delivered to John Thompson, by whom it was assigned and delivered to the plaintiff.

The chief question is, as to the sufficiency of the demand for payment upon the makers.

The note is dated at New York. The Notary deposes, that the note was given to him for protest by Thompson. “ He (Thompson) told me their office (the makers’,) was at 110- Broadway. I called at the place designated, and found ‘Seymour, Morion & Co.,1 over the door, and presented the note; payment was demanded and refused. I was informed there that I might find their agent at 54 William street, and I presented to him, the man in William street.”

It was also proved (by John Thompson) that Seymour, Moore & Co. had dissolved before the note matured. The last the witness knew of Seymour, Moore & Co., they were at 110 Broadway. The Notary further testified thus: I inquired at No. 110 Broadway over the Metropolitan Bank, for Seymour Moore & Co. The person in attendance there told me that that had been their office; he said I might find somebody who knew more about it at 54 William street; he gave me the name of a man, a Mr. Lincoln, at 54 William street, that he said sometimes acted as their Agent. I understood from the man at 110 Broadway, that they (Seymour, Morton & Co.) were the successors of Seymour, Moore & Co. The defendants excepted to the evidence as to what was said in answer to the inquiries made by the Notary at 110 Broadway. The Notary further testified, that the man at 110 Broadway declined paying the note, saying he had no money. The Notary also inquired at the office adjoining 110 Broadway and was there told that Seymour, Moore & Co. had dissolved.

Demand of payment was then made of Lincoln, at 54 William •street. He refused payment. He was asked by the Notary if he ’knew where the makers were. He answered that he supposed they were out West. '“He professed to know a little about it, but refused to tell me .(the Notary) much about it. He told .me .ihe:old firm was dissolved.” The statements of Lincoln were objected to, the objection was overruled, and the defendants excepted.

The Notary went to the last place of business of the drawers. He is sent to another place, where he is told some information •might be obtained. He would not have done his duty if he had not gone there. He is there told that the drawers were supposed to be out West. The statements thus admitted in evidence were admissible, not as proof of the facts stated, but upon the question ■of the Notary’s diligence, to show that he-availed himself of information as to where the parties might be found.- I think that- there was sufficient diligence used in ascertaining the place where the demand-should be-made, and such demand-was sufficient. (Taylor v. Snyder, 3 Denio, 152; Edwards on Bills; &c., p. 484; 9 Wheat. R., 598.) There was enough to put the defendants upon proof of the makers being where they could be reached.

The exceptions to the ruling of the learned Judge in admitting the statements of the persons at 110 Broadway, and 54 William street, are disposed of by the above1 remarks.

- The judgment should be affirmed, with costs.

Judgment affirmed.


text:
    Michael L. Leman, Plaintiff and Respondent, v. The Mayor, Aldermen, &c., of the City of New York, Appellants.
    1. The Mayor, Aldermen and Commonalty of the city of New York, since . the passage of the act entitled “An act to make permanent the grades of the streets and "avenues of the city of New York,” passed March 4, 1852, cannot, even under the authority of an ordinance passed by both branches of the Common Council and approved by the Mayor, change the grade of ■ any street in said city, established by law when said act was passed, south of Sixty-third street, without becoming liable to the owner of any lot or building on the street so altered, for all damages caused to him, as such owner, by reason of the making of such change of grade; unless such change is made upon the written consent of the owners of at least two-thirds of

      the land in lineal feet fronting on each side of the street opposite to and adjoining that part thereof the grade of which is to be changed or altered, 2. By the terms of that act it is declared that it shall not be lawful for the Common Council of the city of New York to change such established grade, without such consent; if therefore they make such change and the defendants by their agents proceed to carry it into actual execution to the injury of the owners of lots on the street, the city is liable for the damage sustained.
    (Before Hoffman and Woodruff, J. J.)
    Heard, November 7th;
    decided, November, 27th, 1859.
    This is an appeal by The Mayor, Aldermen and Commonalty of the City of New York, the defendants, from a judgment in favor of Michael L. Leman, the plaintiff, rendered on the report of Hon. John L. Mason, as Referee.
    The plaintiff is the owner of a lot on Pearl street, New York city, and the building thereon, fronting on Pearl street, and was at the time the acts hereinafter stated were done.
    In April, 1857, the defendants, by an ordinance which passed both branches of the Common Council and was approved by the Mayor, directed the grades of Pearl and other named streets to be changed; that the work be done at the expense of the defendants ; and appointed three assessors to make a just and equitable assessment of the expense among the owners of lots to be benefited thereby, in proportion as nearly as may be to the advantages which each may be deemed to acquire.
    The defendants made such change of grade without the plaintiff’s consent, and without the consent of the owners of two-thirds of the land in lineal feet, fronting on and adjacent to such change of grade as required by the act of the Legislature, .entitled “ An act to make permanent the grades of the streets and avenues of the city of New York, passed March 4th, 1852.”
    In making such change of grade, the street was dug down three or four feet below the original grade in front of the plaintiff’s premises; and such change of grade was injurious to the plaintiff; and made expenditures by him necessary, to adapt the house and lot to the new grade; whereby the plaintiff sustained damage to the amount of $826.57.
    The Referee held the defendants liable, and decided that the plaintiff recover from them the damages aforesaid. From the judgment entered on that decision the present appeal is taken.

      Moses Ely, for appellants.
    I. Plaintiff has no right of action of trespass against the defendants, for the acts he complains of.
    ■ Until the law of 1852 the city might “ alter and amend ” their streets at pleasure. (See all the laws upon this subject, to wit: 1st. Montgomerie Charter, § 16, Davies’ Laws, p. 177; 2d. Rev. Laws of 1813, § 175, id., p. 526 ; 3d. Law of March 4,1852, id., p. 1083.) The right to “ alter and amend ” involves the right to change the grade of a street. (Waddell v. The Mayor, &c., 8 Barb. S. C. R., 95, and cases there cited.) The law of 1852 does not take from the city the right to make the change of grade, where a change is to be made. It only imposes restraints upon its exercise. Before this law, the exercise of the right was unrestrained. No one had any remedy or redress for loss he might sustain by reason of it. No damages could be assessed, and none could be allowed to him. It follows that the remedy given by the last named statute is a “new remedy,” and the assessors, by whom the damages are to be awarded, are, for the purposes of such award, a new tribunal. The consent of property owners to the change is made necessary by the language, “it shall not be lawful,” &c., without such consent. This annexes to the law of 1852 a right of action on the part of the People for its violation. (2 R. S., part 4, ch. 1, title 7, p. 696.) “ Where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, in such case, the party violating the statute is liable for the penalty only.” (Sedgwick on Stat. and Const. Law, p. 401.) Again, (p. 402,) “where, by a statute, a new right is given and a specific remedy provided, or a new power, and also the means of exercising it, are provided by statute, the power can be exercised, and the right vindicated, in no other way than that prescribed by the statute.” By the statute of 1852: 1st. A penalty was made to attend its violation. Its violation was a misdemeanor. 2d. No new right was given the individual. 3d. A specific remedy is provided.
    II. The restraints imposed by the statute of 1852 were mere reservations of rights to the public, and not a bestowal upon individuals. These restraints were mere police regulations. It was left to the chances of each particular case, as to whose will their exercise should depend on. The consent was not a condition precedent to the invasion of private property, but to the exercise of a public duty.
    III. It does not follow that a valid award, under the statute, could not be made, because an assessment for benefits would be void. The argument that this does follow is founded upon the supposition that the awards are to be paid out of the particular fund to be raised by the assessment, which is erroneous. The assessment is but a means of reimbursing the city the moneys expended in payment of the awards. The test is whether the person, to whom an award should be made, would have a lien upon the particular fund derived from the assessment for the payment of the award, in case of refusal of payment by the city, for any cause.
    IV. In this case Ihe plaintiff is entitled to no private remedy. He has suffered no private wrong. 1st. (As already shown,) the right infringed was not a private right. 2d. The injury suffered was common to all plaintiff’s neighbors in Frankfort, Hague, Pearl, Vandewater, and other streets in his vicinity. (Lansing v. Smith, 8 Cow., 146; Smith v. Lockwood, 13 Barb., 209.)
    The judgment should be reversed.

      A. J. Willard, for respondent.
    I. The power which had been conferred upon the Mayor, Aldermen and Commonalty of the city of New York, by previous laws or charters, to regulate the public streets, was limited by the act of the Legislature, passed in 1852. (Sess. Laws, 1852, p. 46, §2.)
    The second section of this act provides that “ it shall not be lawful for the Common .Council to alter or change in whole or in part the grade of any street or avenue in said city now established, south of Sixty-third street, or which may hereafter be established north of Sixty-second street, except upon the written consent of the owners of at least two-thirds of the land in lineal feet, fronting on each side of street or avenue opposite to and adjoining that part thereof, the grade of which is to be changed or altered.”
    This limitation of the power of the Corporation required, as a preliminary to any action, that they should obtain the written consent of the owners of at least two-thirds of the lineal feet fronting on and adjacent to any street, of which it was proposed to change the grade.
    Without such consent, there was no authority in the Corporation to cause the existing grade of any of the established streets of the city to be altered, and if, without obtaining such consent, they changed the grade, their act was one of trespass, for which an action would lie by a party injured.
    The power of .the Corporation over the streets of the city is a mere political power. The public easement-in the streets is vested in the People of the State, and not in the citizens of New York, or the corporation of New York. As, in the counties generally, the care and custody of highways, is committed to commissioners or overseers, so the same duty is enjoined in cities upon the corporate authorities, and their respective common councils áre made commissioners of highways, and the corporation is rendered liable for all damages occasioned by the negligent discharge of their duties. (Storrs v. City of Utica, 17 N. Y. R.,104.)
    As commissioners of highways, in either towns or cities,' all their powers and duties "are conferred and prescribed by statute, and it is competent for the Legislature to enlarge or restrict them, or to take them away altogether.
    The evidence in this case establishes that the appellants, without having obtained the consent of the owners of the requisite number of lineal feet, passed an ordinance and altered the grade of an established street, fe the permanent injury of the respondent’s property. This, under the prohibition of the act of 1852, was an unauthorized act, and constituted it a trespass.
    If the act here complained of had been done under lawful authority, and ail the requirements of the statute conferring the authority been strictly observed, then, except for the indemnity provided by the act of 1852, it. would probably have been regarded as damnum absque injuria. And, it is submitted, that it was to relax the harsh rule of the common law, as stated in Radcliff's Executors v. Mayor of Brooklyn, (4 Comst., 195,) that the Legislature enacted the remedial statute of 1852.
    In the absence of all evidence to the .contrary, the respondent owning the premises abutting upon the street, is presumptively the owner of the fee of the street to the centre, subject to the public easement; and hence, if the act of subverting the soil for the purpose of lowering the grade of the street was without lawfhl authority, the respondent could have his action as well for the trespass to the freehold, as for the consequential injury to his adjacent property. For if the entry upon the street was without right, it rendered the trespasser liable for all' the consequences- of his illegal act.
    The right to recover under such circumstances is founded in-principle and sustained by authority. (Howell v. City of Buffalo, 15 N. Y. R., 512; Conrad v. Trustees of Ithaca, 16 id., 158; Mott v. The Mayor, &c., of New York, MS. Opinion, Common Pleas.)
   By the Court—Hoffman, J.

The constitutionality of the act of 1852, (March 4, Davies’ Laws, p. 1083,) has not been questioned, and is to be assumed until clearly disproved.. It is, then, a restriction upon a previous legal and absolute right to change the grade of streets, as the Common Council might be advised.

The 2d section of that act provides that it shall not be lawful for the Common Council to alter or change, in whole or in part, the grade of any street or avenue in the said city now established, south of Sixty-third street, or which may hereafter be established north of Sixty-second street, except upon the written consent of the owners of at least two-thirds of the land in lineal feet fronting on each side of the street or avenue opposite to and adjoining that part thereof, the grade of which is to be changed or altered.”

By the 3d section of this act, where the grade of any street or avenue shall be changed or altered, in whole or in part, “ it shall be the duty of the assessors appointed to estimate and assess the expense of conforming to such change of grade and regulating the street or avenue in accordance therewith, to estimate the loss and damage which each owner of land fronting on such street or avenue will sustain by reason of such change, to such lands or to any improvements thereon; and make a just and equitable award of the amount of such loss or damage to the owner or owners of such lands or tenements fronting on such street or avenue, and opposite thereto, and affected by such change of grade; and the amount of such award shall be included in the expense of such proceeding, and with such expense shall be assessed as provided in the 175th section of the act of April 9, 1813, entitled, ‘ An act to reduce several laws relating particularly to the city of New York into one act.’ ”

This statute has thus provided a Board, not only for assessing adjoining owners for the benefit they may derive from the improvement, but also for ascertaining the damage which may be sustained by adjoining owners. It may well be that, if the plaintiff, or any one similarly situated, had gone before such assessors, proved his damage, and submitted his claim, he might be estopped from urging the present objection. But the Corporation has, in this instancej assumed the performance of the work; resolved that it shall be done at their own expense, and assessors were appointed only to assess upon the owners benefited their respective proportion of the expense. I presume this was done under the 270th section of the act of 1813. (2 R. L., 446.)

The Common Council could only perform the work in question upon obtaining the consent of two-thirds of the owners, as prescribed in the act of 1852. They have done it in an unlawful manner, ' and damage has been suffered by the plaintiff from this unauthorized act. The case appears to be a clear one. Howell v. The City of Buffalo, (15 N. Y., 512,) appears to govern it.

In The Philadelphia and Wilmington Railroad Company v. Quigley, (21 How. U. S. R., 202,) the Court say: “ The powers of the Corporation are placed in the hands of a governing body selected by the members, who manage its affairs and who appoint the agents for the accomplishment of the objects of its being. But these agents may infringe the rights of persons who are unconnected with the Corporation, or who are brought into reía- - tions of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives, is a recognition of a corporate responsibility for the acts of those representatives.” -

The result of the cases is, that, for. acts done by the agent of a corporation, either ex .contractu or ex delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible, under similar circumstances.

The action was one of libel. I may observe that the trespass and damage here complained of are the acts of immediate agents of .the Corporation, who acted under its direct authorization.

It is objected that thus the title of a multitude of owners must be searched before an improvement of this nature can be made. So it must be upon opening streets; and the act of 1852 has provided for the difficulty, where the owners to be paid are not designated in the report of the assessors.

The judgment should be affirmed, with costs

Judgment affirmed.