text:
    SUMMERFIELD McLEAN, Plaintiff, v. FRANCOIS J. G. LADD, Defendant.

      Testamentary trustees — unauthorized purchase of land with trust funds — the legal title vests in the trustee — his right to mortgage it — rights of beneficiaries.

    Thomas Connell died leaving a will in which it was stated that as his personal estate was insufficient to pay the legacies given by the will he devised his real estate to his executor, in trust, to sell it and to pay from the proceeds of the sale his debts and the legacies given by the will, and in the meantime to collect the rents and profits.

      He gave his-executor a power of sale, but gave him no power to mortgage or to reconvert personal into real property.
    In July, 1873, John Quinn qualified as executor, and in May, 1888, John W. Collins, who then owned certain land, in conjunction with his wife, conveyed the same to John Quinn, as trustee under said will.
    A part of the consideration for this conveyance was a mortgage then existing upon the premises for $1,500, and the rest was money of the trust estate. This mortgage was paid out of the moneys obtained on a mortgage covering the premises given in August, 1884, by Quinn, as such trustee, to a building and loan association, which subsequently foreclosed its mortgage, making, as sole defendant in the action, Quinn, as trustee, who demurred to the complaint upon the ground that the beneficiaries of the trust were not made parties.
    This point having been decided against him, a judgment of foreclosure and sale was entered, under which the property was sold to the association, which subsequently conveyed it to Summerfield McLean. Thereafter McLean agreed, in writing, to sell the premises to Francois J. G-. Ladd, but.the latter, upon an examination of the title, refused to accept it.
    Upon a submission of the controversy as to the validity of the title, upon an agreed state of facts:

      Held, that specific performance should be decreed.
    That, although Quinn used trust funds to make his purchase from Collins, the legal title to the premises vested in Quinn, and that, as the title did not come to him under the will of Connell, the mortgage given by Quinn, as trustee, to the loan and building association was a valid instrument.
    That the beneficiaries under the will of Connell never acquired any direct estate or interest in the premises.
    That, hence, they were not necessary parties to the foreclosure of the mortgage given by Qüinn, as trustee, to the loan and building association.
    That the action of Quinn was improper, and that the beneficiaries had a right either to claim the investment made by him or to make him account for the money, but that they were not entitled to both remedies. That until they did some affirmative act, looking towards an election to accept an interest in the lands, the trustee had power to convert them into money.
    Submission of a controversy without action, upon an agreed state of facts, between Summerfield McLean, as plaintiff, and Francois J. G-. Ladd, as defendant.

      Abner O. Thomas, for the plaintiff.

      A. W. Byrt, for the defendant.
   Dykman, J.:

A controversy has arisen between these parties which has been submitted to this court for judicial determination upon a conceded state of facts. The course pursued is to be encouraged because it furnishes a rapid and inexpensive method for the settlement of disputes, and secures a decision as certain and satisfactory as could be reached after the most obstinate litigation. The basal facts are these: Thomas Connell made a last will and testament, and two codicils thereto, in which "William Connell, John Quinn and Philip Lyons were named as executors. After the death of the testator, his will and codicils were proved and admitted to probate, and letters testamentary were issued thereon to John Quinn, one of the persons named as such executors, on the 14th day of July, 1873. .

The third clause of the will reads as follows, and remains unaffected by the codicils:

Third. Inasmuch as my personal estate is insufficient to pay the legacies hereinafter given, I hereby give and devise to my executors hereinafter named, or to such of them as shall qualify, all my real estate and chattels real of which I may die seized or possessed, in trust to sell and dispose of the same at public or private sale, in such parcels, at such several times and upon such terms as shall seem to them expedient and most conducive to the interests of my estate, and to apply proceeds thereof, together with the avails of my personalty not herein specifically devised, to the payment of the debts and of the legacies and bequests herein contained. And upon such sale or sales I empower my executors, or such of them as shall qualify, and the survivor of them, to execute and deliver good and sufficient deeds of conveyance, and to receive payment either wholly in cash, or, in their discretion, partly in cash, and the balance, not, however, exceeding sixty per cent of the purchase-price in the bond of the purchaser, secured by mortgage upon the property conveyed, and until such sale I direct my executors to collect the rents and profits of my real estate, and to apply so much thereof as may be necessary to the payment of the taxes and assessments thereon, and if the receipts from rent shall bfe insufficient therefor, then to pay the deficiency frqm the avails of my personal estate.”

On or about May 1, 1888, John W. Collins, being* then the owner in fee of the premises, with his wife, executed and delivered to John Quinn, as trustee of and under the last will and testament of Thomas Connell, deceased, a deed of conveyance containing a general warranty, with the usual full covenants and proper form to convey the title of the premises.

The consideration of that conveyance was $3,000, more than fifteen hundred dollars of which was paid by deducting and allowing that amount from the consideration for a valid mortgage on the premises made by Theodore D. Lyóns and wife to one David Carll,' to secure the payment of $1,500 and interest, with all accrued interest thereon from August 1,1887; the balance of the consideration, being between fourteen and fifteen hundred dollars, was paid by Quinn in cash.

On or about August 17,1888, John Quinn, as trustee of and under the last will and testament of Thomas Connell, deceased, executed and delivered to the Harlem Co-operative Building and Loan Association a mortgage to secure the sum of $3,000. Part of the money advanced on that mortgage was used in paying the last-named mortgage for $1,500, which was thereupon, on or about the 18th day of August, 1888, canceled and discharged of record, and all or part of the balance thereof was used and expended by the mortgagor in improving the premises.

In making the purchase of the premises by Quinn, he used the money which formed a part of the assets of the estate of Connell in his hands as trustee. Thereafter an action was commenced in the Supreme Court in Westchester county by the Harlem Co-operative Building and Loan Association against John Quinn, as trustee of, and under the last will and testament of, Thomas Connell, deceased, to foreclose the last-named mortgage for $3,000.

In that action John Quinn, as trustee under the last will and testament of Connell, was duly served with the papers, and appeared by his attorney, but no other person was joined with him as a defendant.-

John Quinn demurred to the complaint on the ground that there was a defect of parties defendant, in that the complaint was to foreclose a mortgage alleged to have been made by him as trustee, and the beneficiaries having an interest in the estate were not made parties defendant. After argument on that demurrer such proceedings were had that the judgment of foreclosure and sale was entered in that action about January 18, 1890, in the usual form, and the referee was appointed to sell the mortgaged premises, and out of the proceeds to pay the claim of the plaintiff, with interest and costs.

Quinn appealed from that judgment to the General Term of the Supreme Court where the judgment was affirmed, with costs. The referee named in the judgment thereafter sold the premises at public auction, and on the sale the Harlem Co-operative Building and Loan Association became the purchaser of the property, and in pursuance of the sale the referee delivered a deed of conveyance of the premises to the purchaser, the Building Association, on the 14th day of March, 1890. The proceedings in the foreclosure suit were regularly conducted.

The Harlem Co-operative Building and Loan Association conveyed the premises to Summerfield McLean, the plaintiff in this action, hy deed of conveyance dated January 30, 1892, which was in. due form and has been regularly recorded.

On receiving his deed of conveyance the plaintiff McLean executed and delivered a purchase-money mortgage to the grantor, the Building Association.

On the 30th day of January, 1892, the plaintiff and defendant made an agreement in writing by which the plaintiff agreed to sell and convey the same premises to the defendant for $3,000, to be paid as follows:,Fifty dollars at the date of the agreement, $2,800 by assuming the payment of the purchase-money mortgage upon the premises, and the balance, $150, at the time of the delivery of the deed of conveyance. The defendant paid fifty dollars on account of the purchase-money at the time of the execution of the contract, and thereafter incurred an expense of $100 in examining the title to the premises.

On or about February 15, 1892, the parties met at the place mentioned in the agreement, and the plaintiff made a tender of performance of his contract, which was, in all respects, sufficient. The defendant then refused to accept the title or carry out the contract, and demanded a return of the money paid by him on account thereof, with $100 for expenses incurred in examination of the title, on the sole ground that the title of the plaintiff was not a good and sufficient title, and that the deed tendered by him could not, for that reason, convey the fee simple of the premises.

The questions submitted to the court are these :

First. Is the plaintiff entitled to judgment against the defendant for the specific performance of the agreement to purchase the property on receiving a deed of conveyance thereof, in the manner and form required by the contract, by paying the balance of the purchase-money directed to be paid, and assuming the mortgage of $2,800 ?

Second. Is the defendant entitled to a judgment against the plaintiff for the return to him of the fifty dollars paid on the contract with the further sum of $100 for expenses incurred in the examination of the title ?

Third. Are either of the parties to this submission entitled to any further or different relief against the other ?

In the third paragraph of his will Thomas Connell made a recitation that his personal property was insufficient for the payment of the legacies bequeathed, and gave to his executors, or such of them as should qualify, all his property, real and personal, in trust to sell and dispose of the same and apply the proceeds, with the avails of his personal property, to the payment of debts and legacies, and in the meantime to collect the rents and profits of the real property.

The will bestowed no power of reconversion or to execute mortgages, and no such power will be inferred, because it cannot become necessary to carry into execution the scheme of the will.

The money paid to Collins by Quinn, upon the purchase of the property, belonged to the estate of Connell, and was in the hands of Quinn, as .trustee, and such use of the funds was in contravention of his trust, yet the conveyance of Collins transferred the title to Quinn, either individually or as trustee, and, for the purposes of this case, the capacity in which he held the title is quite immaterial. But the fact that Quinn did not take title to the property under the will of his testator is quite material, for if he had so acquired the title no mortgage upon the property would have been valid, because no power to mortgage is contained in the will.

In relation to property purchased by Quinn, even though the purchase was made with trust funds, the same disability does not arise.

The conveyance to him invested him with the full legal title, although, as between him and his beneficiaries, it was impressed with a trust which they could enforce, yet, as the title did not come to him under the will of his testator, his want of power to mortgage under that instrument did not apply, and, therefore, the mortgage executed by him was a valid instrument.

The fact that the property did not belong to the testator at the time of his death is material in another respect. If it had so belonged to him, then Quinn would have no title, except such as he acquired under the will as trustee, but now, so far as the title is concerned, the conveyance to him had the same effect as if it had been taken to him as an individual, and the will had no direct operation, upon it.

The beneficiaries never acquired any direct estate or interest in the property. It never was subject to any of the trusts in the will, and, therefore, no one can dispute the conveyance to Quinn or his mortgage thereunder.

These conclusions receive support from the adjudicated cases which have arisen under purchases of real property by executors upon sales under judgments of foreclosure of mortgages belonging to their testator.

Such was the case of Lockman v. Reilly (95 N. Y., 64), where the executors, on foreclosure of their mortgage, became the purchasers and received the conveyance in their name as executors, and it was held that, whether the deed was taken in the name of the executors as such, or in their individual names, the legal title was in them, and they might sell the same although no power of sale was contained in the will.

The same question again received the attention o the Court of Appeals in the case of Haberman v. Baker (128 N. Y., 253), and it Was there held that when, “ upon foreclosure of a mortgage belonging to the estate of a decedent, the mortgaged premises are bought in by the personal representatives, they take on the character of the mortgage indebtedness, and so are as personalty in his hands, which he may dispose of, and for which he is liable to account as such, and this is so, although the decedent left a will which conferred no power upon his executors to sell real estate.” And, further, that neither the heirs of the decedent nor his residuary devisees take any direct interest in the property.

The case of Valentine v. Belden (20 Hun, 631) was an action like this to compel a purchaser to take title. The plaintiff foreclosed a mortgage belonging to his intestate and became the purchaser at the sale under the judgment and took a deed in his own name individually. He then entered into a contract to sell and convey the premises to the defendant, who subsequently refused to consummate the agreement on the ground that the plaintiff, being the administrator of the estate could not purchase the premises under the judgment, and was, therefore, unable to convey a good title thereto.

The court held that the land thus purchased became a substitute for the bond and mortgage, and that the plaintiff acquired as perfect title to the land as he possessed to the bond and mortgage previous to the foreclosure, and the conveyance which he tendered to the defendant would vest in the latter a perfect title to the premises.

In the case of Cook v. Ryan (29 Hun, 249), the plaintiffs, as executors, brought an action to foreclose a mortgage owned by their testator. Pending the action the property was conveyed to the plaintiffs as executors, and the action was discontinued. Subsequently a moneyed judgment was recovered against the plaintiffs as executors, and it was held that they had power to sell the property although no power of sale was conferred by the will, and that a purchaser from them would acquire a good title.

The court there said in the course of the opinion: “ They not only have power, but it is their duty to sell and dispose of the property, and to convert it into cash for the payment and discharge of the liabilities of the estate of their testator, and their conveyance will constitute a perfect title.”

That case received an approving quotation from the Court of Appeals in Lockman v. Reilly {supra). In the action to foreclose the mortgage executed by Quinn to the building association, it was unnecessary to make any parties defendant except the mortgagor, because, as we have seen, the beneficiaries under the will took no interest in the property and the title was vested in him alone. Moreover the former decision of this General Term is conclusive on that question.

It is, perhaps, unnecessary to say that our decision does not justify the action of Quinn in making the purchase of this property with trust funds; on the contrary, such action was improper, and the persons entitled to the money used in making the purchase had the right, by appropriate proceedings, to have the property adjudged to belong to them, or they might require the trustee to account to them for the money so employed. But they could not have both. (Baker v. Disbrow, 18 Hun, 29; affirmed in the Court of Appeals, 19 N. Y., 631.) In that case, it was said: “ The improper investment is considered, as against the trustee himself, as equivalent to no investment, but, in favor of the cestui que trust, it gives an option to claim either the investment made or the replacement of the original fund, with interest according, as the one or the other may be most for his benefit.”

It was the right of the beneficiaries, under the trusts in the Connell will, to have the entire estate converted into money, and until they did some affirmative act looking toward an election to accept an interest in land, their interest was in the fund as personal property, and the control of the trustee over the land, and his duty to convert it into money, and his power to make such conversion was full and complete.

In the case of Rogers v. Paterson (4 Paige, 409), a trustee of a legacy for an infant, feme coverte, which was invested on bond and mortgage in the name of the trustee, took a release of the equity of redemption, thus acquiring the legal title. The cestui que trust died during her infancy, and whether the rights of the infant were those of an owner of land or of a beneficiary of a legacy, and, also, whether the property descended to her heirs-at-law or passed to her husband, were the questions presented, and it was held that it continued personalty, and passed to her husband.

■Our examination leads us to the conclusion that the plaintiff is entitled to judgment against the defendant for a specific performance of the contract.

Barnard, P. J., and Pratt, J., concurred.

Judgment for plaintiff on submitted case, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    BENJAMIN B. STRONG, Respondent, v. LOUISA A. SHEFFIELD, Appellant, Impleaded with Another, Dependant.

      Bills and notes — action by a payee against a subsequent indorser — when it may be maintained— consideration — old debt.

    Benjamin B. Strong began an action against Gerardus R. Sheffield, as maker, and Louisa A. Sheffield, as indorser, of the following promissory note:
    “ $400. New York, July 1st, 1889.
    “On demand I promise to pay to the order of Benjamin B. Strong four hundred dollars, with intez-est, at New Rochelle, value z-eceived.
    S‘G. R. SHEFFIELD.”

      The note was given for a pre-existing debt of Gerardus R. Sheffield to Strong, evidenced by a due bill, and was indorsed by Louisa A. Sheffield before it was delivered to Strong.
    When Louisa A. Sheffield indorsed the note she received no consideration therefor, nor was there any agreement by Strong to extend the time of payment of the original debt, and it did not appear that the due bill was surrendered Upon the trial the plaintiff recovered judgment, on an appeal from which it was, Held, that the judgment was improper.

      Semble, that the note was non-negotiable, and that no person could be held liable as indorser of such a note.
    That, if negotiable, Louisa R. Sheffield was, as to Strong, a subsequent indorser, and, therefore, he could not recover against her.
    That, in the cases where a payee has been allowed to recover against an indorser, upon the ground that the indorsement was made to give the maker credit with the payee, the complaint must set out the facts; and that, upon the facts of this case, no recovery on that ground could be sustained.
    That there was no consideration for the note, and none for the indorsement of Louisa Sheffield; and that, regarding the note as non-negotiable, there was no consideration for her promise as a guarantor. (Barnard, P. J., dissenting.)
    Appear by tbe defendant Louisa A. Sheffield from a judgment of the Westchester County Court, entered in the office of the clerk of the county of Westchester on the 23d day of December, 1891, upon a verdict for the plaintiff for $432.80, after a trial in the Westchester County Court before the court anda jury; and also from an order of said court, entered in said clerk’s office on the 12th day of December, 1891, denying the defendant’s motion for a new trial.
    The action was brought by the plaintiff, as payee and holder, upon a promissory note made by Gerardus E. Sheffield, and indorsed by his wife, Louisa A. Sheffield, the apjiellant, whose indorsement the evidence tended to show was made before the note was delivered. The complaint was drawn in the ordinary form and with the allegations usually employed in an action against the maker and indorser ■of a note.

      Marbi/n J. Keogh, for the appellant.

      Gornelius K. Kene, for the respondent.
   Dykman, J.:

This action was commenced against the maker and indorser of a promissory note in these words and figures:

« $400.
New York, July 1st, 1889.
On demand I promise to pay to tlie order of Benjamin B. Strong four hundred dollars with interest, at New Rochelle, N. Y., value received.
“ G. R. SHEFFIELD.”

The defendants are husband and wife, and the note was indorsed by Mrs. Sheffield, but it does not appear in the record how it was indorsed. The husband answered at first, but subsequently withdrew his answer, and the case proceeded against the wife alone. The action was commenced in the County Court of Westchester county and tried there, and the plaintiff obtained a verdict there. From the judgment entered upon the verdict, and the order denying a motion for a new trial upon the minutes of the court, the defendant Louisa A- Sheffield has appealed to this court. As we have seen from the form of the note it is payable on demand to the order of the plaintiff and is non-negotiable.

It is to be observed at the outset that this action is against the maker and indorser of a promissory note, and is based upon that instrument solely, and is brought by the payee named in the paper. He states no facts in his complaint, except such as relate to the paper alone, and sets up no facts which impose any liability upon the parties, except such as arises from the simple act of making and indorsing the paper. He claims to occupy no relation to the appellant, except such as arises from her indorsement, and demands no relief, except what the law affords to the holder of a negotiable promissory note against an indorser thereof.

Even if the paper in suit was negotiable the action would fail. The note is payable to the plaintiff, and as to him the appellant occupies the position of second indorser. It is antagonistic to the principles of commercial law, which have always prevailed in relation to negotiable paper, to make a subsequent indorser liable to a preceding one. The settled rule of law is exactly the reverse, and upon the face of this note, if negotiable, the plaintiff would be liable to the appellant. (Bacon v. Burnham, 37 N. Y., 614; Coulter v. Richmond, 59 id., 478.)

It is a fundamental principle of the law relating to commercial paper that no person can be held responsible as an indorser of a nonnegotiable promissory note. (Roe v. Hallett, 34 Hun, 128; Gris- wold v. Slocum, 10 Barb., 402.) And the rule applies with augmented force where, as here, the note is payable to the holder, because there is no possibility of raising the ordinary obligation of an indorser.

There are adjudicated cases of which Moore v. Cross (23 Barb., 534), and Meyer v. Hibsher (47 N. Y., 268), are examples, where recoveries have been permitted in favor of the original payee upon notes payable to the order of the plaintiff and indorsed by third parties under an agreement to become security for the maker and for the purpose of securing for him a credit. But such recoveries, have been under complaints which set out all the facts, and made an action analogous to the old action on the case in which the theory was that justice was to be administered according to the substantial rights of the parties.

It must be borne in mind, however, that such a course can only be adopted and such remedy be obtained against a party who has indorsed the note to procure a credit for the maker with the payee, and we shall presently see that this note was indorsed under no. such agreement or circumstances, and for no such purpose.

It may be remarked in passing that the county judge in his charge .to the jury made some effort in that direction. He left it to the jury to find whether the appellant indorsed this note in question, to induce the plaintiff to extend the time of payment of the antecedent debt of $400 due from her husband to him. But the effort was erroneous and unjustified either by the complaint or the evidence. There is not a word of testimony in the case respecting any extension of the time of payment of the original indebtedness.

The origin of this note, according to the-testimony of the plaintiff, which was not contradicted, was this: He said he transferred his stationery business to the husband of the appellant for $700, received $300 in cash and a due bill for the remainder of $400, upon which he paid interest down to the date of this note. That he finally told the husband he must have some security for the money, and that he must give him a note with some good indorser as security, and when the husband asked him who he wanted for an indorser he said he wanted his wife Louisa. The husband said he could not do that because his wife was in business now in her own name, and if her creditors ascertained that she was indorsing notes it would injure her credit, and might injure her business. Thereupon he told the husband if he would give a note with his wife’s indorsement as further security for what he owed him he would give him his word as a man, and an affidavit that he would not pay the note away, and would not place it in. any bank, but would hold it until he wanted the money.

He further said that in a few days he saw the husband who told him to draw up a note and Louisa would indorse it. That 'lie drew up a note and gave it to him, and he took it away and brought back this note and said the other did not exactly suit his wife, and he drew up this one, and he promised agam to retain it until he wanted the money.

It thus appears that this note was given for the preexisting debt of the husband to the payee, that there was no stipulation for any extension of credit, and this note did not even suspend the right to> sue, for it was payable on demand, and an action could have been commenced upon it or upon the old note at any time.

This examination has been sufficient to show that no recovery can be sustained against this appellant, but it will be incomplete without examination of another class of cases in which it has been held that a person who writes his name on the back of a non-negotiable note can be held as a maker or guarantor.

In the ease of McMullen v. Rafferty (89 N. Y., 458), Judge Earl, in writing the opinion of the court, said this: “As these were nonnegotiable notes, the defendant did not, in a commercial sense, become an indorser of them with the rights and liabilities of a simple indorser. But he can be held as a maker of the notes, or as a guarantor of their payment,” and cites the case of Cromwell v. Hewitt (40 N. Y., 491), for his authority.

Turning to the latter case, we find that the action was brought to charge the defendant as the guarantor of two non-negotiable notes made by William Ryan payable to Richard Hewitt, and indorsed by James R. Hewitt and Richard Hewitt. James R. Hewitt was originally made a defendant, but the action was discontinued, as to him, before the trial. One of the plaintiffs testified that James R. Hewitt, the defendant, was indebted to them, and it was understood between them, when these notes were passed over by him in payment to Mm, that they were taken solely upon his responsibility, and that he assured them the notes should be paid.

The action, therefore, was against the payee in the notes, who had indorsed them over to the plaintiffs in payment of his indebtedness to them, and the complaint was framed to charge him as the guarantor of the notes. That case does not aid the plaintiff here.

In the case of Jaffrey v. Brown (14 N. Y., 394), the note was given by the maker to the plaintiffs for goods sold to him by them, and was payable to their order; they subsequently called upon Mm for further security for his debt, and redelivered the note to him to procure an indorser, and he procured the indorsement of the defendant, Maria Brown, upon the note.

In that case the note was given for the goods, and in that respect differs from this. But the court, in answer to the contention that there was no consideration for the indorsement because the goods for which the note was given had been delivered without promise of security before the indorsement was demanded, said: “ Even if it be conceded that a debtor cannot voluntarily give additional security to his creditors for a subsisting indebtedness, the further fact exists in this case that the creditor claimed that he had been defrauded in the sale, and threatened to, and was about to reclaim Ms goods unless further security was given, and that, in consideration of the indorsement in question, he relinquished that remedy, and the purchaser averted the breaking uj> of his business which would have ensued.”- To the same effect is Griswold v. Slocum (10 Barb., 402).

These examples might be easily multiplied, but our object is only to show that the principles upon which they proceed can have no application to this case.

There was no consideration for the indorsement of the appellant, and if she had written a guarantee of payment over her signature, it would have been void for want of consideration. , It may be stated .as a general rule that if the original debt or obligation is already incurred or undertaken previous to the collateral undertaking,' then there must be a new and distinct consideration to sustain a guarantee. 'There is, in fact, no consideration either for the note or the indorsement. It was given as security for the old note, and it does not -appear that that note was surrendered. At all events there is nothing in this case to show that the appellant ever intended to assume any responsibility, except that of a second indorser of a promissory note, and, therefore, no other or further liability can be imposed upon her.

In the case of Hall v. Newcomb (7 Hill, 418) the chancellor said the courts had gone quite far enough in repealing the statute to prevent frauds and perjuries by introducing parol evidence to charge a mere surety for the principal debtor by showing that his written agreement means something beyond what, upon its face, it purports to mean. In the same case Senator Bockee characterizes the contrivances to which resort had been had to impose liability upon indorsers of paper as a sort of finesse and shuffling game below the dignity of the law, and then says: “We must take this contract as the parties left it, complete and perfected when the note was delivered to Hall, and we have no right to ask him to resort to practices bordering on trick and deception for the purpose of changing the character and liability of the parties.”

Courts of justice cannot become resorts for the reparation of blunders. If contracts are not made in conformity with law, the ■courts cannot complete or vary them by ascription or legalize them by construction. Intentions cannot be attributed to parties which they have not entertained or exjuessed. There should be no relaxation of the elemental and salutary rule of, law which prohibits the variation of written instruments by parol testimony.

The rights of makers and indorsers of promissory notes are well ■defined. Those instruments are drawn in different forms with reference to the law as settled in relation to each, and with relation to the liabilities which the different parties design to assume. If they are so drawn and executed as to fail in the accomplishment of the purpose intended by some of the parties, the law is powerless without a reformation of the instrument.

Applied to this case these remarks are designed to manifest the impropriety of holding the appellant responsible in any character or manner beyond that signified by the act of writing her name on the back of the note in suit. The legitimate inference from that act is, that she intended to become liable as the second indorser of the note, and, as she cannot be held responsible in that capacity, her intention is frustrated and she escapes liability. Such results are not uncommon. Persons who promise by parol to answer for the debt of another intend to incur responsibility, but the law will not enforce the promise.

In no view can the appellant be made responsible upon this note, and the judgment and order denying the motion for a new trial should be reversed and a new trial ordered, with costs to abiete the event.

Pratt, J., concurred; Barnard, P. J., dissented.

Judgment reversed and new trial ordered, costs to abide event.


text:
    SUSIE McGUINNESS, Respondent, v. THE TOWN OF WESTCHESTER, Appellant.

      Highway commissioners — their duties m-e not intermittea by the appointment of commissioners of impi’orement — accident on a highway — liability of the town.

    Susie McG-uinness, who, while walking upon a public road of a town, fell into an. excavation near the walk and was injured, brought an action against the town and recovered judgment therein.
    The statute applicable to the action (Laws of 1890, chap. 568, § 10) makes a town liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.
    At the time of the accident the road was undergoing repairs by commissioners of improvement, appointed under chapter 453 of the Laws of 1889, and the plaintiff fell into an excavation made by them.

      Held, that the recovery by the plaintiff was proper.

      Semble, that it was, however, an error, prejudicial to the plaintiff, for the court to charge the jury, in effect, that the statute of 1889 withdrew from the jurisdiction of the highway commissioners of the town any highway upon which commissioners of improvement had entered in the exercise of their statutory powers, and that, during their occupation, the town highway commissioners were-relieved from the duty of caring for the highways. That the duty of the town highway commissioners was not thereby intermitted, but remained at all times.

      Semble, that it was also an error, prejudicial to the plaintiff, for the court to charge the jury that the question was whether the accident happened in a part of the road or avenue which the commissioners of improvement had undertaken to improve, as the plaintiff was not bound to show that the accident occurred at some other part of the road, but was entitled to recover if she was injured in any part of the road which was dangerous.
    The distinction between the liability of towns, under chapter 700 of the Laws of 1881 and that under chapter 568 of 1890, stated.

      Appeal by the defendant, tbe Town of Westchester, from a judgment of the Supreme Court, entered in the office of the clerk of the-county of Westchester on the 21st day of June, 1892, upon a verdict for the plaintiff for $10,000, after a trial at the Westchester Circuit before the court and a jury; and also from an order, entered in said clerk’s office on the 20th day of June, 1892, denying the defendant’s motion for a new trial.

      Martin J. Keogh, for the appellant.

      David H. Hunt, for the respondent.
   Dykman, J.:

The law imposed no liability upon the towns of this State for injuries resulting from defective highways prior to the year 1881. The underlying reason for such immunity was the theory of law that the highway'commissioners, to whom the conservation of the roads and bridges was assigned, were in no legal sense the servants -or agents of the town, and, therefore, the towns, as corporations, were not responsible for any default or malfeasance in the performance of their duties. (Lorillard v. Town of Monroe, 11 N. Y., 392.)

The statutes of this State, relating to roads and bridges, place upon the commissioners of highways the “ care and superintendence of the highways and bridges ” in the several towns, and as that duty was imposed upon such officers, and not upon the towns in their corporate capacity, the officers were liable individually for damages resulting from injuries sustained by their malfeasance or misfeasance.

Under the foregoing principle, actions were maintained against commissioners of highways individually for damage to persons and property caused by defective highways which had become so by their omission to repair, where they were provided with adequate funds for that purpose. (Robertson v. Chamberlain, 34 N. Y., 389.)

Finally, for the first time in the history of the State, a law was enacted in 1881, which rendered the several towns in this State liable, to any person suffering the same, for all damages to person or property, by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said town are now by law liable therefor, instead of such commissioner or commissioners of highways. (Laws of 1881, chap. 700, § 1.) That statute remained in force until June 7,1890, when it was repealed by chapter 5C8 of the Laws of 1890.

Section 16 of this last law reads as follows: “Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.”

This section seems to have been enacted as a substitute for section 1 of the Laws of 1881. This suit was commenced in July, 1891, and is, therefore, under the control of the statute of 1890.

This action is for the recovery of damages resulting from an injury sustained by the plaintiff in consequence of a fall upon one of the public roads in the town of Weschester, known as Avenue C. It appeared- from the testimony introduced by the plaintiff that she was walking upon the sidewalk of the avenue, in the evening, and fell into an excavation near the walk and broke the bone of her thigh and received some other injuries. These facts were undisputed. At the time of the accident the avenue in question was undergoing reparation under the direction of commissioners of improvement appointed under the authority of chapter 453 of the Laws of 1889. By that law such commissioners were clothed with power and authority over all the highways and streets in the town, outside of the corporate limits of any village, and to change the grade thereof, and it appeared, with reasonable certainty, that the-depression into which the plaintiff fell was made by the improvement commissioners during the progress of their work upon the aveune.

It was, therefore,’ the contention of the defendant upon the trial, and upon this appeal, that the town was not liable for the defective condition of the avenue, because it was the result of the prosecution of the improvement by the commissioners, and cannot be assigned as negligence against the commissioners of highways or the town. The objection was overruled at the circuit and the plaintiff recovered a verdict, and the defendant has appealed from the judgment and from the order denying a motion for a new trial upon the minutes of the court.

' By a careful examination of the case we can discover no avenue of escape from this judgment.

It is to be observed preliminarily that the charge of the trial judge, respecting the operation and effect of the statute of 1889, cannot be fully sustained.

The position assumed is, that the effect of the statute under which the improvement commissioners were appointed is to withdraw from the jurisdiction and control of the highway commissioners all highways upon which such improvement commissioners enter in the exercise of the powers conferred upon them by the statute, and that wherever such commissioners take possession of a highway for its reparation or improvement the powers of the highway commissioners are intermitted and their duties suspended; that the commissioners of highways of the town were relieved from the duty of superintending or caring for the highways which were in the possession of the improvement commissioners under the act. We think the position .is untenable and the doctrine dangerous. There is nothing in the statute of 1889 which manifests the intention of the legislature to relieve the commissioners of highways from the care and control of the highways of the town of Westchester.

The law was not made for that town alone. It was made for all the towns in this State which fall within the scope of the title. Its object was to provide for the appointment of commissioners who should have power to examine and consider all matters relating to a supply of pure and wholesome water for the town; to the construction of sewers and opening and improving and lighting of streets in public places. But the roads and public places upon which these commissioners entered for the purpose of performing their duties under the law are not surrendered to them for any other purpose. They remain highways and public places still and subject to the control of the constituted authorities. It would be a great inno.vation upon our highway system, and the law pertaining thereto, to hold that these commissioners of improvement could break up' a road for the purpose of improving its surface, or constructing sewers beneath it, and render it dangerous without imposing liability upon the town under the statute. It would be hostile to both principle and authority, and, if carried into practice, it would surrender the highways to persons who were charged with no duty in respect to them, and under no special obligation to maintain their integrity.

It would nullify the law which imposed liability for negligence, and leave tlie persons wlio sustained damage thereby destitute of a remedy therefor.

Where improvements are in progress, it is always the duty of the officials in charge of streets and highways to guard them for the protection of travelers. (Turner v. Newburgh, 109 N. Y., 301.) And, if necessary to prevent accidents, to close them. (Russell v. Canastota 98 N. Y., 496.)

In the case of Pettengill v. Yonkers (116 N. Y., 558), an excavation had been made in the street by the board of water commissioners to receive water pipes, and the material from the trench was thrown upon the street. The vehicle in which the plaintiff was riding came in contact with such material, and was overturned and she was injured. That case was quite analogous to this, and the court held that where improvements, either public or private, were in progress which caused obstructions in the street, it was the. .duty of the city to guard them so as to protect travelers from injury therefrom.

Bryant v. Town of Randolph (133 N. Y., 70) was an action for the recovery of damages for the death of the plaintiff’s intestate, and the negligence charged was the omission of the commissioners of highways to maintain guards along the embankment constructed by a railroad company, whose road crossed the highway, to raise the same to the grade of the railroad. The contention there was that no responsibility rested upon the commissioners of highways for the condition of the embankment, because they were constructed by the railroad company under compulsion of a statutory duty. The defense was disallowed, and the court*there held that the provisons of the statute imposing upon railroad companies, which construct their lines across a highway, the duty to restore the same “ to its former state, or to such state as not necessarily to impair its usefulness,” does not relieve commissioners of highways from the care and control of those parts of public highways constituting an approach to railroad crossings, although constructed by a railroad company in discharge of its statutory duty.

The trial judge also charged the jury that the question was whether the accident happened in a part of the avenue which the improvement commissioners undertook to improve. That charge imposed a burden upon the plaintiff which she was not bound to sustain. It required the jury to find that the trench into which the plaintiff fell was at a place in the possession of the commissioners of highways, and from which they had not been ousted by the commissioners of improvement.

It circumscribed the legitimate scope of inquiry unduly, for the plaintiff was entitled to recover if she was injured in any part of the avenue which was dangerous. What has already been said is .sufficient to manifest the error into which the trial judge inadvertently fell. It cannot inure to the benefit of the defendant on this appeal, because it was in its favor and afforded the jury an opportunity to find a verdiftt for the defendant upon an erroneous ground, because if the jury had found that the defect was in a part of the avenue which was in the possession of the improvement commissioners a verdict might have passed to the defendant upon that ground. So the field of inquiry was unduly limited by the charge, but it was not harmful to the defendant as we have seen and constitutes no ground of error available to the town.

These remarks have been made because we wish our reasons for affirming the judgment distinctly understood. We intend to decide that the commissioners of highways of the town were not superseded by the commissioners of improvement, and that the statute of 1889 was not designed to, and did not abridge the powers or diminish the duties of the highway commissioners, but that it was the continuing duty of such commissioners to maintain a highway in a safe condition for public travel, and to exercise reasonable diligence to accomplish that end, and a failure to perform such duty was negligence. The phraseology of the statute of 1881 and that of 1890 differs. The former imposes liability upon the town in cases in which commissioners of highways were by law liable at that time, and substitutes a corporate liability of the town for the individual liability of the commissioners. The law of 1890 lays responsibility upon the town for damages to persons and property sustained by reason of any defect in its highways and bridges existing because of the negligence of any commissioner of highways of such town. Yet the two are designed to accomplish the same purpose, and now, as before, the negligence, of the highway commissioners is an important element in all cases under the statute.

Upon that question the charge was faultless. The motion for a nonsuit and request to charge, and the exceptions were all based upon the statute of 1889, and its effect upon the duty of the highway commissioners of the town.

No question was raised respecting the action of such commissioners or in respect to contributory negligence of the plaintiff. The disposition of the appeal, therefore, depends upon the statute of 1889, and that question has received careful examination.

The judgment and order should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Pratt, J. :

text:
    LILLIAN M. SMITH, Plaintiff, v. CHARLES LAWRENCE and Others, Defendants.
    ' Will — a devise to one for life, and after her death “ to the children which she now has, or may hereafter have living at the time of her death”

    Elias Smith, died leaving a will, by the fourth clause of which he gave to his daughter, Phebe T. Lawrence, certain lands for life; and by a subsequent clause he devised these lands, after her decease, “to the children which she now has, or may hereafter have living at the time of her death, as tenants in common, to them, their heirs and assigns forever.”
    When the testator died Phebe T. Lawrence was living and had three children.
    She survived them all, but left grandchildren.
    In an action of partition affecting the premises in question:

      Held, that the grandchildren took the share of Phebe T. Lawrence.
    That the testator contemplated a gift over to two classes of his daughter’s children: First. To those already in being who were to take in any event. Second. To those born subsequently, and who, in order to take, must Survive their mother. That the remainders to the first class vested when the life estate vested in Phebe T. Lawrence, and upon the death of those in the first class passed to their children.
    Motion for a new trial upon tlie pleadings, tbe decision and exceptions to the findings and refusals to find, taken by the defendant Sarah J. Smith, and upon the case and the interlocutory judgment, entered in the above-entitled action June 9,1892, as amended by an order, entered August 12, 1892, after a trial before the court at the Suffolk Special Term.
    The action was brought for the partition of certain land.

      In 1872, while the property was held by the life tenant, Phebe T. Lawrence, the Smithtown and Por t J efferson Railroad was constructed, passing over some of the lands in question. A sum was awarded for damages, of which the interest was to be paid Phebe T. Lawrence during life. After her death, and in June, 1890, Anna W. Brown, a defendant in this action, made a motion for the payment of this money, of which motion notice was given to Sarah J. Smith among others. Mr. Justice Bartlett then wrote an opinion, which is the one referred to in the opinion at General Term, and is as follows:
    N. Y. SUPREME COURT — Suffolk County.

    Bartlett, J. Elias Smith died in 1839, having made a will by the fourth article of which he devised certain lands to his daughter Phebe T. Lawrence for life. The will disposed of the subsequent .estate in these words: “ I give and devise the aforesaid several tracts of land, after the decease of my daughter, Phebe T. Lawrence, to the children which she now has or may hereafter have living at the time of her death, as tenants in common to them, their heirs and assigns forever.”
    At the tfme of the execution of the will an'd of the death of the testator, Phebe T. Lawrence had three children living. (See recitals in order of March é, 1872.) They all 'died before her, two of them leaving descendants. She died on June 30, 1889. The question presented by this application is whether the descendants of her children take anything under the provision which has been quoted from the will of Elias Smith.
    I think they do, both upon a grammatical construction. of the language employed by the testator and upon the authority of the decision of the Court of Appeals, in the Matter of the Estate of Brown (93 N. Y., 295).

      According to a literal interpretation of the words used the testator seems to have contemplated a gift over in which two classes of his daughter’s children should participate, first, those already in being at the time he made his will; and, secondly, those who should be born subsequently and should survive their mother. The first class were to take in any event; that is to say, the remainder vested in them, as soon as the life estate vested in the mother. The second class, could not take unless they were living at the time the life estate terminated by the mother’s death.
    The will clearly separates by the disjunctive or the children which she has from those which she may hereafter have, and the phrase, “living at the time of her death” is apparently designed to apply only to the latter class, thus having reference not to children in existence, when the will was executed but to such children, if any, as should come into existence afterward. In further confirmation of the correctness of this view, it should be noted that it was wholly unnecessary for the testator to speak of the children which his daughter then had (at the' time of the making of the will) if his purpose had been merely to make a devise over to those who should be living when their mother died. It would have been enough to devise the remainder to the children of Phebe T. Lawrence, living at the time of her death.
    Now,under the rule laid down inth e, Matter of the Estate of Brown (supra), the right of the issue of the deceased children of Phebe T. Lawrence to take the remainder limited upon the mother’s life estate must be maintained if the testamentary provision in question is capable of a construction which will lead to that result. There the testator bequeathed and devised the remainder over “ unto such ■child or children as my said daughter shall have or leave living at her decease.” The Court of Appeals, as was said in the later case ■of Patohen v. Patohen (121 N. Y., 432, 435), solved this ambiguous expression by reference to other provisions of the will and to the preference which the law gives to the participation of issue in a remainder. In the case at bar we have a similar ambiguity which I think can well be solved by adopting the construction which has been suggested.
    Motion granted.

      George W. Sandford, for the defendant, S. J. Smith.

      N. 8. Aoherly, for the defendant, A. W. Brown.

      A. A. Spear, for Thomas S. Strong, guardian ad litem, for Clara L. Smith.

      Thomas 8. Mount, for the plaintiff, opposed.

      R. TI. Smith, for the defendant, James W. Phyfe, opposed.
   Pratt, J. :

The material question in this case involves the construction of the fourth clause of the will of Elias Smith, deceased, which is as follows, to wit:

Foxurth. “ I give and devise to my daughter, Phebe T. Lawrence, during her natural life, the eastern part of the farm where I now live,” etc.; also three other tracts of land; also equal undivided one-half of a tract of thatch land. “ I give and devise the aforesaid several tracts of land, after the decease of my daughter, Phebe T. Lawrence, to the children which she now has, or may hereafter have living at the time of her death, as tenants in common to them, their heirs and assigns forever.”

These are the lands in this action.

The said Elias Smith died April 20, 1839; made the will January 21, 1839, and same was probated 25th of May, 1839 as a will of real and personal property.

At the time of the death of testator, Phebe T. Lawrence was living, and then had three children. She died January 30, 1889, not having had any more children. She survived all of these three children, but she left grandchildren.

The question is, whether, on the death of Elias Smith, the fee of the part of the estate which was devised to Phebe for life vested in her children then living, and, therefore, now belongs to the grandchildren of said Phebe and their representatives.

This question was fully discussed by the learned judge at Special Term, and I see nothing that needs to be added to the argument contained in his opinion. Many arguments may be suggested upon either side, but it comes down to a question of intent to be solved by reference to ambiguous expressions contained in the will.

"We think, this case fairly falls under the rule laid down in the Matter of the Estate of Brown (93 N. Y., 295), and that calls for an affirmance of the judgment.

Present — Barnard, P. J., and Dykman, J".

Motion for new new trial denied and judgment affirmed, with costs.


author: Pratt, J.: Barnard, P. J.: Brown, J.

text:
    THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Respondent, v. THE CONEY ISLAND AND BROOKLYN RAILROAD COMPANY, Appellant.

      Specific performance of a contract made under different conditions from those existing when specific performance is demanded — competitors for business — condition as to use of steam, how affected by the use of electricity.

    The Prospect Park and Coney Island Railroad Company, -which conducted a railroad via Vanderbilt and Ninth avenues, in Brooklyn, from Fulton ferry to a depot at Ninth avenue aud Twentieth street, a point known as “ Culver’s,” also owned a franchise, not used, for a road to the same depot from Hamilton ferry. via Fifteenth street and Ninth avenue. From “ Culver’s ” it carried passengers to Coney Island by an ordinary steam railroad.
    The Coney Island and Brooklyn Railroad Company operated a horse railroad from Fulton ferry over certain streets, and over Ninth avenue to Fifteenth street, from which point it ran to Coney Island to a terminus near that of the Prospect Park and Coney Island Railroad Company. It also operated another horse railroad from Hamilton ferry, over Hamilton avenue and Fifteenth street to Ninth avenue, where it joined its first line.
    In this state of competition of .their respective roads the companies, in 1882, entered into an agreement, to last twenty-one years, by which the first-mentioned company-granted to the second a right to use its tracks on Ninth avenue, from Fifteenth to its depot at Twentieth street (Culver’s), free of rent, which agreement provided that the license should not interfere with the operation of the Vanderbilt Avenue line. And the second-named company agreed to run its cars, except in winter, to “ Culver’s,” from both Fulton and Hamilton ferries; and, further, that if at any time it used steam on the southerly part of its route, from Fifteenth street to Coney Island, the agreement might, at the option of either party, upon six months’ notice, he terminated.
    In May, 1887, the Prospect Park and Coney Island Railroad Company sold its Vanderbilt Avenue line and all its franchises to the Atlantic Avenue Railroad Company.
    In 1890 the Coney Island and Brooklyn Railroad Company changed the motive power of the southerly portion of its road from Fifteenth street, south, to Coney

      Island, to electricity; no longer ran its cars from tlie ferries to “ Culver’s,” but ran all cars to tlie depot of its electric road at Fifteenth street, known as Prospect park.
    In an action brought by the Prospect Park and Coney Island Railroad Company to compel a specific performance of tlie agreement, and to compel the defendant to continue to bring passengers from tlie ferries to “ Culver’s,” evidence was given tending to show that after the defendant adopted electricity its operation at “ Culver’s ” was materially impeded by the plaintiff, and that its earnings decreased materially.

      Held, that it was improper to decree specific performance.
    That the agreement was made under different conditions from those existing at the time of the commencement of the action, and when the companies were virtually competitors only as' to city business.
    That while the use of electricity, generated by steam, was not, perhaps, the “use of steam as a motive power,” within tlie strict wording of the contract, yet its employment resulted in rapid transit upon the southern portion of the defendant’s road, and made the companies competitors over the entire extent of their routes. That a further reason why specific performance should not be decreed was that at “Culver’s” tlie defendant was practically subordinated to the time table, and to the operation generally of the plaintiff’s road, and that it sufficiently appeared that the facilities given the defendant at Culver’s had been greatly diminished by the Atlantic Avenue Railroad Company, which had purchased the Vanderbilt Avenue line, subject to the defendant’s rights, from the plaintiff, entailing serious loss to the defendant. (Brown, J., dissenting.)
    Appeal by the defendant, the Coney Island and Brooklyn Bail road Company, from a judgment of the Supreme Court, entered, after a trial at the Kings county Special Term, in the office of the clerk of the county of Kings in January, 1892, directing the defendant to specifically perform a certain contract made with the plaintiff, and further enjoining it from operation unless it should run during the spring, summer and fall months of every year until June 1, 1903, cars to the plaintiffs depot at Ninth avenue and Twentieth street, in Brooklyn, connecting with the defendant’s cars, from the Hamilton and Fulton ferries, so as to connect with the plaintiff’s trains to and from Coney Island.
    The facts relating to the two roads and their routes are fully set forth in the opinion. It further appeared, however, in the appeal papers that in May, 1887, the Prospect Park and Coney Island Railroad Company sold its Yanderbilt Avenue line and all its franchises to the Atlantic Avenue Railroad Company.

      William _ZF. Dyhma/n, for the appellant.

      Q-eorge IF. Wingate, for the respondent.
   Pratt, J.:

The plaintiff owned or controlled the following franchises for passenger travel, between Brooklyn and New York ferries and Coney Island, on and prior to June, 1882: One for a horse railroad from Fulton ferry via Park, Vanderbilt and Ninth avenues, to a depot at Ninth avenue and Twentieth street, Brooklyn, generally known as “ Culver’s.” The other, also, for a horse railroad from Hamilton ferry via Fifteenth street and Ninth avenue, to said depot. The road was built and operated by plaintiff on the former line, called the Vanderbilt Avenue line. The latter franchise had not been practically used. From this depot (Culver’s) it carried passengers, by an ordinary surface road, to Coney Island, at West Brighton, its cars being drawn by locomotive steam engines.

The defendant owned and operated two lines of horse cars; one from Fulton ferry, by way of Smith, Jay and Ninth streets, to Ninth avenue, and thence, via Ninth avenue, to Fifteenth street, where it turned off towards Coney Island and ran down the old Coney Island road to Coney Island, where it turned westward and terminated near the terminus of plaintiff’s steam road. The other from Hamilton ferry, through Hamilton avenue, via Fifteenth street, to Ninth avenue, where it joined its former line, and thence its passengers were carried over “the southerly portion” of its own line to Coney Island.

It is thus apparent that defendant’s line, while in competition with plaintiff’s lines, was, nevertheless, practically limited to city business, for it ran within five blocks of plaintiff’s depot, and its passengers would there leave its cars and take the plaintiff’s “rapid transit,” getting over the five blocks as best they might. Defend, ants were, therefore, in a certain sense, a feeder to plaintiff’s steam road, unless it adopted some method of rapid transit on the southerly portion of its line. Plaintiff had made an arrangement with the Iron Steamboat Company, by which its excursion tickets were good over its steam and horse car road, to bring passengers from Coney Island to Fulton ferry; but the defendant was, nevertheless, bound to make some user of its franchise from Ninth avenue to Coney Island in order to save it, but at little, if any, profit.

It was, therefore, apparent that both parties would be gainers, and the public as well, if defendant was enabled, for, the time beings at least, to carry its' passengers over these five blocks, and deliver them at plaintiff’s steam railway depot.

"With this idea in view, the two companies entered into the contract which plaintiff seeks now to have sjjecifically performed by our decree. It provides that from June 1,-1892, for a term of twenty-one years, the defendant may use plaintiff’s tracks on Ninth avenue, from Fifteenth street to its depot (Culver’s), free of all charge for rent, repairs or alterations, but that such license should not interfere with plaintiff’s stands for its own cars, or the operation of its own road, by which was intended the Yanderbilt Avenue line* The defendant covenanted that it would run its horse cars to this, depot, and therefrom to Fulton and Hamilton ferries, respectively,, by time tables prepared by plaintiff, so far, at least, as the Ninth Avenue lines were, in common, during the spring, summer and fall months. The plaintiff covenanted to construct certain additional facilities at or about its depots for defendant’s exclusive use, and that its own cars should not, unnecessarily, interfere with defendant’s, and to pay the cost of these additional facilities. It was also agreed that the tickets issued by the Iron Steamboat Company, taken from passengers on plaintiff’s steam trains, should be good over defendant’s lines, the plaintiff accounting to defendant for its part of the holder’s transportation. This contract also provided that if defendant, at any time, used or permitted steam as a motive power on the southerly end of its line, then, on six months’ notice, the contract should be terminated at the -option of either party, and in that event the plaintiff would repay defendant the cost of said additional terminal facilities at the Culver depot.

We think it apparent that the plain purpose of this contract, so-far as it affected the parties thereto alone, was to avoid competition for through Coney Island travel, to enable plaintiff to obtain the-benefit of defendant’s Hamilton Avenue line with, perhaps, its better facilities from Fulton ferry, as a feeder for its steam road, to save the necessity of building its proposed road to Hamilton ferry; and. that it was to continue only so long as the two companies were not competitors for the through Coney Island travel, and that it should terminate when they again came into practical rapid transit competition. True, the power of this limitation is expressed with reference to steam as motive power, but that form of expression, as it seems to us, was used only because steam was then the 'only means in practical use as a motive power for rapid railway travel. The central thought of these parties in this respect was the avoidance for the time being of competition hy any means on those portions of their lines which were practically adjacent, viz., “the southerly portion of defendant’s line, as compared with that part of plaintiff’s line which ran from Culver’s depot to the island.” It can scarcely he said that they intended to exclude the use of a cable propelled by steam power; for, in that case, the steam would be an active agent in energizing the otherwise inert cable. The distinction between locomotive steam as power and steam as motive power on railroads was recognized so far back as 1871 (see chap. 609 ; see, also, Stranahan v. Sea View Ry. Co., 84 N. Y., 313; People ex rel. Third Ave. R. R. v. Newton, 48 Hun, 477), and it is a fact that this distinction had been •drawn by the Court of Appeals in the Sea View Railroad case in March, 1881. (84 N. Y., 313.) And yet it would occasion quite as much surprise to’find that these parties thought of a steam cable system as of electricity when they made this contract. We repeat that the use of the term “ steam ” as motive power seems only another form of referring to rapid transit, by whatever power accomplished, as means of bringing these parties into competition on the southerly part of their lines. In this view it seems to us that the steam used by'defendant in generating the electricity used in its trolley or overhead system, is fairly within the contemplation of the parties. But, as already indicated, we do not base our judgment on that alone.

Again, we think that the changed circumstances of the parties render it inequitable that the extraordinary remedy of specific performance should be applied. While it is true that there is no covenant on the part of plaintiff to maintain the status quo of the contract, it still plainly contemplated that the plaintiff should continue to operate the Vanderbilt Avenue line, and that there should be no greater rivalry for the passenger traffic between the Culver depot and Fulton ferry than that which would naturally result from plaintiff’s desire to work in harmony with defendant, and within the spirit of its covenant that its cars and track should be so operated as not unnecessarily to interfere with defendant’s. So long as that relation existed the plaintiff was directly interested to- avoid conflict and to be fair in all its terminal arrangements as means to an end, viz., tbe increase of traffic for its own road; and tliis personal interest might well have been relied- on by defendant as means of securing a generous, at least, a fair arrangement of running times, departures, arrivals, etc. Indeed, as already remarked, the contract subordinated defendant to time tables prepared by plaintiff for those five blocks, and that, of course, affected the whole of both its lines. But the plaintiff afterwards sold out its Yanderbilt Avenue line to a rival street railway company; and the evidence pretty plainly shows that the defendant was thereafter materially obstructed in its own terminal facilities at the Culver depot by the acts of this new owner and operator of that line. Without intending any reflection upon the management of this new operator of that line, it was but natural that it should consult its own convenience to a greater degree, or rather that it should not consult defendant’s convenience to the same extent, as it would have been to plaintiff’s interest to do if it had remained the owner and operator of the Yanderbilt Avenue line. Nor was this complaint purely technical or insignificant. The evidence fairly shows that defendant’s earnings were materially and immediately decreased after that change, and it is difficult from the evidence to attribute that decrease to any other cause than the preference exhibited by travelers for the Yanderbilt Avenue line arising out of defendant’s inability to start and progress its cars with the same promptness and frequency as when plaintiff controlled the terminal facilities.

We think that the spirit of this contract was that defendant should not be subjected to the temptations of greater rivalry in this respect than that which existed immediately when the contract was made. It subjected its entire business at that point, which had practically become the eastern terminus of both its lines, even to the time table of plaintiff. This was a subordination having its origin in personal confidence predicated on identity of interest and common purpose. But by this change defendant was subjected to the time table arrangements made by a stranger, a business rival who was under no restraint, or, if under any, it was not predicated upon the same guaranty for fairness. And the best evidence of the change is the decreased earnings of defendant’s business. And it would seem to have been the object of this action to fasten just this subordination upon defendant, unless we have mistaken the object of some of plaintiff’s requests for findings.

Thus the plaintiff has deprived defendant of a material and valuable part of the plain consideration of this contract, and yet it seeks the extraordinary remedy of specific performance to enforce its side of the bargain when it can no longer give that which it promised, or, at least, created the expectation that it would give.

Perhaps it may be thought that we have gone too far in predicating judgment upon the assumed fact of actual and serious damage to defendant upon these terminal inconveniences and disappointments. But the result will be the same in any view, because defendant requested findings on these points which the court refused manifestly, for the reason that it deemed them immaterial. ¥e think they were material, and that if the fact had been found, according to defendant’s contention, it would alone have been an answer to the plaintiff’s right to require specific performance of such covenants as these were.

We, therefore, direct a new trial, with costs of this appeal to the defendant to abide the event.

Barnard, P. J.:

The condition under which the parties contracted are as completely changed as if' the defendant used steam as a motive power. A covenant not to use steam would not be broken by the use of electricity; but when the use of electricity made the’ roads competing as fully as if propelled by steam, and the use of steam made the contract terminable by either party, the use of electricity is within the spirit of the contract. The conditions are changed in other respects so as to render the specific performance inequitable, by reason of, and in consequence of the sale of the plaintiff’s road to the Atlantic Avenue Railroad Company.

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

Brown, J.

(dissenting):

The contract between the parties, which was dated June 1, 1882, so far as material to the questions presented upon this appeal, provided as follows:

(1) The plaintiff granted to defendant the right to use its railroad tracks on Ninth avenue, in the city of, Brooklyn, from Fifteenth .street to the plaintiff’s depot at Greenwood Cemetery, for the term of twenty-one years free of charge, and agreed to construct, at defendant’s expense, all new tracks, stands, sidings, switches and turnouts necessary to facilitate the operation of defendant’s road.

(2) Defendant agreed to operate and run cars to the plaintiff’s depot during the spring, summer and fall months to connect with all ferry boats at Hamilton ferry, and to run on same time table as plaintiff to Fulton ferry, connecting with all trains at said depot to and from Coney Island.

(3) It was mutually agreed that the agreement might be terminated by either party upon six months’ notice, if, at any time during the term thereof, th.e defendant should use or permit the use of steam as a motive power on its road between Coney Island beach .and Ninth avenue and Fifteenth street, in the city of Brooklyn.

At the time of making the agreement the plaintiff owned and operated a steam railroad to Coney Island from Brooklyn, having a depot at Ninth avenue and Twentieth street. It operated a horse road from the depot to Fulton ferry, and also possessed a franchise to construct a horse road from its depot aforesaid to Hamilton ferry.

The defendant owned a horse road from Coney Island to Brooklyn, having one terminus at Fulton ferry and another at Hainilton ferry.

The agreement was performed by defendant until January 1,1890, when, having reconstructed its road from Prospect park to Coney Island so as to operate it with electricity, it ceased running its cars from the ferries to plaintiff’s depot, and ran them all to its own •depot at Prospect park.

• The court found, as a fact, that plaintiff had fully performed the agreement on its part, and enjoined defendant from operating any •of its cars, unless, during the spring, summer and fall months of the remainder of the term of the agreement, it either ran its cars to plaintiff’s depot, making the connection as provided in the contract, or should run detached or “ jigger ” cars from its main line at Ninth avenue and Fifteenth street to said depot, and so operate them as to connect with cars on the main line, and transport to the depot all passengers, who so desired, without delay, inconvenience ■or expense.

I am unable to agree in the construction put upon the contract by my associates, to the effect (1) that steam used in generating electricity used in defendant’s trolley system is fairly -within the meaning of the pi’ovision which permitted either party to terminate the contract when defendant should use steam as a motive power on that part of its road between Coney Island and Ninth avenue and Fifteenth street, or (2) that it was within the contemplation of the parties and the fair meaning of the contract, that plaintiff should continue to operate the Yanderbilt Avenue line, and that there should be no greater rivalry for passenger traffic between the Twentieth street depot and Fulton ferry than that which would naturally result from plaintiff’s desire to work in harmony with defendant.

The use of steam as a motive power did not, ipsofaeto, terminate the contract. The provision was permissive only, and there is no evidence that defendant ever served the notice required, or ever claimed that the condition was created which permitted its termination. In view of the recent decision of the Court of Appeals in the case of the Hudson River Telephone Company v. Watervliet Turnpike and Railroad Company (48 N. Y. St. Rep., 417), it would seem unnecessary to argue that the propulsion of cam by electricity was not using steam as a motive power. In that case defendant was authorized by law to propel its cars by the use of any mechanical or other power, except steamP It adopted and used electricity, applying it by the overhead trolley system, and it was held that it was acting within its authority.

The conclusion that the defendant should continue to operate the Yanderbilt Avenue line is not based upon any express provision of the contract, nor do I think it can be fairly implied from anything contained in the agreement, or in the situation of the parties at the time the contract was entered into.

No greater reason exists for this conclusion than for one that it was contemplated that plaintiff should not sell or operate the Hamilton Avenue road.

The defendant knew that the plaintiff possessed the Hamilton Avenue franchise and offered to purchase it, and, of course, it knew that plaintiff was operating the road to Fulton ferry.

The sale of the Hamilton Avenue franchise was refused unless defendant purchased both lines. This, it appeared, it was unwilling to do. At the time of making the contract the parties were, therefore, actual competitors for the travel to and from Fulton ferry, and prospective competitors over the Hamilton Avenue route. And as the contract contains no covenant that plaintiff would not operate both of these routes, it must be assumed that such a contingency was within the contemplation of both parties when the agreement was made.

The conclusion that the rights of the defendant were impaired by the sale of the Atlantic Avenue road is opposed to the findings; that the sale was made subject to the defendant’s rights, and that plaintiff had fairly performed all its obligations of the contract. These findings have evidence to support them, and in the absence of a certificate that all the evidence is contained in the case are not subject to our review. (Halpin v. Phoenix Ins. Co., 118 N. Y., 165; Aldridge v. Aldridge, 120 id., 611.)

There was no legal obstacle to the sale to the Atlantic Avenue Company, and unless it violates some provision of the contract was not a thing which constituted a defense to this action.

That it was not considered as violating or impairing defendant’s legal rights under the contract is conclusively shown by the fact that defendant never made any objection to it, but, on the contrary, continued without complaint to perform its contract for four years after the sale was made.

It is also claimed that the contract is not one of which the court should decree specific performance. That the situation has materially changed since the agreement was made, and that the plaintiff should be left to his remedy at law.

The discretion which courts of equity exercise to decree or deny specific performance in cases of this character is not an arbitrary or capricious one. It rests upon well-settled rules of equity procedure. Where the contract is a fair one, and the situation, at the time when specific performance is asked, is one which the parties may fairly be said to have contemplated or foreseen, and where performance inflicts no undue hardship on the defendants, and gives no undue advantage to the plaintiff, and where the construction of the instrument is clear, and the breach clear, then performance must be decreed, and the court would not be justified in refusing it.

But when, for causes not chargeable to the defendant, an enforcement of the agreement would work an injustice, or defeat the ends contemplated by tbe parties, or wlien the surroundings of the property have materially altered, or the ■ situation of the parties, with reference to the subject-matter of the contract, has so changed that the covenant sought to be enforced is not applicable to the state of things existing at the time of the trial, and would cause no benefit to the plaintiff, and impose a hardship on the defendant — in such a case a decree for performance may be denied, and the plaintiff left to pursue his remedy for damages.

As bearing upon the changes in the situation of the parties to this action, two facts are referred to: (1) The sale to the Atlantic Avenue Company of the plaintiff’s horse car lines, and their operation by that company; and, (2), the introduction of electricity as a motive power on railroads.

The first fact needs no consideration for the reason, already pointed out, that it was a thing within the contemplation of the parties at the time of making the contract. And there is no finding that either plaintiff or the Atlantic Avenue Company violated the contract. The introduction of electricity as a motive power operates in this case solely to benefit the defendant and affords it no ground to refuse to perform its contract obligation. The parties, at the date of the agreement, each owned a road between Brooklyn and Coney Island, but by reason of the defendants being a horse road exclusively, it could not successfully compete with the plaintiff. The agreement was beneficial to the defendant in that, by it, it was enabled to enjoy part of the travel between the two places.

By the use of electricity defendant is now enabled to successfully operate its road to Coney Island, south of Prospect park, and carries passengers at a less rate of fare than plaintiff does upon its steam road, and it has obtained a large part of the travel which has been diverted from plaintiff’s road. The decree añade in this case does aaot interfere with this operation of defendaiat’s road. It is left free to use electricity as a motive power, and to operate its road to Coney Island aaod take up passengers along its lines in the city and carry them to its depot at Prospect park, but it compels it to deliver, at plaintiff’s depot, such passengers as use its horse a’oads in the city, aaid desire to take the steaan road to the island. This it is permitted to do by using transfer or “ jigger ” cars on Ninth avenue from Fifteenth sti’eet to tlie depot.

The evidence of the case discloses no reason why it should not perform that obligation, and to permit it to violate its agreement and divert all the travel over its horse road to its own electric cars would give to it all the benefits arising from the use of this new motive power and impose all the hardships upon the plaintiff.

I am of the opinion that the covenant sought to bo enforced is applicable to the present situation of the parties and should be •enforced, and, consequently, the judgment should be affirmed, with ■costs.

Judgment reversed and new trial granted, costs to abide event.


text:
    CHARLES BUCHOLZ, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

      Railroads — ¿hanging a crossing — discontinuing a street — municipal a/ppimal— an ahutting owner not actually damaged cannot sue

    ■Charles W. Bucholz owned a house near and west of a railroad crossing upon a village street running east and west. The railroad crossing, being considered dangerous by the company, was abolished by it, and a new street was made
    . which began at a point a short distance west of the plaintiff’s house, and then pursued a course, avoiding his premises, by which it was carried upon a bridge over the railroad tracks.
    The old street, to the east of the crossing, was discontinued up to a point where it . met the new street, but nothing was done to the street as it existed in front of the plaintiff’s house.
    These changes were made upon the railroad company’s own land, and the village ratified the alterations.
    In an action brought by Bucholz to procure a mandatory injunction requiring the company to restore the old grade crossing:

      Held, that such an action by an individual could not be maintained.
    That no property right of plaintiff had been invaded; that he had access to his property and the same light and air as before the change.
    That while the statute, making it legal for a railroad company to cross a highway, imposed upon the company the duty of restoring the highway to its former state, ,or to such a state as not necessarily to have impaired its usefulness, a private person claiming no rights in the street, except as an abutting owner, could not sustain an action to compel the railroad to restore the former grade crossing.

      That the statute also gave such a company a right to carry a highway under or over their tracks as it deemed most expedient; and if it did this with prudence, and to the satisfaction of the municipal authorities, an individual had no rights which were enforceable by a private action.
    Appeal oy the plaintiff Charles Bucholz from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 26th day of January, 1892, dismissing the complaint-on the merits, without costs, after a trial by the court at the Orange Special Term.

      C. E. Cuddeback, for the appellant.

      Lewis E. Carr, for the respondent.
   Dykman, J.:

The plaintiff owns a house and lot and ground in the village of Port Jervis, on the north side of Main street, and fifty-four feet west of the tracks of the defendant’s road.

Prior to March, 1890, Main street continued on east past the plaintiff’s property, across the railroad on the same grade, and then made a short curve to the south, and continued on an ascending grade to and over the Delaware and Hudson Canal. In March, 1890, the defendant changed Main street by turning it to the south before it reached the plaintiff’s house, and then turning it in a sharp curve to the east, and carrying it over the railroad on a bridge about one hundred and fifty feet south of the old crossing, and from the bridge east, until it again struck the street as it formerly was.

Subsequently, the defendant tore up the planking at the old crossing, and rendered the street impassable from, the railroad to the point where the new street runs into the old one, but left it open from the plaintiff’s house west to the point wdiere the street was turned to the south. The change in the location of the street was entirely upon the land of the defendant, and the old crossing was also in the defendant’s yard, and was considered dangerous.

The alteration was made to escape the danger of the old crossing The plaintiff has entire freedom of access to his property, and the light and air are un diminished and unaffected, so that none of his property rights are invaded. Upon the application of the defendant, the Trustees of the Tillage of Port Jervis adopted and ratified the alteration of Main street made by the defendant, and accepted the new bridge and its approaches in lien of the former grade crossing, and Main street, easterly from the old crossing to its intersection with the alteration, was discontinued.

The trial court found that Main street, in front of the plaintiff’s premises and west of them, was open as before, and that the plaintiff had the same freedom of access to his property from the street as before, and that his .light and air were unaffected. This 'suit was instituted to procure a mandatory injunction which would require the defendant to restore the old grade crossing of the railroad and to recover damages.

Under the statute of this State railroad companies may locate their lines so as to intersect and cross highways, and as a condition of such privilege a duty is imposed to restore the highway to its former state, or to such state as not necessarily to have impaired its usefulness. (Laws of 1850, chap. 140, § 28, sub. 5.)

That statute legalized the crossings of highways by railroads and devolved upon them the burden and expense of restoration. A discretion is reposed in the companies to select, in the first instance, the place of crossing and determine the mode of restoration, subject to judicial review at the instance of the commissioners of highways of towns or municipal authorities of villages. (Bryant v. Town of Randolph, 133 N. Y., 70; People ex rel. Green v. The D. and C. R. R. Co., 58 id., 152.)

Section 24 of the law already quoted conferred the privilege upon the railroad companies to carry the highway under or over their tracks as they deemed most expedient. The requirement for the restoration of the highway was designed for the protection of the public, and the performance of that duty must be enforced in the interest of the public by indictment or mandamus, or by civil action by the commissioners of highways under chapter 255 of the Laws of 1855. (People v. N. Y. C. and H. R. R. R. Co., 74 N. Y., 302.)

In the process of restoration oi the highways by the railroad companies, they stand in the position of highway commissioners, and if they act with prudence they are entitled to the same immunity for damages to property bounded by the highways and streets as those officers. (Conklin v. The Railroad, 102 N. Y., 112; Bel linger v. The Railroad, 23 id., 42; Uline v. The Railroad, 101 id., 98.)

The plaintiff here claims no private rights in Main street beyond those of an abutting owner thereon, and he holds those in common with the general public. Such rights cannot be enforced in any private action.- '

In the exercise of a right conferred by statute therefor the defendant carried the street over its tracks, and restored it to its former state of usefulness in a manner which met the approval of the municipal authorities, and which neither invaded nor subverted any proj>erty rights of the plaintiff.

The celebrated case of Story v. The Railroad (90 N. Y., 107) teaches no doctrine beneficial to the plaintiff. That case wrought no change jn the law of this State, respecting surface railroads of any kind. (Fobes v. The Railroad Company, 121 N. Y., 517.)

It only applied settled principles to a new state of facts. In that case a structure had been erected in mid air, which prevented the inflow of light and air to the building of the plaintiff, who was an abutting owner, and the court held that such an owner had an easement appurtenant to his land fronting upon the street for the-purpose of receiving light and air, and any interference which such rights was deemed proj>erty within the meaning of the Constitution.

The plaintiff here has suffered no privation of light, air or access to his property. Main street is merely altered. The Story case left unquestioned and undisturbed the Kerr case (27 N. Y., 188), and the doctrine there enunciated, and that case fully sustained the action of the defendant.

It was decided in the Fobs case, cited above, that a railroad company, duly authorized to operate its road and lay its tracks upon the surface of a city street, under a license from the city, took no property of one who owned land adjoining the street bounded by its exterior line, and, further, that there was no difference in that respect between a railroad operated by steam and one operated by horse power.

All property is held by a tenure more or iess subject to the vicissitudes incident to the progress and improvement dictated by public necessity, and inconvenience or even decrease in vahre incident to the changes in streets and highways where no property rights are invaded are not such, injuries as furnish a cause of action either for damages or an injunction.

In the case of Coster v. The Mayor (43 N. Y., 413) the claim of the plaintiffs was that the best approach to their property had been removed and damage had resulted thereby, but it. was held that tlie damage was too indirect and remote.

The change in Main street was an alteration only and opens no new route of travel. The street is the same and makes a turn to the south before reaching the property of the plaintiff, instead of a sharp curve to the right after it passed his property and the railroad track. (People ex rel. Bowen v. Jones, 63 N. Y., 310.)

This careful examination demonstrates the correctness of the judgment rendered, and the same should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J.: Pratt, J.:

text:
    FELIX CAMPBELL, Appellant, v. OLIVER E. P. STOKES and Another, Respondents.

      Partition — omission of necessary parties interested in remainder — what is not a merchantable title.

    A title, acquired under a sale in an action brought for the partition of land, in which there were life estates created by will, with remainders to the life tenants’ children, but to which' action such children, in esse at the time, were not made parties, is not a merchantable title which a purchaser will be compelled to accept.
    Appeal by the plaintiff Felix Campbell from a judgment, rendered at the Kings County Special Term, and entered in the office of the clerk of Kings county on the 18th day of May, 1892, overruling a demurrer to the counter-claim of the defendants herein, and for the defendants and against the plaintiff, on the merits, and also for the amount of said counter-claim, with interest and costs, amounting to $6,431.10.
    The action was brought by the seller of certain real estate to compel the purchasers to fulfill a contract of purchase and sale by paying the balance of the purchase-money, a certain portion thereof having been paid at the time of the execution of the contract. The defendants answered, setting up a defect in the title proffered by the plaintiff, and demanded, by way of counter-claim, the return of the amount which had been paid on account of the purchase-price, together with the expenses attendant upon the examination of the title, with interest.

      James <& Thomas H. Troy, for the appellant.

      William Allen Butler and E. D. Cowman, for the respondents.
   Barnard, P. J.:

The plaintiff agreed to sell to the defendants a piece of land, No. 74 John street, New York, for $80,000. Five thousand dollars was paid, and this action is brought to recover the balance. The sole question presented is whether the title of the plaintiff is merchantable. John Mortimer, Jr., owned an undivided third thereof in 1875, when he died. He left a will and six adult children. By the will, this property passed as residuary estate, and it was to be divided into six shares, one for each child for life, with remainder to the lawful issue of such child per stirpes, and not per capita. If the child died without issue he could dispose of his share by will, and if not, the testator gave his share to his, testator’s, lawful issue. Four of the six children of testator had children in 1875. A partition sale was made by action, and none of the grandchildren then in esse were made parties to it. The plaintiff’s title was acquired at this sale.

These children were necessary parties in the partition action (Moore v. Appleby, 108 N. Y., 237.) This case is very similar to the case presented by this appeal. There was a life estate by will and remainder to children. It was held that the children wci-e necessary parties to a partition suit. The case of Townshend v. Frommer (125 N. Y., 446), does not necessarily conflict with this decision. A married woman conveyed lands to trustees to pay income to herself for life, with a direction that the trustees convey, at her death, to her children then living. There was a mortgage on the property which was,foreclosed during the life estate, and the children were not made parties to the action,. It was held that the children had no interest in the title while the life estate was running, and that, consequently, they were not necessary parties. No mention is made in the opinion of Townshend v. Frommer of the previous case of Moore v. Appleby. Other cases, decided previously, were distinguished, and the case of Moore v. Appleby was cited on the argument. Under these circumstances, it seems improbable that the Court of Appeals deemed the former case applicable to the latter one. The plaintiff’s title is not, therefore, a merchantable one, and the judgment should be affirmed, with costs-

Dykman and Pratt, JJ., concurred.

Pratt, J.:

All parties concede that, if Moore v. Appleby (108 N. Y., 237), decided in 18S8, is still the law, the plaintiff must fail. But, in his behalf, it is argued that, by Townshend v. Frommer (125 N. Y., 446), decided in 1891, the case of Moore v. Appleby is overruled, and that, by the later decision, the plaintiff is entitled to recover.

This view was ineffectually urged upon the court below. In reply it was well said that, as the former decision was not expressly overruled, we are not at liberty to regard it as overruled if any distinction can be found in the two cases.

It is enough to say upon this appeal that, as the cases now stand, the question involved is not so free from doubt as to justify this court in requiring a purchaser to accept the title.

It may well be that the Court of Appeals saw some clear distinction between the two cases, but failed to point it out in the opinion.

The judgment should be affirmed, with costs.

Judgment overruling the plaintiff’s demurrer to the defendant’s counter-claim and awarding judgment to defendant therein.