author: By the Court.—Sanford, J.

text:
    THE SIXTH AVENUE RAILWAY COMPANY IN THE CITY OF NEW YORK, Plaintiff and Respondent, v. THE GILBERT ELEVATED RAILROAD COMPANY, Defendant and Appellant.

    I. APPEAL.
    1. Beview on, limit of.

      (a) Although when the bases of the judgment in the court below are erroneous; and the case had not then been there considered in all its aspects, the. appellate court is for these reasons justified in reversing the judgment and ordering a new trial; yet it may and sometimes will, at the request of respondent’s counsel, inquire whether the judgment can be sustained on propositions contended for by said counsel, other than those on which the judgment below proceeded.
    H. Franchise to use a public highway for a particular
    PURPOSE.
    1. Aci or charter granting, construction, of.

      (a) Authorizes the appropriation of so much, only as is requisite to carry into effect the design for which the power of appropriation was given, and ffiig privilege is exhausted by the appropriation in fact of so much of the roadway as the exigences of such design actually require.
    in. Constitutional law.

      Private property.

    Taking for public use, what is not.

      Impairing its value by the proximity of other property legitimately employed for the public use and benefit under the sanction and by the authority of a legislative enactment, cannot be said to be taking private property for public use in the exercise of the right of eminent domain.

      IS. g. The authorization of a railway parallel with, and competitive of, one already established.

      Authorizing a corporation to use for the public use and benefit such parts of a highway as have not been already appropriated by a corporation, under authority conferred on it, as actually required by it, the use authorized to be made by the former corporation being such as not to interfere materially with the use by the latter of the parts so appropriated by it, ' is not the taking of private property of the latter corporation.

    See Franchise, s-apra.

      Authorizing a corporation to use for the purpose of a railroad for the public use and benefit streets opened in the city of New York under the act of 1813, or parts thereof, does not take away any property or right of property of the abutting owners in the streets.

    See New York City, infra.

    IV. Nuisance, Public.
    1. The mere occupation by defendant’s road of certain streets and avenues in the manner authorized by law, is not a public nuisance.

    V. New York City.
    1. Land taken for streets under act of 1813.

      Decided January 14, 1878.
    (a) Abutting owners, rights of therein.
    1. Have no exclusive right or interest therein and no easement in the nature of a right of way over the same, other than that which is held and enjoyed by the public at large.
    1. Trusts created by act of 1813. Abutting owners, as such, have no special and peculiar interest in the enforcement thereof.
    VI. Easement of abutting owners m the city of new york.
    See Hew York Oity, supra.

    Vn. Rapid Transit Act.
    1. Fourth section, effect of prohibition in.

      (a) The implied prohibition against crossing Broadway does not affect the right of a company having authority under the act to proceed with respect to any part or portion of its road not directly affected by it.
    1. In the case at her, the only portions of defendant’s route affected by the prohibition, are those included within the intersecting lines of Broadway.
    VIH. Injunction.
    1. In the case at bar the court, applying the above principles, held there was no ground to sustain the suit.
    1. Taking of private property. Ho private property of the plaintiff having been attempted to be taken, or interfered with by the acts complained, it could not be sustained on the ground of restraining the taking private property for public use until due compensation had been made or provided for.
    3. Public nuisance. Defendant’s structure, not being a public nuisance, it could not be maintained on the ground of restraining a public nuisance.
    1. Special damage to plaintiff. The fact that defendant’s proposed railroad would cause special damage and injury to plaintiff, is in this aspect immaterial.

    3. Want of Authority. As the want of authority to cross •Broadway only affected those portions of defendant’s route . which are included within the intersecting lines of Broadway, and as in reference to these portions the elements of interest and irreparable injury were wanting, the suit could not be maintained on this ground.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Appeal by defendant from a judgment rendered at special term, June 22, 1877, after a trial of issues of fact by the court without a jury.
    The judgment appealed from enjoins and restrains the defendant from building upon the Sixth avenue, (in the city of New York), from Amity street to Fifty-ninth street, an elevated railway, in accordance with plans prescribed or approved by commissioners appointed under the “ rapid transit act ” (Laws of 1875, ch. 606).
    Upon the trial it appeared, among other things, that the plaintiff is a railroad corporation, created and organized under the general act of 1850; and that, as such corporation, for more than twenty years, it has owned and operated a double-track horse railroad through Sixth avenue, from Amity street to the Central Park at West Fifty-ninth street; and, also, that during the same period, it has owned in fee certain lots of ground, with buildings and improvements thereon, fronting on Sixth avenue, and described in the deeds whereby they were conveyed to the plaintiff, as “bounded westerly in front by Sixth avenue.” For the purposes of the action, it was admitted, by a stipulation between the parties, that the portion of Sixth avenue between Amity street and the Central Park, at Fifty-ninth Street, was opened by proceedings had under and pursuant to the act of April 9, 1813 (Laws of 1813, ch. 86), and the laws amendatory thereof.
    It further appeared, on the trial, that the defendant was incorporated by a special act, passed for that purpose, June 17, 1872, and was thereby authorized to construct an elevated railway through such streets and avenues, as should be designated by certain commismissioners. Such commissioners designated a route which extends through the Sixth avenue, from Amity street to Fifty-ninth street. On June 18, 1875 (Laws of 1875, ch. 606), the legislature passed an act, sifice generally known as the “ Rapid Transit Act,” which, upon certain terms and conditions therein specified, authorizes the construction of steam elevated railroads in cities, over, under, through or across the streets, avenues, places or lands therein (“ except Broadway and Fifth avenue below Fifty-ninth street, and Fourth avenue above Forty-second street, in the city of New York,” and certain other excepted places), upon consent of certain property owners and local authorities, or, in case such consent cannot be obtained, upon a decision by commissioners appointed by the supreme court, to the effect that such railroad ought to be constructed. Corporations formed under that act are thereby empowered to construct and operate railways upon the routes decided upon, as therein provided, and, in all cases, the use of streets, avenues, places and lands, and the right of way through the same for the purpose of such railways, is thereby declared to be a public use, consistent with the uses for which such streets, avenues, &c., are publicly held. The thirty-sixth section of the act relates especially to the construction of such railways as are thus authorized to be built, over routes coincident with horse railway tracks occupying the surface of the street, and confers certain powers and privileges incident or necessary to such construction; and, thereupon, also confers upon existing corporations, formed for the purpose provided by the act, and whose routes, according to their charters, are coincident with routes determined upon by commissioners pursuant to its provisions, like power to construct and operate such railways, as a corporation specially formed under the act, upon fulfillment of the requirements and conditions imposed pursuant thereto. Under the provisions of this-act, an elevated railway route, coincident with that of the defendant, as prescribed by its charter, was fixed and laid out; and thereupon the defendant, claiming authority so to do, under and by virtue of the legislation and proceedings above mentioned, undertook to construct an elevated railway through the Sixth' avenue, between Amity and Fifty-ninth streets, and proceeded therewith, until enjoined by the order,' and, finally by the judgment of this court.
    Upon the trial, at special term, it was claimed and insisted by the plaintiff, that the Rapid Transit Act of 1875 (and especially section 36 thereof), upon which the defendant relied as constituting its authority to build the road upon the plan prescribed by the commissioners appointed thereunder, was invalid, as in conflict with the State constitution. The judge before whom the trial was held, held that the thirty-sixth section of the Rapid Transit Act was unconstitutional and void; that the defendant had no authority, in law, to construct its proposed railroad, either by virtue of its charter or the provisions of that act; and, accordingly, that the plaintiff .was entitled to a perpetual injunction restraining defendant from building such railway.
    Judgment was entered accordingly, and defendant now appeals.
    The arguments of counsel for the respective parties were very elaborate ; the abbreviation of them here presented gives the substance of the points raised.

      Porter, Lowrey, Soren & Stone, attorneys, Grosvenor P. Lowrey, Charles Francis Stone, and John K. Porter, of counsel, for appellant, urged in substance :
    —I. As to the limits under which the court should review the special term judgment. 1. The duty of the appellate branch of the court would seem to be limited to a review of the bases upon which that judgment rests. Such a review having already been had—virtually—in the court of appeals, resulting in a decision that the bases of the special term judgments are erroneous, it would seem that that judgment should be at once reversed and a new trial ordered (Wisser v. O’Brien, 3 Jones & Spencer, 149, 152; Munro v. Potter, 34 Barb. 361; Mills v. Van Voorhees, 20 N. Y. 412, 423).
    II. As to the pretended franchise. This is claimed under resolutions of the common council of the city of New York, and an act of the legislature confirming all grants previously made to street railroads upon the terms and conditions of the original grants (Laws 1854, p. 323). Ho exclusive privilege to use the surface of! Sixth avenue, or the circumambient spaces of the air can be found in these resolutions or contracts ; and no such exclusive privilege or promise of a privilege is, as against the general public interest and in diminution of the general control of the State over public streets and highways, to be implied (Thompson v. N. Y. & H. R. R. Co., 3 Sandf. Ch. 625).
    III. As to the obligation of contracts generally. It may be said in general that “It is competent for the legislature, after granting a franchise to one person or corporation, which affects the rights of the public, to grant a similar franchise to another person or corporation, the use of which shall impair or even destroy the value of the first franchise, although the right so to do may not be reserved in the first grant, unless the right to do so is expressly prohibited by the first grant” (Charles River Bridge Co. v. Warren Bridge Co., 11 Peters, 420; Auburn, &c. Co. v. Douglas, 9 N. Y. 444; Rennselaer, &c. R. R. v. Davis, 43 Id. 137; Mohawk Bridge Co. v. Utica, &c. R. R., 6 Paige, 554; Ft. Plain Bridge v. Smith, 30 N. Y. 44).
    Upon this point, therefore, we contend :
    1. That there is no obligation of contract, binding on the city or State, to permit the Sixth Avenne Railroad Company to continue its railroad or run its cars, and much less to exclude others.

      2. That such an obligation, if existing, would not be impaired by legislation permitting others to carry on in the same street the business proposed by us, however injurious might be the competition. It is difficult to conceive what can be said in support of the idea, that the building of the defendant’s road brings upon the plaintiff the injury contemplated by section 10 of article 1 of the constitution of the United States.
    IV. As to the easement claimed by plaintiff'. 1st. The history of the law affecting streets in this city, informs us that, under the Dutch law, the fee of all roads and streets belonged to the sovereign State ; and that all such title in the State passed by conquest to the crown of Great Britain, and, after the American Revolution, to the State of New York, by which State it has, by the acts above-mentioned, been granted to the city (Dunham v. Williams, 37 N. Y. 251).
    The provincial legislature provided a scheme of legislation for the laying out of streets, by which it was arranged that compensation was to be given to the owners of land over which roads or streets were opened. In the case of roads in the country, only an easement was deemed to be taken, and the compensation paid was such damages as were appropriate for the use of the land assessed. But in the city of New York the municipal government, in laying out streets, were required to give reasonable satisfaction, not for the use of the land, but for all such land as should be taken and employed, and the satisfaction was to be for the complete respective interests and estates of the owners in such land (1 Smith & Liv. Laws, p. 8; Laws of 1691, ch. 18; Hoffman's Treatise on Estates and Rights of Corporations, vol. 1, p. 199). Various acts of the provincial and State legislatures were superseded by the acts of 1807 and 1813.
    The title to streets in this city laid out under those acts is completely in the city (Schuchart v. The Mayor, &c., 53 N. Y. 202; The People v. Kerr, 27 Id. 188; Kellinger v. Forty-second Street R. R. Co., 50 Id. 206; Matter of Ninth Avenue, 47 Id. 732; 2 Hill, 466; 3 Barb. 459; 6 Id. 313; 7 Id. 508; 6 N. Y. 522; 25 Id. 536; 43 Id. 414).
    There can be no private easement appurtenant to abutting lots in the public easement, for that would establish a private right to the continuance of a public right, and would constitute a double right to the same easement—one right in the public, and one in the private person ; nor can the possession of a right to participation in the general public easement entitle the holder to maintain a private action (Anderson v. Rochester, &c. R. R., 9 How. Pr. 553; Higby v. Camden & Amboy R. R., 19 N. J. Eq. 279; Currier v. West Side R. R., 6 Blatchf. 495; Wyman v. Mayor, 11 Wend. 494).
    The theory of the plaintiffs as to their easement in the street, whether for general passage or special access to their lots, is well treated in the Jersey City R. R. v. Hoboken R. R., 5 C. E. Green, 70.
    The power of the public authorities to affect the convenience of access to abutting lots is maintained in various cases (N. Y. & Harlem R. R. v. Forty-second Street R. R., 26 How. Pr. 70, 71; affi’d 32 Id. 500; 50 Barb. 285; Id. 309; Carver v. Paul, 24 Penn. 207; Godfrey v. City of Philadelphia, 637; Polack v. San Francisco Orphan Asylum, 38 Cal. 490; Fearing v. Irwin, 55 N. Y. 486).
    This is perhaps, however, the proper place in which to cite some authorities in refutation of the notion that there has arisen, from the proceedings by which lands in Sixth avenue have been appropriated and paid for, an implied covenant in favor of abutting owners. This notion seems to be, that by the payment of the assessment imposed upon them or their predecessors in the title for the benefit of the street opening, there has been created in such abutting owners a private interest in the street.
    In the exercise by the State of the right of eminent domain and of its taxing power, the citizens’ consent is ignored. Nothing depends upon that consent or the withholding of it, and no right arises from any declaration by the State, when it levies the tax or takes the property, of its then present intentions.
    The court of last resort has decided that a local assessment of this nature is a tax, and that “the payment of taxes is a duty, and creates no obligation to repay otherwise than in the proper application of the tax” (People v. Mayor of Brooklyn, 4 Comst. 424).
    2. The provision in the act of 1807, requiring the filing of a general map, which shall be final and conclusive, and enacting that after the streets around a block should be opened no public street should ever be made through the block, and similar provisions in other acts (Laws 1831, chap. 252) have never, been considered unalterable provisions creating a private right (Waddell v. Mayor, 8 Barb. 97; Wilson v. Mayor, 1 Den. 595).
    3. Even if there were any possibility of reverter, that interest is a nominal one merely, not entitling its holder to the intervention of equity (Wetmore v. Story, 22 Barb. 488). The value of a possibility of reverter is not assessible at more than one dollar, or at anything beyond a mere nominal sum (In re Thirty-ninth Street, 1 Hill, 194; In re Thirty-second Street, 19 Wend. 129).
    The value of a similar interest in a much larger part of a dedicated street, which would have been worth $7,000 if not burdened by the public use, was held to be correctly assessed at one dollar, in Livingston v. Mayor, &c., 8 Wend. 85.

    An injunction will not be granted where it would cause great injury tb the defendants, and might be of serious detriment to the public, without corresponding value to the complainants (Torrey v. C. & A. R. R., 18 N. J. Eq. 293; Cross v. Mayor, Id. 305, 313; Higby v. C. & A. R. R., 19 Id. 276).
    The erection proposed by us is auxiliary to the general public use; does not in any reasonable sense impair the convenience of any private person; and such obstructions, even if they do actually obstruct, are not to be enjoined where there is any doubt as to the law or the facts (Barnes v. South Side R. R., 2 Abb. If. 8. 415; Átt’y Gen’l». L. B. R. R., 9 O. E. Green, 49; Hodgkinson v. L. I. R. R., 4 Edw. 411; Thompson v. R. R., 3 Sandf. GJi. 625).
    Y. As to the trust supposed to exist under the act of 1813, § 107. The notion that the land in public streets in this city is, under the terms of the act of 1813, impressed with a trust which can be. availed of by plaintiffs to exclude the proposed use of Sixth avenue, is wholly without support in the language of the act, or in general public policy.
    The phrases “for ever” and “in trust,” in the act of 1813, do not constitute an irrepealable engagement between the State and the abutting lot owner. These words in the act of 1813 do not qualify the fee relinquished to the public, but the possession which is to be taken and held by the city after the fee has vested. They describe the municipal duty to the State, not the obligations of the State to the abutting owner. They do not imply an abdication of legislative power (People v. Roper, 35 N. Y. 636, 637; Embury v. Conner, 3 Comst. 511; 2 R. S. 6th ed. 526, § 20 ; Worcester City v. Worcester, 110 Mass. 353 ; Wellington v. Petitioners, 16 Pick. 88; Casey v. Harned, 5 Iowa, 14; Matter of Turfler, 44 Barb. 52; People v. Mayor of Brooklyn, 4 N. Y. 424; People v. Roper, 35 Id. 637; Brooklyn Park Commissioners v. Armstrong, 45 Id. 245; Smith v. City of Boston, 7 Cush. 254; Gould v. Hudson R. R. R., 6 N. Y. 522; Radcriff v. Mayor, 4 Id. 195; Wilson v. Mayor, 1 Den. 595; Lansing v. Smith, 8 Cow. 149; Garrison v. City of New York, 21 Wall. 203, 204).
    VI. The evidence as to obstruction and damages. Plaintiff’s claim has been stated thus :
    “Our affirmation is that the owners of houses and lots fronting on a street in a city are deemed to suffer peculiar injury when the street is closed anywhere, so as to obstruct their means of communication with the public.”
    Not one adjudged case can be found where such a doctrine is announced. Many authorities deny the doctrine in express terms (Tate v. Ohio R., 7 Ind. 483, 484; Williams v. Beardsley, 2 Car. [Ind.] 596).

    The learned judge at the trial excluded all evidence of diminution of value as immaterial. In this he followed, as he was bound, the settled doctrine of this court, in Dougherty v. Bunting (1 Sandf. 1), reaffirming Lansing v. Smith (8 Cow. 146), that where an unauthorized obstruction of a highway decreases the rental value, and the damage is common to a whole class, no one member of the class can sue.
    VII. Crossing Broadway. The technical objection that there was no coincidence between the routes determined on by the Rapid Transit Act and that previously granted to the appellant, is without even colorable formation, and is set at rest by the opinion of Church, Ch. J., in the court of appeals. It rests on an exception made in section 4 of the Rapid Transit Act, of certain streets in New York and Buffalo.
    It will be observed that the word “across” is imported by construction into the exception, from the previous enabling clause ; and as the evident object of the exception was simply to prevent the building of steam railways on the line of those particular streets, we submit that by a fair construction the exception should be so limited.
    The exception should not be held to apply to routes on the continuous line of streets crossed by Broadway, which so traverses the city diagonally, that it intersects most of the avenues.
    But, in any view, there is no prohibition against selecting a route across Broadway. The exception is merely to a grant of power, and if the commission had actually required the companies to cross Broadway with steam engines, it would at most have been an excess of their power, which would be void to the extent of the excess, and would not affect the validity of the “ routes ” up to Broadway on either side.
    But the objection is untenable in any aspect, for, as matter of fact, the commissioners excluded from the “routes” determined upon by them, all the excepted streets, including Broadway, and every part thereof.
    This exclusion, however, did not prejudice the prior and unrestricted right of the Gilbert Company to cross Broadway.
    The coincidence provided for in section 36 was not-of the entire “route or routes” selected by the commissioners, with the entire route of any one existing company; but the priority of right was reserved to any such company to the extent of such coincidence, and whether it was on one or more routes.

      Evarts, Southmayde & Choate, attorneys, Joseph H. Choate and George E. Comstock, of counsel, for respondent, urged, in substance :
    —I. The legislature has no power to authorize a company to enter upon and appropriate a highway for purposes other than those to which it had originally been dedicated in pursuance •of the highway acts, without first providing the just compensation therefor (Trustees of the Presbyterian Society in Waterloo v. Auburn & Rochester R. R. Co., 3 Hill, 567; Milhau v. Sharp, 27 N. Y. 611; Craig v. Rochester City & Brighton R. R. Co., 39 Id. 404; Mahon v. N. Y. Cent. R. R. Co., 24 Id. 658; Carpenter v. N. Y. Cent. R. R. Co., Id. 655 ; Wager v. Troy Union R. R. Co., 25 Id. 526 ; Bloodgood v. M. & H. R. R. Co., 18 Wend. 9).
    II. The dominion of the legislature over the streets of the city of New York, under the act of 1813, is not absolute and unlimited. Its power over them has the same limit as the power over the highway in other parts of the States has under the above-cited cases.
    The case of Heywood y. The Mayor (3 Seld. 214), shows the difference between land acquired for public use, over which the dominion of the legislature is absolute, and that acquired for street purposes, over which its dominion is necessarily limited to the perpetual maintenance of the street as a highway.
    III. The use proposed to be made of the Sixth avenue by defendant is more inconsistent with its uses as a highway than were the uses to which the highways were proposed to be put in the above-cited, cases.
    As the evidence shows, it is proposed to plant in the road-bed double rows of columns, which, at the bases, including the fenders, are to be thirty inches in width, two of them opposite each other in the street, occupying together one-twelfth of the whole roadway in a street sixty feet wide, and constituting a complete exclusion of the public, and of the abutting owners, from so much of the road-bed, upon which, in many parts of the route, and probably in front of plaintiff’s premises, are to be erected platforms and depot buildings and staircases, which are in practical effect indistinguishable from the erection of so many houses on the street in front of the plaintiff’s property.

      IV. Upon justly considering the great multitude of , cases in the courts of this and other States, decided upon the principle that for mere consequential damages the sufferer is not entitled to compensation, though occasioned by the exercise of the right of eminent domain, where no property is taken from him ; it will be found that there is nothing in them which militates at all against the rights which we now claim for the property owners.
    The very gist of our claim here is that a substantial right of property is taken away by the blocking up of the street.
    We venture to commend to the attention of the court the enlightened view of this subject taken by the English courts, in the most recent cases involving the construction of the Lands Clauses Consolidation Act (Vide Metropolitan Board of Works v. McCarthy, L. R. 7 App. Cas. 243; Becket v. West of London R. W. Co., 2 B. & S. 605).
    The supreme court of the United States has also strongly intimated its opinion in favor of the view now presented (Pumpelly v. Green Bay Company, 13 Wall. 166). Vide also the following cases in Ohio, which emphatically support the rights for which we here contend: Crawford v. Delaware, 8 Ohio St. 459; Cincinnati, &c. Ky. Co. v. Cumminsville, 14 Id. 523; Roberts v. Easton, 19 Id. 78.

    V. The authorities on this subject of the appropriation of corporate franchises, by virtue of the right of, eminent domain, are numerous and harmonious. They establish that the only true rule of policy as well as of law is that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional rights of the owners of the franchises; but, in such cases, suitable and adequate provision must be made by the legislature for the compensation of those whose franchise is injured or taken away. And it cannot be doubted that the section of the constitution of this State which we invoke makes ample provision.
    On the general subject of the condemnation of corporate franchises, we cite the following authorities: Cooley on Constitutional Limitations, 626; West River Bridge v. Dix, 6 How. U. S. 507 ; Richmond R. R. Co. v. La. R. R. Co., 13 Id. 81; Central Bridge Corp. v. Lowell, 4 Gray, 482 ; Boston Water Power Co. v. Boston & W. R. R. Co., 23 Pick. 360; Commonwealth v. Pittsburgh, &c. R. R. Co., 58 Penn. St. 50; Commonwealth v. Penn. Canal Co., 66 Id. 41; New Castle, &c. R. R. Co. v. Peru & Ind. R. R. Co., 3 Ind. 464; Charles River Bridge v. Warren Bridge, 11 Pet. 571.
    It is impossible not to see that the proposed construction of the Gilbert road, and its operation by steam power over that of the plaintiff, will seriously impair, if not wholly destroy, its value.
    The findings of the learned court below, on this head, are all that are needed to lead the judgment of the court to this conclusion.
    The twelfth finding shows that the tracks of the plaintiff are to be wholly covered and substantially surrounded by the structure, of the defendant, which is to be built within eighteen inches on either side of the plaintiff’s cars, as they run; that the superstructure is to be not more than fourteen feet in height from the surface of the ground, with cars to be propelled by locomotives, upon an open bridge, so as to be visible to the horses and passengers below ; and that the plan of defendant’s proposed road involves the running of trains about once in five minutes over the road in each direction at great speed, with stoppages'at every half mile. And it is expressly found, in the same finding, that the row of columns on each side of the plaintiff’s track will exclusively use and occupy spaces in the street that the plaintiff is entitled to nse for the purposes of its franchise; that the damage- that is suffered by the plaintiff is peculiar to it, and is otherwise than is suffered from the same cause by the public or others.
    Upon the ground, then, that we are entitled to compensation for our valuable corporate rights, franchises, and property, that are proposed to be taken away, as a condition precedent to their appropriation we insist with absolute confidence that the decree appealed from should be affirmed, and the defendants perpetually enjoined from proceeding with their proposed structure.
    VI. The route laid out by the commissioners through the Sixth avenue, in front of the plaintiff’s property, is illegal and void, and therefore no authority to construct that section of the road, at least, can be derived from their action, because the route there, as so laid out, is an express violation of the prohibitions of the fourth section of the act, by crossing Broadway in two places, as the court below finds, at Fifty-third street, and again at Thirty-third street. The fourth section of the act, which gives to the commissioners power to locate the route over, under, through or across the streets, avenues, places or land in such county, except Broadway and í’ifth avenue below Fifty-ninth street, and Fourth avenue, above Forty-second street, in the city of New York,” is an absolute prohibition, as strong as language could make it, against the legality of any route which crosses Broadway within the excepted region. The commissioners not only exceed their power, in so crossing Broadway, but the whole route so laid out in that part of its course, at least within the prohibition limits, is illegal, and leaves the case as if no such route had been designated.
    The court of appeals has not decided this proposition against us. All that they have decided is that the crossing of Broadway at Thirty-third street and Fifty-third street, between which limits it is clear that the legislature intended that no such route should be built, is not fatal to the rights of the company to an order to appraise the damages of an owner of property in South Fifth avenue, at a distance of more than two miles from the prohibited limits.
    VII. If the corporate property, rights and franchises of the plaintiffs are to be taken away, destroyed or substantially impaired, or, in the significant language of Judge Allest, ‘i the beneficial enjoyment of them disturbed or interfered with” by the construction and operation of the defendant’s proposed railway, by virtue of the Gilbert Act or the Rapid Transit Act, or of both combined, without just compensation being first paid or secured, then these acts are in plain violation of that provision of the constitution of the United States which says that no State shall pass any law impairing the obligation of contracts, and of the Fourteenth amendment of the constitution, which provides that the citizen shall not be deprived of his property without due process of law (Milhau v. Sharpe, ut supra).

    The nature and quality of the plaintiff’s rights and interests as a railroad company, thus happily defined for us by the highest authority in Milhau v. Sharpe, and made completely valid by the act of 1854, confirming them on the part of the State, come clearly within the protection of the provisions of the constitution which we invoke.
    All the property of the Sixth Avenue Railroad Company, including, as part of it, the right to be in the avenue for the purpose of operating its road, is the private property of the corporation, having all the sanctity of any other private property, and entitled, so far as it rests on grant from the State, or valid contract with city or State, to the constitutional guaranties referred to (West River Bridge Co. v. Dix, 6 How. U. S. 507; Boston and Lowell R. R. Co. v. S. & L. R. R. Co., 2 Gray, 35 ; 3 Kent’s Com. 458 ; Benson v. The Mayor, &c., 10 Barbour, 223 ; The Binghamton Bridge, 3 Wallace U. S. 51; Wilmington R. R. v. Reid, 13 Id. 264.

       The case at special term is reported in 41 N. Y. Superior Court, p. 489.

   By the Court.—Sanford, J.

—The learned judge before whom this action was tried at special term, reached the conclusion that the defendant, The Gilbert Elevated Railway Company, had no authority, in law, to construct the elevated railway in Sixth avenue between Amity and Fifty-ninth streets, which it proposed to build pursuant to its charter, and under the provisions of the Rapid Transit Act (Laws of 1875, ch. 606), and for the reason that section 36 of that act, upon which the defendant’s right to proceed with such construction depended, was unconstitutional and void. He accordingly rendered judgment, that the defendant be enjoined and forever restrained from building such railway. The question of the validity of the rapid transit act, and particularly of section 36, has since been presented to the court of appeals in certain proceedings entitled In the matter of the petition of the New York Elevated Railway Company, and in other like proceedings, on the .part of the defendant herein, on appeals entitled Kobbe v. The Gilbert Elevated Railway Company, and Anderson v. The same. And that court has, in those cases, finally and authoritatively determined that the Rapid Transit Act is not obnoxious, in whole or in part, to the constitutional objections urged against its validity ; and that, under and by virtue of its charter and the provisions of that act, the defendant has good right and lawful authority to build, over the route provided for it by law, including the Sixth avenue, the railway whose construction is enjoined by the judgment now under review. It is, therefore, obvious that the judgment appealed from cannot be sustained upon the ground upon which it was rendered, and that, unless other sufficient reasons for affirming it can be gathered from the pleadings, proofs and findings upon which it was based, it will now be the duty of the appellate branch of the court to direct its reversal.

On the part of the plaintiff and respondent, the Sixth Avenue Railroad Company, it is insisted that the case, as presented, conclusively shows that that company has property, rights and interests, both in its existing railroad and franchises, and also as incident or appurtenant to its lands abutting on the Sixth avenue, the beneficial enjoyment whereof will be' destroyed, impaired or disturbed by the construction and operation of the defendant’s proposed railway; that such rights and interests are protected by the const!-. tutional prohibition against the appropriation of pri-, vate property to public use without just compensation; and that the ascertainment of the amount of such compensation, the appraisal of the damages incurred or sustained by reason of such destruction, injury, or disturbance, and the payment, tender, or offer of such compensation, when the amount thereof shall have been determined in the manner provided by law, are conditions precedent to the right of defendant to construct its proposed road; and, finally, that it is entitled, by reason of the threatened invasion of such rights and interests, to an injunction from a court of equity to restrain the construction of the defendant’s road until such compensation shall have been made.

It is obvious from a perusal of the opinion filed by the learned judge at special term, that the views therein expressed cover but a part of the case as it was presented at the trial. His determination that section 36 of the Rapid Transit Act was unconstitutional and void, rendered it, in his judgment,, unnecessary and unadvisable to pursue Ms inquiries further, inasmuch as by so doing nothing would be gained toward practically determining the rights of the parties. He accordingly declined to consider or pass upon other ‘ ‘ grave and important questions” involved, including those now presented to the consideration of the court. In view of this fact, and as the case has not been fully considered in all its aspects, we should, perhaps, under the authority of Mills v. Van Voorhis (20 N. Y. 412), be justified in reversing the judgment, and directing a new trial, without inquiring whether, upon other grounds than that on which the judgment in its favor was rendered, the plaintiff is entitled to the relief thereby accorded to it. The plaintiff would thus have an opportunity to secure more explicit findings of fact in regard to the proprietary rights and interests with which it claims to be vested, and more specific and deliberate conclusions therefrom as to the legality or lawlessness of their threatened invasion. It would seem that such questions ought to be passed upon, deliberately, by the tribunal of first instance before they are presented for adjudication to the appellate branch of the court. We have, however, thought it not improper, at the urgent instance of the respondent’s counsel, to inquire whether the judgment can be sustained, upon the propositions for which they now contend, and we have done so in the hope that the progress of the cause toward a complete and final adjudication might thus be accelerated.

In announcing the result of our deliberations it will be unnecessary to do more than state, briefly, the conclusions at which we have arrived, with the reasons therefor, without endeavoring to enforce them by illustration or argument.

1. The case shows no such invasion and partial destruction of the plaintiff’s road and franchise as entitles it to compensation, under the constitutional provision for the protection of private property proposed to be taken for public use in the exercise of the right of eminent domain. Compensation must doubtless be made for the appropriation and condemnation of corporate property and franchises, taken in the exercise of the right of eminent domain, equally as in case of the like appropriation or destruction of individual property and rights ; but it appears that no part of the plaintiff s road, as it has been constructed and now exists, will be in any wise disturbed or interfered with by the execution of the plan upon which it is proposed to erect the structure constituting the defendant’ s elevated road. While it is found as a fact in the case, that the columns to be erected on either side of the plaintiff’s tracks, will exclusively use and occupy spaces in the street, to the use of which the plaintiff is entitled for the purposes of its franchise, there is no finding, and no evidence, that any space actually appropriated by the plaintiff to such purposes, or which now is or ever has been in its actual use and occupancy therefor, will be invaded, encroached upon, or injuriously approximated by the defendant’s columns, platforms, stairways, or any other parts or portions of its proposed structure.

It cannot, therefore, be claimed that the plaintiff is entitled to compensation for the deprivation of any part of its road, considered as a physical and corporeal entity. The plaintiff’s franchise entitles it to the use of every part of the entire space in the roadway of the Sixth avenue, to the extent requisite for the laying down thereon of a railroad with a double track ; but its franchise is not to be construed as appropriating to its future exclusive use and occupancy, spaces not requisite for that purpose, after it has already exhausted the privilege accorded to it, by appropriating so much of the roadway to the purposes of a double track as its exigencies actually require (N. Y. & Harlem R. R. Co. v. Forty-second St., &c. R. R. Co., 50 Barb. 285, affi’d Id. 309).

The alleged appropriation or invasion of any part of the plaintiff’s road is expressly negatived by the finding that the running of defendant’s cars and engines upon the Sixth avenue, over plaintiff’s road, in case the defendant’s road were constructed, would not prevent the practical running of plaintiff’s cars by horses, or materially increase the expense of such running.

The alleged invasion of its franchise, which consists in the right to lay a double track, and to run licensed cars thereon, does not appear, either in the facts found or in the evidence, inasmuch as there is nothing in either tending to show that ample space for laying a double track on the surface of the avenue is not, and will not. be, fully available to the plaintiff, notwithstanding the erection of the structure proposed by the defendant, or that the running of its cars thereon will be in any degree obstructed or interfered with.

The plaintiff, by virtue of its franchise, has no control over or interest in that part of the avenue not occupied by its tracks, or actually traversed by its cars (N. Y. & Harlem R. R. v. Forty-second St. R. R., ut supra).

Moreover, plaintiff’s rights and powers, as a railroad corporation organized under the general law, must be exercised in conformity with, and in subordination to such constitutional legislative requirements and conditions as are, or may be, imposed by valid legislative enactment. Legislative authorization of a parallel and competitive railway involves no appropriation or deprivation of the vested rights and franchises of a railway already constructed, and is not an exercise of the right of eminent domain (Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420 ; Auburn Co. v. Douglas, 9 N. Y. 444; Rensselaer R. R. v. Davis, 43 Id. 137; Ft. Plain Bridge Co. v. Smith, 30 Id. 44). Any loss or damage sustained by reason of the competition of such lawfully authorized railway is damnum absque injuria, for which no compensation can be required.

Private property cannot be said to be taken for public use, in the exercise of the right of eminent domain, merely because its value is impaired by the proximity of other property legitimately employed for the public use and benefit, under the sanction and by the authority of a legislative enactment. The finding, therefore, that the construction and operation, upon the Sixth avenue, of defendant’s proposed railroad, would occasion special damage and injury to the plaintiff, is of no importance as bearing upon the question of the plaintiff’s constitutional right to compensation for an interference, for the public benefit, with the beneficial use and enjoyment of its property.

If the proposed elevated railway, as was held at special term, was unauthorized by law and a public nuisance, such finding would be essential to the maintenance, by the plaintiff, off an action to enjoin its construction ; but, inasmuch as,it is not a public nuisance, and as the use to be made of so much of the avenue as it shall of necessity occupy is duly authorized by law, and is declared to be a public use, consistent with the uses for which such avenue is publicly held, this finding is immaterial. Such special damage results from no interference on the part of the defendant with either the franchise or tracks of the plaintiff. The plaintiff’s railroad and its double track may remain on the surface of the avenue in the exact locality it has always occupied, without the displacement of a single rail or switch ; and the franchise of maintaining and operating it, and running licensed cars thereon, so far as appears from the evidence, may be beneficially used and enjoyed, hereafter as heretofore, without let or hindrance on the part of the defendant. The findings of the court at special term are to this effect.

2. The plaintiff has no easement or property right in the roadway of Sixth avenue, incident or appurtenant to its ownership of lands abutting thereon, the beneficial use or enjoyment whereof will be destroyed, diminished, impaired, or interfered with by the construction or operation of the defendant’s proposed railway.

It does not appear from the evidence that .any one, from or through whom the plaintiff’s title to its adjacent lands is derived, was ever vested with title to the land now constituting Sixth avenue. It does appear that the title of the former owners of that land was absolutely and forever divested, and that the title thereto, in fee simple, was acquired by the corporation of the city of New York, under and by virtue of proceedings had for that purpose, pursuant to the act of 1813.

A long array of judicial decisions is cited in support of the proposition that the city corporation is fully vested with an absolute title in fee simple to the lands comprised within the limits of streets and avenues opened and laid out pursuant to that act. Nor is that proposition controverted. The contention of the plaintiff is that, notwithstanding the provisions of the act of 1813, under the operation of which the fee of any street or avenue may be deemed to have been taken from the former owners thereof, and vested in the corporation, in trust, as provided thereby, the owners of property fronting on such street or avenue are entitled, by virtue of their ownership, and of the abutment of their property upon such street or avenue, to have the same maintained as a highway, and forever kept open for all the uses and purposes of a highway, unincumbered throughout its length and breadth, by any obstruction which shall prevent or impair the use of every inch of it, either by the public or by abutting owners, for all the public uses and common purposes of a highway.

And it is insisted, with great earnestness and force, that this right, to which, as an abutting owner upon Sixth avenue,- the plaintiff claims to be entitled, is, in its nature, a proprietary interest in land, a property interest in the maintenance of the aveiiue as a highway, by virtue whereof the plaintiff is entitled to compensation, in case of any infringement thereon, in the exercise of the right of eminent domain.

The argument in support of' this position proceeds mainly upon the assumption, not warranted by the evidence in this case, that the land comprised within the limits of the avenue was taken from persons who were, also, at the time, owners of the land adjacent to and abutting on its exterior lines; and that the compensation awarded to such persons for the land taken consisted chiefly in the benefits and advantages acquired by them, as owners of the abutting lands, in having a broad highway opened in front of their remaining property, the use of which, as such, was forever secured by the trusts declared by the act.

Whatever benefits and advantages the owners o£ adjacent lands acquired, by virtue of opening the avenue, was paid for by assessments charged thereon, whether such owners were or were not proprietors of the lands within the limits of the avenue. And the trusts declared by the act were as much for the benefit of adjoining owners who had no interest in the land taken, but who paid such assessments .in cash, as of those whose awards for damages, by reason of the condemnation of their lands within the lines of the avenue, proved the equivalent of assessments for bene-, fit imposed upon their lands adjacent to, but without such lines. In each case adjacent owners contributed their respective shares of the expenses incurred in effecting the improvement. But they acquired by such contribution no exclusive right or interest in the street or avenue, and no easement in the nature of a right of way over the same, other than that which is held and enjoyed by the public at large. Abutting owners, as such, have no special and peculiar interest in the enforcement of the trusts declared by the act. Those trusts were created and declared for the benefit of the public, and the people at large, acting through the legislature, are at liberty to determine in what manner they shall be carried into effect. The views expressed in the case of the Brooklyn Park Commissioners y. Armstrong (45 N. Y. 245), commend themselves to our approval, and if sound they are conclusive against the claim of the plaintiff to compensation for the deprivation of any supposed property right in the avenue, existing as appurtenant to their lands abutting thereon.

The like conclusion has, very recently, been adopted by one of the learned judges of the New York common pleas, in the case of Story v. New York Elevated Railroad Company (October, 1877), and the following cases, cited by him, seem to sustain fully the correctness of his decision: Lansing v. Smith, 4 Wend. 9 ; Benedict v. Goit, 3 Barb. 459 ; First Baptist Church v. Utica & Schenectady R. R. Co., 6 Id. 313 ; Drake v. Hudson R. R. Co., 7 Id. 508; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195 ; Gould v. Hudson River R. R. Co., 6 Id. 522; People v. Kerr, 37 Barb. 357; S. C., 27 N. Y. 193; Coster v. Mayor of Albany, 43 Id. 414 ; Kellinger v. Forty-Second St. R. R. Co., 50 Id. 206.

But it is further urged, as a fatal objection to the defendant’s claim of full right and authority to construct its road through Sixth avenue, that the route laid out for it by the commissioners appointed under the Rapid Transit Act is in direct violation of the implied prohibition contained in the fourth section of the act, with respect to crossing Broadway. The court of appears seems to have determined, in the cases of Kobbe and Anderson, above cited, that the right of the defendant to proceed under the act with respect to any part or portion of its road, not directly affected by this implied prohibition, is clear and unquestionable ; that, if crossing Broadway is prohibited by the act, such crossing is excluded by the commissioners from the routes designated by them, inasmuch as they expressly exclude from such routes, any street or part thereof, the use of which for the purposes of an elevated railway is excluded by the act; and that such exclusion does not invalidate the authority conferred by the act with respect to the residue of the designated route. In so far as such residue coincides with the existing route of a railroad corporation, such corporation may build upon the route designated. The authority is at least co-extensive with the coincidence. If, therefore, the plaintiffs were entitled to an injunction upon this ground, it would only extend to and operate upon such portions of the defendant’s route as are included within the intersecting lines of Broadway.

But the elements of interest and irreparable injury which are essential to the invocation of equitable interposition by injunction are wanting to any claim of the plaintiff with respect to merely that part of the defendant’s route which intersects Broadway, and we do not understand counsel as claiming anything by virtue of this particular objection, unless it be held to invalidate the authority of the defendants with respect to the whole o£_Sixth avenue. We are of opinion that the judgment cannot be upheld either upon this or the other grounds urged in support of it. It must therefore be reversed and a new trial ordered, with costs to appellant to abide the event. '

Curtis, Ch. J., and Freedmah, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN H. MOHR, Plaintiff and Respondent, v. ALBERT O. PARMELEE, Defendant and Appellant.
    PARTY WALL, WHEN BREACH OF COVENANT AGAINST INCUMBRANCES.—DAMAGES.—WHEN COVENANTS RUN WITH LAND.
    A party wall standing equally upon the land of adjoining proprietors, and whose central line is throughout coincident with the line of division between their respective premises, constitutes no incumbrance upon or defect in the title of either, such as will relieve a purchaser from his contract, or entitle him to compensation, notwithstanding that the owner may have covenanted with him to convey by good title in fee simple, free of incumbrance (Hendricks i>. Stark, 37 JST. T. 106). But a party wall, as in this case, wholly on one of two contiguous lots of land, yet subject to appropriation and use for all the purposes of a party wall by the proprietor of the other, whether for a term or in perpetuity, and whether the privilege was given by grant, as in this case, or by license, covenant, or prescription, constitutes an incumbrance upon, or a defect in the title of the lot on which it stands (Giles «. Dugro, 1 Duer, 331).
    When the title is so incumbered by reason of the prior grant of such an easement, a right of action immediately accrues on the covenant against incumbrances, by reason of the breach thereof. Whether the covenantee had or had not notice or knowledge of the existence of the incumbrances, is immaterial to his right of action, or to the question of damages.
    More than nominal damages may be recovered in such case. The rule as to damages laid down in Giles a. Dugro {supra), approved.
    The criterion for determining whether a covenant runs with the land, is the intention of the parties, and if the covenants be of such a nature that they can run with the land, and the deed expresses such an intent, they bind, not only the original parties, but the subsequent owners of the respective premises (Per Dwight, 0., Brown ». McKee, 57 W. 7 684).

      Decided, January 14, 1878.
    Before Curtis, Ch. J., and Sanford, J.
    Appeal by defendant from a judgment entered in favor of plaintiff upon the verdict of a jury.
    The action was brought to recover damages for the breach of a covenant against incumbrances, contained in a deed from defendant to plaintiff, bearing date January 17, 1870, and purporting to convey to the plaintiff, in fee, certain premises in the city of New York, consisting of a lot of land with the dwelling-house thereon, said lot being twenty-one feet and eight inches wide, by ninety-eight feet and nine inches deep.
    The complaint alleges that on January 17, 1870, by deed bearing date on that day, and duly executed under seal, the defendant, in consideration of $22,000, conveyed said premises, house and lot, to the plaintiff. That such deed contained, among other covenants, the following: “That the same, [meaning said premises,] now are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, .... and incumbrances of what nature and kind soever.” That on December 29, 1852, one Alfred North, from and under whom the defendant derived title, and who then owned said premises in fee, executed and delivered to Joseph Walker j who was then the owner, in fee, of the lot of land next adjoining, an instrument in writing under, seal whereof a copy is annexed to and made part of the complaint. Such instrument recites that North owns in fee the lot of land and dwelling-house first above mentioned, and that Walker is the owner in fee of the lot adjoining, and is about to erect thereon a dwelling-house. Thereupon, in consideration of the premises and of $300 paid to him by Walker, North, for himself, his heirs, executors, administrators and assigns, covenants, grants, promises and agrees, to and with the said Walker, his heirs, executors, &c., that he and they shall and may in the erection of such dwelling-house, make use of the northwesterly wall of the dwelling-house of said North or as such thereof as said Walker, his heirs, &c., may desire, to the extent of four inches in depth, as a party wall, and as a side wall of said dwelling-house proposed to be erected, to be used and continued as such party wall and such side wall forever. It was further mutually covenanted and agreed by and between the parties to such agreement, that the same should be perpetual, and should at all times be continued as a covenant running with the land ; but should not be deemed, construed or implied, as vesting in Walker, his heirs, &c., and assigns, any legal right, title or interest of, in, or to the ground or soil, or any part thereof, on which the said party wall now stands, but that the whole thereof should remain and continue in the said Alfred North, his heirs, executors, administrators, or assigns forever, in the same manner, and to the same extent as if such agreement had not been executed, except only as to the perpetual appropriation, use and enjoyment and easement of the said party wall, as a party wall, by and between the said two lots of ground and the house erected and to be erected thereon.
    The complaint further avers that after the execution of such agreement, Walker availed himself of the rights, privileges, and easements theréby granted, and built a house on his lot, using, in the construction thereof, the northwesterly wall of North’s house as the southeasterly wall of his, said Walker’s, house. That at the time of his purchase, the,plaintiff was wholly ignorant of such agreement and easement, and that said easement is a damage and injury to the extent of $2,000.

      The answer puts in issue the allegation of the complaint with respect to the plaintiff’s knowledge of the said instrument and easement, and the damage or injury thereby occasioned, and avers that such instrument was recorded in the office of the register of the city and county of New York, on August 9, 1873 ; and that plaintiff, at the time when he bought, had full notice and knowledge thereof.
    Some evidence was adduced on the trial with respect to the question as to whether the plaintiff had actual notice of the existence of such agreement, or of the appropriation and use of the said wall, as a party wall, and as the side wall of the adjoining building; but the court held such evidence to be immaterial, and that the only question for the jury was that relating to damages.
    Defendant’s counsel requested the court to charge:
    (1.) That the record of the agreement, at the time of plaintiff’s purchase, was notice to plaintiff of the incumbrance, and must be considered in mitigation of damages.
    (2.) That no interest in the land on which the wall is built is conveyed by the agreement.
    (3.) That the rules governing the measure of damages for breach of covenant against incumbrances, where no actual damage is shown, is nominal, and no damage can be inferred.
    (4.) That the damage in this case is not an actual damage in contemplation of law.
    (5.) That a party wall is not, as matter of fact, an injury to land.
    The court submitted to the jury the question whether or not the plaintiff had sustained any damage of a substantial character, charging that if not, only a nominal sum was recoverable ; but, that if the plaintiff had sustained real substantial damages, the amount thereof would b'e equivalent to the diminution in value, on January 17, 1870, of the property purchased by reason of the existence of the incumbrance, together with interest thereon from that date.
    Exception was taken to the refusal of the cotirfc to charge as requested, as to notice of the agreement and the effect thereof, also as to the measure of damages, and generally as to the several requests preferred.
    No part of the charge, as delivered, was made the subject of objection or exception.
    The jury found for the plaintiff.
    A motion for a new trial on the judge’s minutes was made and denied.
    The defendant appealed from the judgment entered on the verdict, but not from the order denying the motion for a new trial..

      R. H. Bowne, attorney, and S. P. Nash, of counsel, for appellant, among other things, urged :
    —I. The agreement did not create an incumbrance upon the premises granted, and plaintiff therefore showed no breach of the covenant (Harsha v. Reid, 45 N. Y. 415; Cole v. Hughes, 54 Id. 444; Col. College v. Lynch, 39 Super. Ct. 374). The agreement was not contained in any conveyance of the land, but was a purely personal agreement between the parties to it, and did not run with the land. The whole arrangement, therefore, lay in covenant, not in grant. Plaintiff not having himself covenanted, and not being assignee of North’s covenant, is not bound by it, and can compél the owner of the adjoining house to remove the beams, whose remedy for the consequent damages would be against North and his representatives (2 Washb. R. P. 262-3; 4 Kent, 472-3).
    II. The wall had been used by the insertion of the beams of the adjoining house, before the plaintiff bought and took possession. He had not been disturbed in his occupancy; had .paid nothing to discharge the incumbrance, and suffered no actual damage. He was, therefore, entitled to recover only nominal damages. The case of Giles v. Dugro (1 Duer, 331), will be cited as adverse to both the foregoing positions, but in that case the parties to the party wall agreement acquired an interest in the land, which, in the case at bar, was expressly excluded by the agreement.
    III. The allowance of interest was at all events erroneous. The plaintiff was in possession ; had never paid out anything to remove the incumbrance, and, therefore, was not entitled to interest (Grant v. Talman, 20 N. Y. 191, 196).

      Barlow & Olney, attorneys, and Francis C. Barlow, of counsel, for respondent, among other things, urged :
    —I. A party wall proper has been held by the court of appeals to be no incumbrance or injury (See Hendricks v. Stark, 37 N. Y. 106). The reason of this is, that the wall being equally on each lot, the injury to each is exactly counter-balanced by the benefit. But where the wall is all on one lot, without any gain from the neighboring lot, or where the whole expense is borne by one lot, and the owner of the latter can never control his own premises, or tear down his wall, without the consent of his neighbor, the case is different, and it is an injury. This point was decided by this court in Giles v. Dugro (1 Duer, 331, approved in Lamb v. Danforth, 59 Me. 324).
    II. To the point that the record of the agreement was notice to the plaintiff of the incumbrance, and that such knowledge by him at the time of the purchase constituted a defense, there are two conclusive answers:—First. No actual notice was proved, and the record was not constructive notice. If an instrument relating to real estate is not recorded, a subsequent purchaser “in good faith,” i. e., not having actual notice, is not bound by it (See 3 R. S. 5th Ed. p. 45, § 1). All that is meant by this is that as between two purchasers, a recorded instrument is notice; but this is only as between twopwrchasers. That is to say, Walker having recorded this agreement, the defendant, who subsequently bought from North, was bound by it against Walker. And so, also, the plaintiff was bound by it as against Walker. The recording act {supra) does not say a word about the record being notice to any one. That the agreement was recorded, protected Walker against the defendant, and also against the plaintiff, but it had no effect as between the defendant and his grantee. This is held in Roberts v. Levy (3 Abb. N. S. 311), which case, however, wrongly holds that notice, if proved, is any defense to an action of this kind. Secondly. It is well settled that notice of an incumbrance, if proved, is no defense. Sometimes the covenant against incumbrances is inserted for the very reason that the grantee does know of the incumbrance, and wishes to guard against it (See Suydam v. Jones, 10 Wend. 181; Harlow v. Thomas, 15 Pick. 66; Townsend v. Weld, 8 Mass. 146; Long v. Moler, 5 Ohio St. 271; Rawle on Covenants, 4th Ed. pp. 116, 117). The rule is the same as to a warranty of title of chattels (See Dresser v. Ainsworth, 9 Barb. 619).
    III. The question “whatwas the value diminished by the incumbrance,” is the exact form approved in Wetherbee v. Bennett, 2 Allen, 438; and see Harlow v. Thomas, 15 Pick. 66, and at p. 69. It is the proportion in value and not in quantity between the land to which title fails, and the whole, which is the measure of damages.
    IV. The rule may be cited which provides that damages cannot be recovered for incumbrances unless they have been paid or removed. But this applies only to such incumbrances as judgments, mortgages or dower rights, which have a money value, or which, it is to be presumed, can be removed by the payment of money. But this rule does not apply to easements, or to incumbrances of a permanent character, which cannot be removed as a matter of right. As to the distinction just mentioned, see Harlow v. Thomas, 15 Pick, 66, and at p. 69; 3 Washburn on Real Property [4th ed.], page 495 [top paging], and cases cited, Id., pp. 459 and 460, top paging ; also Giles v. Dugro, 1 Duer, at foot of page 335.
    V. We have seen in Giles v. Dugro that this was a partial eviction or failure of title. The plaintiff is considered as never having had possession of this wall. How the rule in cases of eviction, or failure of title, as to interest, is this. If the consideration paid was $22,000, and the purchaser never acquired possession, then of course the measure of damages is the $22,000, and interest from the time of its payment. If the purchaser still holds possession, but the title has failed, or if, after holding possession for a period, he has been evicted, the rule is that the measure of damages is the consideration money, with interest for six years from the date of its payment, provided he has occupied so long. After six years, no interest is allowed, if he has been in possession (See Caulkins v. Harris, 9 Johnson, 324; Pitcher v. Livingston, 4 Id. 10; Guthrie v. Pugsley, 12 Id. 126). The rule as to covenants against incumbrances is stated in Pitcher v. Livingston, supra, at middle of p. 10.
    VI That interest is allowable, see Cornell v. Jackson, 3 Cushing, 510.
    VII. There was no ground for the motion for a new trial on the minutes, and it was properly denied. McCool, the defendant’s own witness, put the damages at $1,000. The method by which some of the witnesses got at their estimate was somewhat fantastic, but Bockell made it $2,500, and Wangler made it $3,500. This amply sustains the verdict. And this objection cannot be made anyway, there being no appeal from an order denying a new trial on the minutes (see Matthews v. Meyberg, 63 N. Y. 656).
   By the Court.—Sanford, J.

—The points made by defendant’s counsel, upon the argument, as constituting grounds for a reversal of the judgment, are:

(1.) That the agreement between North and Walkeconstituted no incumbrance upon the premises granted, and, therefore, the plaintiff showed no breach.

(2.) That no actual damage had been shown, and only nominal damages were, therefore, recoverable.

(3.) That if entitled to recover more than nominal damages the plaintiff was not entitled to the diminution in value of the property at the time of his purchase, by reason of the existence of the incumbrance, as charged by the court, but only to such sum as would bear to the actual consideration paid for the conveyance, the same ratio which the portion of the premises as to which title has failed, bears to the whole property.

(5.) That the allowance of interest was at all events erroneous.

A party wall standing equally upon the land of adjoining proprietors, and whose central line is, throughout, coincident with the line of division between their respective premises, constitutes no incumbrance upon, or defect in, the title of either, such as will relieve a purchaser from his contract or entitle him to compensation, notwithstanding that the owner may have covenanted with him to convey by good title, in fee simple, free of incumbrance (Hendricks v. Stark, 37 N. Y. 106). In such case the detriment sustained by each tenement, in becoming servient to the other, is compensated by the benefit it derives from having the other made equally servient to it.

But a party wall wholly on one of two contiguous lots of land, yet subject to appropriation and use for all the purposes of a party wall by the proprietor of the other, constitutes an incumbrance upon or defect in the title of the lot on which it stands, for the reason that it restricts the use, and impairs the enjoyment thereof, without impartiñg any corresponding benefit or advantage thereto. In the one case each of the two tenements is at the same time dominant over and servient to the other, in equal degree. There is entire reciprocity in their mutual relation. In the other case no such reciprocity exists. The tenement that sustains and supports the wall is merely servient. That to which only its use appertains is wholly dominant. The servitude that attaches in the one case is an incumbrance which impairs the estate. The domination acquired in the other is a privilege that enlarges it (Giles v. Dugro, 1 Duer, 331). The irrevocable privilege of using a wall as a party, wall, whether for a term or in perpetuity, and whether acquired by grant, license, covenant, or prescription, constitutes an easement, and is, consequently, an incumbrance. Such a privilege was conferred and created by the deed between North and Walker, annexed to the complaint. That deed, in terms, grants to Walker, his heirs and assigns, precisely such a privilege. He availed of it for the benefit of the premises then owned by him. Thereby and by virtue of the terms of the grant it became appurtenant to those premises, and thus passed under their conveyance. It is insisted, on the part of the defendant, that it was expressly provided by the terms of the grant, that nothing therein contained should be construed as vesting in Walker, his heirs or assigns, any legal right, title, or interest in the ground or soil, or any part thereof, on which the said party wall now stands.

And it was argued, that by reason of this proviso the covenant of the grantor was a mere personal covenant, and did not ran with the land. But the premise from which this conclusion is deduced is incorrectly stated. It is true that a covenant, to the effect stated, is inserted in the deed, but this covenant is itself qualified by an exception which is fatal to the inference. It is mutually covenanted that Walker and his heirs shall acquire no interest in the soil, “ except only as to the perpetual appropriation, use, enjoyment, and easement, of the said party wall as a party wall, by and between the said two lots of ground and the house erected and to be erected thereon.” This language can only be construed as expressing an intent to vest in Walker, his heirs and assigns, an interest in the land, to the extent specified in the exception ; that is to say, to vest in him and them a perpetual easement on and over the soil occupied by the wall. So far from frustrating the declared intent of the parties, that the agreement between them should be perpetuated and at all times “continued as a covenant running with the land,” this language confirms and corroborates such intent and indicates the purpose to create a servitude and easement “by and between the said two lots of ground.” The criterion for determining whether a covenant runs with the land is the intention of the parties ; and if the covenants be of such a nature that they can run with the land, and the deed expresses such an intent, they bind not only the original parties but the subsequent owners of the respective premises (Per Dwight, C., Brown v. McKee, 57 N. Y. 684). The plaintiff’s title having been incumbered at the date of the conveyance to him by the existence of an easement incapable of removal at his option, by any payment or tender, or having failed pro tanto, by reason of the prior grant of such easement, a right of action immediately accrued to him upon the defendant’s covenant, by reason of the breach thereof.

It is quite immaterial to the plaintiff’s right of action, or to the question of damages, that he had or had not notice of the existence of the incumbrance. If aware of it, he had the option of rejecting the deed or of accepting it and relying on the defendant’s covenant. Had the premises been incumbered by the lien of a tax, a judgment, or a mortgage, it surely would not be pretended, that the defendant’s liability therefor would be discharged by plaintiff’s knowledge of the fact. This point, however, was not presented by the appellant on the argument, either orally or otherwise, and is deemed to have been abandoned.

There was evidence tending to show actual and substantial damage from the date of his purchase. The plaintiff was excluded from the use and occupancy of the wall of his dwelling, in so far as it was used as a party wall or as a side wall of the dwelling-house erected on the adjoining land. The judge submitted to the jury the question whether, by reason of such exclusion, the plaintiff did or did not sustain damages of a substantial character. Ho exception was taken to the charge, and no appeal having been taken from the order denying defendant’s motion for a new trial, we cannot consider questions of fact. The case of Giles ■». Dugro, above cited, is authority for the proposition that more than nominal damages are recoverable.

If the rule of damages laid down by the learned judge in his charge is not precisely in accordance with that prescribed in the case of Giles v. Dugro (ut supra), the case presents no exception which raises the question of its accuracy. The charge as delivered was not excepted to. Exception was taken to the refusal of the judge to charge as requested, as to the measure of damages, but the defendant’s requests contained no reference to the rule properly applicable to the case. They simply called for an instruction to the effect that nominal damages only were recoverable. In withholding such instruction, no error was committed.- The rule now contended for by defendant is much more objectionable than that laid down by the court, if indeed the latter be objectionable at all. It is insisted that inasmuch as the whole consideration for the conveyance of twenty-one feet and eight inches was $22,000 while the total failure of title extended only to four inches, the damage should have been $340, instead of $1,350 as awarded by the jury.

In other words, that the damages are limited to a sum which bears to the whole consideration of the conveyance, the same ratio which the size of the part of the premises as to which there is a failure of title bears to the size of the entire tract attempted to be conveyed.

This rule assumes that every separate part of a tract of land is of the same value Vith every other part of the same dimensions, and that the value of the whole is equivalent to the aggregate of the values of as many separate parts as the whole is divisible into. The assumption is fallacious and incorrect.

A parcel of arable land may be worth far more than all the rest of a farm of which it constitutes but a small part, and the value of a city lot, twenty or more feet wide, may be much greater in proportion to its width than a narrow strip of the same premises.

Had objection been made to the charge of the court in this regard, or had the attention of the learned judge been directed to the true rule by a proper request, it is reasonable to suppose that there would have been no ground for the imputation of error. As it is, any adverse criticism is disarmed by the absence of objection or exception, and of any suggestion by counsel as to the measure of damage properly applicable to the case. The variance between the charge and the rule as laid down in Giles v. Dugro, if any there be, is too slight to be regarded under all the circumstances of the case. The same observations apply to the objection .that interest is not recoverable. The question was not raised at the trial, and the ruling of the court with respect to it is not now under review.

Various exceptions taken to the ruling of the court upon questions relating to evidence are effectually disposed of by the views above expressed. The only grounds for reversal urged on the argument, or in the printed points of the counsel for the appellant, are those which have constituted the subject of this discussion. All others are deemed to have been waived or abandoned.

The judgment should be affirmed, with costs of the appeal.

Curtis, Ch. J., concurred.


author: By the Court.—Curtis, Ch. J.

text:
    STEPHEN WRAY, Plaintiff and Respondent, v. FRITZ FEDDERKE, Defendant and Appellant.
    CHATTEL MORTGAGES.—PRIORITY OF LIENS.
    In case of two mortgages executed by the same person upon same property, but to different persons, dated the same day, and filed same minute, where it was the agreement and intention of the parties that one should have a preference and priority over the other as a lien upon the property, that agreement must be sustained (Jones 0. Phelps, 3 Barb. Gh. 440).
    This priority of lien of the mortgage and the respective rights of parties having been established, they cannot be affected nor changed by the neglect of the owner of the mortgage that has the prior lien, to refile it, within the year, nor by the diligence of the owner of the other mortgage to refile his in due time. The latter party had notice of the other mortgage, and took his mortgage subject to it. The object or effect of the statute in regard to the annual refiling of a chattel mortgage does not reach his case. He was a mortgagee previous to the omission to refile, and in no sense a subsequent mortgagee in the sense of those words in this statute.
    The word subsequent, in this statute, is held to mean after the time when by statute the mortgage should have been refiled (Meech 0. Patchin, 14 JUT. T. 71).
    In this case there was evidence of a default in the payment of the first mortgage after a demand was made by the mortgagee from the mortgagor, and this was within the first year after it was given, and thereby the title of the mortgagee to the mortgaged property became absolute (Burdick 0. McVanner, 3 Den. 170).
    The fact that the mortgagee took subsequent mortgages, upon the same property, from the mortgagor, to secure in part his original debt, did not affect his then existing rights under the first mortgage (Westcott 0. Gunn, 4 Duer, 113).
    Evidence of the intentions of the parties as to priority, and as to valuable consideration for the execution of the mortgage, may be given debars the instrument itself, for the purpose of rebutting the statutory presumption of fraud, &c., where the possession of the property remains in the mortgagor (Baskins 0. Shannon, 3 K T. 310). /

      Decided February 4, 1878.
    Before Curtis, Ck. J., Sedgwick and Preedmah, JJ.
    This is an appeal by defendant from a judgment in favor of plaintiff for $937 81, entered upon a verdict, and from an order denying a motion for a new trial on the minutes. The action was for the conversion of certain billiard tables and implements.
    Prior to June 29, 1871, plaintiff leased to August Koch, certain premises, at 208 Eighth-avenue, for a billiard saloon, and Koch owned and had, at said premises, five billiard tables and the usual additional implements and furniture. On November 28, 1870, defendant recovered a judgment against Koch for $1,280.04. On June 21, 1871, an execution on this judgment was issued to the sheriff, who thereupon levied upon Koch’s property in the billiard saloon, and was about to sell it. Under these circumstances plaintiff offered to assist Koch in effecting a settlement. Accordingly, on June 29, 1871, plaintiff, Koch and< defendant met at the office of N. A. Chedsey, defendant’s attorney in that action, and a settlement was carried out. Plaintiff gave to Chedsey, as defendant’s attorney, a check for $900, payable to the order of and indorsed by Koch. Chedsey drafted and Koch executed a chattel mortgage upon his billiard tables and furniture to plaintiff, payable on demand, for $900, borrowed money. Chedsey countermanded the execution, and plaintiff left Chedsey’s office, leaving the others there.
    After plaintiff left the office Chedsey drafted and Koch executed a second chattel mortgage to defendant, payable on demand, for $130.82 upon the same property, which had just been mortgaged to plaintiff. The consideration for this mortgage is not stated in it. Koch says it was for fees in the action ; defendant, for a balance due on the judgment.
    These two mortgages were each filed in the ¡New York register’s office, on June 29, 1871, at 1.02, p. m. Plaintiff’s mortgage was numbered 3082, and defendant’s 3083. There is no positive proof who filed them. The two mortgages were made by the same person, on the same property, dated the same day, and filed the same minute. The testimony, however, is that plaintiff’s mortgage was executed before defendant’s in point of time, and was intended by the parties to constitute the prior lien. ¡Defendant asserts that he did not know of the plaintiff’s mortgage till some months later. This statement is contradicted by other testimony. Plaintiff demanded payment of his mortgage during the first year after it was given, but it has never been paid. Plaintiff’s mortgage never was refiled. Koch, during the succeeding three years, fell behind in his rent, and in each year executed new mortgages to plaintiff on the same property ; one in 1872 for $1,600, filed July 3, 1872; one in 1873 for $2,000, and another in 1874 for $2,000. The consideration for each mortgage was in part the original loan of $900, and unpaid rent for the residue. Plaintiff did not surrender any of the earlier mortgages. Bach was an additional security. ¡Defendant’s mortgage was duly refiled for several years on June 28, 1872, June 27, 1873, and on June 27, 1874.
    At the end of the first year, defendant, supposing that his mortgage had become a prior lien to plaintiff’s, through plaintiff’s omission to refile, applied to his attorney Chedsey, to foreclose his mortgage. He executed a power of attorney to foreclose to one of Chedsey’s clerks. Chedsey had already advised defendant that plaintiff’s mortgage was first, and he refused to act. ¡Defendant thereupon did nothing further for two years and a half. About December 12, 1874, he employed a lawyer, named Nehrbas, and a city marshal, named Clarke, to foreclose the mortgage. Clarke went to Koch’s billiard room. Plaintiff there met Clarke and notified him that he had the first mortgage on the property. Clarke then went back to Hehrbas and demanded a bond of indemnity. Clarke also searched in the register’s office, and found, as he testifies, “that the mortgage held by Mr. Fedderke was the first mortgage, because it was refiled first. ’ ’ A bond of indemnity was given to Clarke on December 21, 1874. He thereupon put a man in charge, who continued in charge six •or seven days. On December 22, 1874, plaintiff gave -Clarke written notice of his rights. The property was :removed to an auction room late on Saturday night, December 26, 1874, and sold Monday morning, December 28, 1874. Four of the five tables were purchased by the defendant. The gross proceeds of the sale were $155.51, net proceeds, $72.
    The plaintiff made a formal demand for the return 'Of this property before suit. Two of the tables defendant still had at the time of the trial; the other two he had sold.

      Chauncey Shaffer, for appellant.

      George C. Holt, for respondent.
   By the Court.—Curtis, Ch. J.

—The evidence clearly establishes that the plaintiff’s chattel mortgage was executed before the defendant’s, in point of time, and was intended by the parties to constitute the first lien. Though the two mortgages were made by the same person, on the same property, dated the same day and filed the same minute, yet effect must be given to the agreement and intention of all parties, that the plaintiff’s mortgage should have a preference over the defendant’s as a prior lien upon the mortgaged chattels (Jones v. Phelps, 2 Barb. Ch. 440).

The priority of the plaintiff’s mortgage, and the respective rights of the parties having been established, they were not affected, as between the parties, by the plaintiff’s omission to refile his mortgage within the .year, or by the defendant’s diligence in duly refiling his. The defendant had notice of the plaintiff’s mortgage, and his was taken subject to it. The object of the statute enacting that a chattel mortgage unless thus refiled should “cease to be valid, as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith,” does not reach a case like the defendant’s. He was a mortgagee previous to the omission to refile, and in no-sense a subsequent mortgagee.

The word “subsequent” is held to mean after the time when it should have been refiled (Meech v. Patchin, 14 N. Y. 71).

It also is shown that the plaintiff demanded payment of his mortgage during the first year after it was given, which not being complied with, his title to the mortgaged property became absolute (Burdick v. Mc-Vanner, 2 Den. 170). The plaintiff was thus placed in a position to maintain an action for the conversion of this property, and his taking subsequent chattel mortgages upon the same property to secure in part his original debt, did not affect his existing rights under the first mortgage (Westcott v. Gunn, 4 Duer, 112).

The defendant excepted at the trial, to the admission of evidence of the conversation between the parties, when the chattel mortgages were executed and the money paid by the plaintiff. It was competent to show the agreement and intention of the parties as to priority, and that the mortgage to plaintiff was executed for a valuable consideration paid by the plaintiff, and for the benefit of the defendant. This may be shown by evidence dehors the instrument itself, to rebut the statutory presumption of fraud, under which a chattel mortgage unaccompanied by a change of possession was given (Baskins v. Shannon, 3 N. Y. 310).

" The defendant excepted to the allowance of this question asked by the plaintiff of the person who drew the two chattel mortgages, and who was then the at-, torney of the defendant, and whom he called as a witness: “Have you never stated subsequently to this time (the time he drew the first mortgage, and the defendant’s mortgage) in reference to those two mortgages, that the mortgage of Mr. Wray was the first.” As a general rule, proof of statements made by a witness out of court, in order to corroborate what he testifies to at the trial, are inadmissible (Robb v. Hackley, 23 Wend. 50). But it will be observed, that in the present case, the question was asked upon the re-direct examination of the witness, and after the defendant, upon his cross-examination, had introduced the subject and asked him questions as to what he had said at any time respecting it. Under the circumstances the question was admissible.

Several witnesses were examined as to the value of the mortgaged chattels when taken possession of by the defendant. There was some conflict of testimony on this point, and manufacturers and dealers in the articles were examined, but in considering it as a whole, there is no sufficient reason for disturbing the finding of the jury on the question of the amount of damages.

The evidence shows that the mortgage to the plaintiff was executed in good faith, that the plaintiff parted with and paid the full consideration mentioned in it, and that it passed to the defendant’s benefit. There is nothing that conflicts with this, or that tends to show any fraud or fraudulent intent on the part of the plaintiff. The consideration 'of each of his subsequent mortgages was shown, there was nothing in them that tended to impeach the fairness of the first mortgage, or to show that they were not executed in good faith, and these subsequent mortgages were not claimed on the trial to. have any priority over the defendant’s mortgage. Under such circumstances, the court was not called upon to present this question of fact to the jury, the evidence concerning it being so conclusive that a verdict- contrary to it should be set aside (Carnes v. Platt, 7 Abb. Pr. N. S. 47).

The exceptions of the defendant are insufficient to warrant the reversal of the judgment and the granting of a new trial.

The judgment appealed from, and qrder denying the defendant’s motion for a new trial, should be affirmed with costs.

Sedgwick and Freedman, JJ., concurred.


text:
    THE NATIONAL BUTCHERS’ and DROVERS’ BANK, Plaintiff and Respondent, v. THEODORE R. B. DE GROOT, Defendant and Appellant.
    EVIDENCE. —NOTICE OF PROTEST, SERVICE OF.
    The original entries in the protest-book of a notary, who is dead, are proper evidence to show demand and notice of non-payment, and such entries should be admitted by the court (3 B. B. 5tli Ed. 474, § 36).
    When the word “mailed” appears in a memorandum in the official register of a deceased notary, it is consistent with reason and the meaning of the term, to presume that it describes what that act in its ordinary performance calls for, i. e., placing a letter in the post-office, with postage prepaid, to be delivered under public authority.

      Decided February 4, 1878.
    Before Curtis, Ch. J., and Freedman, J.
    Appeal by the defendant from a judgment for $5,857.93, entered upon a verdict in plaintiff’s favor.
    The action was brought against the defendant as the indorser of two promissory notes.
    The answer denies due notification of protest.

      Fellows, Hoyt & Schell, attorneys, and James Otis Hoyt, of counsel, for respondent.

      E. Haines, for appellant.
   By the Court.—Curtis, Ch. J.

—The only question raised by the pleadings is, whether the defendant was duly notified of the dishonor of the notes. At the trial, the notary being dead, the register of official acts kept by him was produced, and the following entries therein, relating to the mailing to the defendant of notices of protest of the notes in suit, made under his direction, and signed by him, were read in evidence :

The defendant objected that this was not the best evidence, but secondary and hearsay, and excepted to its being read in evidence. The provision of the statute which sustains the ruling of the court is as follows :

“ Any note or memorandum made by a notary public in his own handwriting, or signed by him at the foot of any protest, or in a regular register of official acts kept by him, shall, in the case of his death . . : be presumptive evidence of the fact of any notice of non-acceptance or non-payment having been sent or delivered at the time and in the manner stated in such note or memorandum” (3 R. S. 5th Ed. 474, § 36 [47]).

It was not the intention of the legislature, in framing this beneficent and wise enactment for the protection of those who might be subjected to the loss of their legal rights against indorsers, in case of the death of a notary, that its application should be so limited, as to deprive it of its value and usefulness. If it was intended that it should be construed narrowly, the general words, “any note or memorandum made by a notary,” would not be made by the statute presumptive evidence of the fact of a notice of non-payment having been sent at the time and in the manner stated in such note or memorandum.

In corroboration and explanation of the memoranda of the notary, it was proved at the trial, and without objection, that the notices of protest were put in envelopes and directed to the defendant at his place of business, Ho. 143 Fulton street, Hew York city, and delivered thus enclosed and directed to the notary, whose custom it was to mail such notices in the general post-office of the city of Hew York.

At the trial, the defendant did not testify that he failed to receive the notices of protest of the notes.

The defendant objected that there was no evidence that the notices were sealed up and postage prepaid, and when and where they were put in the post-office. The statute (3 R. S. 5th Ed. p. 71, § 29) does not require the notices to be sealed up, and the memoranda of the notary in his official register sufficiently designate when and where they were mailed.

A question was raised on the argument, as to the meaning of the term “mailed.” The word is usually employed to designate the placing of letters or parcels in a post-office, to be delivered under the public authority. The delivery of this class of mail matter is prohibited unless the postage thereon is prepaid (§ 3896, § 3900, U. S. Stat. at L.). When the word “ mailed” appears as a note or memorandum in the official register of a deceased notary, it is consistent with reason and the actual meaning of the term, to presume that it describes what that act in its common and ordinary performance calls for, and more especially is this the case, when there is other proof corroborating and explaining such entries.

The judgment appealed from should be affirmed, with costs.

Freedman, J., concurred.