author: Maoombee, J.:

text:
    ALLISON BROTHERS COMPANY, Respondent, v. JAMES C. HART, Appellant, Impleaded with Others.

      Recovery for the use of a patented machine — where there is no agreement to pay therefor — where a license has been taken from one of two adverse claimants of the-patent — action for infringement.

    Where no contract has been made with the plaintiff for the use of a patented machine, an action cannot be brought in a State court to obtain an adjudication, which would permit the use of the machine only upon the condition that any-royalties, or other moneys paid for the use thereof be paid to the plaintiff in the: action.
    In the absence of such a contract for the use of the machine any action would necessarily be on the case for an infringement of the letters-patent owned by the plaintiff, and would be cognizable only in the courts of the United States.
    A party so using the machine has no interest in a controversy between adverse claim- ■ ants to the patent and is not a proper party thereto, and although he may make-a contract with one party to pay for the use of the patented machine, the other-party claiming to own it cannot, without an assignment of the agreement by the: adverse claimant, recover the amount agreed to be paid under such agreement.
    If the party using the machine has taken a license from the wrong person, the: remedy of the lawful owner of the patent lies in an action against the party using-the article to recover damages for an infringement of the patent.
    Appeal by the defendant James C. Hart from an interlocutory judgment, entered in the office of the clerk of the county of Monroe-on the 6tb day of November, 1889, overruling a demurrer interposed, by liim to the plaintiff’s complaint.
    The action was commenced against Oscar W. Allison, Tlie Kinney Tobacco Company, a corporation, and William S. Kimball and James C. Hart partners engaged in the business of manufacturing cigarettes, and the complaint demanded judgment:
    1. That the defendant Oscar W. Allison be restrained froip. manufacturing, selling or furnishing to any person or* corporation, to be used in any form for the manufacture of cigarettes, any of the-machines referred to in the complaint; and from granting any license to use or make the same or any of them, and from making any contract whatever in respect to the same; and that be be restrained from collecting any moneys as royalties or otherwise from the-defendants William S. Kimball & Oo. and the Kinney Tobacco-Company, or any other person or persons or corporation, and that the defendant, the Kinney Tobacco Company and William S. Kim-ball and James C. Hart be restrained from paying the said Oscar W. Allison'any royalties or other moneys for the use of said machines;, and that they be restrained from using said machines, excej>t on condition that they shall pay to the plaintiff whatever royalty it is proper-for them to pay for such use, and that a temporary injunction issue restraining said parties as aforesaid during the pendency of this action; and that a receiver be appointed to receive any sum to be paid by either of said parties for the use or right to use said machines, or any of them during the pendency of this action.
    2. That the said agreement of October 9,1882, and the said agreement of November 5, 1883, and the said bill of sale of November 9,. 18S3, and the said agreement of November 19, 1883, be reformed by incorporating therein, respectively, the provisions omitted therefrom as hereinbefore set forth, and by reforming the same so that, they shall contain suitable provisions to transfer to the plaintiff the letters-patent aforesaid, and all inventions which have been made-by the said Oscar "W. Allison, or any other of the parties to said agreements, of machines or devices to be used in the manufacture-of cigarettes and tobacco, or which may hereafter be made.
    3. That the plaintiff have such other or further relief in the-premises as to the court may seem proper.
    4. That the defendant Oscar W. Allison pay the costs of this action..

      Eugene Van Voorhis, for the respondent.

      Theodore Bacon, for the appellant.
   Maoombee, J.:

The defendant Hart is the only one of the defendants who. interposes a demurrer to the complaint. If his demurrer be good,, it is not apparent why his copartner, the defendant Kimball, did not join therein; for if either of these parties is liable to any claim made by the plaintiff, the other is also, as they are charged only ascopartners. Nevertheless, technically speaking, there seems to be no legal obstacle in the way of one of such copartners interposing a. demurrer while the other answers the complaint upon the merits. (Webb v. Vanderbilt, 39 N. Y. Supr. Ct. [7 J. & S.], 4.)

If the appellant can be held as a party to this action, it must be,, not because his presence is essential to any relief- which the plaintiff may have against tlie necessary parties thereto, but because he is, within a somewhat indefinite and shadowy expression, a proper party. Pomeroy, in his work on Remedies and Remedial Rights (§ 329, 330), defines necessary parties as those without whom no judgment can be rendered, and proper parties as those whose presence renders the judgment more effectual, and whereby a complete determination may be had of all the questions that can be raised, and of all the rights which are connected with the subject-matter of the controversy. A solution of the question whether the appellant may, in any view which may be taken of the complaint, be deemed a proper party can only be had by an inspection of the complaint itself, an .analysis of which it may be proper to give.

The first count is designed only to raise and determine the question of title to certain inventions. It alleges that, some time prior to October 9, 1882, the defendant Oscar W. Allison, and his brother John, the latter not being a party to this action, were owners of two patent-rights, one of them issued to Oscar W. Allison for an improvement in cigarette machines, and the other to them jointly for an improvement in cigarettes. These persons, it is alleged, ■entered into an agreement with one Clarke on that day, a copy of which is annexed to the complaint, whereby each of them assigned to Clarke an undivided sixth of his interest in both patents “and any improvements, renewals or reissues of said cigarettes, ■cigarette machines or letters-patent ” * * * “ for the term of any extension, any improvements thereof or reissue or reissues thereon, * * -x- meaning hereby to vest in said F. De"Witt Clarke one undivided third of said patents, extension or improvements thereof.” 'Then follows a provision “ that neither of us will sell, dispose of, license or grant any portion of our said interest in and to the same to any person or persons or corporation without the written consent of the other two.”

On the 5th day of February, 1883, these two Allisons and Clarke •sold and assigned to one Allen one-fourth part of “all patents, machines, machinery, stock, etc., now used and owned by said parties of the first part, in the manufacture of tobacco, cigarettes, ■etc., under the firm name of Allison Bros. & Co., as well as new patents, machines, machinery or appliances which may be obtained •or used in connection with said business; and the parties of the first part do hereby covenant and agree to make all proper assignments of patents, etc., for that purpose whenever desired.”

On the 9th day of November, 1883, these last four named persons, composing the firm of Allison Bros. & Co., by an instrument in. writing, sold and transferred to the plaintiff, all the property,, machinery, tools, patterns, machines, implements, stock manufactured, and in the process of manufacture, office and shop furniture, fixtures, material for manufacture, etc., “together with all patents or-interests in patents, owned by any or either of said firm, for improvements in cigarettes and cigarette machines, and machinery for manufacturing same.”

On the 19th day of November, 1883, the Allisons and Clarke-executed to the plaintiff another instrument whereby they assigned to the plaintiff all their interest in two certain letters-patent theretofore enjoyed by them and which had'been used by the firm of Allison Bros. & Co., “ this transfer to include any improvements,, renewals or reissues of said patented improvements or letters-patent,” giving tlieir numbers.

In the month of December, 1883, a patent was issued to the-plaintiff for an improvement in cigarette machines invented by Oscar W. Allison.

The complaint then charges that, without the consent of the-plaintiff or of, Allen or of Clarke, the defendant Oscar W. Allison has made and delivered to the defendants William S. Kimball and. James C. ITart, as copartners, twelve cigarette machines, the right to use which belongs exclusively to the plaintiff, and that such machines are the same referred to in the letters-patent aforesaid, “ but if they differ in any respect from the machines referred to in. said letters-patent, such alteration or improvement, or improved machine and the exclusive right to use the same, are the property of' this plaintiff.” It is further averred that Kimball & Co. are using the machines without the consent of plaintiff and without the consent of Clarke or of Allen, constructed according to certain patents,, the application for the issuing of which has already been made,, which will, when issued, belong to the plaintiff; that Oscar W. Allison has delivered to the defendant, the Kinney Tobacco Company, ten of such machines; that Kimball & Co., as well as the. Kinney' Tobacco Company, received the machines which are used by them from Oscar "W. Allison, and agreed with, the latter for ■the use thereof, with the notice of the agreement aforesaid, and that the defendant Oscar W. Allison, who is irresponsible and insolvent, is receiving from these other defendants large royalties for the use of such machines.

The second count of the complaint, availing itself of the allegations and contracts set forth in the first count, is said to be, by counsel for the respondent, supplemental to the first, and put in as matter of precaution, so that in case the contracts, as set forth, do not express the actual agreement between the parties, they may be reformed on the ground of a mutual mistake, and relief given under the same as so reformed. Other averments in this pleading touching only the legal effect and meaning of the instruments which are .set forth in full, and the inferences from the facts alleged, are not .admitted by the demurrer, and must be disregarded. (Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 337.)

The prayer against this defendant and his copartner is, that they may be restrained from paying to Oscar W. Allison any royalties or ■ other moneys for the use of such machines, and that they may be restrained from such use except on condition that they shall pay the plaintiff whatever royalty it is proper for them to pay for such use.

The appellant’s relation to the case is the same under both counts, and his demurrer is broad enough, apparently, to cover any objection to the complaint which may be made in his behalf.

We purpose, as we did when this case was before us on the appeal from the order vacating the jneliminary injunction herein (Allison Bros. v. Allison, 26 N. Y. St. Rep., 825), no further to pass upon the matters alleged in the complaint than is necessary for the decision of the precise question taken by the appeal, though the arguments of counsel have, to some extent, been directed to the rights of other parties to the action.

The averment, if such meaning is intended by it, that Kimball & Hart are indebted to the plaintiff for any royalties or for compensation for the use of these machines, cannot be sustained by any adjudication in our courts. No agreement is set up between the plaintiff on the one hand and Kimball & Hart on the other. In the absence of such an agreement any action against these parties would necessarily be on the case, for an infringement of letters-patent owned by •the plaintiff, and the same would be cognizable only in the courts of the United States (Continental Store Service Co. v. Clark, 100 N. Y., 365); while actions brought to enforce contracts between private parties, relevant to private rights, are not actions arising under the patent laws of the United States. (Albright v. Teas, 106 U. S., 613.)

"Why, then, was the appellant made a party defendant ? As we understand the complaint, the only relief which could be granted the plaintiff against him by the State courts would be to restrain him from paying the amount due upon any contract which is outstanding between him and his partner on the one hand and Oscar "W. Ailison on the other. This, however, does not, in our judgment, within the rule already stated, governing parties defendant, make him a proper party. But it may be said that the appellant has no cause to complain, because the only legal relief asked against him is a prohibition to him against paying a debt which he had contracted, and such relief does not involve any judgment against him of which he should be permitted to complain. But a merchant may have quite as great an interest in being permitted to pay his debts as he has in collecting the debts which are owing to him. There being no allegation of insolvency of the appellant, there seems not to have been any reason why he or his partner should have been made a party defendant to this action. In the absence of such an allegation of insolvency, his presence would not render any judgment between the real parties in interest more effectual in any conceivable sense.

"We have considered the supplemental brief of the respondent’s counsel, filed since the oral argument, but we are unable to concur with him that, under the allegations of this complaint, the plaintiff is entitled to the benefit of the contract which Kimball & Hart or the Kinney Tobacco Company have with Oscar "W. Allison. For, in the absence of a contract to pay the plaintiff for the use of the machines, these defendants would not be chargeable in money damages, except through an action for an infringement. They have no interest in the controversy between the adverse claimants to these inventions. If they are bound to pay Oscar W. Allison on a contract which they made with him rather than with the plaintiff, it is difficult to see how the plaintiff can lay claim to payment under such contract without an assignment of the demand. If they have taken a license from the wrong party, let the plaintiff bring suit against them for infringement.

The judgment appealed from should be reversed, with costs, and judgment ordered for the defendant Hart on the demurrer, with leave to the plaintiff to amend its complaint on payment of costs.

Dwight, P. J., and Corlbtt, J., concurred.

Judgment reversed, with costs, and judgment ordered for the defendant Hart on the demurrer, with costs, with leave to the plaintiff to amend its complaint in twenty days on payment of such costs.


source: Caselaw Access Project

author: CoRLBTT, J. : Dwight, P. J.:

license: Public Domain

text:
    DELECTA H. WOODRUFF and AMIRA N. WOODRUFF, Appellants, v. SOPHRONIA M. PADDOCK, Respondent.

      Tillage alley laid out on map — use thereof for twenty years and thereafter disuse for twenty yea/rs — -extinguishment of public right therein under chapter 311 of 1861.
    Where an owner of land lays it out into village lots and files a map thereof in the county clerk’s office, and between two of the lots there is laid out on the map a lane or alley extending from a street, and such alley for some twenty years is used by the public, and thereafter is closed and a gate is erected across it, and its use is abandoned for a period of twenty years, and there is evidence of an intention to abandon the same, the interest of the public in such alley as a public highway is extinguished under the provisions of chapter 311 of the Laws of 1861.

      Yanderbeeh v. The Oity of Bochester (46 Iiun, 87) distinguished.
    Where it appears that simply a right of way in lands is taken for a public highway chapter 311 of 1861 is applicable thereto, while in case the fee of the land is vested in the municipality it is otherwise.
    The provisions of the second section of this act are not intended to restrict the application of the previous section, and the effect thereof is not to require that the six years of disuse, which should put an end to the public right, should have already been completed before the passage of the act.
    Appeal by the plaintiffs from a judgment, entered in the office of the clerk of the county of Monroe on the 18tb day of July, 1889, adjudging that the plaintiffs liave no easement in or title to the strip of land shown on the map of Oornbill tract as an alley on the side of lot 45; that the defendant, at the time of the commencement of tbis action, was the owner in fee, and well seized of the said strip of land, and was entitled to build thereon; that the plaintiffs recover of the defendant the sum of four dollars damages for the taking down and destruction of their fence, and that, with the exception of the recovery of the said four dollars, plaintiffs’ complaint be dismissed and the injunction granted in the action be dissolved, and that the defendant recover of the plaintiffs the sum of $113.99 as and for her costs of the action.

      Edmard F. Wellington, for the appellants.

      F. E. Drake, for the respondent.
   CoRLBTT, J. :

In 1826 one Bissell, being the owner of a tract of land (in what is now the city of Rochester), laid the same out into a village plat, known as Cornkill, and filed a map thereof in the Monroe county clerk’s office. Upon this map were lots 42,43,44 and 45. Between 45 and the othér lots, there was a lane or alley extending from Clay street, now Tremont, north to an open field.

In 1856 John Connolly became the owner of lot 45. In March, 1884, the plaintiffs became the owner of that lot. John Connolly became the owner of lot 42 in October, 1845 ¿ and the defendant, in November, 1888, through conveyances from Connolly, became the owner of lot 42, including the alley between it and lot 45. It thus appears that the plaintiffs and the defendant obtained title through Bissell, the common owner.

The referee finds that, after the year 1826, the alley was used by the public down to 1846, and that it became by user a public alley. He also finds that, by virtue of deeds, the owners of lot 45, before 1846, acquired an easement over the alley and the title in fee to one-half, subject to the rights of the public and the owners of adjoining-lots thereon; that John Connolly became the owner of lot 42 prior to 1846, and continued such until his death in 1888; that between 1846 and 1850 Connolly closed the alley, erected a gate in front of it on Tremont street; that a fence stood on it at its west line, between it and lot 45; that he afterwards planted trees on the strip, and erected coal sheds, and from 1850 down to the time of his death was in the actual possession of the same, claiming to be the owner thereof; that the former alley has been abandoned by the public as a highway or public alley for over forty years before the commence-meat of this action, and ceased to be a public highway or alley; that when Connolly conveyed lot 45 to Dickson, through whom the plaintiffs obtained title, Connolly was in the actual possession of the strip in question, claiming to own the same, and that title was taken by Dickson with full knowledge of the fact; that it was not intended to convey any interest in the former alley to Dickson, and that Dickson did not understand that he acquired any title or easement to such alley by virtue of such deed; that, from 1850, Connolly and the grantees of lot 42 continued in the open and exclusive possession of said strip; that in April, 1889, the defendant commenced the construction of a building on said strip, to restrain which this action is brought. The referee dismissed the complaint.

The evidence warrants the referee’s findings. Affirmative acts of abandonment appear in the case.

In 1874 the board of public works of the city of Rochester was authorized to perform the duties of highway commissioners, and passed an ordinance for opening an alley from Tremont street. Commissioner Cram reported on this subject that, so far as he could ascertain, the lane had been occupied as private grounds for many years, and that an opening of the same would be a convenience to one party and an actual detriment to others. It does not appear that any affirmative action was taken upon this report after its reception; but it does appear that no action was taken to open or use the alley.

It also appears that Tremont street was improved by an asphalt pavement by the city of Rochester under the direction of its highway officers, and a curb was placed between the traveled portion of said street and said alley, thus obstructing the free passage from said highway into the alley.

It is a familiar rule that an encroachment or obstruction placed upon a highway, or the taking of possession by an individual, or fencing it up, will not affect or diminish the public rights in it or prevent its being opened. and worked. Also, that the doctrine of adverse possession has no application to public highways. (Burbank v. Fay, 65 N. Y., 57; St. Vincent Orphan Asylum v. City of Troy, 76 id., 108.) To the same effect are numerous other authorities ; but the public may abandon its claim to a public highway, and non-user for twenty years is some evidence of such intent. When in connection with non-user there is affirmative evidence of a clear determination to abandon, the public interest is extinguished. (Crain v. Fox, 16 Barb., 184; Corning v. Gould, 16 Wend., 531; City of Peoria v. Johnson, 56 Ill., 45-56; Amsbey v. Hinds, 46 Barb., 622; affirmed on appeal in 48 N. Y., 57.)

It seems to be assumed by the .Commission of Appeals, in the case last cited, that a public highway, whether it was laid out or became such by user or dedication, would cease to be such for any purpose if not traveled or used for six years. There is no claim here that this lane or alley was traveled or used at all as an alley or highway after the passage of chapter 311 of the Laws of 1861. But in this case it appears with sufficient clearness that the public abandoned this lane as a thoroughfare more than forty years before the commencement of this action. The referee’s conclusion that it had ceased to be a public highway was correct.

It is the rule that where deeds are delivered and received with reference to a map showing alleys and streets, the right to use the easement attaches as a part of the grant. (Bridges v. Wyckoff, 67 N. Y., 130.) In construing a deed and what is conveyed, reference must be had to the condition of the premises at the time of the conveyance. (Mott v. Mott, 68 N. Y., 246; Lampman v. Milks, 21 id., 505; Voorhees v. Burchard, 55 id., 104; Simmons v. Cloonan, 81 id., 557.)

When the conveyance was made to the plaintiff: the lane had no ■existence ; it was occupied by the grantor. He was in possession of it as his own property. Snell v. Levitt (110 N. Y., 595) is an authority showing that, under the circumstances the plaintiff had no interest in this alley. There appears to be no error in the rejection of the evidence to which exception was taken.

The judgment should be affirmed.

Dwight, P. J., and Macomber, J., concurred.

Dwight, P. J.:

I concur in the result reached in this ease by Justice Corlett. I think the statute of 1861 (chap. 311) applies to this case, and, under the findings of the referee, is conclusive against the right of the public in the highway in question. The decision in Vanderbeck v. The City of Rochester (46 Hun, 87), was to the effect that such statute did not apply to streets “ laid oxvt in the cities of the State,” that is, where the land, is taken in proceedings in vnvitum j and the reason given for the distinction between highways in towns and the streets of a city is that in the former case the public acquires simply a right of way in lands taken for a highway, the fee remaining in the owner, while in the latter case the fee of the land is vested in the municipality by force of the proceedings under its-charter to lay out a street: see, also, Matter of Lexington Avenue (29 Hun, 303).

In the case of the street or alley in question the right of the-public was acquired only by dedication and use, and this in 1826,, before the incorporation of the city of Rochester. The public,, therefore, I suppose acquired only a right of way in the land, the fee remaining in the owner, and the distinction mentioned does not obtain in this case.

The provision of the statute cited, which applies to this case, is found in the last clause of section 1: “ And all highways that have ceased to be traveled or used as highways for six years, shall cease to be a highway for any purpose.”

An attempt has sometimes been made to limit the operation of this and other provisions of the first section of the act by that contained in its second section, which is as follows: “ The provisions of this act shall apply to every public highway and private road laid out and dedicated to the use of the public within the last six years,, and to every such highway hereafter to be laid out.” It seems to me very clear that this provision so far from restricting the operation of previous provisions of the act was intended to extend their application. The legislature seems to have supposed that it might be open to question whether, for example, by the terms of the last clause of the first section, the six years of disuse which should operate to put an end to the public easement in the highway must not have already and completely accrued before the passage of the act, and, accordingly, whether the provision could have any application to highways laid out or dedicated less than six years before the passage of the act, or to those to be thereafter laid out or dedicated; and the legislature seems to have intended to obviate that question by the additional provision of the second section.

Judgment appealed from affirmed, with costs.


author:
Dwight, P. J.:
      Corlett, J.

text:
    JOSEPH ATWATER, Appellant, v. THE TRUSTEES OF THE VILLAGE OF CANANDAIGUA, Respondent.

      Eminent domain — consequential damage — temporan'ily depriving an owner of the use of his property, is not a talcing thereof — damnum absque injuria— selection of the mode of accomplishing the result.

    While private property cannot be taken for public use without just compensation, yet no merely consequential damage to property, even though it may temporarily deprive the owner of its use, is a taking of such property within the meaning of the constitutional provision.
    A farm, located upon Canandaigua lake, was flooded by reason of a- coffer-dam erected in the outlet of the lake, pursuant to the provisions of an act of the legislature authorizing it to be done for the purpose of maintaining the waters of Canandaigua lake at the heiglith or level specified therein. The coffer-dam was •constructed for the purpose of facilitating the building of a lock or bulk-head at the outlet of the lake and to rebuild a bridge, the former being authorized under an express act of the legislature and the latter being within the general powers of the defendants as commissioners of highways.

      Held, that the loss was damnum absque injuria. (Corlett, J., dissenting.)
    That, although another mode might have been devised for accomplishing the same results, the defendants could not be charged as wrong-doers for adopting, in the absence of any legislative limitation of their discretion, the mode actually employed, where there was neither negligence nor bad faith on their part.
    Exceptions ordered to be heard at the General Term in the first instance, after a trial before the court and a jury at the Ontario ■Circuit, at which a verdict was directed for the defendant.

      William 3. Smith, for the motion.

      T. 3. Bennett, opposed.
   Dwight, P. J.:

The action was to recover damages'for the flooding of a portion ■of the plaintiff’s farm, situated on the shore of Canandaigua lake, •caused by the alleged wrongful and negligent construction by the defendants of a coffer-dam in the outlet of the lake.

The evidence clearly tended to show that the loss sustained resulted from the acts of the defendants, and if the fact was not established beyond question, it was a question for the jury, unless the acts complained of were fully justified, and the resultant damage to the ■plaintiff, therefore, damnum absque injuria.

The defendants seek to justify the construction of the coffer-dam under two acts of the legislature of the State, and under their general powers as commissioners of highways of the village of Canandaigua. The special legislation referred to is found in chapter 234 of the laws of 1855, and chapter 658 of the Laws of 1886. The former act incoiporated the “ Ontario Hydraulic Company ” for the purpose of reclaiming swamp lands on the outlet of Canandaigua lake, and furnishing a greater supply of water for the use of the mills on the stream during seasons of low water. Among other powers granted to such corporation, for the purposes mentioned, was the power to excavate a new channel for the outlet and to erect a lock or bulk-head with gates at or near the head of such new channel, and “ so to control and regulate the discharge of the waters of said lake ” as to secure the object of its incorporation ■ but the act provided that the water of the lake should not be raised above high-water mark, and that all such powers were to be exercised “ subject, however, to liability for all damages occasioned thereby, actually sustained by any person whatsoever.”

The Ontario Hydraulic Company excavated the new channel and' put in the lock or bulk-head with gates, and operated the same to some extent for several years, when, a judgment having been recovered against it, and there being no personal property, its right, title and interest in and to the real estate it had acquired, and the channel it had dug, was sold on execution and came into the hands, of an individual mill owner on the stream. The latter operated the bulk-head to some extent down to the date of the passage of the act of 1886 {supra).

That act, by its first section, authorized and empowered the defendants, “ for the purpose of obtaining drainage and sewerage for the village of Canandaigua, and to drain and reclaim wet and swamp lands in said village, and in the towns of Canandaigua and Hopewell, in the county of Ontario, between the foot of Canandaigua lake and the dam across the outlet of said lake at Chapinville * * * to construct a public sewer along the bed of the outlet of Canandaigua lake and the new channel for the outlet of said lake, formerly constructed by the Ontario Hydraulic Company, to the dam erected across said outlet at Chapinville aforesaid; and for such purposes * * * to take and appropriate the right to use and occupy said outlet and new channel, and may take, appropriate and remove the dam across such outlet at Chapinville aforesaid, * '* * provided, always, that the rights and privileges hereby granted shall be so exercised that the waters of Canandaigua lake shall be maintained at a height not less than the ordinary height of such waters at low-water mark.”

The next following sections, down to section 11 of the act, provide-for the proceedings to acquire title to the lands and rights taken for the purposes mentioned, and for obtaining the money necessary to pay for such lands and rights and the expenses of such improvements.

Section 11 of the act provides that the defendants “for the purpose of maintaining the waters of Canandaigua lake at the height or level specified herein, are authorized to erect and maintain in the outlet of said lake and in the new channel for such outlet, locks or bulk-head with gates, and by such and other adequate means to so control and regulate the discharge of the waters of said lake as to fully comply with the provisions herein.”

Under the provisions of the act of 1886, the defendants took proceedings to acquire the right to use and occupy the new channel and outlet of the lake for the purposes mentioned in the act, and paid to the individual proprietor before mentioned the price awarded therefor by commissioners appointed for that purpose, and thereafter proceeded to the erection of one of the structures authorized by the act. This was a lock or bulk-head with gates in the outlet of the lake, by means of which to control the discharge of the waters of the lake when obstructions in the bed of the outlet should be removed for the purposes of the sewer, and the dam at Chapinville should be taken down. They chose as the location for such, structure the point where the lake road, a highway of the village, crossed the outlet by a bridge which had fallen into such disrepair as to require rebuilding; and they determined, under the powers vested in them by the act of 1886, in conjunction with their powers as highway commissioners of the village, to combine the lock or bulk-head with a bridge to take the place of the old one. It was for the purpose of facilitating the erection of this combined structure that they built the coflier-dam in question.

It must be conceded, we think, that the defendants’ justification derives no aid from the act of 1855 incorporating the Ontario Hydraulic Company. While the act of 1886 authorizes the defendants to acquire the-right “to usé and occupy said outlet and new channel,” it does not, in terms, include the acquisition of the right of the Hydraulic Company to erect any structure therein. Further, whatever right the defendants might take under the act of incorporation of that company must, of course, be taken cum onere, and that company was, by its charter, expressly prohibited from raising the waters of the lake for any of its purposes above (ordinary) high-water mark, and — which seems to be conclusive upon this point — was expressly charged with “liability for all damages occasioned thereby (i. <?., by any of its operations) actually sustained by any person whatever.”

But upon the other and principal grounds of justification, we think the defense is supported by the authorities and that the damage complained of was damnum absque injuria. The authority of the defendants to erect the lock or bulk-head in the outlet, and to rebuild the bridge over the same stream, was clear, the latter under their general powers as commissioners of highways of. said village, and the former under, the express and specific provisions of the act of 1886. The evidence is uncontradicted that the construction of the cofier-dam was necessary to enable them to perform the work. But even if another mode might have been devised for accomplishing the same result, the defendants cannot be charged as wrong-doers for adopting the mode actually employed. As was said by JohNsoN, P. J., in Ely v. City of Rochester (26 Barb., 133-136): “ The power to do the act, where no limitation is placed upon it by the sovereign authority by which it is granted, necessarily includes the right of determining upon the plan and mode of doing it.” This principle must also apply, in the absence of negligence or bad faith, to justify the decision of the defendants in respect to the time when the work should bp commenced. It was, in fact, begun, and, so far as the construction of the coffer-dam was concerned, completed at a stage of low water in the lake, before the spring freshets appeared. There is no charge of bad faith or negligence in this respect in the complaint, or — if the allegation of the complaint that the work was wrongfully, negligently and carelessly done, may be construed to embrace a charge of negligence in the respect mentioned — the charge is not supported by the evidence. In point of fact, the spring freshets came and overflowed the plaintiff’s land as usual, while the coffer-dam was in place and before the work was completed for which it was erected, and as a conse■quence the water remained on the land for a time after it would ■otherwise have subsided.

There is no evidence to show that there was any neglect on the part of the defendants to remove the dam as soon as it could be dispensed with, nor any lack of diligence in prosecuting the work which made its continuance necessary. Besides, upon this particular point, it does not seem to us that the time at which the dam was erected could have any effect upon the overflow of the plaintiff’s land except to hasten or postpone its occurrence. Given a certain height of obstruction in the outlet, the inflow of water being constant, the lake must be raised to or held at the same height whether the ■obstruction were erected at a higher or lower stage of water.

But, without further discussion of the question, we are compelled ■to say that we find no evidence in the case which would have warranted the jury in finding that the defendants were guilty of negligence in any respect in the construction or placing of the coffer-dam, .and without such finding it seems there could be no recovery by the plaintiff. That the obstruction made by the coffer-dam was not of itself a nuisance is demonstrated by the facts already considered. As was said by Mr. Justice SteoNG in the case of Northern Transportation Company v. Chicago (99 U. S., 635): “ That cannot be a nuisance, such as to give a common-law right of action, which the law authorizes; * * * and the grant of power by the legislature to build a bridge or construct a tunnel carried with it, of course, all that was necessary for the exercise of the power.” Johnson, P. J., said in Ely v. Rochester (supra), at page 137: “It is an established maxim that no action will lie for the consequences of an act done under lawful authority if proper care and skill are exercised in performing such act.” Bronson, J., said in Radcliff’s Executors v. Brooklyn (4 N. Y., 195-205): “ It is absurd to say that public officers may be liable to an action for what they have done under lawful authority and in a proper manner; ” and such is the uniform expression of many other cases which have been industriously collated in the brief of counsel for the defendants.

All the cases, it is true, and necessarily, recognize the constitutional rule that private property cannot be taken for public use without just compensation; but the controlling weight of authority is to the effect that no merely consequential damage to property, even though it may temporarily deprive the owner of its use, is a taking of such property within the meaning of the constitutional provision. In the case of the Northern Transportation Company v. Chicago, from which we have already quoted, the court say, after referring to the constitutional restriction: “ But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision; they do not entitle the owner to compensation from the State or its agents, or give him any right of action.” And that case was one in which the application of the doctrine was severe. The defendant, in the construction of a tunnel under the Chicago river, had constructed a coffer-dam which practically excluded the plaintiff’s boats from access to its wharves, and by the accumulation of debris and material of the work had equally excluded the plaintiff and its customers from its warehouses. These acts were found to be necessary to the accomplishment of the work, and temporary in their effects, and the damage to the plaintiff was held to be consequential merely and damnum absque injuria. The case is very similar to that we are considering, and we cannot but regard it as controlling upon our decision. We can see no essential difference in the modes by which the plaintiffs in the two cases were temporarily deprived of the use of their property. The resultant damage in the case cited was quite as direct as in the case in hand. See, also, upon this point, the cases previously cited, and Uline v. New York, Central, etc., Railroad Company (101 N. Y., 98).

We think the principles thus considered sustain the direction given by the learned trial judge for a verdict in favor of the defendant.

The motion for a new trial should be denied and judgment ordered for the defendant on the verdict.

MacoMbeb, J., concurred.

Corlett, J.

(dissenting):

Canandaigua lake is a body of fresh water' about sixteen miles-long, and one and one-half miles wide. This action was brought to-recover damages for wrongfully and negligently causing the waters of said lake to be set back and kept upon the plaintiff’s farm, which consists of about seventy-eight acres of land, bounded on the lake on the easterly side. The lake at its foot had two outlets, one known as the old one, or the feeder, and the other as the Duboisoutlet. The waters of the lake had flowed through the old outlet for eighty years. In 1856 it was closed thirty rods from its mouth, and a new channel constructed from that point. Since then the waters of the lake have flowed through the thirty rods of the old channel, and thence through the new.

The defendants built a coffer-dam across the old channel in March, 1888. It was six feet high, water tight, and prevented the water, which had accumulated during the floods on the plaintiff’s-land, from flowing as usual through the channel. The waters by this dam were raised five feet. Before its erection there would be-floods, especially in the sj>ring, which would cause the waters of the lake to set back and cover portions of plaintiff’s land; but it would remain upon it but a short time, inflicting no special damage. Soon after the erection of the coffer-dam the plaintiff’s pasture land was flooded, and kept covered by the waters of the lake, the dam preventing its escape, the effect of which was to destroy the pasturage on a large portion of the plaintiff’s farm in the season of 1888, and inflict upon him much damage, as his evidence tended to show. The lands flooded did not adjoin the outlet, but were-one-quarter of a mile away, up the lake shore in an opposite direction from the outlet. The defense was, that the legislature authorized the construction of the dam by chapter 658 of the Laws of 1886; also that they had a right to make the dam by virtue of' chapter 234 of the Laws of 1855, entitled “ An act to incorporate the Ontario Hydraulic Company of the county of Ontario.” The defendants claimed to have succeeded to the rights of that company.

In the winter of 1888 it became necessary to construct a new bridge over the channel in the lake shore road, and the coffer-dam was constructed mainly for the purpose of keeping the waters out of the channel so that the new bridge could be more conveniently constructed. A canal could have been dug by which, the waters, which would otherwise flow through the channel, would be carried •around the bridge and emptied into the feeder below, but it would have involved much expense. The defendants were the highway commissioners of the village of Canandaigua, and in that capacity were making these improvements for the village. The action was tried before a justice and jury in May, 1889. At the close of the evidence defendants’ counsel asked the court to nonsuit the plaintiff. The plaintiff’s counsel asked that the case be submitted to the jury •on the evidence generally, and, also, “ that it be submitted to the jury on the subject of negligence of the defendants in building the coffer-dam at the time they did build it, to wit, at an unseasonable period of the year, before the spring floods, and, also, upon the evidence as to there being a way whereby the waters could have been carried off without being kept back by this dam.”

The court directed the jury to find a verdict for the defendant. The plaintiff’s counsel excepted and the exceptions were ordered to be heard here.

The evidence, as a whole, tended to show that the erection of the •coffer-dam kept water upon the plaintiff’s farm during the agricultural season of 1888) to such an extent as to destroy the value of a large portion of it for pasturage or other purposes. Unless the •defendants proved a right to so appropriate the plaintiff’s lands, he has an undoubted remedy, and can recover all damages sustained. (Pumpelly v. Green Bay Co., 13 Wall., 166; Brown v. Bowen, 30 N. Y., 537; Radcliff’s Executors v. Mayor of Brooklyn, 4 id., 195; Mahon v. N. Y. C. R. R., 24 id., 658; Story v. New York Elevated R. R. Co., 90 id., 122; Mahady v. Bushwick R. R. Co., 91 id., 148; Cogswell v. N. Y., N. H. and H. R. R. Co., 103 id., 10.) Scriver et al. v. Smith (100 N. Y., 471), where the court held that the keeping of water upon land by means of a dam, to the extent it is flooded, amounts to an actual eviction.

It cannot be said that this appropriation of the plaintiff’s property was casual and temporary. The value of a large portion of the plaintiff’s farm was destroyed for a whole season. In the Northern Transportation Company v. The City of Chicago (99 U. S., 635), the defendant had erected a coffer-dam in the Chicago river to enable it to make a tunnel under the river along the line of La Salle street. During the making of the tunnel the plaintiff could not use its property for any beneficial purposes. The court held, tbat the legislature may rightfully authorize the construction of railroads or other works of a public nature, without requiring compensation to be made to persons whose property has not actually been taken or appropriated for the use thereof, but who may, nevertheless, suffer indirect or consequential damages by the construction of such works.

It was beld tbat the action could not be maintained, because there was no physical invasion of the property. The decision comes within the principle tbat a man may do what be chooses upon bis own land, in the exercise of legal rights, without being liable to an action by an adjoining owner in the absence of a physical invasion or actual taking. In the case at bar the plaintiff’s land was actually taken, so that the case above cited has no application.

In Uline v. New York Central and Hudson River Railroad Company (101 N. Y., 98), upon the authority of which the learned trial justice directed a verdict for the defendants, it was held tbat the-rights of private owners in public highways must be obtained by compensation before a railroad could be constructed, but tbat when the right was acquired and it was built with proper care and skill the owners of the road are not responsible for damage to private property adjacent or near the road, necessarily resulting from its-construction or operation. It appeared in tbat case tbat the railroad bad acquired, by paying compensation, the right to construct its road through the plaintiff’s property in the highway, and tbat the balance of her land adjoined. The complaint in this case alleged, in substance, tbat the defendant entered her property (meaning what she owned in the street), and tore up the pavement, raised the street, sidewalks and gutters, and so shaped the street and gutters as to pour the water therefrom down over the sidewalk into the basement of her bouses, by means of- which her premises were made liable to be flooded with water, and bad been flooded with water and rendered damp, unhealthy, and inconvenient of access, and her property thereby bad been injured, and the rental value and value thereof greatly depreciated. The judge in delivering the opinion stated, in substance, tbat if the plaintiff did not receive compensation for her property the company would be liable; be also stated tbat tlie damage sustained by the plaintiff necessarily resulted from the building and operation of the railroad. A large portion of the opinion is devoted to showing that an improper rule of damages had been adopted; but the court nowhere indicates an intention to question the authority of the cases above cited. The decision is based upon the proposition that a person whose land has been taken, if paid for, cannot recover for injuries inflicted upon the balance not taken, if they were the necessary results of the construction and ■operation of the road.

That case has no application to the one at bar. Here the land •covered by water was one-fourth of a mile away. No compensation had been paid for it, it was not a part of any land taken or proximate to it, nor was it necessary to flood it, as the evidence tends to ■show. Damnum absque injuria cannot be invoked as a defense here. In Arkell v. Commerce Insurance Company (69 N. Y., 191), it was held that fifty feet from a building was not contiguous thereto. 'The expense would have been increased to avoid the flooding, but no case has been cited showing that an individual or corporation is justified in destroying a stranger’s land for the purpose of reducing ■expense in the construction of lawful or commendable improvements. The rule adopted by the learned trial justice might destroy ■the value of private property without compensation. The dam was 'built before the coming of the spring floods for the purpose, as the plaintiff claims, of preventing an accumulation of water which would interfere with the construction of the bridge. The effect of such -early building was to keep the water upon the plaintiff’s premises, .and secure profit to the defendants. The evidence required that ■.the case should have been submitted to the jury.

A new trial should be granted, with costs to abide the event.

Plaintiff’s motion for a new trial denied, with costs, and judgment ^ordered for the defendant on verdict.


author: Oorlett, J.:

text:
    THE BUFFALO LOAN, TRUST AND SAFE DEPOSIT COMPANY, as Guardian, etc., Respondent, v. THE KNIGHTS TEMPLAR AND MASONIC MUTUAL AID ASSOCIATION, Appellant.

      Insurance — ‘physician’s certificate of death stating that assured died of delirium, tremens, effect thereof— records of hom'd of health as evidence of cause of death.

    In an action upon a policy of insurance, which provided that “ upon due notice .and satisfactory proof of the death of a member of the association the finance .committee shall, within sixty days, pay,” etc , it appeared that proof of death was furnished to the defendant, and. in the certificate of the physician who attended him was the statement that the assured died from delirium tremens, which statement, if true, would have voided the policy.

      Held, that as there was nothing in the contract of insurance which required that those representing the deceased should state, in their notice of death, its cause, the court upon the trial properly excluded that part of the physician’s statement relating to the cause of death.
    That the only duty which devolved upon the plaintiff was to prove death; that its caúse was a matter of defense which must be proved by common-law evidence.
    The records or hooks of a hoard of health are not evidence as to the cause of death.
    Appeal by the defendant from a judgment, entered in the office of the clerk of the county of Erie on the 5th day of March, 1889, in favor of the plaintiff, after a trial before the court and a jury at the Erie Circuit, at wbicb the plaintiff recovered a verdict for the sum of $6,122.50.
    The action was brought on a certificate or policy of insurance issued by the defendant to John Roberts, late of the city of Buffalo.

      Le Hoy Parher, for the appellant.

      John G. Milbv/rn, for the respondent.
   Oorlett, J.:

In June, 1819, John Roberts became a member of defendant, •which issued to him a certificate to the effect that it would pay to said Roberts, his heirs, executors or administrators the sum of $5,000 within sixty days after notice and satisfactory proof of bis death. Roberts died in January, 1885, leaving one son, Frank Roberts, bis only heir.

Proof of death was furnished to the defendant; and in the certificate of the physician who attended him was the statement that John Boberts died from delirium tremens,which, if true, would have avoided the policy. The company refused to pay, and soon after this action was brought. The cause was tried in February, 1889, before a justice- and jury. The trial resulted in a verdict for the plaintiff, upon which judgment was entered, and the defendant appeals.

It was a part of the contract that, “ upon due notice and satisfactory proof of the death of a member of the association, the finance committee shall, within sixty days, pay,” etc. There is nothing in the contract of insurance which requires that those representing the deceased should state in their notice of death its cause. In this case the physician, who attended the deceased during his last illness, certified to a cause of death, which, if true, would have defeated a recovery. On the trial that part of the doctor’s certificate stating the cause of death, on objection, was excluded, and the defendant’s counsel excepted. The leading contention of the learned counsel for the defendant is, that this was error. It is obvious that the ruling of the trial justice on this point was correct. The only duty which devolved upon the plaintiff was to prove death. Its cause is a matter of defense which must be proved by common-law evidence. (Goldschmidt et al. v. Mut. L. Ins. Co., 102 N. Y., 486.)

The president of the company admitted that he was notified of the death of Boberts, and that proof of death was furnished, which was in defendant’s possession at the trial. These facts were testified to by the president of the company without objection j afterwards the defendant moved to strike out his testimony on that subject, which was denied, and defendant excepted. It was not error to refuse to strike out that testimony. (Sherman v. Scott, 24 Hun, 331-334; Hincken v. The Mutual Benefit Life Ins. Co., 50 N. Y., 657.)

There is no rule making the records or books of the board of health evidence as to the cause of death on the trial of an action at law where that question is material. Nothing but common-law evidence would defeat a recovery in the absence of a statute or constitutional provision making other evidence competent. There is no law making the records of the board of health of the city of Buffalo evidence upon a trial between parties who do not make the records or books, and have no duty devolving on them on that subject.

' No errors were committed on the trial, and the judgment must be affirmed.

Dwight, P. J., and Maoombeb, J., concurred.

Judgment affirmed.


author: Coklett, J. :

text:
    HUGH McCLURG, Respondent, v. JOHN McKERCHER, Appellant.

      Parent or guardian, — right of, to collect from an employer of an infant the wages earned by the infant —1850, chap. 266, sec. 1, construed.

    Section 1 of chapter 266 of the Laws of 1850, relating to notification by the parent or guardian of minor children to persons employing them, within thirty days after the commencement of the service, that such parent or guardian claims the wages of the minor, only protects the employer if, without notice, he pays the minor after the expiration of thirty days, but does not prevent the parent from collecting any wages due to the infant, although the parent may fail to give notice within thirty days, nor does it affect his right to collect, after giving notice at any time, the infant’s future earnings.
    Appeal by tlie defendant John McKerclier from a judgment, entered in tlie office of the clerk of the county of Livingston, upon the report of a referee, in favor of the plaintiff.

      J. H. Hastings, for the appellant.

      8. Hubbard, for the respondent.
   Coklett, J. :

The plaintiff’s infant son, John McClurg, worked for the defendant from the 1st day of March, 1887, until the first day of December of the same year. His services were worth twenty dollars per month. The' son became of age the 2d day of December, 1887. He had worked for the defendant for eight months the previous year at the same rate. At the close of his labors the first year the plaintiff went to the defendant to settle for his services. He informed him that he was a minor and directed him not to pay the boy any more money. The defendant agreed to this and afterwards paid the balance due.

About the middle of August of the second year, the plaintiff notified the defendant to reserve for him seventy dollars out of the boy’s wages. His work after this notice, and until he became of age, was worth the sum reserved by the father. The defendant, notwithstanding this notice, assumed to settle with the boy. This action was brought and the issues referred to a referee, who found for the plaintiff. On his report judgment was entered and the defendant appeals to this court. He claims that the father emancipated the boy. The evidence does not sustain this contention. He also insists that the plaintiff, within thirty days after the work commenced, did not notify the defendant that he claimed the wages.

Section 1 of chapter 266 of the Laws of 1850, provides: “ It shall be necessary for the parents or guardians of such minor children as may be in service, to notify the party employing such minor, within thirty days after the commencement of such service, that said parent or guardian claim the wages of said minor, and in default of such notice, payment to such minor shall be valid.”

If the employer should pay the infant before the expiration of thirty days, notice within that time would enable the parent or guardian to recover the sum previously paid. It was not the intention of the legislature to deprive the parent of the services or wages of his minor child, but for the protection of the employer he could pay the infant unless notified. The only effect of a thirty days’ limitation was to defeat the effect of payment before the thirty days, in case notice was served in that time. It was not the purpose of the legislature to prevent the parent from collecting any wages if he failed to give notice within the time specified. Subsequent notice would enable the parent to collect the infant’s future earnings, but would not affect prior payments.

The defendant knew that the boy was an infant. He had notice the previous year that the father would claim his future wages, and in August of the last year the father notified the defendant to pay him seventy dollars of the son’s wages. He earned that sum after . such notice, and the referee reached a correct conclusion.

The judgment must be affirmed.

Dwight, P. J., and Macombee, J'., concurred.

Judgment affirmed.


author: OoRlett, J. :

text:
    ELIZABETH J. YOUNG, Appellant, v. CATHERINE SCHEU, Respondent.

      Erection of a wooden, building within the fire limits of a city in violation of its police •regulation —right of an adjoining owner to an injunction,

    A police regulation of a municipality, prohibiting the erection of wooden buildings within the fire limits, does not give a cause of action to a party owning a lot adjoining that upon which a frame building is being erected in violation of • such regulation.
    An injunction will not lie for the erection of a building prohibited by a city ordinance; unless special damage be alleged.

      Stilwell v. Buffalo Hiding Academy (4 N. Y. Suppl., 414) followed.
    Appeal by tlie plaintiff from ail order made-at a Special Term held in tlie county of Erie, and entered in the office of tlie clerk of the county of Erie on the 30th day of July,-1889, vacating and setting aside an injunction order, granted in the above-entitled action, enjoining the defendant from constructing and erecting, or continuing the construction and erection of any building in whole or in part of wood on the premises immediately north of and adjacent to the plaintiff’s premises, known as No. 29 Park street, in the city of Buffalo, N. Y., until the further order of the court.

      Charles H. Pooley, for the apjiellant.

      Shire & Van Peyma, for the respondent.
   OoRlett, J. :

The defendant owned a lot on Park street, in the city of Buffalo, upon which an old frame dwellingfiiouse stood. She wished to build a new frame house or repair the old one. There was an ordinance of the city of Buffalo prohibiting the erection of wooden buildings within the fire limits, where the defendant’s house stood. She obtained a permit from tlie council to make such alterations as she desired, which was afterwards revoked; she, nevértheless, determined to build and commenced work.

The plaintiff owned some real estate adjoining the defendant’s lot. In July, 1889, she commenced an action against the defendant to restrain lier from erecting a frame-house on her lot, and obtained a temporary injunction from the county judge. Afterwards, and in the same month, the Special Term vacated the injunction, and the plaintiff appeals to this court.

The complaint alleges, among other things, that the erection of the house by the defendant would create a nuisance to the plaintiff’s premises and injm-e the same to her damage.

It is enacted by chapter 519 of the Laws of 1870 that every building erected contrary to a city ordinance should be deemed a common nuisance, and as such might be abated.

One who has sustained damages peculiar to himself from a common nuisance can maintain an action and obtain appropriate redress. (Francis v. Schoellkopf, 53 N. Y., 152.)

Aside from the ordinance prohibiting the erection of frame buildings, the defendant had a perfect right to build any structure she chose on her own lot. She might erect a frame, brick or any other building she pleased, and the adjoining owner would have no right to complain.

The. complaint fails to state how, or in what way, the erecting of a frame dwelling-house would inflict special damages. It contains no statements from which it can be inferred that there would be any special damages aside from the fact that it was a frame house erected contrary to the provisions of a city ordinance. It has long been the rule on the subject of damages that the plaintiff is entitled to recover a recompense for injuries which are the natural and proximate consequence of the act complained of. Those which necessarily result from the injury are termed general damages; but those which are special must be clearly stated in the pleading. (Vanderslice v. Newton, 4 N. Y., 130.)

There is nothing in this complaint showing any special damages for which the law affords redress. A police regulation is not of itself sufficient to give a cause of action to a party injured. (Moore v. Gadsden, 93 N. Y., 12.)

In Stilwell v. Buffalo Riding Academy (4 N. Y. Suppl., 414) it was held at Special Term that an action for an injunction would not lie for the erection of a building prohibited by the city ordinance, unless it was to be occupied in such a way as to amount to a nuisance. The mere fact that an act is in violation óf law, or even criminal, would not warrant an injunction. (Anderson v. Doty, 33 Hun, 160.)

The order of the Special Term must be affirmed.

Dwight, P. J., and Macomber, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J.:

text:
    LOUIS SNEIDER, Appellant, v. HENRY TREICHLER and ELI G. TREICHLER, Respondents.

      Negligence — proof of what facts require the submission to the jury of the question as to dangerous machinery.

    In an action brought to recover damages for a personal injury, sustained by the plaintiff while at work for the defendants on a threshing-machine, it appeared that the plaintiff was a farm laborer, and was set at work by the defendants cutting the bands upon bundles of wheat on the “table” upon which the bundles were thrown from the mow. The table was supported on the side of the threshing-machine by two hinges, the pins in which were horizontal and were both pointed in the same direction, so that it could be slipped off and on horizontally. To prevent its slipping off when the machine was in operation a soft-wood cleat was attached at the end of it, which,when the latter was raised to the level, shut down against a liard-wood peg in the side of the machine.
    A portion of this cleat broke off by reason of the pressure upon it; the table slipped on its hinges; the side next the machine dropped; the plaintiff was thrown onto the machine and his hand came in contact with the teeth of the revolving cylinder and was seriously injured. The evidence tended to show that the break-in the cleat was not recent; that the cleat was worn and weakened by use, and that its defective condition would have been disclosed by a careful examination.

      Held, that the facts in this case required that the question of negligence on the part of the defendants should be submitted to the jury.
    Appeal by the plaintiff from a judgment entered, after a trial at the Niagara Circuit before the court and a jury, in the office of the clerk of the county of Niagara on the 7th day of June, 1889, and' from an order denying the plaintiff’s motion for a new trial, made upon the minutes of the court, entered in said clerk’s office on the same day.

      K M. <& F. M. Ashley, for tlie appellant

      Richard Crowley, for tlie respondents.
   Dwight, P. J.:

Tlie action was to recover damages for a personal injury sustained by tlie plaintiff while at work for the defendants on a threshing machine owned and operated by them. The action is based upon the allegation of negligence, on the part of the defendants, in respect to furnishing safe machinery and appliances for the plaintiff’s use ; and a verdict was directed for the defendants on the ground that the evidence failed to establish the negligence alleged. The direction was error unless it is manifest that no case was made for the consideration of the jury upon the issue mentioned.

Actionable negligence is seldom capable of positive demonstration or of being established by direct evidence. It must usually be inferred from the circumstances of the case, and whenever that inference can be drawn from established facts, without violating reasonable probability, the question is for the jury. Antecedent circumstances, those attending, and even those following the result complained of, may each or all afford a presumption of negligence as an efficient cause of that result; and it is the province of the jury to estimate the effect and value of the presumptive evidence. Moreover, when different inferences may be drawn from the same facts, or when the facts themselves are in dispute, it is for the jury to determine what facts are established by the greater weight of evidence, and what inference is most reasonably drawn from the facts found to be established. In view of these familiar principles, it is rare that the question of negligence comes to be a question for the court, if there is any evidence in the case which tends to show that negligence existed. These principles were fully recognized by the learned judge who directed the verdict in this case, for he said, in giving the direction to the jury: “ Where there is evidence warranting the finding of negligence, it becomes a question of fact, but where there is none, and an affirmative finding would rest upon pure guess-work, a question of law is involved.” The principle was correctly.stated, but, after a careful review of the evidence as presented by this record, we are unable to concede the correctness of its application to this case.

The plaintiff was a farm laborer, in the employ of one of the defendants, and was sometimes set at work on the threshing machine, though not regularly employed in that business. On the day of the accident he was sent by his employer to a neighboring farm to assist in threshing some wheat belonging to the other defendant. Both of the defendants were present, the machine was set up in the barn, and the plaintiff was set at work cutting bands on “ the table ” to which the bundles were pitched from the mow. The part of the table which went with the machine consisted of a leaf attachable to the side of the separator, and this was widened to reach the mow by a temporary structure of boards. The leaf, when in position, was supported, on the side of the machine, by two hinges, of which the pins were horizontal and both pointed in the same direction, so that the leaf could be slipped on and off, horizontally, as occasion required. To prevent its slipping off when the machine was in operation, a soft-wood cleat was attached to the end of - the leaf, which, when the latter was raised to a level, shut down against a hard-wood peg in the side of the machine. This was the only appliance which resisted the tendency of the constant vibration of the separator to throw the leaf off its hinges, and it is apparent that in proportion to that tendency there was a constant pressure and friction between the cleat and peg.

The position occupied by the plaintiff was one of great danger if the leaf should become detached from the machine while the latter was in motion. The necessary effect was to suddenly drop the side of the table next the machine and, as in the actual case, precipitate the person standing on the table onto or into the machine itself.

In the case of the plaintiff the appliance described proved defective; a portion of the cleat in contact with the peg either had been or was then broken off by the pressure upon it; the leaf was slipped from its hinges; the side next the machine was dropped without warning; the plaintiff was thrown onto the machine, and his hand — probably thrust out in the instinctive effort to save himself — came in contact with the teeth of the rapidly-revolving cylinder and was, substantially, torn from his arm.

The defendants owed to the plaintiff the duty of reasonable care to supply to him and his fellow workmen machinery and appliances of such construction and in such condition of repair as not to subject him. to unnecessary danger in the position in which he was placed. This principle applies to so rude and simple a contrivance as the cleat and peg as fully as to more intricate and elaborate machinery. Upon it depended safety to life and limb. As was demonstrated by the event, it was hable to become out of order. The fact that it had never failed before, tended to show that its loss of efficiency at this time was the result of ordinary wear and tear; a cause of deterioration to which all machinery is liable in a greater or less degree, and against which the only safeguard is reasonable inspection. Of course, the frequency and thoroughness of the inspection required, depends very much upon the original strength and fitness of the appliance; and the obligation to keep it in repair is proportioned to the degree of danger involved in its use.

There was direct evidence in the case which tended to show that the break in the cleat was not recent; that the cleat was worn and weakened by use, and that its defective condition would have been apparent on careful examination. This was evidence which, upon the familiar principles here re-stated, required, as we think, the submission to the jury of the question whether the defendants had omitted to exercise all due and reasonable care to insure the reasonably safe condition of the particular appliance upon which the safety of the plaintiff depended. We by no means intend to intimate that a case was made for a recoverv; but we are of opinion that, upon the question of the defendants’ negligence, a case was made upon which the jury should have been permitted to pass, and that the direction of a verdict for the defendants was error, for which the judgment should be reversed and a new trial granted.

Maoomber, J., concurred; Corlett, J'., not sitting.

Judgment and order reversed and a new trial granted, with costs to appellant to abide the event.


author: Nan Brunt, P. J.:

text:
    BENJAMIN C. WETMORE, as Executor, etc., Respondent, v. ST. LUKE’S HOSPITAL OF THE CITY OF NEW YORK, THE NEW YORK INSTITUTION FOR THE BLIND and Others, Appellants.

      Will — lapsed legacy — right thereto as between general and residua/ry legatees — general legacies, not deferred to the termination of life estates — legacy for a specific purpose not a specific legacy.

    A testatrix, by her will, made certain specific clevises and bequests, and directed that the rest of her estate bo converted into cash and that certain legacies be paid therefrom, and then provided as follows: “ All the rest and residue of my said residuary estate, not herein otherwise disposed of, I order and direct my said executor to pay over, and I give and bequeath the same to the above-mentioned James Drake Black, Mary Hopeton Drake and Maiy Hopeton Smith, absolutely, share and share alike.”
    One of the general legatees died before the testatrix, and two other general legacies for other reasons failed of execution, and the estate of the testatrix proved to be insufficient to pay the remaining- general legacies.
    Held, that, as between the general legatees and the residuary legatees, the lapsed legacies would not be considered as a separate fund, passing as such, by reason of their failure of execution, to the residuary legatees, but would be disposed of as though no such general legacies had been given by the will of the testatrix.
    That, until the debts of the testatrix and the general legacies were paid the residuary legatees were not entitled to receive anything.

      Tlie testatrix bequeathed a portion of her estate in trust, to be held during the lives of. the beneficiaries, and directed that, upon the death of the ceshiis que trust, the trust funds in which they had a life estate should fall into and be disposed of as a part of her residuary estate.

      Held, that the residuary estate referred to was the final estate, and not the estate in which the general legatees were interested (although that also was referred to in the will as a residuary estate), as it could not have been the intention of the testatrix that these general legacies should have been left open until the life estates had terminated.
    The testatrix executed a codicil to her said will, by which she gave a legacy to St. Luke’s Hospital, in the city of New York, of $5,000 to endow a bed to be called the “Hope Bed.”

      Held, that the fact that this legacy was contained in the codicil gave it no priority over the general legacies contained in the will.
    That the fact that the testatrix knew that $5,000 was necessary to endow a bed in the hospital, and that if the legacy was reduced below that sum such endowment was impossible, did not justify a construction that because the legacy was given for a specific purpose it should be considered a specific legacy, rather than a general one, and consequently should not abate proportionately with the other general legacies.
    Appeal by five of the defendants in the above-entitled action from portions of a judgment entered therein, after a trial at a Special Term held in the county of New York, in the office of the clerk of said county on the 5th day of March, 1889.

      Hoffman Miller, for St. Luke’s Hospital, appellant.

      Davies dt Rarpatto, for Domestic and Foreign Missionary Society, appellant.

      A. R. Dyett, for Presbyterian Home, appellant.

      E. IF. Sheldon and Wager Swayne, for the New York Society for the Relief of the Ruptured, etc., and the American Tract Society, appellants.

      Enos JT. Taft, for the American Seamans’ Friend Society, appellant.

      George H. Balkam, for Mary Hopeton Drake, respondent.

      Williamson d) Reynolds, for plaintiff, respondent.
    , Thomas B. Hewitt, guardian ad litem for infant respondent, James D. Black.

      William M. Martín, guardian, ad litem for infant respondents, Smith and Atterbury.
   Nan Brunt, P. J.:

This action was brought by the plaintiff- as executor of the will of Mary H. Drake, for a construction of that instrument.

The testatrix in and by her will, after providing for the payment of debts and funeral expenses, and attempting to exercise the power of appointment conferred upon her by the will of her father, James Drake, directed her executors to sell certain real estate, and out of the proceeds to pay a certain bond given by her to one James P. Evans, or in case he should refuse to accept payment of the bond, to pay the whole thereof to the United States Trust Company in trust to invest, and pay the income thereof to Evans during his life and to pay the principal upon his death to his issue him surviving, but if he should die leaving no issue him surviving, the testatrix directed that the principal should form part of her residuary estate and be disposed of as the same was afterwards disposed of in her said will.

She then made certain specific devises and bequests, and by the seventh clause she ordered and directed her executors to sell all the rest, residue and remainder of her estate, and to convert the same into cash, and out of the proceeds to pay certain legacies specified.

Amongst these legacies was one of $10,000 to Sarah A. Lawrence, who died prior to the testatrix, and one of $1,000 to Henry Bradley if he should be in the service of the testatrix at the time of her death, which he was not; and one of $5,000 to the United States Trust Company in trust, to pay the income thereof to Esther M. Behin during her life ; and one of $5,000 to the same company in trust, to pay the income thereof to Emily Hancock during her life. The testatrix directed that upon the death of either Esther M. Behin or Emily Hancock the trust fund in which she had a life interest should fall into and be disposed of as part of her residuary estate.

The eighth clause of the will directed that after payment of the legacies and provisions for annuities made in the seventh clause, her executors should pay out of the proceeds of the sale the legacies therein specified. These legacies are all to charitable purposes, and amongst them are legacies of $5,000 each to the five defendants who have taken these appeals, and one of $5,000 to Benjamin C. Wet-more, to be applied by him to such charitable uses as he might see fit. The eighth clause of the will then contains the following: “All the rest and residue of my said residuary estate not herein otherwise disposed of, I order and direct my said executor to pay over, and I give and bequeath the same to the above-mentioned James Drake Black, Mary Hopeton Drake and Mary Hopeton Smith, absolutely, share and share alike.”

By a codicil to her will the testatrix modified the attempt to exercise the power of appointment given to her, and made changes in certain specific legacies, the validity of which is not involved in this action. She also gave and bequeathed to St. Luke’s Hospital, in the city of New York, the sum of $5,000 to endow a bed to be called the “Hope Bed,” and gave and bequeathed the right of .disposing of said bed to one Hopeton Drake Atterbury. She also revoked the bequests contained in the eighth clause of her will of all the rest and residue of her said residuary estate not otherwise disposed of to James Drake Black, Mary Hopeton Drake and Mary Hopeton Smith, and instead thereof she directed her executor to pay over, and she gave and bequeathed the said rest and residue to the said James Drake Black, Mary Ilopeton Drake, Mary Hope-ton Smith and Hopeton Drake, share and share alike. These four residuary legatees are infants.

The learned justice before whom the case was tried found the death of Sarah A. Lawrence before the testatrix; that said Bradley was not in the service of the testatrix at the time of her death, and that the legacy of $5,000 to Benjamin C. Wetinore to be applied to charitable uses was void for indefiniteness. He also found that the property and estate left by the testatrix was insufficient in amount to pay in full the legacies given in and by the eighth division of her will.

Upon the decision of the court a judgment was entered, amongst other things, to the effect that all the legacies mentioned in subdivision 8 of said will must abate in proportion to their respective amounts to the extent to which the estate of the testatrix (after deducting all specific legacies and devises given by said will, all amounts expressly directed by said will to fall into or form part of the residuary and also the total amount of the legacies mentioned in division seventh of said will) shall prove insufficient to pay in full all the legacies and proposed legacies mentioned in said eighth division of said will; and that the amount o'f the lapsed legacy to Sarah A. Lawrence, the ineffectual legacy to Henry Bradley and the void legacy to Benjamin C. Wetmore (subject to its proportional abatement), and all sums not effectually given or disposed of by the seventh clause should go to the defendants James Drake Black, Mary Hopeton Drake, Mary Hopeton Smith and Hopeton Drake Atterbury, who were entitled to the same, share and share alike under the residuary bequest mentioned in the fourth division of said codicil; and that the legacy of $5,000 to St. Luke’s Hospital contained in said codicil must be classed as one of the legacies in the eighth division, and must be paid and abate with such legacies. From these portions of the judgment this appeal is taken.

In the disposition of the questions presented upon the appeal it is necessary to bear in mind one or two elementary rules governing the construction of walls. The first is, that a will should be construed according to the intention of the testator, and that lapsed legacies, in case there is a general residuary clause, go to the residuary legatee, and not to the next of kin; and that a strictly residuary bequest must defer to all general legacies and annuities, and can only be paid after all such claims are satisfied.

It is to be observed, in considering the question as to the lapsed legacy in favor of Sarah A. Lawrence, and the void legacy in favor of Benjamin C. Wetmore, that the rules of construction which have been adopted have arisen in contests between residuary legatees and next .of kin, and that, so far as we have been able to ascertain, no question has been raised, as between the legatees themselves, under the will. It has been universally held, in cases where there did not appear to be any deficiency of assets to pay the general legacies, that where there is a general residuary clause, lapsed legacies go to the residuary legatees. After all debts, legacies and charges upon the estate are provided for, the residuary legatee takes the balance; and it is only in those cases in which the residuary legatee is not a general residuary legatee, but is a legatee of a particular part of the residue, that a lapsed legacy has been held to go to the next of kin. Such a case was Kerr v. Dougherty (79 N. Y., 334), as will be more pai’ticularly seen by the report of tbe' case in 59 Howard, 44, where the will is set out more at large.

It is clear that, as to the bequest to Henry Bradley, the will is to be considered precisely the same as though it was not contained therein, because it is given to him in case he should be in the service of the testatrix at the time of her death, and as a consequence of his haviiig left her service before her death the legacy could not become operative; and the will is to be construed, as has been said, precisely the same as though it had not been inserted therein, and we think that the same rule applies to the legacy that has lapsed because pf the death of ¡Sarah A. Lawrence, and to the legacy to Benjamin C. Wetmore, void for indefiniteness. We think the will is to be considered as though, in view of the death of Sarah A. Lawrence before the testatrix, and in view of the void character of the bequest to Wetmore, they were not contained in the will at all.

The result of these considerations is that the will contained no bequests whatever to these various -parties, and there is no fund created thereby which can be carved out of the estate and held to be separate therefrom so as to be transferred to the residuary legatees, in view of the deficiency of the assets. There is no question, had there been no deficiency in the assets, but what the final residuary legatees would have taken all that was left after the j)ayment of the legacies, which were operative at the death of the testatrix, because there was an evident intent upon the part of the testatrix to give to the final residuary legatees whatever might be left after complying with her directions in reference to the provisions contained in her will. But in the case at bar the will is to be construed not in the light of subsequent events, but in view of the fact that the testatrix undoubtedly supposed that her estate was sufficiently large to meet all the charges she placed irpon it and to leave something for the residuary legatees besides. In this it appears she was mistaken, and there is a deficiency of assets to pay the legacies provided for in the will immediately before the residuary clause, hence there is no residue.

In order that there should be a. residuary estate the provisions of the will must be fulfilled and something must be left over. Debts and legacies must be paid and then the residuum goes to the residuary legatees. But until the debts and legacies are paid it is difficult to see how, tinder the residuary clause, residuary legatees are entitled to receive anything. In fact, as has already been said, there cannot. be a residuum where there is not sufficient of the estate to pay the charges which have been placed upon it. Therefore, these legacies to which attention has been called necessarily went to swell the body of the estate, and were to be appropriated to the payment of the legacies, and did not go to the residuary legatees upon the theory that lapsed legacies, where there is a general residuary clause, go to the residuary legatees. As we have said, this question has not arisen between general legatees and residuary legatees in the cases which have been discussed in the courts, but the contest has been between the next of kin and the residuary legatee. And in these discussions the only ground upon which the next of kin claimed the estate was that the testator had died intestate in respect thereto, which could only prevail where there was no general residuary clause.

In the case at bar the testatrix has effectually disposed of the whole of her estate, and, indeed, attempted to dispose of more than she had. Hence this difficulty. If all the general legacies contained in the will had been satisfied, there would have been no question to discuss. But until the general legacies have all been satisfied we do not understand how any portion of the estate can be devoted to the residuary legatees. We think, therefore, the learned judge erred in coming to the conclusion that the legacies to which attention has been called fell into the final residuary estate. On the contrary, we think that they formed piart and parcel of the estate to be applied to the payment of the general legacies, and until such general legacies were satisfied the residuary legatees could receive no benefit therefrom.

This brings us to the other question involved, and that relates to the fund which the testatrix has bequeathed, in trust, during the lives of James F. Evans, Esther M. Behin and Emily Hancock, and which, upon the death of the life tenant, is to fall into and be disposed of as part of her residuary estate. The question necessarily presented here is, what residuary estate did the testatrix intend ? There seems to be in this will three residuary estates. The first one mentioned is in the seventh clause, the next one is in the commencement of the eighth clause; and in the same clause, at the end thereof, we find the final residuary clause.

Iii the consideration of this question it is necessary to bear in mind that the testatrix supposed her estate would be sufficient to pay the whole amount of her legacies. Having this in mind, it seems to be perfectly apparent what she meant by her residuary estate in respect to the trust funds mentioned. The legacies provided for in the will became payable within one year after her death. These trust estates might exist for a considerable length of time. She did not intend that these general legacies should be left open until these trust estates should fall in; and it cannot be assumed that, in referring to her residuary estate, she had in mind anything else than the final residuum which would remain after the payment of all her legacies, and which would finally pass under the residuary clause to the four infants mentioned therein. She, supposing that her estate was sufficient to pay all the legacies, could certainly not have intended that, upon the termination of these trust estates, the funds composing them should fall into a residuum which had already served its purpose in the payment of these legacies, and the balance of which had gone over to the final residuary legatees.

If any other construction is to be placed upon this clause, the result necessarify follows that the testatrix knew that she was giving more in her general legacies than her estate amounted to, and that these trust funds at some indefinite period in the future, when the trust estate would be terminated, would be required in making up the amounts which she had thus devoted to charity. We think that no such intention can be imputed to the testatrix. She certainly never intended that the payment of these charitable legacies should be deferred until the termination of this trust estate. This consideration seems to us to make it plain that the residuary estate to which she referred, and in which she placed these funds at the termination of the life estate, was the final residue which was given to the four infants above mentioned.

This leaves but one other point to be discussed, and that is the question raised by the appeal of St. Luke’s Hospital as to the legacy given to it in the codicil. The court below found that it must be classed with those contained in the eighth clause of the will, and with them must abate. The appellant contends that it should be ranked with those found in the seventh clause. It seems to us that the legacy is not to be ranked with those of any particular division of the will, but is to be treated simply as a general legacy, and if there is any order of priority stated in tlie will in which legacies shall be paid, the legacy in question must be subservient to such direction as to priority. It is evident from the will that the legacies mentioned in the seventh clause are to be paid first. This legacy by the codicil is not inserted therein or directed to be inserted therein or to be paid in the same order, but is simply a general legacy. lienee it must be paid after the legacies which are specifically directed to be paid by the seventh clause. This makes the payment of this legacy to run parallel with the payment of the general legacies contained in the will.

These general legacies are provided for by the eighth clause, and are such as are to be paid prior to the ascertainment of the general residuum of the estate. The legacy in question naturally falls within that class. It certainly would be a perversion of the rules of construction to hold that merely because this legacy was contained in the codicil it should have a preference over any other general legacy. The same reasoning which would give it a preference over the legacies contained in the eighth clause would give it the same preference over those contained in the seventh clause. And it Avas clearly not the intention of the testatrix that this legacy should have a preference over and above all othei; legacies provided for.

It is urged that the legacy to the hospital was for the purpose of endoAving a bed, and that there cannot be any question but that the testatrix Avas cognizant of the sum necessary for such purpose; and it being eAÚdent that she was aware that it took $5,000 to endow a bed, that that was the cause of her specifying that amount in the codicil, and that if the legacy abates, no endowment is possible; therefore, the object of the testatrix’s generosity is defeated, and it is urged that because it is given for a specific purpose, therefore it should be considered a specific legacy rather than a general one, and, being of this character, does not abate.

The difficulty with this proposition is that the fact is entirely overlooked that avo must construe this Avill upon the assumption that the testatrix believed she had sufficient estate to pay all her legacies. She doubtless had no thought of the contingency which has arisen, namely, the deficiency of assets, and, therefore, in the making of her codicil she gave no more specific directions in regard to this legacy than are therein contained. Merely because the testatrix’s object may be defeated unless this preference be given does not authorize the court to give it a preference which the testatrix had not in mind at the time of the making of the will. Merely because subsequent events have shown that she made miscalculations in regard to the amount of her estate, the court is not authorized to give a different direction in respect to the order in which legacies are to be paid than that contained in the will. We cannot see that because this legacy was given for a specific purpose, that that fact alters the question or makes it proper to treat it as a specific legacy having a preference over all others. • The mere statement of the purpose for which a legacy is given in no manner alters its character.

TJpon the whole case, therefore, we are of opinion that that portion of the judgment which provided that the lapsed and void legacies go to the residuary legatees should be reversed, and instead thereof it should be adjudged that they formed part of the general estate to be devoted to the general charges upon the estate, and that the judgment in other respects should be affirmed.

Bakbett and Baktlett, JL, concurred:

So ordered.