author: Martin, J.:

text:
    ROZELLEN ALDINGER, Respondent, v. EMERY S. PUGH, Appellant. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROZELLEN ALDINGER, Respondent, v. STEPHEN J. PUGH, Appellant.

      The special surrogate of Oneida county has the powers of a county judge out of court — chapter 306 of 1849 and chapter 108 of 1851 were not superseded by the Code of Civil Procedure — violation of an injunction order by a party not served the>'ewith— ■effect of Ms restoring the amount of his loss to the party injured.

    The special surrogate of Oneida county, under the provisions of chapter 306 of the Laws of 1849, as amended by chapter 108 of the Laws of 1851, providing that he “ shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court,” is authorized to grant an injunction order in a case in which a county judge has authority to grant such order.
    The acts of 1849 and 1851 were not repealed, by implication, by the adoption of the Code of Civil Procedure, as the two are not so repugnant to or inconsistent with each other as that they cannot be harmonized, nor does the Code of Civil Procedure show that it was clearly intended thereby to supersede,the former statutes.
    Statutes which are special and local in their application will not ordinarily be repealed by general statutes unless expressly referred to.
    A party who, with full knowledge that an injunction order has been granted, and of its contents and service upon a co-defendant, violates the direction thereof while acting as the agent, servant or assistant of such defendant so served, is guilty of a contempt of court.
    The fact that a party who has violated an injunction order, subsequently becoming alarmed, saves the party obtaining such order from the loss attendant upon its violation, does not relieve him from liability for its violation.
    Appeal by the defendants in each of the above-entitled actions from an order, except the last paragraph thereof, made at the Oneida Special Term of the Supreme Court, convicting them of a contempt of court in violating its injunction order, which order was entered in the office of the clerk of the county of Herkimer on the 13th day of September, 1889, with notice of an intention to bring up for review the injunction order, and also the order of reference to one Charles G. Irish.
    On the 7th day of December, 1888, an injunction was granted by the special surrogate of Oneida county in an action in the Supreme Court, in which Rozellen Aldinger was plaintiff and Emery S. Pugh was defendant, by which the defendant, his agents, assistants and assignees were enjoined from selling, disposing of or drawing away any of the hay on a certain farm owned by the plaintiff and occupied by the defendant, in that action during the pendency thereof or until the further order of the court. This injunction was served upon Emery S. Pugh on the day it was granted.
    On the twenty-second and twenty-fourth days of the same month,, and while the injunction was in full force, Stephen J. Pugh, the father of the defendant, removed from said farm about eleven tons of the hay thereon which was referred to in said injunction. The injunction was not served upon Stephen J. Pugh until December twenty-fourth, but he knew of the service of it on the defendant and the contents thereof. The defendant Emery S. Pugh was aware of the removal of such hay, but did nothing to prevent it.
    On December 31, 1888, an order requiring the said Emery S. Pugh and Stephen J. Pugh to show cause at a Special Term of the Supreme Court to be held at the court-house in the city of Utica on the 8th day of January, 1889, why they should not be punished for contempt in knowingly violating such injunction, was duly granted by Hon. Milton H. Merwin, one of the justices of this court, and served on the appellants.

      On the 8th day of January, 1889, the parties appeared, and the court, upon reading and filing the order to show cause, the affidavits presented in support of such application and affidavits produced in opposition thereto, and after hearing counsel for the plaintiff and counsel for the defendant and Stephen J, Pugh, made an order appointing a referee to take the evidence of the parties to that proceeding, and of their witnesses, as to whether the defendant Emery S. Pugh and Stephen J. Pugh had violated such injunction, and if so, whether such violation was wilful, and whether the said Stephen J. Pugh aided or abetted the defendant Emery S. Pugh in violating the same, and if so, whether such violation defeated, impeded or prejudiced the plaintiff’s rights, and to what extent, and directed him to report the facts and return the testimony, with his opinion thereon, to the court.
    The referee thus appointed duly proceeded to execute such reference and take the evidence of the parties and their witnesses, and reported the same to the court with the facts found and with his opinion thereon.
    The referee, among other things, found : “ That on December 22d and 24th, 1888, the said Stephen J. Pugh drew away from said leased premises eleven tons of hay of the value of $132, and that defendant was aware of such removal and did nothing to prevent it; that by such removal on December 22d and 24th, 1888, defendant and S. J. Pugh, and each of them, knowingly and willfully violated said injunction order — the defendant in permitting the said Stephen J. Pugh to remove said hay, and the said S. J. Pugh in aiding and abetting and assisting the defendant to remove, draw away and dispose of the hay referred to in and restrained by said injunction order; and, further, in refusing to return the two tons of said hay removed by him on December, 24, 1888. * * * At the time of the service of the injunction order, and also on December 22d and 24th, 1888, the plaintiff was damaged by the failure on defendant’s part' to draw back manure equivalent in amount to the hay and straw then drawn away. This damage has since been remedied by defendants drawing manure on the place from December 15, 1888, and through February and March, 1889, and,, inasmuch as the defendant before the expiration of such lease fully complied with all its provisions, except keeping the ten cows, and drew back upon said premises an amount of manure equivalent to tlie hay and straw drawn away by him, the object of this action is substantially defeated, and the plaintiff cannot be said to have suffered any damages from the breach of any covenant in the lease or by removal of the hay.”
    Upon all the proceedings had in this matter, the testimony taken before the referee, his report, opinion and the affidavit of Henry F. Coupe as to the plaintiff’s costs and expenses incurred in such proceeding, the matter came on for hearing at a Special Term of this court, held at the court-house in the city of Utica, June 15,1889, when, after hearing counsel for the plaintiff and counsel for the defendants Emery S. Pugh and Stephen J. Pugh, it was by the court adjudged and determined “that the defendants Emery S. Pugh and Stephen J. Pugh are guilty of contempt in having knowingly and willfully disobeyed the said injunction order granted in said action — the said Emery S. Pugh in causing and permitting eleven of the tons of the hay mentioned in and restrained by said injunction, of the value of $132, to be removed, drawn away and disposed of while said injunction order was in force, to wit: On the 22d and 21th days of December, 1888; the said Stephen J. Pugh in having, with full knowledge of said injunction order, of its contents, and of the service of it on the said defendant, while acting as the agent, servant and assistant of the said defendant, aided and abetted and assisted the said defendant, Emery S. Pugh, in said removing, drawing away and disposal of said eleven tons of hay on the said 22d and 21th days of December, 1888.; and that said violation of said injunction order was calculated to and actually did defeat, impede, impair aud prejudice the rights and remedies of the plaintiff in said action. It is further considered and adjudged and ordered that the said Emery S. Pugh and Stephen J. Pugh pay a fine of $100 referee’s fees, seventeen dollars witness fees, fifty dollars counsel fees and ten dollars costs of this motion, in all the sum of $177, to be paid to the plaintiff herein, said Rozellen Aldinger, to satisfy her costs and expenses in the premises, and that they stand committed to the common jail of Oneida county until said fine be paid.”
    From this order and determination of the Special Term the defendants Emery S. Pugh and Stephen J. Pugh appealed. It is also stated in the notice of appeal that the “ appellants intend to bring up for review the injunction order granted herein and the •order of reference to Charles G. Irish.”

      Edward Lewis, for the appellants.

      Henry F. <& James Coupe, for the respondent.
   Martin, J.:

As no motion was made to set aside or vacate the injunction order .granted herein, the appellants are not in a position to review that order on this appeal. Their remedy was by an application under article 3, title 2, chapter 7 of the Code of Civil Procedure, and not by appeal. (Code of Civil Pro., § 772.) An appeal from an order granting a provisional remedy can only be taken when made upon notice. (Code of Civ. Pro., § 1347.) No appeal lies from an order granted ex parte. (People ex rel. Schler v. Common Council, 30 Hun, 636; Matter of Johnson, 27 id., 538.)

We find no ground for disturbing the order of reference. The Code of Civil Procedure provides that upon the return of an order to show cause in proceedings for contempt, the questions which arise must be determined as upon any other motion. (Sec. 2283.) The court may of its own motion direct a reference to determine and report upon a question of fact arising upon a motion. (Code of Civil Pro., § 1015; People ex rel. Alexander v. Alexander, 3 Hun, 211.)

The Special Term was fully justified by the evidence taken in this proceeding in finding that the appellants knowingly and willfully ■disobeyed the injunction and in adjudging them guilty of contempt, if the officer granting such injunction was authorized by law to grant it.

The appellants contend that the special surrogate of Oneida county had no power or authority to grant an injunction in such an action. If such authority existed, it was under and by virtue of the provisions of chapter 306, Laws of 1849, as amended by chapter 108, Laws 1851, which provides :

§ 1. “There shall be elected in the counties of Jefferson, Oneida, St. Lawrence,. Oswego, Orange, Chautauqua, Cayuga and Tioga at the next general election, and as often thereafter at any succeeding general election, as may be necessary, in the same manner as other county officers are elected, a local officer or two local officers, to discharge the duties of county judge and surrogate in their respective counties, in cases of vacancy or inability of such officers, or either of them, in pursuance of section fifteen of article six of the Constitution ; when the duties of county judge and surrogate shall be discharged by the same person, there shall be elected, as aforesaid, one local officer, and in such of the said counties where the office of county judge and surrogate shall be separate there shall be elected, as aforesaid, two local officers, and the term of office of the persons so elected shall commence on the first day of January next after their election; they shall hold their offices for three years and until others are chosen in their places and duly qualified, and shall be subject to removal in the same manner and for the same causes as county judges and surrogates are subject to be removed.”

§ 2. “ Such local officers, so elected to discharge the duties of county judge (or of county judge and surrogate in those counties where there is no separate officer to discharge the duties of surrogate), shall be designated as special county judge, and such local officers, so elected to discharge the duties of surrogate in those counties where there shall be a separate officer to discharge the duties of surrogate, shall be designated as special surrogate. Such local officers, so elected to discharge the duties of county judge, or of county judge and surrogate, or to discharge the duties of surrogate in those counties where there shall be a separate officer to discharge the duties of surrogate, shall possess all the powers cmd perform the duties which a/re possessed and can Toe performed Toy a county judge out of court, and any proceeding commenced before any such special county judge or special surrogate may be finished by him, or he may, by order, direct that the same shall be finished by the county judge, or by the surrogate, as the case may be.”

The provisions of this statute seem to confer upon the special surrogate of Oneida county all the powers and duties which are possessed and can be performed by a county judge out of court. When the statute under consideration was passed, and also when it was amended, a county judge was given express authority to grant an injunction. (Code of Procedure, § 218.) He was also authorized in an action in the Supreme Court to exercise within his county the powers of a judge of the Supreme Court at chambers. (Code of Procedure, § 403; People ex rel. Parr v. Parr, 31 N. Y. St. Rep., 49.)

The effect of the statute of 1849, as amended, was considered in the case of Seymour v. Mercer (13 How., 564), and it was there said: “ It is entirely clear that the legislature intended to confer upon these local officers, both special county judges and special surrogates, all the powers of the county judges which they could perform out of court or at chambers, as well as all other powers, both of county judge and of surrogate, in case of inability or vacancy in the offices respectively.” In that case it was held that the special surrogate of Cayuga county had authority to grant an order of arrest without regard to the questions whether the office of county judge was vacant or his inability to act.

In Kinney v. Roberts (26 Hun, 166) the special county judge of Oneida county made an order in an action in the Supreme Court requiring a party to appear and be examined under the provisions of the Code of Civil Procedure upon the application of his adversary, and in that case, Smith, P. J., in delivering the opinion of the court, said : “A question was made on the argument as to the power of the special county judge of Oneida to make the order for the examination. We think there is no reason to doubt his power. Such officer possesses all the powers and may perform all the duties of a county judge out of court. (Laws of 1849, chap. 306, as amended by chap. 108, Laws of 1851.) When the act of 1849 was passed county judges possessed the power in question (Laws of 1848, chap. 379, old Code, § 345), and the power is continued in them by the-present Code (§ 872). The fact that the latter section does not mention special county judges does not divest them of the power conferred by the acts of 1849 and 1851. Those acts still operate to vest those officers with the powers possessed by county judges out of court.” This case was appealed to the Court of Appeals, and the appeal was dismissed by that court. (89 N. Y., 601.)

In Babcock v. Clark (23 Hun, 391) it was held that the special county judge of Chautauqua county had power to grant an injunction. It seems that the statutes of 1849 and 1851 confer upon the special surrogate of Oneida county powers which are sufficient to-authorize him to grant a temporary injunction in an action in the Supreme Court. But the appellants contend that the statutes of' 1849 and 1S51 have been repealed. It is not claimed that they have been expressly repealed, but the claim is, that they have been repealed by implication by the adoption of the Code of Civil Procedure. Repeals by implication are not favored in law. It is only where a later statute is repugnant to or inconsistent with an ■existing one, so that the two cannot be harmonized, or where the .subsequent act shows that it was clearly intended to supersede the former statute, that a repeal by implication arises. (Matter of Curser, 89 N. Y., 401; People ex rel. Woods v. Crissey, 91 id., 616; Mark v. The State, 97 id., 578.) Ye find no such inconsistency between the statute of 1849, as amended, and the provisions of the ■Code of Civil Procedure, as to’ work a repeal of the former statute, nor do the provisions of the Code of Civil Procedure show that they were intended to suj>ersede the statute of 1849. The latter is in harmony with the provisions of the Code. Both can stand together :and both should be maintained and enforced.

Again, the statute of 1849, as amended, was a special statute relating only to eight of the sixty counties of the State. It is a rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a .statute general in its terms and application, unless the intention of the legislature to repeal or alter, the special law is manifest, although the terms of the general act would be taken strictly, and but for the special law, include the case oreases provided for by it.” ( Van Denburgh v. Village of Greenbush, 66 N. Y., 1; Matter of Commissioners, 50 id., 493; Buffalo Cemetery Assn. v. City of Buffalo, 118 id., 61.) Laws, special and local in their application, are not deemed rej>ealed by general legislation, except upon the clearest manifestation of an intent by the legislature to effect such repeal, and, ordinarily, an express repeal by some intelligible reference to the special act is necessary to accomplish that end.” (People v. Quigg, 59 N. Y., 83; Matter of Delaware and Hudson Canal Company, 69 id., 209; Village of Deposit v. Devereux, 8 Hun, 317.) Such is the rule, even though the general law contains a general repealing clause as to inconsistent legislation. (Whipple v. Christian, 80 N. Y., 523; see, also, People v. Sheridan, 15 N. Y. St. Rep., 938.) Moreover, it was expressly held, in the case of Kinney v. Roberts (26 Hun, 166), that the statutes of 1849 and 1851 were not repealed or annulled by the Code of Civil Procedure.'

We have examined the cases cited by the appellants, but have found nothing in them which would sustain their contention that the statutes in question were repealed by the Code of Civil Procedure. Those cases are clearly distinguishable from the case at bar, hence we conclude that the statutes conferring upon the special surrogate of Oneida county the powers, and imposing upon him the duties which are possessed and can be performed by a county judge out of court, are not repealed but in full force, and, therefore, that he had authority to grant a temporary injunction in this action.

The appellants also contend that the order adjudging them guilty of contempt should be reversed, because the findings of the court and referee, that the acts of the appellants in violating the injunction were calculated to and actually did defeat, impede, impair and prejudice the rights and remedies of the plaintiff in said action,, were not sustained by the evidence taken in this proceeding. The evidence and proceedings contained in the appeal book disclose-that the plaintiff procured an injunction restraining the defendant,, his servants, agents, assistants and assignees from selling, disposing of or drawing away any of the hay on the farm mentioned in the* complaint, and that the appellants, without any application to vacate or set aside the injunction, knowingly and willfully disobeyed the-order and sold and removed the hay.

That the acts of the appellants in thus removing this property, in defiance of the order of the court, were calculated to and actually did defeat, impede, impair and prejudice the rights and remedies of the plaintiff- is quite manifest. The plaintiff had a right to the-order granted. - The officer granting it had determined that she had that right. The order was valid until set aside. “ If an order within the jurisdiction of the court is imprudently or erroneously granted, the remedy of the party aggrieved is by application to-vacate it or by appeal. It cannot be reviewed upon an application to punish for disobedience of it. So as long as it remains in force it is the duty of all parties to obey it.” (People ex rel. Day v. Bergen, 53 N. Y., 404; Erie Ry. Co. v. Ramsey, 45 id., 637; Barr v. Titus, 75 id., 344; People ex rel Negus v. Dwyer, 90 id., 402.) While the injunction remained in force the plaintiff had a right under it to-prevent tlie appellants from interfering with the hay in question. She had a right to the remedy awarded her. When these proceedings were commenced the plaintiff had a right to the injunction granted and to have it enforced for the protection of her interests. That right was invaded by the appellants when they sold and removed the property which they were enjoined from removing or selling. By that act the order of the court was rendered ineffectual and the plaintiff’s right and remedy under and by virtue of it were destroyed. This interference by the appellants was well calculated to, and did for a time, at least, impair, impede, prejudice and defeat both the right and remedy of the plaintiff. That the appellants subsequently became alarmed at the possible consequence of their acts and discharged their liability to the plaintiff so that she lost nothing under her contract with the defendant Emery S. Pugh, in no way deprived her of the rights which she possessed when the proceedings were instituted, nor did it discharge the appellants’ liability for a wrongful interference with the property removed. As was tersely said by the judge at Special Term, “ What was afterwards done by the defendant does not cure, but may mitigate.” (See King v. Barnes, 113 N. Y., 476).

The appellant Stephen J. Pugh claims that as the injunction order was not served upon him, he cannot be punished for contempt in disobeying it. The referee, upon evidence which we think justified it, has found that Stephen J. Pugh, on the evening of December seventh, or on the next day, was fully cognizant of the service of such injunction and of its contents. The court, from the evidence, has also found that he, with full knowledge of such injunction order, of its contents and of the service of it upon the defendant Emery S. Pugh, while acting as the agent, servant and assistant of said defendant, aided abetted and assisted the said defendant in removing, drawing away and disposing of the hay in question. In Koehler v. Farmers and Drovers' National Bank (6 N. Y. Supp., 470; affirmed 22 N. E. R., 1134), it was held that persons who have actual knowledge of the existence of an injunction order are bound by it though it is not personally served on them. The case cited seems to be decisive of the question, and is adverse to the appellants’ claim.

We are of the opinion that the findings of the court and referee were fairly and fully justified by the evidence and papers read on tbe application for tbe order appealed from, and that no error was committed in granting that order.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J, concurred; Merwin, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    J. FORMAN WILKINSON, as Sole Surviving Executor, etc., and Others, v. SIMON D. PADDOCK and THOMAS B. SESSIONS, Appellants, Impleaded with CONRAD LOOS and Others, Respondents.

      Priority of the liens of judgments against a debtor, upon land conveyed by him in fraud of his creditors — a wife will be reinstated to her dower interest.

    Judgment-creditors of a grantor of real estate, wlio has conveyed the same in fraud of his creditors, have, hy virtue of their judgments, liens upon the premises so conveyed, which are entitled to priority in the order of time in which their respective judgments are docketed, and are not affected by the order in which suits to set aside such fraudulent transfer are instituted.
    Where a conveyance by a husband is set aside on the ground that it was fraudulent as to his creditors, the dower interest of his wife, which was cut off by her uniting in the fraudulent deed with him, is restored to her, and after the death of her husband she may recover her dower in the premises.
    Appeal by tbe defendants Simon D. Paddock and Tbomas B. Sessions from an order, entered in tbe Onondaga county clerk’s office on tbe 5tb day of September, 1889, made at a Special Term of tbe Supreme Court held at tbe chambers of Mr. Justice Williams, at Central Park, in and for tbe county of Jefferson, on tbe 31st day of August, 1889, wbicb overruled exceptions to tbe report of tbe referee in proceedings instituted for tbe distribution of surplus moneys on a mortgage foreclosure, and confirmed said report.

      M. M. Waters, for the appellants.

      Frcmk H. Hiseock, for tbe respondents.
   Martin, J.:

This was an action of foreclosure. There was a surplus of $117,642.46 arising from the sale herein. This surplus was directed by the court to be deposited in certain specified banks or trust companies in the names of Charles E. Hubbell and Alfred 3L Hiscock} as receivers of the property of J. Forman Wilkinson and Alfred Wilkinson, subject to the. order of the court in which this action was brought.

Subsequently, upon notice to the appellants and other parties having judgments or other liens upon the property of J. Forman Wilkinson and Alfred Wilkinson, and upon the petition of Conrad Loos, a claimant of a portion of such surplus moneys, an order was duly granted in this action, whereby it was referred to Nathaniel M. White, Esq., as a referee, to ascertain and report the amount due to the petitioner, or any other person or persons, which was a lien upon such surplus moneys, and as to the priority of such liens.

In pursuance of this order the usual notice of hearing was given to the appellants, and other persons who were parties to the action, or who appeared to have unsatisfied liens upon such surplus. The appellants, and other parties claiming liens thereon, appeared before the referee and gave proof of their respective claims. The referee thereupon made his report, whereby he, in substance, found that J. Forman Wilkinson and-Alfred Wilkinson became the owners of the mortgaged premises November 1, 1873, as tenants in common, each of an undivided one-half; that, May 5,1884, they and their wives gave a deed of these and other premises to John Wilkinson; that, on November 24, 1884, John Wilkinson gave a mortgage thereon to Charles B. Crosby as security for the payment of $125,000 and interest; that, on December 9,1884, J. Forman Wilkinson and Alfred Wilkinson, who were copartners doing business under the firm name of Wilkinson & Co., made a general assignment of both their individual and partnership property to Charles E. Hubbell for the benefit of their creditors, and that he duly accepted the trust; that Alfred Wilkinson and Edward N. Westcott were partners, and on December 11, 1884, they duly assigned all their individual and copartnership property to James S. Crouse, in trust for the benefit of their creditors, and he duly accepted such trust; that afterwards Crouse, as such assignee, gave notice to creditors to present their claims; that such claims were presented and amounted to about $177,000; that, on December 23, 1884, William James recovered a judgment against J. Forman Wilkinson and Alfred Wilkinson for $203.17, which judgment was docketed on that day in Onondaga county, where the said mortgaged premises were situated; that afterwards James commenced and prosecuted to judgment an action whereby the deed, mortgage and assignment made by J. Forman Wilkinson, Alfred Wilkinson and John Wilkinson were set aside as to said judgment on the ground that they were fraudulent and void as to the creditors of J. Forman Wilkinson and Alfred Wilkinson; that on January 3,1885, the Merchants’ National Bank of Syracuse recovered a judgment against J. Forman Wilkinson for $30,807.99, which was a lien on his real estate ; that on February 4, 1885, the said bank recovered another judgment against the same defendant for $10,380.83, which was also a lien on his real estate; that upon an execution duly issued upon the first-mentioned judgment for $30,807.99, the sheriff of the county of Onondaga on August 29, 1887, duly sold to Hon. George N. Kennedy the undivided one-half interest of J. Forman Wilkinson in the premises covered by the mortgage foreclosed by this action, and duly issued certificates of such sale to said Kennedy; that Kennedy, on November 29, 1888, transferred to Conrad Loos, Harlow B. Andrews and Edward P. Bates a one-half interest in such certificates; that on December 19, 1888, the sheriff of Onondaga county duly executed and delivered a sheriff’s deed of said premises to said Kennedy, Loos, Andrews and Bates, who still hold title under the same; that said bank obtained a judgment setting aside the deed, mortgage and assignment made by J. Forman Wilkinson and Alfred Wilkinson and John Wilkinson as fraudulent as to it and its two judgments, and adjudging .that such judgments be a lien on the mortgage premises ; that said Crouse, as assignee of Alfred Wilkinson and Edward N. Westcott and of the firm of Westcott & Co., also obtained a judgment adjudging such deed, mortgage and assignment as fraudulent and void, and setting them aside as to him ; that Alfred Wilkinson died July 7, 1886, leaving a widow fifty-six years of age, who had a dower right in the premises of the value of $9,057.41; that J. Forman Wilkinson died May 4, 1889, leaving a widow fifty-three years of age, who had a right of dower in the premises of the value of $9,604.23; that about September 13, 1886, and subsequent thereto, various-other judgment-creditors of said J. Forman Wilkinson and Alfred Wilkinson, who held judgments against them aggregating the sum of $200,000 or upwards, brought actions to have said deed, mortgage and assignment set aside as fraudulent as to their judgments, and obtained judgments accordingly; and that In such actions Charles E. Hubbell and Albert K. Hiscock were duly appointed as receivers of the personal property and the rents and profits of the real estate of said J. Forman and Alfred Wilkinson, both as copartners and as individuals, and duly qualified, and are now acting as such receivers.

The referee also found the following conclusions of law: 1. That of the $117,642.46 deposited as surplus moneys to the credit of and to be distributed in this action, one-half was the proceeds of an undivided one-half of the premises formerly owned by J. Forman Wilkinson, individually, and as tenant in common with Alfred Wilkinson. 2. That the widow of J. Forman Wilkinson was entitled to receive out of one-half of such surplus moneys the sum of $9,604.23. 3. That William James was entitled to receive out of said one-half of said surplus moneys, $203.17, with interest thereon from December 23, 1884. 4. That said Kennedy, Loos, Bates and Andrews were entitled to the one-half of such surplus moneys derived from the sale of the premises formerly owned by J. Forman Wilkinson, after deducting the widow’s dower and the amount of the J ames judgment and interest. 5. That of said $117,642.46 surplus, one-half was the proceeds of an undivided one-half of the premises formerly owned by Alfred Wilkinson, individually, and as tenant in common with J. Forman Wilkinson. 6. That the widow of Alfred Wilkinson was entitled to receive out of the one-half of such surplus, $9,067.41. 7. That the remainder of this one-half of such surplus, after discharging such right of dower, should be employed to discharge the debts of Alfred Wilkinson and Edward N. Westcott, as copartners, and Alfred Wilkinson individually, as directed by their assignment to Crouse, such debts being set forth in a schedule attached to said report. 8. That if any sum should then remain of such one-half of the surplus moneys, it should be retained by the receivers as personal assets to be applied to the payment of the debts of Wilkinson & Co. and the individual members thereof, according to law. 9. That there was no lien or claim upon said surplus moneys, or any part thereof, prior to the liens and claims hereinbefore provided for.

The appellants excepted to the report of the referee and opposed the confirmation of such report. The referee’s report was, however, confirmed by the Special Term, and the surplus moneys arising in this action were directed to be paid in accordance with such report. From the order overruling the appellant’s exceptions, confirming the referee’s report and directing the distribution of such surplus moneys this appeal was taken.

That this was a proceeding in the foreclosure action for the distribution of the surplus moneys arising upon the sale therein, we have no doubt. The fact that the money was ordered deposited in certain banks or trust companies in the name of the receivers, instead of being paid to the county treasurer of Onondaga county, while awaiting distribution in this action, does not change the character of this proceeding. Number 61 of the General Rules of this court provides that all surplus moneys shall be paid to the treasurer of the county, unless otherwise specially directed. Here there was a special direction that they should be deposited in the manner stated and remain there until the further order of the court. The foreclosure suit could not be said to have terminated until the surplus moneys had been disposed of in that suit. (Mutual Life Ins. Co. v. Bowen, 41 Barb., 618.)

We think the claim that this was a proceeding in the creditors’ actions, in which the receivers were appointed, is without force. We need not, therefore, consider the question as to what rights the appellants would possess in a proceeding in those actions requiring the receivers, as such, to account and distribute the assets remaining in their hands.

The practical and important question in this case is, what rights, if any, had the appellants to the surplus moneys in the hands of the court for distribution ? The surplus moneys arising upon the sale of lands under a final decree in foreclosure belong to the parties who had estates or interests in the lands sold which were cut off by the sale. The real estate having been converted into money, the several parties are entitled to be paid out of the fund the equivalent of their respective interests in the order of their priority as between each other. (Clarkson v. Skidmore, 46 N. Y., 301.)

The appeal book in this case discloses that Simon D. Paddock,, one of the appellants, had a judgment against J. Forman Wilkinson and Alfred Wilkinson for forty dollars and eighty-two cents, which was docketed in the county in which the mortgage premises were-situated, on January 2, 1885, and that he recovered another judgment against the same defendants for $2,057.36, which was docketed January 26, 1885. It also discloses that Thomas B. Sessions, the other appellant, .obtained a judgment against them for $4,316.46,, which was docketed January 31, 1885.

Thus it will be seen that Paddock’s judgment for forty dollars, and eighty-two cents was docketed in the county where the mortgage premises were situated prior to the judgment recovered by the Merchants’ National Bank, under which the interest of J. Forman Wilkinson in the premises was sold and purchased by Judge Kennedy. It further appears from the appeal book that the other judgment obtained by Paddock and the judgment recovered by Sessions-were prior to many, indeed to most, of the judgments upon which creditors’ actions were brought to set aside such deed, mortgage and assignment, and in which receivers were appointed. The appellants brought no action to set aside such deed, mortgage and assignment, nor were they named as plaintiffs in any action brought for that purpose. Their claims were not set forth in any such action, neither have they made any application or taken any steps to become parties-to or to come in under the Loos or any other creditor’s suit or judgment against the Wilkinsons, or contributed or offered to contribute to the expenses thereof.

We think the referee and Special Term properly held that the-widows of J. F. Wilkinson and Alfred Wilkinson were entitled to receive the value of their dower rights in the mortgage premises, notwithstanding the fact that they had joined with their husbands in conveying the equity of redemption in the premises to John Wilkinson. That conveyance was set aside on the ground that it was fraudulent as to the creditors of J. Forman Wilkinson and Alfred Wilkinson. In Hinchliffe v. Shea (103 N. Y., 155) Judge Andrews said : “ It is the generally recognized doctrine that when the husband’s deed is avoided or ceases to operate, as where it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance.” (Robinson v. Bates, 3 Metc., 40; Malloney v. Horan, 49 N. Y., 111; Kitzmiller v. Van Rensselaer, 10 Ohio St., 63; Littlefield v. Crocker, 30 Me., 192.) The widows of the judgment-debtors in this case having duly consented to accept a gross sum in lieu of their dower in the premises, the court properly awarded them the value of their rights, to be paid •out of such surplus moneys.

The court also properly directed that the William James judgment should next be paid out of such surplus, as it was a lien upon the premises prior to the bank judgments. As we have already, seen, the judgment of Paddock for forty dollars and eighty-two cents was prior to the judgment of the bank, upon which the interest of -J. Forman Wilkinson in the premises was sold, and, therefore, if it became a lien thereon, it was prior and superior to the lien of the bank judgments. But the respondents claim that it never became a hen on the premises because of the previous transfer of the premises by the Wilkinsons, although such transfer was fraudulent and void as to their creditors. In other words, their claim is that that transfer was valid until set aside, and not having been set aside as to the appellants’ judgments, they never became a lien on the premises. This contention does not appear to be sustained by the authorities The doctrine of the authorities seems to be to the effect that, as to real estate, judgment-creditors acquire liens thereon in the order in which their judgments are docketed, and that their priority is not affected by suits brought to set aside a fraudulent transfer of such real estate. (White's Bank v. Farthing, 101 N. Y., 346, 347; Underwood v. Sutcliffe, 77 id., 62; N. Y. L. Ins. Co. v. Mayer, 19 Abb. N. C., 92; S. C., 12 N. Y. St. Rep., 119; O'Brien v. Browning, 49 How., 113.)

Moreover, the transfers by the Wilkinsons were shown to have been fraudulent and void as to their creditors by proof introduced by the respondents. In Chautauqua County Bank v. Risley (19 N. Y., 369), it was said: “ The defendant’s title depended, therefore, on the fact that the assignment had been made in fraud of creditors, and having thus' proved the fact in his own favor, he could not allege that it was not true in respect to the plaintiffs.”

The court erred in holding that Kennedy, Loos, Bates and Andrews were entitled to the remainder of the one-half of the surplus moneys arising from the sale of J. Forman Wilkinson’s interest in said premises. The judgment of Paddock for forty dollars and eighty-two cents and interest was a prior lien and should have been ordered paid before any sum should have been directed to be paid to the purchaser at the execution sale or his transferrees.

It is contended by the appellants that the deed given by the sheriff to Kennedy, Loos, Bates and Andrews in pursuance of such sale was void for various reasons specified in their points. The chief reasons assigned are, first, that the property was in the hands of the court in a creditor’s action when the sale was made and deed given, and that the sale was void because made without the consent of the court; and, second, that the transfer by Judge Kennedy to other creditors tended to induce them not to redeem the premises from him, and was, therefore, against public policy, and consequently void. After examining the appellants’ brief and authorities upon the questions of the invalidity of that deed, we have concluded that the claim that it was invalid cannot be sustained. This-court has already held that the sale under the execution issued on the bank judgment was properly made. (Matter of Loos, 50 Hun, 67.) That decision we regard as final upon this question. We have been unable to discover any principle of public policy that has been violated by the transfer or by the agreement between Judge Kennedy and the other creditors of the Wilkinsons to whom such transfer was made. The parties had the right to make and receive that transfer, and the agreement between them was, we think, valid-It, therefore, follows that the grantees in the sheriff’s deed are entitled to the remainder of the surplus moneys in this action arising from the sale of J. Forman Wilkinson’s interest in said premises, after paying the widow’s dower, the James judgment and the Paddock judgment of forty dollars and eighty-two cents, at least so far as the appellants are concerned.

As none of the other parties to this proceeding have appealed, but have consented to the order entered, it follows that that portion of the order appealed from which relates to the surplus moneys arising from the sale of the interest in the premises which fomerly belonged to J. Forman Wilkinson is correct, except that after the payment of the James judgment, Paddock’s judgment of forty dollars and eighty-two cents should be paid, with interest, and the remainder only should be paid to Kennedy, Loos, Bates and Andrews as directed in the order.

This brings us to the consideration of that part of the order which relates to the surplus moneys derived from the sale of the portion of the premises that formerly belonged to Alfred Wilkinson. As we have already held, the court properly directed the payment to the widow of Alfred Wilkinson of a gross sum in lieu and in full satisfaction and discharge of her right of dower in the premises.

We are of the opinion that the remainder of such surplus should be first applied to the payment and discharge in full of the debts of Alfred Wilkinson and Edward N. Westcott, as copartners, and Alfred Wilkinson individually, as directed by their assignment to Crouse, so far as the same may be necessary to the full discharge of such debts, after applying the assets of said firm, if any there be, to that purpose. The residue, if any shall remain after satisfying the widow’s right of dower, and discharging the debts of said firm and Alfred Wilkinson, should be retained by the receivers and applied in payment and discharge of the debts of Wilkinson & Co.

The appellants’ contention, that the creditors who have brought suits in equity, in which receivers were appointed, have waived their legal liens on said premises, and the surplus moneys arising from the sale herein, cannot, we think, be sustained. It will be obeserved that no attempt was made in those suits to appoint a receiver of the real estate of the judgment-debtors. The persons appointed were made receivers of the personal property, and the rents and profits of the real estate only. There was neither judgment nor order directing the judgment-debtors to transfer the title to the real estate to the receivers, and no such transfer was ever made. The receivers never acquired any title to the real estate. The title to the real estate remained in the judgment-debtors so far as their creditors were concerned. We are of the opinion that the creditors of the Wilkinsons could pursue their remedy to set aside the fraudulent conveyances made by the judgment-debtors and have a receiver appointed of their personal estate without waiving their legal lien on the premises. (Chautauqua County Bank v. Risley, 19 N. Y., 369; Walker v. White, 36 Barb., 593; Erickson v. Quinn, 15 Abb. [N. S.], 166.)

It is quite manifest that the referee made a mistake in describing tlie premises in his report, and that in that respect his report was incorrect; but that the premises sold on foreclosure were a part of the premises sold on the bank execution is not denied.

These considerations lead us to the conclusion that the order appealed from should be modified so as to conform to the views expressed in this opinion, and, as modified, should be affirmed, with costs to the appellant Paddock, payable out of the surplus moneys in this action. If the parties do not agree upon the form of the order, it may be settled before Martin, J., on five days’ notice.

Hardin, P. J., and Merwin, J., concurred.

Order modified so as to conform to the opinion herein, and as modified affirmed, with ten dollars costs and disbursements to Simon D. Paddock, to be paid out of the surplus moneys. If not agreed upon, order to be settled by Martin, J., on five days’ notice.


text:
    EDWARD J. DAVIS, Respondent, v. WARREN G. WILLIS, Appellant.

      Oral agreement rescinding, after default, a contract under seal to convey land.

    The owner of certain premisas having, by contract under seal, agreed to sell them, gave possession thereof to the contract purchaser, who, while in possession of the premises, assigned the contract to a third party. Previous, however, to such assignment, being in default on his contract, he had agreed with his vendor to regard the contract as rescinded and void.
    In an action, brought by the party to whom the contract was assigned, to recover the damages resulting from the alleged conversion by the vendor of the land of certain hay which had grown thereon during the time of the existence of the contract:

      EM, that if the minds of the vendor and purchaser met upon a parol agreement to abandon and declare the contract void, such an agreement was valid and operated at that time to rescind the contract.
    That, upon the trial of the action between the vendor of the land and the assignee of the contract in regard to the ownership of the hay, the court erroneously charged the jury that “if this was only an agreement to rescind this contract, and not consummated or carried out by their actually entering upon the new agreement, which it is claimed was made there, then it was an executory agreement and was void and the plaintiff could recover.”

      Appeal by tlie defendant Warren G. Willis from a judgment of the County Court of Delaware county, entered in the office of the •clerk of the county of Delaware on the 10th day of April, 1888, and from the subsequent order of the court denying a motion for a new trial on the minutes.
    The appeal was taken upon questions of law and of fact pertaining both-to said judgment and to said order, with notice of an intention to bring up for review, upon such appeal, both said judgment and .said order. The action was tried in the Delaware County Court before the court and a jury.

      Warren G. Willis, appellant and attorney in person.

      James P. Baumes, for the respondent.
   Martin, J.:

This was an action to recover damages for the conversion of a •quantity of hay to which the plaintiff claimed ownership. Whether the title to this hay was in the plaintiff, or whether it was in the ■defendant at the commencement of the action, was the question •chiefly litigated. The legal title to the premises upon which it was cut was in the defendant. He had, however, by contract under seal, ¡agreed to sell them to one Vanderhule and given him the right of possession. The hay grew on the premises while Vanderhule was in possession under that contract. The plaintiff claimed title under •and by virtue of an assignment of the contract to him by Vander'.hule. The defendant claimed title under a contract alleged and proved to have been made between the defendant and Vanderhule previous to Vanderhule’s assignment to the plaintiff, whereby Vanderhule agreed to regard the contract as rescinded and void and to .surrender up the premises to the defendant and to cut the hay and feed it to the cows on the premises for the defendant. Hpon the •question of title the jury found for the plaintiff.

As the appeal book in this case fails to show that it contains all the evidence, the questions of fact will not be reviewed by this court •even if they were otherwise reviewable here. (Averill v. Hurd, 15 Civil Pro. R., 162; Mullinhoff v. Scherer, Id., 160; Wellington v. Continental C. and I. Co., 52 Hun, 408; Porter v. Smith, 107 N. Y., 531.)

The only questions we are required to consider on this appeal arise upon the exceptions of the appellant taken on the trial. On the trial the defendant requested the court to charge “ that if the minds of Willis and Yanderhule met in July, 1887, upon the parol agreement to abandon and declare the contract void, such an agreement was valid and operated as to that time to rescind the contract; ” also, “ if there was a parol agreement to rescind and abandon the written contract, then nothing that the parties afterwards did, as shown by the evidence, would have the effect to recover the same.” The court declined so to charge. The court charged as follows: Now, gentlemen, if this was only an agreement to rescind this contract, and not consummated or carried out by their actually entering upon the new agreement, which it is claimed was made there, then it was an executory agreement and was void, and the plaintiff could recover.” This portion of the charge and the-refusals to charge as requested were excepted to by the defendant.

We think these exceptions were well taken. As we have already seen, the defendant’s title depended upon an agreement made between himself and Yanderhule, who was in default in not having-performed the contract upon his part. The evidence discloses that. Yanderhule, while thus in default, came to the defendant and stated to him that he could not keep the farm, that he could not pay for it; that it was then and there agreed between the parties that the-contract should be declared forfeited, canceled and void, and that-the farm should be the defendant’s; that Yanderhule should cut. hay on the premises and feed to the cows until March, and pay the interest on the purchase-money until that time. The evidence-tended to show that this new agreement was based on a good consideration and accepted by the parties in satisfaction of their obligations under the former contract; that that contract was rescinded by mutual consent of both parties; that it was agreed that the-defendant should be restored to the legal rights which he possessed before the contract was made, and that it was also agreed that the grass should be cut by Yanderhule for the defendant and fed to the cattle on the premises.

If this contract was rescinded by the mutual and voluntary consent of both parties, and without fault on the part of the defendant,, he must be deemed to be thereby restored to the same condition, as-to the title of the premises and grass thereon, in which he would, have stood if no contract had been made. (Battle v. Rochester City Bank, 3 N. Y., 88, 91; Graves v. White, 87 id., 463.) The new agreement, even if not performed, having been founded on a good consideration, was a satisfaction if accepted as such. (McCreery v. Day, 28 N. Y. St. Rep., 601; Kromer v. Heim, 75 N. Y., 574.)

We think the effect of the agreement, as testified to by the-defendant and his witnesses, was to rescind the contract, thereby discharging any equitable right which Yanderhulehad in the premises, and constituting him the defendant’s debtor for the interest on the purchase-price until the following March, and making him the-plaintiff’s servant in cutting and feeding out the hay cut on the premises. If such was the agreement, the defendant became the owner of the hay in question, and was entitled to the instructions asked for. It was, we think, error to decline to charge as requested, and to charge that such an agreement was void if not consummated or carried out- by actually entering upon it.

The court also erred in admitting in evidence the written statement signed by Yanderhule, to the effect that an order given to the defendant by him was to apply on the contract between them, dated February 22, 1886. It was but the unverified declaration of Yanderhule, and was not evidence against the defendant. The exception to the reception of that evidence was valid.

There are several other rulings which, it is claimed, were erroneous, but, as the judgment must be reversed for the errors already pointed out, it is unnecessary to examine the' other exceptions in the case.

The judgment must be reversed and a new trial ordered, with, costs to abide the event.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Merwin, J.:

text:
    THE UNITED STATES LIFE INSURANCE COMPANY, in the City of New York, Respondent, v. THE OSWEGO CANAL COMPANY, Appellant.

      Equitable construction of an agreement as to the reconstruction of a building undm' which a canal extends — right to home the water turned out of the canal — damages arising therefrom, by whom, to be paid.

    The owner of property abutting upon both sides of the canal of the Oswego Canal Company brought an action to compel the company to turn the water out of its canal for a sufficient length of time to enable the plaintiff to repair the wall of his building under which the canal extended. This wall, which ran through the center of the canal, had become dilapidated.
    In support of this action the plaintiff produced an agreement which provided, among other things, in substance, that the company should have the canal free from obstruction; that the stone piers or center walls of the plaintiff’s building might remain for a year and that then iron columns should be substituted therefor, and that these columns, together with the iron columns already there, might remain as long as that building stood, but when another building was erected all the iron columns should come out and the building should be supported by side walls and trusses extending from one wall to the other, thus leaving the entire passage-way substantially unobstructed. Nothing was said in the agreement about the manner in which the work should be done, nor was there any agreement on the part of the defendant to turn off the water.
    ‘The central walls and piers were not removed within a year, but were allowed to remain, in violation of the agreement, until by the action of the water they became insecure.

      Held, that, as a matter of equitable relief, the plaintiff was entitled to have the water temporarily removed for the purposes authorized in this agreement.
    ‘That the plaintiff was not entitled to maintain the present central wall or piers, but was bound to substitute therefor a row of iron columns, and in case another building was erected to support it by trusses in the manner specified in the agreement.
    It appeared that the defendant had refused, in the December previous to the bringing of this action, to accede to the plaintiff’s demand that it should then be allowed to do this work, and that, owing to the unsafe condition of the building, the plaintiff had not thereafter been able to rent it.

      Held, that the loss attendant upon the cutting off of this water should not be charged to the plaintiff, nor should plaintiff’s loss of rents be charged to the defendant; that damages'should not be allowed to either party.
    Appeal by tbe defendant from a judgment of the Supreme Court, ■entered in tlie office of the cleric of the county of Oswego on the 26th day of February, 1890, after a trial before a referee, upon ■whose report judgment was entered as follows:

      I. That the plaintiff is owner in fee simple of “ All that certain tract or parcel of land situated in the fourth ward of the city of Oswego, in the county of Oswego, State of New York, known and distinguished as a part of lot No. 19 m block No. 99, bounded and described-as follows : Being all that part or portion of said lot lying-west of the store (now or late) of Cheney Ames on the east bank of the canal and east of the stone foundation on the west bank of the canal; commencing on the stone wall at the north-west corner of' Ames’ store on the east bank of the canal, thence west on the north line of said lot 71 feet to a line drawn through said lot at the distance-of 10 feet east of the outer edge of the easterly wall of the stone foundation erected on said lot west of the canal, thence south in a parallel line to and with the stone wall on the east bank of the canal 66 feet to-the south line, thence east on the south line and parallel to and with the north line 71 feet, thence north on the center of the stone wall 66 feet to the place of beginning be the same more or less.” Subject to the right of the defendant to maintain its canal across the same; and as such owner of the said premises the plaintiff is entitled to the full and free use and enjoyment of the same in any way which will not materially abridge or lessen the right of the defendant to-the maintenance and enjoyment of its said canal across the same.
    II. That the defendant is the owner of an easement across plaintiff’s-said premises for the passage of water for the purposes of its hydraulic-canal.
    III. That the plaintiff is entitled to have and maintain its building on said premises, now known as the Hungerford Block, or to-erect a new building in place thereof.
    IY. That the plaintiff is entitled to maintain and repair the side foundation wall and the present central supports of the building, or to substitute for the latter a single' row of iron columns in the center of said canal, and that said present central supports do not materially abridge or lessen defendant’s enjoyment of its said easement. And that such single row of iron columns in the center of said canal will not interfere with defendant’s enjoyment of its easement.
    Y. And, it appearing from such report that the said side foundation walls and central supports to the plaintiff’s said buildings are partially undermined and destroyed by the action of the water passing through defendant’s said canal, and that the plaintiff desires to .repair said side foundation walls, and to replace said central supports by a single row of iron pillars in the center of, and resting in the bed •of, said canal.
    It is further ordered and adjudged that the defendant, “ The Oswego Canal Company,” and its officers, agents, attorneys and -servants, and each of them, be and they are hereby enjoined and Restrained from causing, allowing or continuing the flow of the water through its said artificial hydraulic canal in the city of Oswego, ■across the premises of the plaintiff, hereinbefore mentioned, for the period of fifteen days; the commencement of such period to be fixed by written notice from the plaintiff to the defendant of ten days, ■which notice shall designate the time when the water shall be withdrawn.
    It is further ordered and adjudged that, in case it shall be found . •.that the plaintiff is unable, with due diligence, to accomplish the .work of repairing or replacing the side foundation walls and central .supports of its building aforesaid within the aforesaid period of fifteen days, that it shall be at liberty to apply to this court upon three days’ personal notice to the defendant, in writing, to enlarge •.the time for making such repairs as may be reasonable.
    YI. It is further adjudged that the plaintiff recover of the def end-.ant for its damage by reason of the wrongful neglect and refusal •.of the defendant to withdraw the water from its artificial hydraulic canal across the plaintiff’s premises the sum of eighteen hundred and ■eighty dollars ($1,880), being the amount determined by said report .as the loss of rents of said building, known as the “ Hungerford Block,” from December 21, 1888, to the date of said report, and also costs adjudged at the sum of three hundred and seventy-nine •dollars and forty-five cents ($379.45), and two hundred and ninety-five dollars ($295) additional allowance, amounting in all to the sum of six hundred and seventy-four dollars and forty-five cents ($674.45).

      Rhodes, Goon & Higgins, for the appellant.'

      O. R. Buel, for the respondent.
   Merwin, J.:

The plaintiff claims to be the owner of a lot on the south side of Bridge street in East Oswego, upon which is a building called the Hungerforcl Block. Under this building and across tbe lot tbe canal of defendant passes. One of tbe supports of plaintiffs building is a wall along tbe center of tbe canal. Tbis wall is becoming dilapidated so as to render tbe building insecure, and tbis action is brought to compel tbe defendant to turn tbe water out of its canal a sufficient length of time to enable tbe plaintiff to repair tbe wall and to recover damages through loss of rent occasioned, as it is claimed, by the refusal of tbe defendant on the 21st of December, 1888, to accede to tbe demand of plaintiff that tbe water be turned off

Tbe defendant is a corporation created by chapter 241 of tbe Laws of 1823, passed April 23, 1823. By section 5 of that act it was provided that tbe directors of tbe company “ shall have power to explore and designate tbe route of a canal or mill feeder, and a proportion of tbe waters of tbe Oswego river may be taken and conducted out of said river at or above the Oswego Rapid, so-called, at such point or place and in such manner as may be deemed proper, so that tbe water can thereby be carried down upon tbe east side and bank of said river to such point or piace as may be required by those interested therein,” tbe route designated and tbe manner of making tbe canal to be determined upon by an engineer who shall be appointed by and be under tbe direction of tbe canal commissioners. By section 6 tbe corporation bad power “ to enter upon and take possession of such improved or unimproved lands, not exceeding four rods in width, as shall be necessary for tbe making of tbe canal or mill feeder aforesaid and the works thereunto appertaining,” and provision was made for payment of damages to the owners of any property that was so taken. Upon tbe completion of tbe canal tbe company was authorized to sell, let or grant and convey, for a limited time, tbe use of tbe water which shall be conveyed in said canal for mills or other hydraulic purposes, to any person or persons owning and occupying lands adjoining thereto, at such price or prices as may be agreed upon by tbe parties interested.” By section 10 it was provided that, if any time thereafter it became necessary to adopt tbe said canal as a part of tbe contemplated improvement between Lake Ontario and tbe Erie canal, “ tbe canal commissioners shall at all times have full power, in behalf of tbe State, to enter upon and make all necessary alterations that by them shall be deemed advisable, to take and make use of tbe waters therefrom, for tbe use and purposes of filling and supplying all locks-that may be constructed to connect tbe said canal with Lake Ontario; and the said canal shall thereafter become the property of this State without any payment or compensation whatever to said company • provided, however, that the right to all the surplus waters of said canal shall be vested in the company hereby incorporated and all persons legally claiming under them, and that they shall be permitted to take, make use of and enjoy the surplus waters of said canal not necessary for filling or supplying the locks that may be erected by the said canal commissioners.”

The defendant, under this act, commenced, in 1824, the construction of its canal along the easterly bank of Oswego river, but before its completion across the plaintiff’s lot, and in the same year, the State adopted and took possession of it as a part of the canal system of the State, and thereupon it became the property of the State, except the rights to surplus water as reserved in the act. The State made some alterations, and continued to use it as a canal for the passage of boats from its completion, in or a,bout the year 1825, until the completion by the State of a new and enlarged canal, in or about the year 1853, when its use as a canal was discontinued. In the meantime the defendant had made use of the surplus water, giving leases to various parties, and resumed the full control of the canal when it was abandoned by the State.

On the 25th of February, 1823, the surveyor-general of the State gave a certificate of sale to Theophilus S. Morgan of lot 19, in the village of East Oswego, block 99. The lot of plaintiff is part of lot 19. On the 22d of December, 1828, letters-patent were issued to Morgan of lot 19, which were recorded March 26,1834. Lucius B. Crocker became the owner prior to May 1, 1849, and he, at that date, conveyed to Jesse Bennett, and Bennett, on the 4th of December, 1852, conveyed to Hiram Allen. Each of their deeds contained the clause, “ subject to the rights of the Oswego Canal Company and the rights of the State.”

In 1854 Allen erected the building in question. The canal runs in a northerly direction through and across the lot and under the building, and extends nearly the entire width of the lot, the east foundation wall of the building being on the east line of the canal and. the west foundation wall of the building being at the south end, substantially identical with the west wall of the canal and at the northerly end some feet west of the west wall of the canal. The building is supported partly by the side foundation walls and partly by a stone wall placed nearly in the .center of said canal and partly by two rows of iron posts, four on each side, resting on stone piers in the canal between the side and central walls. Soon after it was built portions of the central wall were cut out, and four piers formed for the support of the center of the building.

In 1871 William W. Pulver, through whom plaintiff derives his .title, made an agreement with the defendant in regard to the matters here in controversy. This agreement was under seal and was duly acknowledged and recorded, and both parties now claim advantages under it. Prior to the execution of this agreement Pulver had become the owner, of the title of Allen. On the 28th of February, 1871, the canal board, by resolution, passed pursuant to chapter 267 of the Laws of 1857, determined and declared the canal lands in question abandoned, and afterwards, in the same year, and before the agreement above referred to, all the interest of the State in plaintiffs lot was quit-claimed to Pulver’s grantor, so far as it could be done consistent with the act of 1857, which provided that, when any of such abandoned canal lands were then used for a hydraulic canal, the conveyance should not prevent the future use of the land for the same purpose, but should expressly reserve the right to continue such hydraulic canal.

This agreement bears date July 31, 1871, and after describing the defendant as party of the first part and Pulver as party of the second part, proceeded as follows:

Whereas the party of the first part have and own a hydraulic canal on the easterly side of the Oswego river, which crosses lot number nineteen in block ninety-nine in the fourth ward of said city: and whereas the party of the second part is the owner of a building known as Hungerford Block, which is erected over the said canal where it crosses said lot, which building is supported by stone walls on the easterly and westerly sides of said canal, and by stone piers or central walls and iron columns placed in said canal; and whereas the parties hereto desire that their respective rights be clearly and specifically defined, to the end that all contention and ■controversy may be avoided.; therefore, it is hereby mutually agreed by and between the parties hereto, their successors, heirs and assigns, that the said party of the second part is or claims to be the owner ■of the fee simple of that portion of said lot crossed by said building, and that the party of the first part has a right of easement across said lot for the purposes and uses specified in its charter, and to have and maintain its canal free from obstruction, and has the right to enter into and upon the same for the purpose of improving or repairing said canal, so as to render it most available for hydraulic purposes during its legal existence, and that the party of the second part has the right to keep and maintain the building aforesaid over the said canal, and to erect another building in its stead in case of the destruction or removal of the one now standing; and the said company consents, so far as its own rights are concerned, that the said iron columns, and any others that may be substituted to replace the piers and central walls aforesaid, may remain as supports to said building so long as it stands, and that the said piers and central walls may remain until they are replaced by iron columns, not to exceed one year from the second day of October, one thousand eight hundred and seventy-one; and that whenever another building is erected in its place and stead it shall be supj)orted by a stone wall on the easterly and westerly sides of said canal and the present iron columns, and the ii'on columns replacing the central stone wall in said canal shall be removed and the building shall be supported by iron or other trusses extending from the said walls over the canal, so as to sustain and support said building ; and that the said iron trusses shall be so erected, placed and situated as to cause no material obstructions to the flow or passage of water through said canal. And the party of the second part, for himself, his heirs and assigns, covenants and agrees that they will remove all rubbish, debris and obstructions from said canal caused by the falling or burning of said building over said canal, or by any materials falling or thrown from said building without any unnecessary delay; to pay to said party of the first part the expenses of such removal if done by said company; and that they will suffer no unnecessary obstructions to be occasioned by said building except said columns, central walls and piers to remain in said canal as aforesaid.” •

After the execution "of the agreement, the matter, as between the parties, seems to have rested until 1888. The plaintiff became owner August 31, 1878, and its title from Pulver, through intermediate deeds, is, in terms, made subject to the rights of the Oswego Canal Company. On the 21st of December, 1888, the plaintiff served on the defendant a written notice stating that the building was in a dangerous condition, “ owing to the weakening and partial removal of the supports of said building - due to the action of the water of your canal,” and that it desired “to make the necessary repairs to the supports of said buildings,” and requesting that the water be emptied from the canal so that such repairs might be made, notifying the company that if it was not done the plaintiff would hold it responsible for all damages caused to the plaintiff either by reason of its inability to rent the premises on account of the unsafe condition, or by reason of the falling of the building. To this request the defendant did not yield, but, in its reply on December 21, 1888, claimed that the plaintiff’s building was wrongfully located over the defendant’s canal, and that in case it fell into the canal the plaintiff would be held responsible for all damages. Thereupon this action was commenced on July 27, 1889.

It was held in the court below that the plaintiff was entitled to maintain its building, “ and to support the same by the present side foundation walls and central supports, or to substitute for the latter a single row of iron columns in the center of the said canal; ” that it has the right “ to repair the same, or to substitute for said central supports a row of iron columns in the center of the said canal, and for the purpose of doing such work the plaintiff has the right, and is entitled to have the flow of water in the said canal across from the said plaintiff’s premises under said building stopped by the said defendant and the water removed from the said canal for the period of fifteen days, which time should commence upon ten days previous notice in writing from the plaintiff to the defendant; ” that the defendant, by reason of its refusal to remove the water, was liable to the plaintiff for the damages sustained by it for loss of rents from December 21, 1888, ,to the date of the report (December 28, 1889), being the sum of $1,880.

The first question to be determined arises over the claim of defendant that its lessees of water are necessary parties to the action. They are affected by the stoppage of the water, and, therefore, it is urged, they should be heard before the right of plaintiff to have the water turned off is determined. There are a large number of leases- and they give the right and privilege of taking and drawing from the canal a certain defined quantity of water for. a long term of years at a fixed yearly rent, the water to be drawn in flumes or spouts placed and constructed by the lessees in the manner directed by the company. It is also provided that the company “'shall have-the right at all times, and from time to time, to stop the water above demised or draw off the water from said canal for a sufficient length of time to make any necessary repairs or alterations in the canal.”'

We are of the opinion that the lessees were not necessary parties. The defendant, in a certain sense, represents them, and it has the title and control of the canal, as a whole, and any controversy as to-such control is properly with the defendant alone.

Is the plaintiff entitled to have the water turned out of the canal to enable it to make the repairs it claims the right to make ?

In order to determine this question the agreement of 1811 is to-be carefully considered. .Pulver then was the owner of the fee, but subject to the rights of the defendant. The claim had apparently been made by the defendant or its lessees that the building or its supports was improperly obstructing the flow of the water. In view of this the agreement was made. It provided, among other things,, that the canal company had the right “ to have and maintain its-canal free from obstruction.” It also provided that Pulver had the-right to keep and maintain his building over the canal and to erect; another in its stead in case of the destruction or removal of the one-then standing, and that the iron columns, which were then thereupon either side of the central piers or walls, and any others that, might be substituted to replace such central piers and walls, might, remain as long as that building then there should stand, and that-such piers and central walls might remain until replaced by iron columns not to exceed one year from October 2, 18Y1. Whenever another building should be erected it shordd be supported by a stonewall on the easterly and westerly sides of the canal with iron or other trusses extending from such walls over the canal, the trusses to be so situated as to cause no material obstruction to the flow of water, and Pulver agreed for himself and assigns “ that they will suffer no unnecessary obstruction to be occasioned by said building except said columns, central walls and piers to remain in said canal as aforesaid.” In other words, the company should have' the canal free from obstruction, but the stone piers or central walls might remain for a year, then iron columns should be substituted,, and these columns, together with the iron columns already there, might remain as long as that building stood, but when another building was erected all the iron columns should come out and the building be ■supported by side walls and trusses extending from one to the other, thus leaving the entire passage-way substantially unobstructed. Yery evidently the central piers or walls Were deemed to be an obstruction, and it became the duty of Pulver, in order to carry out the meaning and object of the agreement, to remove them within the year, having the right to substitute therefor iron columns. The obstruction would be materially reduced, and-when a new building was erected the obstruction should be entirely removed in the use ■of side walls with trusses.

The central walls and piers were not removed within the year. They have been allowed to remain, in violation of the agreement, until by the action of the water they have become insecure. This was a result that might have been reasonably expected. It also appears that, in the summer- of 1888, the State of New York repaired and reconstructed the bulk-head gates leading the water into defendant’s canal, and in order to do so cut the water off entirely from defendant’s canal so that it was empty and dry for some four weeks in the summer, during which the plaintiff might have repaired the foundations of its block. No steps, however, were taken in that direction. Does the delay of the plaintiff and its predecessors, from 1871, or the failure of plaintiff to embrace the opportunity furnished in the summer of 1888, affect the right of plaintiff, if ever it had the right, to demand of defendant the removal of the water from the canal for a sufficient length of time to enable the plaintiff to make the proper change in the central supports.

In the agreement nothing is said about the manner in which the work shall be done. There is no agreement by the defendant to turn off the water. It is a matter to be determined upon equitable principles. The plaintiff has not a legal right to have it done. If there was no other way to accomplish the result, it would be inferred that this -was in contemplation when the result was required. The delay might induce the court to impose conditions, and in a proper case might require the payment of damages to parties that might be injured by the temporary loss of water. In the present case there is evidence showing it to be possible, by means of coffer dams, to perform the necessary repairs. Still the referee has found that the removal of the water from the canal is necessary, and that fifteen^days is a reasonable time in which to do such work.

We are not disposed to interfere with this finding. It is quite clear that better work can be done in this way, and that it is better for all parties. Nor should the delay or the failure of plaintiff to do the work when the canal was empty in the summer of 1888 preclude the plaintiff from having the benefit of this assistance on the part of defendant. The delay was to a certain extent acquiesced in by defendant. We, therefore, conclude that, as matter of equitable relief, the plaintiff was entitled to have the water temporarily-removed for the purposes authorized in the agreement of 1871. Does it follow that plaintiff is also entitled to recover the damages awarded for the loss of rents ?

Concededly the plaintiff is bound by the Pulver agreement. If Pulver had performed that agreement, and removed the central wall and piers within the time specified, and substituted iron columns, there would have been no loss of rents for the cause here complained of. Had the plaintiff examined the wall in the summer of 1888, and ascertained its condition, as it perhaps should be presumed to have done, and repaired it while the water was out as the referee finds it might have done, there would have been no loss of rents. The plaintiff now seeks to charge the defendant with this loss because it did not accede to its demand in December following, while, in fact, if it had performed its own duty there would have been no occasion for the demand. If plaintiff’s loss is attributable to its own neglect, it should not recover it of defendant. In its notice, the plaintiff did not refer to the Pulver agreement or offer to perform its obligations, it claimed the right generally to repair the supports of its building, thereby inferentially claiming the right to continue its central walls, and the same claim is made in. the complaint and appears in the judgment. If in its notice it claimed more than it had a right to, the defendant was not bound to accede to it. On the part of tbe defendant it may be said, with some considerable force, that the plaintiff, by reason of its delay and neglect,, should compensate the defendant for any loss that may be sustained by turning off the water.

Having in view the situation of both parties, the more equitable course is to allow damages to neither party. It follows that the judgment herein should be modified by providing that the plaintiff' is not entitled to maintain the present central wall or piers, but is bound to substitute therefor a row of iron columns, and that, in case another building is erected, it shall be supported in the manner specified in the Pulver agreement.

The judgment should also be modified by striking therefrom the award of damages.

As modified, the judgment should be affirmed, without costs.

Hardin, P. J., and Martin, J., concurred.

Judgment modified as stated in the opinion, and as modified affirmed, without costs to either party; judgment to be settled upon five days’ notice before Merwin, J.


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    MICHAEL WOODS, Appellant, v. BRIDGET KERNAN, Respondent.

      Damages — recoverable by a t,enamt removed by mrtvs of a judgment in summa/ry proceedings, which, is subsequently reversed on appeal.

    One Woods, a defendant in summary proceedings, in which a precept was obtained and served, a judgment entered by default and a warrant of dispossession issued against him as tenant, was dispossessed of certain premises rented by him. Upon, an appeal the final order awarding such premises to the landlord was reversed, and a new trial was granted which resulted in a dismissal of the landlord’s petition.
    In an action brought against the landlord and owner of the premises to recover the damages sustained by such removal, it was held by the trial court that the plaintiff, by reason of his default, was estopped from claiming any damages; occasioned by the removal, and that the recovery must be limited to the actual injuries, resulting from the acts of the defendant, to the personal property of the plaintiff, and that the plaintiff could not recover for the loss of the possession of the property, nor for any fruit growing on the premises, or for any of the garden crops.

      Meld, that this was error; that the right of the plaintiff to recover was not limited to the injuries done to his goods in their removal, but that he was also entitled to recover for the use of the premises from the time he was dispossessed to the time that restitution was ordered, and as constituting elements of loss to the value of the crops and fruit upon the land which had been gathered during the time intervening between his removal and his restitution.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of Onondaga county on the 25th day of July, 1889, upon the verdict of a jury, rendered at the Onondaga Circuit, May, 1889, in favor of the plaintiff for fifteen dollars, and from an order denying a motion made by the plaintiff upon the minutes of the court, before which the action was tried, for a new trial. The verdict being less than fifty dollars the defendant recovered costs.

      W. Gilbert, for the appellant.

      Goodelle & Notti/ngham,, for the respondent.
   Merwin, J.:

This action was brought by the plaintiff to recover damages for being unlawfully dispossessed of certain premises in the city of Syracuse, rented by plaintiff from defendant.

On the 2d of August, 1888, this defendant, claiming that the tenancy expired on the 1st of August, 1888, instituted summary proceedings for the removal of the plaintiff. A precept was obtained from a justice of the peace, returnable at 4 p. m. of the same day. This was duly served at 1.30 p. m.

The present plaintiff, being the defendant in that proceeding, did not appear, and judgment by default was rendered against him, and a warrant issued to dispossess him. Under this warrant the defendant therein was dispossessed on the seventh of August.

He appealed to the County Court, his appeal being based, first, upon errors of law; and, secondly, upon affidavits presented for excusing his default and showing a defense, and asking for a new trial before the same or another justice. The matter was duly heard in the County Court, and it was there decided that no error of law existed for the reversal of the judgment, but that the default might be opened upon the payment of ten dollars costs. Accordingly, on the 15th of January, 1889, judgment was entered providing that upon payment of said costs, “ then the final order awarding possession of said premises to the plaintiff be and tbe same is hereby, in all things, reversed and a new trial directed before S. E. Belknap, a justice of tbe peace, in Syracuse, at bis office on the 22d of January, 1889, at two o’clock in tbe afternoon, and restitution of tbe premises described in tbe petition is hereby ordered and awarded to appellant.” Tbe costs were paid and tbe case came to trial as directed, and on tbe twenty-eighth of January judgment was given in favor of tbe defendant therein dismissing tbe petition, with costs, thus determ-. ining that, at tbe time of tbe commencement of tbe proceedings, on tbe 2d of August, 1888, tbe landlord was not entitled to possession. The claim of tbe tenant was, that bis tenancy did not expire until May 1, 1889. The tenant did not re-enter, but commenced this action on March 1, 1889.

In tbe trial under review it was shown, on tbe part of the plaintiff, that bis household goods were considerably damaged at tbe time of their removal • by tbe officer with tbe aid of tbe defendant or her agent. It was also shown that there was then in tbe garden on tbe premises, a crop of potatoes and of corn of some value, and also pear trees, upon which there was fruit in considerable quantity, and evidence was given as to their value. At tbe close of tbe plaintiff’s •case it was held by tbe court that tbe recovery must be limited to tbe actual injury by the acts of tbe defendant to the personal property of tbe plaintiff, and that plaintiff could not recover damages •occasioned by the removal, nor for tbe loss of the possession of the property, nor for any fruit growing on tbe premises, or any of tbe garden crops. Tbe plaintiff duly excepted. It was assumed that before tbe order was made for restitution, tbe crops and tbe fruit bad been used or disposed of by the defendant. Tbe theory ■of the court seems to have been that tbe plaintiff, by reason of bis default, was estopped from claiming any damages occasioned by tbe removal. Assume that this may be so, so far as any inconvenience may have arisen by tbe act of removal, or any expense may have been incurred in tbe removal of bis goods after tbe dispossession, or in obtaining another dwelling, I fail to see bow it should apply to .any loss tbe plaintiff may have sustained in being deprived unlawfully of the use of tbe property, and in being prevented from gathering crops that be was entitled to have. If tbe use of tbe premises, including the crops and fruit that he might have gathered from the time he was put out to the time restitution was ordered, was of material value over and above the rent he would have been obliged to pay, I see no good reason why the defendant should have the benefit of it. No point was made as to the rule of damages in such a case. The ruling denied any right of recovery at all on that basis. It was not claimed that the plaintiff was in default in the payment of rent. But it is suggested that there was no reversal within the meaning of section 2263 of the Code of Civil Procedure, which provides for the recovery of damages by the person dispossessed. There was in form a reversal, the adjudication was wiped out, and it was afterwards, in fact, finally determined that the landlord was wrong. In Hayden v. Florence Sewing Machine Company (51 N. Y., 221) it was held that the ground of reversal in such a proceeding was immaterial. Nor did the failure of the plaintiff to re-enter deprive him of his right to recover for any loss that he had suffered up to the time that restitution was ordered.

I think the court erred in restricting the right of recovery to the injuries to the goods in the removal. The plaintiff was also entitled to recover for his loss in the use of the premises from the time he was dispossessed to the time restitution was ordered, and as elements in the loss, the value of the crops and fruit should have been considered. By reason of the error above stated, there should be a new trial.

Hardin, P. J., and Martin, J.,. concurred.

Judgment and order reversed on the exceptions and new trial ordered, costs to abide the event.