author: Per Curiam:

text:
    EDWIN BEARDSLEY and Another, Respondents, v. THE LEHIGH VALLEY RAILWAY COMPANY, Appellant.

      Railroads — when compelled to consto'uet a fw'm crossing below grade — an award based upon a grade crossing — improper evidence — when not p'ejudicial.

    A railroad corporation, by condemnation proceedings,'acquired title for railroad purposes to a strip of land running in an easterly and westerly direction through a farm belonging to Edwin Beardsley and another. The strip divided the farm into nearly equal parts, the barn, farm buildings and a spring being upon the north part and the soutlihalf being used for the pasture of cattle, which, by reason of there being no water there in the fall of the year, were obliged to go to the' spring on the north side for it. Proceeding from the east the railroad, as proposed, ran for 1,800 feet in a cut; at a point a few hundred feet from the west line of the farm there was a natural depression which had been used by Beardsley as a convenient means of access between the north and south parts of the farm, and which the railroad contemplated closing and crossing by a solid embankment twelve feet high.
    The railroad proposed to furnish farm crossings at grade, but either of those offered by the company would involve the ascent of a considerable grade, and there was. doubt whether they could be used without great inconvenience to Beardsley, who requested an under-grade crossing through the depression, which was refused.
    The company having commenced to fill the depression, Beardsley brought this-action to restrain the continuance of the work, upon the trial of which an engineer testified for the defense that an under-grade crossing would involve an additional expense of $2,600.

      Held, that, although it is the right of a railroad corporation in the first instance to-locate farm crossings, the present was a case where the under-grade crossing should be built.
    That Beardsley should not be compelled to use a grade crossing involving a steep-ascent, especially as the under-grade crossing would benefit the railroad company by obviating possible collisions with cattle and teams.
    That the evidence not showing it conclusively, the court would not assume that the award made in the condemnation proceedings was intended to cover the-subsequent inconvenience likely to result from the closing of the natural depression.
    Certain witnesses for the plaintiff were improperly allowed to give testimony as-to value, in regard to which the court made no finding, and was not requested to find.

      Held, that the defendant was not prejudiced by the allowance of such testimony.
    Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Ontario on the 2d day of July, 1891, in favor of the plaintiffs for equitable relief and costs, and from the whole of said judgment, except so much as directed the construction of a grade crossing near the east line of the plaintiff’s farm.
    The action was tried by the court at the Ontario Special Term, at which the following opinion was delivered by Mr. Justice Adams, before whom the case was tried :
    Adams,- J. The evidence in this 'case establishes, with reasonable certainty, that the plaintiffs are the owners of a farm in the town of Phelps, Ontario county, containing about one hundred acres of land; that the defendant is a railroad corporation organized under chapter 140 of the Laws of -1850, and that, by condemnation proceedings, it has acquired title for the use of the railroad to a strip of land about two thousand three hundred feet in length, running through the plaintiffs’ farm in an easterly and westerly direction, dividing the farm into two nearly equal parts; that such strip is about ninety-nine feet in width at the east end, and continues through the greater portion of the farm at that width; but as it approaches the west line the width increases to nearly one hundred and fifty feet; that the entire strip contains about six acres of land; and the compensation awarded the plaintiffs therefor, and for the damage to the remaining premises, in such condemnation proceedings was the sum of $3,590; that the plaintiffs’ barns and other farm buildings are on the north side of the line of the railroad, and there is also on the same side an inexhaustible spring of water; that the lands upon the south side are in a state of cultivation, and are often used for pasturing large numbers of sheep and cattle after the crops are removed; but in the latter part of the season there is no supply of water upon these lands, and the sheep and cattle there pastured are watered at the spring upon the north side; that for a distance of about one thousand eight hundred feet the defendant’s railroad, when completed, will be in a cut or excavation of from two to thirteen feet below the surface, which for most of the way will be impassable for teams and cattle by reason of the depth; that at a point a few hundred feet east of the west line of the farm there is a natural depression or hollow that is crossed by the railroad; and the plaintiffs have been ’ accustomed to use this depression as an easy and direct passage-way for teams in going to and from the north and south parts of the farm in their farming operations, and also for the use of their cattle pastured upon tlie south side in going to and from the spring upon the north side; that the defendant’s road is being constructed across this depression at a grade of about twelve feet above the surface of the ground, and the defendant intends to fill in such depression to that depth in order to carry its tracks over the same, and that when this is accomplished there will be an impassable barrier to the passage of teams or cattle through this depression.
    In the construction of its road over the plaintiffs’ farm upon the proposed route the defendant has offered to provide two crossings at grade for the use of the plaintiffs, one of them being about three hundred feet west of the depression, and the other about two hundred feet east; or, in lieu of either one of these, one at the extreme eastern end of the farm; but either of the proposed crossings in the vicinity of the depression will involve the necessity of 'overcoming a considerable grade in the use of the same; and there is some doubt whether they could be used, when constructed, without great inconvenience to the plaintiffs.
    Before this action was commenced the plaintiffs requested of the defendant that they be allowed an under-grade crossing_ through the depression, which request was refused; the principal reason assigned for such refusal being that there was not sufficient room therefor; and thereupon the defendant proceeded to fill in such depression, but had not finished the same when this action was brought restraining it from so doing.
    Upon these facts it must be assumed, I think, that the depression referred to has afforded to the plaintiffs the natural and most convenient means of passing to and from the north and south portions of their farm; and that it has been generally, though not always, used for that purpose. It may likewise be assumed that, when the defendant’s road is constructed across such depression, there will be ample room for an under-grade crossing which can be easily provided, although, as is testified to by the defendant’s engineer, this will involve an additional cost of about twenty-six hundred dollars. The question, therefore, which fairly presents itself to the court is, shall the defendant be required to incur this expense in order to provide the plaintiffs with a convenient means of crossing its tracks ? That this court has the power to compel a railroad corporation to construct such farm crossings as it deems proper and necessary in a given case lias been frequently held, and I do not understand that the proposition is now questioned by the defendant. (Jones v. Seligman, 16 Hun, 230; affirmed, 81N. Y., 190; Wademan v. A. and 8.11. B. Go., 51 id., 568; Post v. W. 8. B. B. Go., 123 id., 580,591.)
    On the other hand, it is equally well settled that, under the provisions of the act of 1850, requiring corporations organized under that act to erect and maintain suitable farm crossings for the use of the proprietors of lands adjoining the railroads, it is the right of the corporation in the first instance to locate the crossings. ( Wademan v. A: and 8. B. B. Co., supra.) But, in the exercise of this right, it is, nevertheless, the duty of the corporation to consult the convenience of both parties ; and it will not be permitted to locate such a crossing as will subject the proprietor to needless and unreasonable injury or inconvenience.
    In reaching a conclusion upon the question which presents itself for consideration, it will be necessary, therefore, to determine whether or not the defendant has made right use of its discretionary powers, and this, of course, depends entirely upon the circumstances peculiar to the case in hand. Ordinarily, grade-crossings are all that can be reasonably required of a railroad corporation for farm purposes, and, unless there is something to take' this case out of the ordinary rule, they are all that ought to be required of the defendant.
    What, then, are the extraordinary features of the case under consideration? Not the fact that the defendant’s railroad cuts the plaintiffs’ farm in twain, for it is the doing of this very thing which the statute contemplates in requiring that suitable crossings shall be constructed, which requirement is, as has been said, ordinarily fulfilled by providing crossings at grade.
    Nor do I think that the fact that an under-grade crossing would prove more convenient to the plaintiffs in their farming operations or in watering their stock would, of itself, furnish a sufficient reason for departing from- the rule generally adopted in these cases; but such a reason is furnished, if at all, by the combination of these facts with the further fact that a grade-crossing at either of the two places, near the depression selected and proposed by the defendant, cannot be used without compelling plaintiffs to overcome a steep grade, which would necessarily be attended not only with great inconvenience, but likewise with greatly increased, labor to themselves and their teams, and that it would also involve the necessity of either drawing small loads or incurring the risk of tipping over, to say nothing of the danger to be apprehended from passing trains.
    None of these objections operates against the under-grade crossing. As has already been shown, this is the natural and customary route-taken by the plaintiffsits use is attended by none of the dangers or disadvantages above mentioned, and it is likewise much more convenient and accessible; but, over and above all these considerations, it would seem as though it were the one means of communication between the two portions of the plaintiffs’ farm, which would suggest itself to any person or tribunal which was endeavoring to consult the convenience and interest of both these parties, for here is a depression to be crossed by a track twelve feet above the surface of the ground, and this elevation the defendant designs filling in so as to make a solid embankment. Now, if instead of doing this an aperture should be left, sufficient in size to permit teams and wagons to pass through, which could easily be accomplished without very great additional expense, how incomparably better it would be for all concerned. To the plaintiffs it would prove convenient and easy as a drive-way and it is equally clear that to the defendant it would, in the end, be much less expensive than a crossing at grade where the danger to be apprehended from collisions with cattle and teams is certainly much greater than that which counsel imagines would attend the passage of cars over a bridge fourteen feet in length.
    It is a fact which I believe appears in this case, but, if it does not, the court will take judicial notice of it that the defendant in constructing its lines of road through this State has adopted an overhead or underground grade crossing as the best means of getting across every public highway where such means was found practicable.
    In adopting this course, which was purely voluntary, it is to be commended; and all that the plaintiffs seek by this action is to require that the same policy be pursued towards them as individuals which the defendant by its own acts concedes is proper towards the public at large; and while it is not designed by this decision to establish a precedent for under-grade farm crossings as a rule, it does seem as though, for the reasons here given, it would be the' only suitable crossing in this particular case.

      In reaching this conclusion the court has not been unmindful of the contention made by the defendant’s counsel, that the inconveniences and disadvantages of a grade crossing were considered in the condemnation proceedings, and that they constituted an important element of the damages awarded the plaintiffs in that proceeding.
    This contention would, at first glance, seem to possess some weight, for it certainly does appear that several of the witnesses sworn for the land owners did, to some extent, at least, base their estimate of damage upon the fact that the south part of the farm was to be cut off from the spring upon the north part; but a careful analysis of the whole testimony will show that the witnesses who appeared to-take this fact into consideration placed the damages at a sum lower than did others who did not mention this as an element of damages, while the average estimate made by all the witnesses on both sides was nearly a thousand dollars in excess of the award.
    It cannot be assumed that the award was made in contemplation of the inconvenience or damage to be apprehended from one or more crossings {Smith v. IV Y. and O. M. B. B. Oo., 63 N. Y., 58); and in the case of Jones v. SeUgman, heretofore cited, it was said by Miller, J.: “We think that such an item is not a proper subject of consideration in estimating damages for land taken for railroad purposes, and that they (crossings) have once been made cannot affect the right of the owner to additional ones where these are insufficient.” It follows, therefore, that this contention of defendant’s counsel is not. sustained by either the facts or the law of the case.
    I am, consequently, of the opinion that the plaintiffs are entitled to the relief sought in this action, with costs.

      A. P. Bose, for the appellant.

      J. O. Smith, for the respondent.
   Per Curiam:

The judge who tried this case had, by consent of the parties, the advantage of a personal view arid inspection of the premises ; it is impossible, therefore, to characterize any of his findings of fact as unwarranted by the evidence. His opinion, given above, seems to us to'justify the conclusions of law-drawn from those findings.

The only exception taken on the trial, which is argued here, relates to the admission in evidence of the opinions of witnesses in regard to the damage -to the farm which would result from the want of an. underground crossing proposed. The evidence was, no doubt, offered for the purpose of a comparison between the loss to be sustained, on the one hand, if the crossing were not constructed, and the expense to be incurred, on the other hand, in its construction, as bearing upon the question of the form of the relief to be granted. But there was no finding or request to find on that subject; so that the evidence, if not strictly admissible, was not to the prejudice of the defendant.

The judgment appealed from should be affirmed, with costs.

Present — Dwight, P. J., Macomber and Lewis, JJ".

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    THE WHEELER & WILSON MANUFACTURING COMPANY, Plaintiff, v. WILLIAM E. KEELER, as Sheriff of Cayuga County, and Another, Defendants.

      Bales — waiver of a condition — fraud—mere insolvency is not — statement, of the debtor's financial condition — proof of other frauds — the debtor’s financial condition at another time.

    In tlie latter part of July, 1890, the Wheeler & Wilson Manufacturing Company sold certain sewing machines to the Rheubottom & Teall Manufacturing Company under an agreement that the latter should give for the price thereof a good eleven months’ note when the bill was rendered, without waiting for the machines to be set up. A bill was rendered, no note was given, and the machines were shipped and set up, and the sheriff of Cayuga county having levied, in December, 1891, upon the machines, under executions against the Rheubottom & Teall Manufacturing Company, the vendors brought an action of replevin for the recovery of the machines against the vendees and one Thomas Jones, the holder of a chattel mortgage upon the property.

      Held, that, regarded as a conditional sale, the condition that a note should be given was waived by an unconditional delivery of the machines.
    The vendors also attacked the sale on the ground of fraud.

      Held, that the knowledge of the vendee that it was insolvent, in the absence of evidence that it intended not to pay for the property when it purchased, did not constitute fraud.
    The plaintiff offered in evidence a written statement, signed and verified by the president of the vendee, made in July, 1890, to a banking firm, which purported £0 hare been made to obtain additional credit. The plaintiff offered to show that the statement was false, but offered no proof that any increase or renewal of credit was actually given to or applied for by the vendee upon the faith of the statement.

      Held, that the evidence offered was properly excluded.
    That the rule, which allows evidence to' be given of other frauds committed by the party about the same time, should not be extended.
    That an offer to show the total assets of the vendee in December, 1890, unconnected with any proof of its condition at the time of the sale, was too remote and was properly excluded.
    Exceptions of the plaintiff, the Wheeler & Wilson Manufacturing Company, taken upon a trial had at the Cayuga Circuit before the court and a jury, at which the plaintiff was nonsuited, and its exceptions were directed to be heard in the first instance at General Term, judgment in the meantime to be suspended.
    The action was brought to recover the possession of certain chattels, the sale of which was made, as alleged in the complaint, to the Rheubottom & Teall Manufacturing Company in the latter part of July, 1890, and the delivery in August, 1890.
    The answer alleged that on and after December 13, 1891, the sheriff of Cayuga county levied upon the chattels in question unde» certain executions issued upon judgments against the Rheubottom & Teall Manufacturing Company in favor of various persons. The answer of Thomas Jones, also a defendant, alleged that he held a chattel mortgage upon the chattels in question, which had been given to him by the Rheubottom & Teall Manufacturing Company on December 4, 1890.

      J. W. O’Brien, for the plaintiff.

      O. I. Avery, for the defendant Keeler.

      E. G. AiMn, for the defendant Jones.
   Dwight, P. J.:

The action was replevin for a lot of sewing machines, and the sole question was of the plaintiff’s title to the property at the time of the commencement of the action.

The property had been sold to the Rheubottom Teall Manufacturing Company, of Weedsport, several months before under an agreement that the vendee should give “ a good eleven months’ note” for the price when the bill was rendered, and without waiting for the machines to be set up. The note was not given, although a bill was rendered, and the machines were afterwards shipped and set up.

These facts present the first ground of the plaintiffs claim to retake the property, viz.: That the sale was conditional; and that the condition not being performed, title to the property did not pass. The contention is unavailing, because the condition of sale was waived by an unconditional delivery of the property. (Smith v. Lynes, 1 Seld., 41.) No demand was made for the note when the bill was rendered, nor when the property was delivered, and the delivery was without condition. The plaintiff seeks to account for its failure to insist upon the condition of the sale on the theory of a misunderstanding between two of its own agents. But the fact of an unqualified delivery of the property remains, and the effect is the same, whatever the cause, so long as it was not one for which the vendee was responsible.

The second alleged ground of avoidance of the sale is, that it was procured by fraud, viz.: That the vendee was in failing circumstances at the time, and that he bought the property with the intention not to pay for it; and this was the question chiefly litigated on the trial.

We think the learned court at the circuit was correct in holding that there was not evidence to warrant the submission of that question to the jury. It is well settled that the mere fact of insolvency, though well known to the vendee, and not disclosed to the vendor, does not afford ground for imputing fraud to the former; there must have been the intent when the property was purchased, not to pay for it. (Coffin v. Hollister, 27 N. Y. St. Rep., 637; Hotchhin v. Bank, 127 N. Y., 329, and the cases cited.)

The vendee of the property in this case was probably insolvent at the time of the purchase; at least, if that had been the controlling question, it should have been submitted to the jury; but we think there was clearly not evidence which would have warranted the finding that the officers of, the company regarded its condition as hopeless, or did not expect that it would continue in business and meet its current liabilities as they should fall due. The evidence indicates that the business was loosely conducted and the books imperfectly kept, but we think it fails to show that the officers were aware of the actual insolvency of the company at the time of the purchase of the sewing machines, still less that they contemplated a failure before the machines should be paid for.

It only remains to consider two exceptions taken by the plaintiff to rulings of the court on questions of evidence. The plaintiff offered in evidence a written statement signed and verified by the president of the debtor company in July, 1890, about a month before the purchase of the machines of the plaintiff, addressed and delivered to a banking firm in Weedsport, which, on its face, purported to have been made for the purpose of obtaining, at some time, additional credit for the company. There was also the offer to show that the statement contained representations .bearing upon the credit of the company which were not true at the time it was made. The evidence was excluded. Its admissibility is contended for under the rule which admits the evidence of other frauds of the same party at about the same time, of a character similar to that under investigation.

We think the ruling was entirely correct in this case, for the reason that in -the case of the statement offered in evidence no fraud is shown to have been committed or attempted. Assuming that the statement might have been shown to have been in some respects untrue, there is no evidence nor offer to show that any increase or renewal. of credit was given or applied for on the strength of it. This leaves the case quite outside the lines of the rule as stated by any of the authorities. (Cary v. Hotailing, 1 Hill, 311; Hall v. Naylor, 18 N. Y., 588; Miller v. Barber, 66 id., 558.) The rule which admits evidence of one fraud to prove another is at best so exceptional in its character that, although well established, it will not be extended beyond the limits already assigned to it. The case of Hall v. Naylor (supra), which is cited by counsel for the plaintiff, turns upon the point here made, and the evidence was rejected because it did not appear that in the case to which the evidence related a fraud was actually accomplished.

The other exception relates to an offer of the plaintiff to give evidence of the total assets of the debtor company at the time of the failure in December, 1890. The ruling seems to us to have been correct on the ground that the time was too remote from the date of the contract assailed, without the accompanying offer to trace back the transactions of the company so as to show the amount of its assets at the date of the sale. We think, too, that the ruling-may be sustained on the ground that the matter of the offer was already in proof by evidence as definite as any which, so far as appears, could have been produced under the offer.

We find no error committed in the admission or rejection of evidence, and we are clearly of the opinion that, upon the evidence as received, a case was not made which would have justified a finding that the machines in question were purchased with the intent to-cheat the plaintiff out of the price.

The motion for a new trial should be denied.

Macomber and Lewis, JJ., concurred.

Motion for a new trial denied, with costs, and judgment ordered for the defendants on the nonsuit.


author: Lewis, J.:

text:
    ROCHESTER DISTILLING COMPANY, Plaintiff, v. ASA RASEY, Defendant.

      Chattel mortgage — of animal crops not yet planted — the mortgage is void as against creditors — when a party, innocent of the confusion of goods, is not affected by it.

    Philip P. Lovell, the lessee of a farm, on April 30,1890, gave to Esek Page for value a chattel mortgage, which was duly filed, upon all the potatoes and beans “which are now sown or planted, or which are hereafter sown or planted, during the next year,” on the leased premises. Before giving this mortgage Lovell had planted one acre in potatoes, and he afterwards planted three acres in potatoes and some beans.
    The Rochester Distilling Company recovered a judgment against Lovell, -which was docketed in his county on the 14th day of February, 1890, under an execution issued on which the sheriff, on July 5,1890, levied on the growing crops of beans and potatoes, and on August 16,1890, sold them to the Rochester Distilling Company.
    On July 15, 1890, Page, under a foreclosure of his chattel mortgage, sold these crops to Asa Rasey, who took possession, harvested the crops, not distinguishing the potatoes which had been planted before from those planted after the chattel mortgage was executed, and upon demand made refused to deliver any part of the crops to the Rochester Distilling Company.
    In an action brought by the Rochester Distilling Company to recover possession of certain of such crops, and damages for their detention, it was

      Held, that it was entitled to recover for the heans, and also for the potatoes raised from seed potatoes, which were planted after the execution of the chattel mortgage.
    That, as against subsequent purchasers and attaching creditors, a chattel mortgage could not be given on property not in existence.
    That annual crops raised from planted seed could not be said to have even a potential existence before the seed was put in the ground.
    That as the mingling of the potatoes planted before and after the execution of the chattel mortgage was not the act of the plaintiff, and as the evidence showed approximately the quantity realized from each planting the plaintiff should have a verdict for those planted after the mortgage was executed.
    Exceptions of the plaintiff, the Rochester Distilling Company, ordered to be heard in the first instance at General Term, taken upon a trial had at the Steuben Circuit before the court and a jury, at which a verdict was directed for the plaintiff for the possession of certain beans, or six cents damages, the value thereof mentioned in the complaint, and that the defendant have a return of the potatoes mentioned in the complaint, or the value thereof, $118, and seventy-nine dollars and twenty cents damages for detention.

      George D. Reed, for the plaintiff.

      Re Merville Page, for the defendant.
   Lewis, J.:

The plaintiff obtained a judgment against one Philip P. Lovell,, in the Supreme Court, county of Monroe, on the 13th day of February, 1890, for $147.44. A transcript of the judgment was filed, and the judgment docketed in Steuben county the following day.

Lovell was the lessee of a farm in the county of Steuben in the year 1890. On the 30th day of April, 1890, he gave a chattel mortgage to Esek Page, to secure the payment of money borrowed of Mr. Page, and also to secure Mr. Page as his accommodation indorser. The mortgage was given upon the chattels and property described therein as follows: The grass now growing on the premises leased of Drake and Searle, assignee, etc. (being the farm mentioned) ; also, all the corn, potatoes, oats and beans which are now sown or planted, or which are hereafter sown or planted, during the next year, on the above-described premises, and two new boats made by Bennett.”

Lovell planted about four acres of the land to potatoes, and he also planted some beans. All of the planting was done after the execution and delivery of the mortgage, except about one acre of potatoes which were planted before the mortgage was given.

An execution was issued upon the plaintiff’s judgment against Lovell, and the sheriff, on the 5th day of July, 1890, made a levy upon the growing crops of potatoes and beans aforesaid ; he advertised and sold them on the 16th day of August, 1890, to the plaintiff. Mr. Page, hearing of the levy thus made upon the potatoes and beans by the plaintiff, advertised and sold them, under his chattel mortgage, on the 15th day of July, 1890, to the defendant. The defendant took possession of them, and when they ripened he harvested them, and refused to deliver them to the plaintiff upon demand made, and the plaintiff brought an action to recover possession of the potatoes and beans, with damages for the withholding thereof. At the close of the evidence both parties asked for the direction of a verdict in their favor respectively.

The court directed a verdict for the plaintiff for the beans, and for the defendant for the potatoes, to which decision the plaintiff duly excepted, and the exceptions were ordered to be heard at General Term in the first instance.

By consent of parties the value of the beans was fixed at six cents, and the value of the potatoes at $118.80, with seventy-nine dollars and twenty cents damages for their detention.

The sale under the execution gave to the plaintiff title to the potatoes and beans, unless the contention of the defendant can be sustained that he got title to them by virtue of the sale under the chattel mortgage. The mortgage was concededly given for a good and valuable consideration, and was duly filed. It is contended by the plaintiff that a verdict should have been directed in its favor as to the potatoes as well as the beans, but that, in any event, plaintiff was entitled to recover that part of the potatoes planted after the •execution and filing of the mortgage.

As against subsequent iiurchasers and attaching creditors, a chattel mortgage cannot be given for property not in existence so as to vest the title when it comes into being in the mortgagee. (Cressey v. Sabre, 17 Hun, 120.) There are exceptions to this doctrine. It is held that, as between landlord and tenant, because of the fact that tlie landlord owns the soil, the tenant may, even as against creditors and purchasers, pledge crops to be raised as security for. the payment •of the rent, thereby giving the landlord an equitable lien upon the after-planted crops. (Andrew v. Newcomb, 32 N. Y., 417; Butt v. Ellet, 19 Wall. [U. S.], 544.)

Crops not yet grown, but which grow spontaneously, the roots thereof being in the soil when the mortgage is given, are held to have such a potential existence as that they may be mortgaged. Annual crops raised from planted seed cannot be said to have even a potential existence before the seed is put in the ground.

The plaintiff and Mr. Page were both creditors of Lovell. Plaintiff secured the first lien by the levy made on the sixth of July, and no reason is apparent why the defendant has any equity superior to the plaintiff. Page occupied the relation simply of a creditor of Lovell. He had no interest in the farm; he took his mortgage to secure the payment of money loaned to Lovell, and to secure him as Lovell’s indorser. There was no delivery made of the property prior to the levy of the plaintiff.

We think the plaintiff had a prior lien upon the crops planted after the delivery of the mortgage.

An embarrassment arises because of the mingling of the potatoes which were planted before the giving of the mortgage and those that were planted after. The evidence tends to show about the quantity that was obtained from each planting. The plaintiff was not responsible for the intermingling; that was done by the defendant. There should have been a direction of a verdict for the plaintiff for the potatoes that were obtained from those planted after the execution and delivery of the mortgage, as well as for the beans.

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

All concur.

Plaintiff’s motion tor a new trial granted, with costs to abide the event.


text:
    CHARLES EELS, Respondent, v. THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Appellant.

      Telephone companies — their poles a/t'e an additional servitude imposed upon ay highway— the owner of the fee is entitled to compensation.

    In August, 1888, a long-distance telephone company, incorporated under the telegraph acts (chap. 365 of the Laws of 1848, as amended hy chapter 471 of the Laws of 1853), was constructing its line along a country highway, upon the side of which, in front of the farm of Charles Eels, the company, without license from the owner, placed twelve poles
    Upon an appeal from a judgment, in an action of ejectment brought hy Eels, in which he recovered judgment for the possession of the premises, and also-eighteen dollars damages for the detention of possession:

      Held, that the judgment was proper.
    That the legislative acts had no greater effect than to protect the company from. an indictment for maintaining a public nuisance in a highway.
    That the erection of such poles was not an ordinary or legitimate use of a highway, hut constituted an additional' servitude imposed upon the fee.
    That the servitude amounted to a taking of the property of the owner of the fee within the meaning of the State Constitution, which forbids such taking without, compensation.
    Appeal by the defendant, the American Telephone and Telegraph Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 5th day of April, 1892, upon a verdict for the plaintiff for the recovery of the possession of a part of a highway, subject to tbe public easement, and for eighteen dollars damages, and for costs, after a trial at the Erie Circuit before the court and a jury.

      Sherman S. Rogers, for the appellant.

      John M. Hull, for tbe respondent.
   Lewis, J.:

The plaintiff is tbe owner in fee of a twenty-five-acre farm in the town of Alden, bounded on the north by a public highway known as tbe Cayuga"creek road; bis title extends to the center of the road. This creek road is an ordinary country highway, The defendant is a long-distance telephone company, incorporated under the laws of the State of New York for the incorporation of telegraph companies. In the month of August, 1888, defendant was engaged in the location and construction of a telephone line along said highway, from Batavia to Buffalo. In constructing said telephone line defendant placed in front of plaintiff’s farm on the southerly side of said highway twelve telephone poles, without-the license or consent of the plaintiff. 'This action was thereupon commenced to compel the ■defendant to remove said poles and to recover possession of the premises occupied thereby, with damages, etc. At the close of the evidence the court instructed the jury that the plaintiff was entitled to a verdict for the recovery of the premises from the defendant, with damages for the detention thereof, and’ that the only question lor them to determine was the amount of damages. Defendant’s ■counsel excepted to the instructions thus given and the jury thereupon found a verdict for the plaintiff for the recovery of the possession of the premises, with eighteen dollars damages for their detention.

The appellant contends that chapter '265 of the Laws of 1848, as «.mended by chaptér 471 of the Laws of 1853, gave the defendant •the right to place its poles in the highway in front of the plaintiff’s premises, without his consent, and" unless this contention can be maintained the defendant’s counsel concedes that the case was prop■erly disposed of at the Circuit.

The State has a general supervision over the highways; and by the acts above referred to gave its consent to the defendant to use the highways of the State with its poles and wires. "Were it not for this legislation the telegraph and telephone companies would be liable to an indictment as for a public nuisance, if they placed their poles in the highways. The acts referred to protected ■them to that extent, and no more. The State had not the power and did not assume to give the companies the right to erect their poles in the highway, without the consent of the owners of the fee of the .highways. If the occupancy of this highway by the defendant’s poles is one of the ordinary and legitimate uses for which highways are established, the defendant is- right in its contention. Highways are established to accommodate the public in traveling and transporting their property from place to place by any safe and proper means of communication that the traveler may choose to adopt, provided the means employed are open to be adopted by all who wish so to do. Any proper carriage propelled by electricity,, steam or animal power, may be used, if, after the vehicle has passed over the highway, it is left free and unobstructed, so that any other citizen can use it for like purposes. If means for traveling are adopted, the use of which necessitates appliances in the highway of a'permanent character, and the use of which is private and exclusive, that would be an inconsistent and improper-use of the highway, and would impose an additional servitude-upon the fee. If the placing of permanent appliances in the-highway, which are under the control of corporations or individuals, were tolerated, the time might soon come when the highways of the country would be practically monopolized by inventions for the transportation of persons and property. No reason is suggested forth e contention of the appellant which does not, with equal or even greater force, apply to a claim for the use of highways by steam railroads. The defendant’s poles and wires are placed in and along-highways for the use of the public in conversing with each other from distant points, for a consideration to be paid therefor to the-defendant. Railroad companies not only provide the public with rapid means of communication with each other, but they also transport people and property from place to place; they perform substantially all the functions of the ordinary conveyances in use upon the-public highways; and yet it is the settled law of this State that the appropriation of any part of a highway by the ties and tracks of' a railroad is the imposition ■ of an additional burden upon, and the taking of the property of the owner of the fee, within the meaning of the Constitution, which forbids such taking without conrpensation. (Williams v. N. Y. C. and H. R. R. R. Co., 16 N. Y., 97; Wager v. Troy Union R. R. Co., 25 id., 526.)

In a note to section 111 of Lewis on Eminent Domain, many authorities, maintaining this doctrine as to railroads, are cited. It is. said in section 131 of this work, that the lines of a telegraph or telephone company are on the same footing of a steam railroad; they form no part of the equipment of a public highway, but are entirely foreign to its use. "When the fee of the street is in the abutting owner, he is clearly entitled to compensation for the additional burden placed on his land. Authorities are referred to in a marginal note to this section, sustaining the doctrine of the text. To the same effect are Dusenbury v. Mutual Telegraph Co. (11 Abb. N. C., 440); Metropolitan Tel., etc., Company v. Colwell Lead Company (67 How. Pr., 365); Blashfield v. Empire State Telegraph Company (18 N. Y. Supp., 250).

There are authorities in some of our sister States sustaining the contention of the defendant. The great weight of authority, however, is in accord with the decisions of the courts of this State. By placing its poles in the highway in front of the plaintiff’s premises, the defendant imposed aii additional servitude upon the highway, and thereby gave to the plaintiff a right to maintain this action.

The judgment appealed from should be affirmed.'

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

Judgment appealed from affirmed.


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    HARRISON P. BISHOP, Respondent, v. GILBERT L. MOSHER and Another, Appellants.

      Constable — selling property exempt by law from execution — the sureties on the constables bond are liable therefor.

    Gilbert S. Mosher and Mortimer N. Pratt became sureties upon an official bond given by Joseph O. Cole, as a town constable, by the terms of which the obligors severally agreed to pay to each and every person who might be entitled thereto all such sums of money as the said constable might become liable to pay on account of any execution which might be delivered to him for collection, and also to pay each and every person any damages which he might sustain from or by any act or thing done by said constable by virtue of his office of constable.
    An execution against Harrison P. Bishop was delivered to Cole, as constable, under which, against Bishop’s protest, Cole sold certain property which was exempt by law from execution, for the value of which Bishop subsequently-recovered' judgment against Cole. Bishop, being unable to collect anything from Cole under this judgment, brought an action against the sureties, who interposed a demurrer to his complaint, insisting that as the property had been held to be exempt Cole’s act was a trespass, and that they were not liable for it.

      Held, that this position was untenable.
    That, in levying upon the exempt property, Cole did not commit a trespass, as the exemption was the personal privilege of Bishop, which he might or might not have asserted.

      That, upon being informed that the property was claimed to be exempt, it became the duty of Cole to investigate and determine upon the right to exemption.
    That, in this duty and in selling the property, Cole was proceeding as a constable.
    That his act in selling was an official act, done by virtue of his office, and that his sureties were liable.

      People ex rel. Kellogg v. Schuyler (4 N. Y., 173) followed; People ex rel. Comstock v. Lucas (93 id., 585) distinguished.
    Aprbal by the defendants, Gilbert L. Mosher and Mortimer N. Pratt, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Cattaraugus county on the 9th day of March, 1892, overruling a demurrer interposed to the complaint, with costs.
    This action was brought against the defendants, as sureties upon the official bond of Joseph C. Cole, a constable of the town of Little Yalley. The complaint alleged the recovery of a judgment in the Justice’s Court against the plaintiff, Harrison P. Bishop; the issuing and delivery of an execution to Cole, as constable, directing him to satisfy the judgment out of the personal property of this plaintiff (the defendant therein) within the county of Cattaraugus, not exempt from levy and sale by virtue of an execution.
    Cole, acting under and by virtue of the execution, levied upon a large amount of personal property belonging to the defendant in said execution. Some of the property so levied on was exempt from levy and sale by virtue of an execution; the plaintiff duly claimed said exemption and forbade the sale of the exempt property; Cole, who was, at the time of the levy and sale tinder the execution, a constable of the town of Little Valley, notwithstanding such claim or exemption, sold all of the property, including that which was claimed to be exempt. The exempt property consisted of a pair of horses, double harness, a drag, mowing machine, one pair heavy bob-sleds and one heavy set of trucks used as a wagon. The defendant in said execution was a householder, and the described property was necessary for the carrying on of his business, and such exempt propérty was worth $250.
    A judgment was recovered against the constable for the value of said exempt property in a Justice’s Court. An execution was duly issued on said judgment and returned wholly unsatisfied. The defendants had duly executed, under their hands and seals, a bond whereby they jointly and severally agreed to pay to each and every person who might be entitled-thereto all such sums of money as the said constable might become liable to pay on account of any execution which should be delivered to him for collection; and also to pay each and every person any damages which he might sustain from or by any act or thing done by said constable by virtue of his office of constable.
    A demurrer was interposed to the complaint, the objection thereto being that it failed to state facts sufficient to constitute a cause of action; the demurrer was overruled and an interlocutory judgment entered, and from that judgment án appeal was taken to this court.

      W. T. Thrasher, for the appellants.

      Cha/rles Z. Lincoln, for the respondent.
   Lewis, J.:

The defendants contend that it having been adjudged that the constable had no right under his execution to sell the exempt property, he committed a trespass in so doing, and that they, as sureties, are not liable for his acts. The constable did not commit a trespass in levying upon the exempt property; the exemption was a privilege personal to the defendant in the execution; he'could claim it or not, as he wished. (Sullivan v. Farley, 63 How., 371; Brooks v. Hathaway, 8 Hun, 290.)

Hpon being notified by the defendant that he claimed the exemption, it was the duty of the constable to investigate the facts and determine, as well as he could, whether it was, in fact, exempt property. He was required to determine whether the defendant in the execution was a householder or had a family for which he was providing, and whethei the articles mentioned were necessary for defendant as such householder, etc. The determination of this question was in the line of his duty as a constable. When he came to the conclusion that the property was not exempt, and determined to sell, he assumed to proceed .by virtue of his office as constable.

It was thereafter determined by the judgment of the court that the property was, in fact, exempt from levy and sale, and that the constable had no right to sell it, and that he was liable in an action for trespass, for the value of the property. Every act performed by him he claimed to do in his official capacity as constable; he applied the proceeds of the sale, we assume, to the satisfaction of the execution.

The question here presented has been much litigated in the courts of this and other States, and it is difficult to reconcile all of the decisions; the weight of authority in this State sustains the plaintiffs contention that the selling this exempt property was an official act,, an act done by virtue of his office as constable.

It was held in Cumming v. Brown (43 N. Y., 514), that the taking by a deputy sheriff of the property of another by virtue of an attachment against the debtor’s property and selling the same, under execution, to satisfy a judgment in the action, were official acts.

In the People ex rel. Kellogg v. Schuyler (4 N. Y., 173) the defendants were sureties of a sheriff upon a bond conditioned for the faithful performance of the duties of his office, etc. The sheriff, by virtue of an attachment against the property of an absconding debtor, seized and sold the goods to another person. It was held that the act constituted a breach of the official bond of the sheriff, and that an action on the bond would lie against him and his sureties in behalf of such owner. It is difficult to distinguish between the liability of sureties upon an official bond conditioned for the faithful performance of the duties of an office and one conditioned to pay damages which may be sustained by any act or thing done by virtue of the office of an official.

In either case, when committing a trespass, it may, with considerable plausibility, be argued 'that he was not performing an official act; that the act was beyond and outside of his office.

The doctrine of the case of the People ex rel. Kellogg v. Schuyler has been approved by the courts of this State and of the United States.

In Lammon v. Feusier (111 U. S., 17), Justice Grey, in an elaborate opinion, reviews the authorities, and holds that a marshal aiid his sureties are liable where the marshal levies upon the property of another on a process against defendant.

A justice of the peace sued for malicious prosecution is sued for an act done by virtue of his office. (Row v. Sherwood, 6 Johns., 109.)

The appellants’ counsel claims that the case of the People ex rel. Comstock v. Lucas (93 N. Y., 585) is in conflict with the doctrine of the People ex rel. Kellogg v. Schuyler (supra). The condition of the bond in the Lucas case was that the constable would pay over to the persons entitled thereto, all such sums of money as he should become liable to pay on account of any execution delivered to him for collection. The alleged breach consisted in seizing the goods of a third person under an execution against the property of another. The court held that the sureties were not liable because of the special and limited language and purposes of the bond. This case does not disturb, we think, the doctrine of the People ex rel. Kellogg v. Schuyler.

The officer in this case and the officer in the Schuyler case were both attempting to carry out their instructions. In doing so they performed acts which gave a cause of action against them, but what each did pertained to the duties of his office; he was attempting to perform an official duty. It is not alleged in the complaint that Cole acted in bad faith in selling the exempt property of the plaintiff.

Although the question here presented is, perhaps, not free from doubt, we are of the opinion that the selling of the exempt property by Cole was an act done by virtue of his office of constable, and that his sureties are liable upon their bond to the plaintiff for the damages he sustained thereby.

The judgment appealed from should be affirmed, with costs; with leave to the defendants to answer the complaint within twenty days-after service of a notice of the entry of judgment upon payment of the costs.

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

Interlocutory judgment appealed from affirmed, with costs ; with leave to the defendants to answer the complaint within twenty days on payment of costs.


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    In the Matter of the Judicial Settlement of the Account of JOHN E. LEE, as Executor of CARRIE E. DWIGHT, Deceased.

      Will — a bequest of “ all debts, dues and demands,’’ held by the testatrix against her executor and his wife — when it does not include a bond and mortgage due to the testatrix by the executor’s wife.

    In April, 1885, Emma A. Lee executed her bond and mortgage upon certain real estate, for a part of the purchase-price thereof, to Edward J. Farnum, her husband, John E. Lee, joining in the mortgage, and in the bond as a surety. Farnum assigned the bond and mortgage to Carrie E. Dwight, in 1887, and, in 1888, Emma A. Lee and John E. Lee, by a warranty deed containing a covenant against incumbrances, conveyed the premises to S. B. Crittenden, who, at a subsequent date, paid the purchase-price, except $1,200, which was due on the bond and mortgage.
    In 1889 Carrie E. Dwight died a widow, leaving one child and an estate worth about seven thousand dollars, and also leaving a will, which contained the following clause: “I will and bequeath to John B. Lee all debts, dues and demands of name, nature or kind soever, I hold against him and his wife,” John E. Lee being named as the executor thereof. Exclusive of the bond and mortgage Mrs. Lee was indebted to Mrs. Dwight, at the time of her death, in the sum of $225, and Mr. Lee in the sum of seventy-five cents. Mrs. Dwight, whose bequests to her relatives were insignificant, knew that Mrs. Lee had sold the mortgaged premises to Crittenden.
    Upon a judicial settlement of his account as executor John E. Lee claimed that, under the words of the bequest to him, the bond and mortgage in question passed to him.

      Held, that this position was untenable.
    That, while the language of the bequest was broad enough to cover the bond and mortgage, it was the evident intention of the testatrix to forgive the Lees only the smaller debts of $225 and seventy-five cents.
    That, under the circumstances, she would naturally look to Crittenden for payment of the bond and mortgage, and that it. was unlikely that she intended to give one-quarter of her small estate to a stranger to the prejudice of her child.
    Appeal by John E. Lee, executor of Carrie E. Dwigbt, deceased, from that part of the decree of the Surrogate’s Court of the county of Allegany, entered in the above-entitled matter on the 9th day of February, 1892, which directed and decided that John E. Lee was not entitled to have or receive the sum of $1,262, paid to him by Emma A. Lee on the Edward J. Farnum bond, as and for his own use as legatee under the will of Carrie E. Dwight; and, as directed, that the said John E. Lee must account for said sum of $1,262 so received by him to be distributed as assets of said estate; and, as directed, John E. Lee, as executor, to pay unto Charles Day, as guardian of Joseph N. Dwight, the said sum of $1,262, or any portion thereof, with notice that the said appellant intended to bring up for review, upon said appeal, the orders and decisions entered in said proceedings and filed in the said surrogate’s office' on the said 9th day of February, 1892.
    The question presented by this appeal involved the construction of the will of Carrie E. Dwight, who on the 11th day of July, 1889, then residing at "Wellsville, N. Y., made and published her last will and testament, and in the month of October following died. The will was duly admitted to probate; it provided for the purchase of a lot in the cemetery; the erection of a suitable headstone; the payment of funeral charges and expenses of administering the estate; the payment of her debts, and bequeaths her property as follows: “ I will, devise and bequeath to Effie Dwight my organ, family Bible, one set of silver teaspoons, one bed and bedding. I will and bequeath two oil paintings and willow rocking-chair to Mrs. Nett Goff, of Potter county, Pa. I will and bequeath to my sister, Mrs. Nina Hulbert, all my wearing apparel. I will and bequeath to John E. Lee all debts, dues and demands of name, nature or kind soever I hold against him and his wife, my trunk, and any keepsakes he may wish. I will, devise and bequeath to my dear and beloved don, Joseph N. Dwight, my gold watch and chain, best bed-room set and bed complete, silver-plated knives and forks, and all the rest, residue and remainder of my estate, except the remainder of my household furniture, which is to be divided as my executor thinks best, or sold. In case the same is sold, the proceeds to belong to my son.” The will then provides for the appointment of a guardian to take charge of the property for the son and invest the same, and pay to him yearly, or oftener, the interest for his education and support, and appoints John E. Lee executor.
    The surrogate, before whom the proceedings for the judicial settlement of the accounts of the executor were taken, found, among other things, that on the 3d day of April, 1885, Edward J. Farnum conveyed to Emma A. Lee, the wife of John E. Lee, certain premises situated in the village óf Oswayo, Potter county, Pennsylvania by warranty deed.

      That Emma A. Lee and John E. Lee on the same day gave their bond conditioned for the payment of $1,500, with interest, being a portion of the purchase-price of the land, and to secure the payment thereof executed a mortgage on the premises to Edward J. Farnum, which bond and mortgage were assigned to Carrie E. Dwight, the testatrix in 1887.
    That Emma A. Lee subsequently, in 1888, sold-the premises in question.to S. E. Crittenden by a warranty deed containing covenants of seizin, lawful power and authority to convey, against incumbrances, and by way of further assurance of title.
    That at the time of the death of Carrie E. Dwight, the testatrix, John E. Lee and Emma A. Lee were indebted to her on the said bond given to E. J. Farnum in the sum of $1,200, and interest, and subsequently to the death of the said Carrie E. Dwight, Emma A. Lee paid to John E. Lee, as executor, the full amount of her indebtedness upon said bond, and upon the same day S. E. Crittenden paid to Emma A. Lee the balance of the purchase-price of the premises.
    That Emma A. Lee was indebted to Carrie E. Dwight on a contract of lease in the sum of $170 at the time of the making of the* will and at the time of the latter’s death, and also at the time of Carrie E. Dwight’s death, upon a chattel mortgage in the sum of fifty-three dollars.
    As between Emma A. Lee and John E. Lee the latter was only a surety upon the bond executed to Farnum, and there existed no personal claim on the part of Carrie E. Dwight against S. E. Crittenden for the amount due upon the bond.
    The decree was entered February 9, 1892, and determined that the sum secured to be paid by the bond and mortgage given April 3, 1885, by John E. Lee, the executor, and his wife, Emma A. Lee, to Edward J. Farnum, and by Farnum assigned to the testatrix, did not belong to the said John E. Lee, and that he should account for the same as an asset of the estate.
    It appears, by the decree, that, after allowing for all the increase, the total amount of the property to be distributed, including the bond and mortgage in controversy, was $5,994.20.
    Mrs. Dwight was, at the time of making her will, and at her death, a widow. Joseph was her only child and only next of kin. Her estate was worth about seven thousand dollars.

      Mrs. Lee was indebted to Mrs. Dwight at the date of the will in the sums of $170 and fifty-three dollars in addition to her indebtedness upon the bond aforesaid. Mr. Lee owed the deceased at the time of her death seventy-five cents. There was unpaid upon the bond and mortgage at the date of the inventory, $1,246.

      Caleb 8. Hall, for the appellant.

      Clarence A. Farnum, for the respondent.
   Lewis, J.:

The question is, were the bond and mortgage included in the bequest to John E. Lee ?

It is true, as contended by the appellant’s counsel, that the language of the will is sufficiently broad to carry the bond and mortgage to Lee, but we are at liberty in giving construction to this provision to look at the surrounding-circumstances, the situation, condition in life of the testator, the amount of the estate and. the condition of those naturally dependent upon her bounty.

Where there are two equally, probable interpretations of the language of a will, “that one is to be adopted which prefers the kin of the testator to strangers.” (Quinn v. Hardenbrook, 54 N. Y., 83; Wood v. Mitcham, 92 id., 375.)

Words in general, whether technical or popular, are to be taken in their plain and usual sense, unless a clear intention to use them in another sense can be collected and that sense ascertained. (Schouler on Wills, § 472.)

A broad or restricted meaning may be given words to arrive at the intention. The terms that are used in a will are to be construed according to the ordinary acceptation of language in the transactions of mankind. (Williams on Executors, § 1080.)

The bequests to Effie Dwight, who, we assume, was a relative of the deceased, and to her sister and Mrs. Goff, were of small value.

She was providing in her will for the education and support of her only child, twelve years of age. The amount that she could leave him in any event was small; his welfare was, undoubtedly, the chief thing she had in mind. No reason appears why she should give to Mr. Lee, who, so far as appears, had no claim upon her bounty, nearly one-fourth of her entire estate. Had she intended to bequeath to Lee the bond and mortgage she would naturally have mentioned them specifically.' A person learned in the law would have understood that the words used included the bond which represented the indebtedness and carried the mortgage given as collateral to it, but it may well be doubted if Mrs. Dwight so understood it.

Mrs. Dwight knew that the real estate upon which the mortgage was a lien had been transferred to Crittenden. He had, three months before she made her will, paid interest thereon to Mr. Lee, the testator’s agent. We assume that he paid it to Mrs. Dwight as it was his duty to do. Knowing that Crittenden had purchased the land upon which her mortgage was a hen, and that he intended to pay the mortgage, she undoubtedly had been informed that he had retained from the purchase-price a sum equal to the amount of the mortgage, under tlie circumstances she would naturally look to him as the person to pay the mortgage, and not to Mr. and Mrs. Lee The language used in the bequest to Lee, to the comprehension of a person in the station of life of Mrs. Dwight, would include only the indebtedness of Mr. and Mrs. Lee mentioned, amounting to $200, and a small amount due from Lee. As she intended to make Mr. Lee the executor of her will she was willing to forgive him and his wife their indebtedness to her, but had not in mind, we think, to include the bond and mortgage. To hold that it includes the bond and mortgage excites surprise and inquiry as to the testator’s reasons for giving so large a proportion of her estate to one having, so far as appears, no claim upon her bounty, to the detriment of a son whose welfare, we must assume, was a matter of solicitude to her. This construction makes the plan and qmiqiose of the will harmonious.

The construction given to the will by the surrogate meets with our approval, and the decree appealed from should be affirmed, with costs to the respondent, to be paid out of the estate.

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

Decree of the surrogate of Allegany county appealed from affirmed,. with costs to the respondent, to be paid out of the estate.


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    GEORGE WALKER, Respondent, v. JAMES M. CHILSON, Appellant.

      Practice — a notice of trial, not served in time, is not an irregula/t'ity but a nullity— it need not be returned.

    In an action brought by George Walker against James M. Chilson, the attorney for AValker served by mail, only fourteen days before the opening of the circuit, a notice of trial, which was received by Chifson’s attorney, and was not returned by him, nor did Ohilson’s attorney notice the case for trial.
    Another attorney, who, so far as appeared, did not know that the plaintiff's notice of trial was defective, applied to the trial court on behalf of the defendant to postpone the trial of the cause. Upon this motion the plaintiff’s attorney presented an affidavit of the service of the notice of trial, which did not disclose the fact that the notice was served too late. The court denied the motion to postpone, and subsequently, in the absence of the defendant and his counsel, an inquest was taken.
    A motion was subsequently made by the defendant to set aside the judgment, which was denied.

      Reid, that such denial was improper.
    That the court had allowed the inquest under a misapprehension as to the facts, it not being informed that the notice of trial was served too late.
    That if the plaintiff’s attorney had in good faith relied upon the failure of the defendant’s attorney to return the notice", he should have stated the fact in his affidavit, and have thus called the attention of the court to the point at the time of the application to postpone.
    That the retention of the notice could not have misled the plaintiff’s attorney who knew the facts.
    That a return of the notice would not have remedied the difficulty since the notice itself was a nullity.
    That the case was not one relating to the waiver of an irregularity, but was one of a failure to comply with a statutory requirement.
    Appeal by tbe defendant James M. Chilson from an order of the Supreme Court, entered in the office of the clerk of the county of Steuben on the 30th day of September, 1891, denying a motion to set aside a judgment taken against thp defendant by default, which motion was made upon the ground of irregularity in the service of the plaintiff’s notice of trial.

      Milo M Acker, for the appellant.

      A M. Burrell, for the respondent.
   Lewis, J.:

Tlie action was ejectment The notice of trial upon which the plaintiff claimed the right to move the case was served on the defendant’s attorney by mail, only fourteen days before the sitting of the court.

The notice was received by the defendant’s attorney, and was not returned to the plaintiff’s attorney. The case was not noticed for trial by defendant, his attorney being engaged at home on official business, on the first day of the court he requested, by a telegram, another attorney to make application to the court to put the case over the term, or to set it down for trial for the second week of the court. The counsel making the motion stating as the ground for the motion the engagement at home of defendant’s counsel. It does not appear from the record that he knew of the defect in the notice of trial. The application was denied and the case was tried as an inquest, when reached, in the absence of the defendant and his counsel.

The plaintiff’s counsel presented, when moving the case, the notice of trial with his affidavit indorsed therein, which stated that he served a copy of the within notice of trial on James H. Clancy, defendant’s attorney, by depositing the same in the post-office at Canisteo, deponent’s post-office address, duly and properly enveloped in a post-paid wrapper, and duly and properly directed to said Clancy at Hornellsville, Steuben county, N. Y., his post-office address.

The affidavit omitted to disclose to the court the information that the notice was not served in time, so as to entitle him to move the case for trial.

The order entered in the clerk’s minutes recites that the proof of service of notice of trial having been made and filed, an inquest was taken.

Obviously the inquest was allowed under a misapprehension on the part of the court. Had the affidavit fully stated the facts as to the service of the notice, the inquest would not have been allowed.

If plaintiff’s counsel relied upon the failure of defendant’s counsel to return the notice, he should have called the court’s attention in his affidavit to the fact so that it could have been given its due weight in determining whether the inquest should have been permitted.

The Code provides that a notice, of trial, if served by mail, must be mailed sixteen days before the day of trial, including the day of service. Either party who has secured the notice may bring the issue to trial. (Sec. 980, Code Civ. Pro.)

The retention of the notice cannot be claimed to have misled plaintiffs attorney. He was aware when he asked to. be permitted to take the inquest of the defect in the notice. The reason for the rule requiring the return of defective or irregular papers that are served is that the attention may at once be called to the error so that it may be corrected. Had the notice been returned nothing could have been done to remedy the difficulty. This was not the case of an irregular notice. The notice was a nullity; it was a void paper. The plaintiff could not, by serving such a paper, impose upon the defendant even the very slight labor and expense of returning it. Had the plaintiffs attorney taken any-proceedings in the case relying in good faith upon the failure of the defendant to return the notice, he should have so stated in his affidavit opposing the motion.

It was held in White v. Boice (1 N. Y. St. Rep., 570), by the General Term, second department, that the retention of a notice of argument served on the tenth for the fourteenth of the same month was not a waiver of a regular notice.

Small v. Edrick (5 Wend., 137), is to same effect, though the case as reported fails to state whether the notice was retained. The case to which our attention is called in the respondent’s brief holds that the irregularities in papers served may be waived by retention of the papers served; they do not go to the extent of holding that a failure to comply with a statutory requirement in the service of a notice is waived by retaining the papers.

The defendant made a case entitling him to the order asked. The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion to set aside the judgment should be granted, with ten dollars costs.

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

Order appealed from reversed, with ten dollars costs and disbursements of this appeal, and the motion granted, with ten dollars costs.


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    SIDNEY B. ROBY, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Eminent domain — lands condemned for rail/road purposes — when they revert to the owner of the fee — a surrender of their possession to the exclusive use of a private individual — abandonment.
    In the years 1861 and 1868 Sidney B. Roby acquired title to certain lands in the city of Rochester, which were bounded southerly by the Erie canal. Previously to 1885, the Tonawanda Railroad Company had acquired title for railroad purposes to a strip of land twenty-five feet wide on the southerly end of these premises, extending across their entire width and adjoining the canal lands, and had for many years used the strip for railroad purposes
    Subsequently the New Y ork Central and Hudson River Railroad Company acquired all the rights and assumed all the liabilities of the Tonawanda Railroad Company in and to this strip, and thereafter abdSidoned a depot which had been maintained by the Tonawanda Railroad Company, about two hundred feet to the east of and beyond the premises in question, and used the old tract as a spur for freight. This spur connected with the main line at a point about one thousand feet west of the abandoned depot. The New York Central and Hudson River Railroad Company in 1889 leased this strip in question to Arthur A Yates for a coal yard by a lease which also covered so much of the old track as laid east of Roby’s property and land which had been occupied by the depot. The lease to Yates also contained the following clause: “It is mutually understood and agreed that the party of the first part reserves from this lease the use and control of the said track and trestle for all the purposes of a railroad, together with the strip of land twenty-five feet in width adjoining the Erie canal acquired for the purposes of said railroad.”
    Prior to this lease to Yates the occupant of the Roby lot had enjoyed railroad . facilities with the New York Central and Hudson River Railroad Company by means of the strip. When, however, Yates went into possession of it he raised considerably the grade of the trestle in order to build coal-bins under it, and, practically, he housed in the strip, including the.part crossing the lands of Roby, with appliances, and also with doors, so that there w'as no further access thereto by the public, and devoted the leased property exclusively to his own use. Further railroad facilities were also refused to Roby by the New York Central and Hudson River Railroad Company unless Yates -would consent thereto.
    In an action brought by Roby to recover possession of the strip, upon the ground that the railroad company had abandoned it, it was

      Held, upon all the evidence, that, notwithstanding the reservation clause, the company had surrendered the use and occupation of the premises to Yates for the purpose of his private business and to the exclusion of the public.

      That lands could be condemned for railroad purposes only in. case they were needed directly or indirectly for public use.
    That when acquired by a corporation the public, under proper restrictions, still had a right to use them.
    That when the right of way was devoted to the exclusive use of a private individual it was no longer used for public purposes.
    Exceptions of the defendant, the New York Central and Hudson River Railroad Company, directed to be heard in the first instance at General Term, taken upon a trial had ar the Monroe Circuit before the court and a jury, at which the court directed a verdict that the plaintiff had an estate in fee in the premises described in the complaint, and was entitled to the possession of them.
    The action was brought to obtain a judgment that the plaintiff was entitled to the possession of certain premises, and that the defendant remove its tracks therefrom and for damages. ■
    It was alleged in the complaint that on the 1st day of April, 1861, James S. Wadsworth and wife conveyed to the plaintiff certain property in the city of Rochester, N. Y., known as lots 66 and 67, in subdivision of great lot No. 60, being fifty feet in width on Hill street, and running back an equal width to the Erie canal, a distance ■of about one hundred and thirty feet, excepting and reserving from the premises thus conveyed so much of the same as was used and occupied by the New York Central Railroad Company for the purposes of their road, and on the same day quit-claimed to the plaintiff all the right, title and interest of the said James S. Wadsworth to ■that part of lots Nos. 66 and 67,-then used and occupied by the New York Central Railroad Company, which was excepted from the above-mentioned conveyance.
    That on the 3d day of July, 1868, Silas D. Walbridge and wife conveyed to the plaintiff lots Nos. 64 and 65 of the subdivision of great lot No. 50, being each fifty feet front on Hill street, and extending back an equal width 120 feet, to the Erie canal, subject to such rights as the New York Central Railroad Company legally had in the above-described premises.
    That prior to July 13,1835, proceedings were taken by the Tonawanda Railroad to acquire the right to lay its tracks across lots Nos. 64, 65, 66, 67, and in such proceedings the Tonawanda Railroad acquired the use of a strip of land twenty-five feet in width across said premises for the purposes of a railroad, and took possession of the same, and for many years used the same for such purposes.
    That subsequently the New York Central Railroad Company was. formed, by a consolidation of the Tonawanda Railroad wdth other railroads, and acquired all the rights, and became as such subject to all the liabilities of the Tonawanda Railroad, and, subsequently, by a consolidation with the Hudson River Railroad Company, became the New York Central and Hudson River Railroad Company.
    That the latter company had abandoned the use of the tracks laid across the plaintiff’s premises, and had ceased to use said tracks for railroad purposes, and that the use of said tracks was not necessary for the purpose of said railroad, and were of no public use whatever, and for some time past had been used only and exclusively for private purposes.
    The evidence tended to show that by an instrument of lease of' April 27, 1889, the New York Central and Hudson River Railroad Company leased to Arthur Gf. Yates a certain piece of land in the city of Rochester, bounded westerly by the foot of the slope of the main tracks of the railway of the New York Central and Hudson River Railroad Company and the Erie canal; on the south by the-Erie canal; on the east by Eord street, and northerly by Hill street, with certain, exceptions specified in the lease to be used for coal-yard and trestle for the purpose of receiving and handling coal transported over the railroad of the party of the first part; the party of the first part, the railroad conrpany, reserving from the lease the use and control of the said track and trestle for all the purposes of the railroad, together with a strip of land twenty-five feet in width adjoining the Erie canal acquired for the purpose of such railroad.
    The evidence also tended to show that the plaintiff’s coal office-was on the corner of lot No. 67, and that his barn was on lots 65 and 66; that a new trestle work had been built much higher than the old one, and inclosed so that the plaintiff’s property was entirely shut off, and it was impossible to get from the railroad tracks on to the plaintiff’s property.
    That prior to October, 1889, the plaintiff had had railroad facilities from his land, but since that time had been entirely shut off from it.

      William F. Cogswell (& William, F. Cogswell, for the plaintiff.

      Albert H. Farris, for the defendant.
   Lewis, J.:

The plaintiff is the owner of a piece of land in the city of Rochester, on the southerly side of Hill street, 200 feet in width, and extending an equal width southerly for the distance of about one hundred and thirty feet to the Erie canal. Before the plaintiff got title to the lot, and prior to the 13th day of July, 1835, the Tonawanda Railroad Company, a corporation duly incorporated under the laws of the State of New York, by proceedings duly taken, acquired the right to appropriate a strip across the southerly end of this lot, twenty-five feet in width, for the use and purposes of a railroad, and it took possession thereof, and for many years used the same for railroad purposes.

The defendant has acquired all the rights of the Tonawanda Company, subject to all its obligations and liabilities.

The eastern terminus of the Tonawanda Company was in the city of Rochester. Its line of road passed across the twenty-five-foot strip aforesaid and terminated some two’ hundred feet east of the easterly line of the plaintiff’s land, at the westerly side of Ford street, where the company constructed and maintained its passenger depot.

After the road passed from the control of the Tonawanda Company the use of this depot was abandoned, and about one thousand feet of the easterly end of the tracks of 'the old road, including the portion thereof extending across the plaintiff’s lot, was used as.a spur of the main tracks of the defendant’s road, and was connected therewith at a point about one thousand feet westerly of the eastern terminus of the old road. This spur was thereafter used by the defendant for the purposes of its freight traffic.

On the 27th day of April, 1889, the defendant executed and delivered to Arthur G. Yates, of Rochester, a written lease for the term of fifteen years of its right of way across the plaintiff’s land, including its rights and interests in that portion of its road lying easterly of the plaintiff’s property, which was formerly occupied for a depot.

The grade. of the railroad tracks upon the property thus leased was thereupon changed by elevating the same so as to make room thereunder for coal-bins, and the strip of land across the plaintiff’s lot was covered by the lessee, Mr .Yates, with coal sheds and appliances for the transaction of his business as a coal dealer. He separated the strip of land across the plaintiff’s premises from the remainder of the plaintiff’s lot by constructing his buildings in such a manner that there were no means of access by the occupant of the plaintiff’s lot to the right of way aforesaid, and thereby effectually excluded the plaintiff and the public from that portion of the defendant’s road leased as aforesaid. Mr. Yates devoted the leased property exclusively to his own use for the purpose of a trestle and coal yard, etc., for the receiving and handling of his coal.

It is provided in the lease that the premises are let and are to be used by the tenant for the following purposes only: A coal yard and trestle for the purpose of receiving -and handling coal over the railroad of the party of the first part. The lessor reserves the right to terminate the lease and the term granted at any time upon- giving six months’ notice in writing to the tenant of such intention, and the lease and term thereupon ai’e to cease upon condition that the landlord pay to the lessee what the 'tenant may have expended in alterations and repairs not exceeding the sum of $10,000. The lessor agrees to furnish the ties and iron rails necessary for the use of the tenant’s trestles, lay the tracks and keep them in repair; all other constructions and repairs are to be made and done by the tenant. The tenant covenants and agrees not to assign the lease or under-let the premises, and covenants and agrees that they shall be used only for the purposes of receiving and handling his coal over the railroad of the defendant.

The following clause is in the lease : It is mutually understood and agreed that the party of the first part reserves from this lease the use and control of the said track and trestle for all the purposes, of a railroad, together with the strip of land twenty-five (25) feet in width adjoining the Erie canal acquired for the purposes of said railroad.”

The lease further provides for the extension and continuation of the term thereof by consent of the landlord. The tenant covenants to pay an annual rental of $1,000.

Prior to the giving of the lease to Mr. Yates the occupants of the plaintiff’s lot had enjoyed railroad facilities with the defendant’s road, including the part thereof leased to Yates. After the lease a continuance of such facilities was refused by the defendant, unless the consent of Mr. Yates was first obtained.

At the close of the evidence each party requested the direction of a verdict in their behalf respectively. The plaintiff’s motion was granted, and the defendant’s exceptions were ordered to ,be heard at the General Term in the first instance.

Notwithstanding the reservation clause above quoted, the lease, to all intents and purposes, surrendered the use and occupation of the premises to Mr. Yates for the purposes pf his private business and to the exclusion of the public. While the lease provides that the defendant shall own the ties and rails and keep them in repair, they are devoted, to the exclusive use of the tenant’s business. Access to the track upon the premises leased is controlled by the tenant. He has inclosed the track with buildings. There are doors to the buildings which, when closed, prevent access thereto.

Lands can be condemned for railroad purposes only when they are needed for the use of the public, either directly or indirectly. When thus acquired the public, under proper restrictions and regulations, have the right to their use. It is not necessary that the entire public should need to use the road, but the public must have a right to use it; and when the right of way is devoted exclusively to the use of a private individual and the public excluded therefrom, it ceases to be used for public purposes. It is not a valid objection to the condemnation of a strip of land by a railroad corporation that the proposed premises may serve private use, if, in addition to serving such use, it is also necessary for the successful and convenient operation of the main line of the railroad. A railroad company could not condemn land with the avowed purpose of leasing it after it is acquired, as this was leased. If, after acquiring lands for legitimate railroad purposes, it could be leased and thereby devoted to the exclusive private use of individuals, railroad corporations might become dangerous instrumentalities in the business affairs of the country.

The evidence presented the question of fact to the trial court, whether there had been an abandonment by the defendant for the purposes of a public railroad of that portion of its road leased to Yates, and the conclusion was inevitable that it had abandoned it and tliat the plaintiff was entitled to the possession thereof as the owner in fee freed from the easement of the defendant therein. (Mahon v. N. Y. C. and H. R. R. R. Co., 24 N. Y., 660; Heard v. The City of Brooklyn, 60 id., 242.)

The defendant’s motion for a new trial should be denied and judgment ordered for the plaintiff upon the verdict.

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

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    In the Matter of the Application of the LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY to Appraise Certain Lands of FREDERICK BRINKMAN and Others.

      Bminent domain — costs allowed, where the petitioner fails to malee an offer — extra allowance — trial fee.

    A railroad corporation took proceedings, under title 1 of chapter 23 of the Code of Civil Procedure, to condemn certain real property, in which Frederick Brinkman and others, parties to the proceedings, served an answer, which was subsequently withdrawn, and the matter proceeded as if no answer had been interposed.
    No testimony was given before the commissioners, nor considered by them, except the question as to the value of the premises, nor was any offer made, under section 3372 of the Code of Civil Procedure, to purchase the premises at a specified price. The commissioners reported that the owners should be paid $550.
    Section 3372 {supra) provides that if no offer be made the court shall direct that the defendant shall recover of the plaintiff the costs of the proceeding, to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the Supreme Court, including-the allowances before and after the notice of trial; and that the court may also grant an additional allowance of costs not exceeding five per centum upon the amount awarded.
    Upon the confirmation of the report of the commissioners costs were demanded by the owners.

      Held, that as no offer had been made they were entitled to costs before and after notice of trial, and to an additional allowance of five' per cent.
    That costs in these proceedings are not governed by sections 1015 and 3251, subdivision 3, of the Code of Civil Procedure.

      Semble, that the owners were not in this case entitled to a trial fee.

      Appeal by the defendants, Frederick Brinkman and Mary Brink-man, from so much of an order, made at the Erie Special Term, December 1,1891, confirming the report of commissioners appointed in proceedings to condemn land by the right of eminent domain, as denied the application of the defendants for a direction that the defendants recover of plaintiff the costs of the proceedings, as in an action where a trial has been had, to be taxed by the clerk, for the reason and upon the ground that, the court had not the power to make such direction or order; and also from so much of the said order as denied the application of the defendants that they be granted an additional allowance of costs, not exceeding five per cent of the amount awarded, for the reason and upon the ground that the court had not the power to make such direction or order in respect thereto; and from each and every part of said order, in so far as it denied -the application of the defendants for costs.
    The order appealed from as resettled was entered in the office of the clerk of Erie county on the 4th day of January, 1892.

      Norris Morey, for the landowners, defendants and appellants.

      Daniel H. McMillan, for the railroad, plaintiff and respondent.
   Lewis, J.:

This is a proceeding instituted under title 1 of chapter 23 of the Code of Civil Procedure, entitled Proceedings for the Condemnation of Real Property.”

On presentation of the petition, the defendant Brinkman interposed an answer, but by stipulation of parties the answer was withdrawn, and the proceeding thereafter was continued practically as if no answer had been interposed. No testimony was given before the commissioners, nor considered by them, except the question as to the value of the premises to be acquired, and they thereafter made their report that there should be paid to the defendants for the property condemned the sum of $550. On the application at Special Term for confirmation of the commissioners report, the defendants appeared and made no opposition to the confirmation of the report, but asked ‘that the order direct that defendants recover of the plaintiff costs of the proceeding, as in an action where a trial has been had, and for an additional allowance of costs. It was conceded upon the hearing of the motion that no offer had been made by the plaintiff to purchase the property at a specified price. The report was confirmed. • The defendants’ application was denied for the alleged reason that the court had not the power to grant it; there was allowed by the order to the defendant Brinkman twenty-five dollars, together with disbursements.

Title 1 of chapter 23 of the Code of Civil Procedure was passed in 1890 ; it provides a new and complete system of practice for the condemnation of real property, which resembles in its main features the practice in ordinary actions. • The proceeding is instituted by the service of a petition upon the owner of the land sought to be condemned in the same manner as an ordinary summons is served with a notice of a time and place at which it will be presented to a Special Term of the Supreme Court. On presentation of the peti- . tion, the owner may appear and interpose an answer which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof sufficient to form a belief, or a statement of new matter constituting' a defense to the proceeding. The issues thus raised are tried by the court or referred to a referee to hear and determine. Exceptions may be filed and reviewed in the same manner as in ordinary actions. If judgment is in favor of the defendant, the petition will be dismissed, with costs to be taxed by the clerk at the same rates as are allowed, of course, to a defendant prevailing in an action in the Supreme Court, including the allowances for proceedings before and after notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed, and it appears from the petition that the petitioner is entitled to the relief demanded, judgment shall be entered adjudging that the condemnation of the real property described is necessary for public use, and commissioners are thereupon appointed. Section 3372 makes provision for cases where answers are not interjiosed. It provides that the petitioner may, before he serves his petition and notice, make a written offer to the owner to purchase the property at a specified price, and the owner may, at the time of the presentation of the petition, or at any other time previously, give written notice of his acceptance of the offer, and upon filing the petition with proof of the offer and its acceptance, an order may be entered that upon payment of the compensation agreed upon the petitioner may enter into possession of the property, and hold the same for public use. If the offer is not accepted, and the compensation awarded by the commissioners does not exceed the amount of the offer, with interest from the time it was made, no costs shall be allowed" to either party. If the compensation awarded shall exceed the amount of the offer, with interest from the time it was made, or if no offer be made the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the Supreme Court, including the allowances for proceedings before and after notice of trial, and the court may also grant an additional allowance of costs not exceeding five per centum upon the amount awarded.

The legislature obviously intended by this section to provide indemnity to an owner who has been subjected to the expense of an investigation in case of the failure of the petitioner to make a preliminary offer for the property. The steps in the proceeding are similar to those for the commencement and prosecution of an ordinary action. The petition is served in place of a summons. The owner is required to appear and look after the appointment of the commissioners. He is subjected to the trouble and expense of preparing for the hearing by procuring witnesses. There is the same necessity for counsel as in ordinary actions. The hearing in such cases frequently consumes considerable time. The questions involved are sometimes intricate, especially in cases where'the-land taken forms a part of a lai’ger tract owned by the defendant, and the question; therefore, of damages to the remaining land is involved. The provision as to an allowance' of additional cost does not depend, as in section 3253, upon an answer having been interposed or upon the proceeding being difficult and extraordinary. No such condition is contained in the section, but the court is given the discretion to grant an additional allowance of cost when no offer has been made as in this case. This provision was, undoubtedly, inserted in this section with a view of giving the court the discretion of granting an additional allowance of costs for the purpose of compensating the owner, in a proper case, for the expense he may have been subjected to in summoning witnesses and attending the hearing before the commissioners, with liis counsel. In ordinary real estate purchases the would-be purchaser is required to negotiate with the owner as to the price to be paid for the land. When lands are to be condemned for public use the petitioner is required by section 3372 to enter into negotiations with the owner and make a reasonable offer for the property or incur the liability to pay costs to the owner. The amount of costs to be recovered is not controlled by subdivision 3 of section 3251 of the Code, for the hearing before the commissioners is not in any sense a motion or a reference. Neither is it controlled by section 1015, for it is not the taking of an account. Defendant was clearly entitled to the items of ten and fifteen dollars allowed him for proceedings before and after notice of trial. They are expressly mentioned as items of cost to which he was entitled. In the memorandum of decision of the court at Special Term printed in the case the learned justice states : I think this is a proper case for . allowance of costs, including trial fee, as in an action, and for extra allowance if the court had the power to grant it.

We think there should have been allowed to the defendant, as an additional allowance of costs, the sum of twenty-seven dollars and fifty cents, being five per centum upon the amount awarded. .

Whether the defendant is entitled to a trial fee is a more difficult question. There was no issue of fact or of law in the proceeding. Sections 3367 and 3372 speak only of trials in connection with issues raised by an answer. Strictly speaking, the hearing before the commissioners is not a trial. It is more like an assessment of damages in an ordinary action where no answer has been interposed. While the question is not free from doubt, we are inclined to think that the appellant was not entitled to a trial fee.

The portion of the order appealed from should be modified so as to give the defendants, in addition to the twenty-five dollars and the disbursements, the sum of twenty-seven dollars and fifty cents as an additional allowance of costs, and the defendant should recover of the plaintiff ten dollars costs and the disbursements of the appeal.

Dwight, P. J., and Maoombee, J., concurred.

Order appealed from modified as indicated in the opinion, and as modified affirmed, with costs of this appeal to the defendants.