author:
Learned, P J.:
      Fish, J.

text:
    STEPHEN VAN RENSSELAER v. EGBERT S. WRIGHT.

      Code of Civil Procedure, section 1507 — meaning of the word “fitted” as used therein — section 1373, writ of possession, collection of money under —presumption a/rising from the tenants continuing in possession for twenty years after entry of judgment in ejectment.

    The requirement of section 1507 of the Oode of Civil Procedure, that the amount of rent in arrear must be '■ fixed” in a judgment of ejectment, is only intended to enable the defendant to avail himself of sections 1508 and 1509, authorizing a redemption of the land by the payment of the amount of rent due, with interest and costs. It confers a privilege upon the defendant, and does not create a judgment against him.
    Section 1373, authorizing the writ of possession, which provides that if a sum of money is awarded, it may be collected by virtue of the same execution, only intends that the plaintiff may insert in the writ of possession a mandate to collect any money adjudged to him, but not that the money must be so collected, or that it can be collected without the insertion of a mandate to that effect.

      "Where, under a judgment in ejectment, the plaintiff is entitled to take possession at once of the land, and the defendant has a right, on the payment of a certain sum, to retain possession or to recover it within six months after it has keen lost, and the defendant remains in possession for more than twenty years, the presumption is that the defendant has at some time during this period paid the necessary sum and thus become entitled to keep possession.
    The lapse of twenty years, by analogy to the limitation imposed upon the collection of judgments, constitutes a bar to an application for a writ of possession under a judgment injejectment.
    Appeal by the defendant from an order, entered in the clerk’s office of the county of Albany on the 12th day of November, 1888, which granted leave to Walter S. Church, the assignee and successor in interest of Stephen Van Rensselaer, the plaintiff in the above-entitled action, to issue execution or writ of possession in favor of the said Walter S. Church, as assignee and successor as aforesaid, upon the judgment heretofore recovered in this action on the 24th day of November, 1866.
    In this case an action was brought to recover possession of a farm for non-payment of rent under one of what are known as the manorial leases in perpetuity. Judgment was recovered in favor of plaintiff. The usual judgment for possession was entered November 24, 1866. Subsequently the judgment was assigned to Walter S. Church. On the Yth day of February, 186Y an execution for the costs included in the judgment was issued, which was afterwards withdrawn. On the 25th of December, 186Y, a writ of j>ossession and execution for costs was issued, which was afterwards withdrawn without being executed or satisfied in whole or in part. None has been since issued.
    The present owner of the judgment asked leave to issue a writ of possession. The defendant objected, setting up the statute of limitations ; and also asserted that the judgment, rents and costs were fully paid and satisfied. Leave to issue the writ was granted and the defendant appealed.

      W. Youmcms, for the appellant.

      G. L. /Stedmcm, for the respondent.
   Learned, P J.:

The defendant urges that under section 3Y6 of the Code of Civil Procedure a final judgment for a sum of money is presumed to be paid after twenty years. In this instance, if there is a judgment for costs, that is, a judgment on which an execution to collect the costs could issue, that section applies to that part of the judgment. The roll is not before us; it is not in the printed papers. We do not understand that the order authorizes an execution to collect the costs.

The defendant urges that under section 1507 the amount of rent in arrear must be “ fixed ” in the judgment, and that, therefore, as to that amount, also, this judgment is strictly for a sum of money. We think not. The fixing of that amount in the judgment is only to enable the defendant to avail himself of sections 1508 and 1509. .Section 1508 gives him the privilege, within six months after possession has been delivered, to redeem his land by payment of the amount of rent due, with interest and costs. This is a privilege to ■the defendant, not a judgment that he must pay such an amount.

Section 1373 authorizes the writ of possession, and says that if a sum of money is awarded it may be collected by virtue of the same execution. That only means that the plaintiff may insert in the writ of possession a mandate to collect any money adjudged to him; not that it must be so collected; or that it can be collected without the insertion of a mandate to that effect.

The question in the present case is not precisely what it would be in a case of recovery of land against an adverse claimant. Here the recovery is solely for non-payment of rent; and, further, a right to redeem extends until six months after possession delivered to the plaintiff. Clearly, then, the defendant has had the right during all this time since the judgment to pay the rent which had then accrued, and thus to relieve himself from the judgment. He was not for that purpose required to pay subsequent rent. (Section 1508, note to section 1509.)

We have, then, a case where the plaintiff has a right by his judgment to take possession at once of land, and the defendant has a right, on the payment of a certain sum, to retain possession or to recover it within six months after it has been lost. For more than twenty years the defendant remains in possession and the plaintiff does not take the possession adjudged to him. What is the pre.sumption ? Is it not that the defendant has, at some time during these twenty years, paid the sum necessary and thus become' entitled to keep the possession ? The theory on which all this-doctrine of limitations rests is, that persons do not sleep on their rights; that the probability is that debts have been paid when creditors do not enforce them. This applies here. Unless the defendant had ]iaid the rent in arrear, why did not the plaintiff issue his writ of possession? The defendant’s affidavit states that the-judgment, rent and costs are fully paid and satisfied. Iiis statement is sustained by the presumption of the case.

Furthermore, although this judgment is not in form for the payment of a sum of money, yet this may be considered to be its-practical effect, inasmuch as that is all which the plaintiff can. have if the defendant chooses to redeem.

In Samson v. Rose (65 N. Y., 411) the Commission of Appeals-held that upon the commencement of an action in ejectment for nonpayment of rent the estate of the tenant ceased and all crops thereafter sown belonged to the lessor. But in Cagger v. Lansing (69 N. Y., 417) the court did not decide what were the rights of the' tenant after judgment. Nor does section 1524 detract from the' privilege of redemption above mentioned.

Section 1377 limits the time within which the plaintiff has aright to issue execution. After that time he can issue it only in two cases, the first of which does not exist, and the second is by order of the court. Thus there is a statutory limitation of five years.

These provisions are a substitute for the old scire facias, which could be brought only within ten years after docketing a judgment (2 R. S., m. p. 577, § 3) ; the right to issue execution being limited to two years. (2 R. S., 363, §1). This limitation of th e scire facias was the same with the lien of the judgment. We can hardly think that under the Code the privilege of obtaining leave to issue execution should last for all time. And we are of opinion that, in analogy to statutes already cited, the lapse of twenty years (if not less) should bar the application.

The order should be reversed, with ten dollars costs and printing' disbursements, and motion denied.

Landon, J\, concurred.

Fish, J.

(concurring with Justice Learned) :

The judgment in this case was perfected on the 24th day of November, 1866, more than twenty years before this motion was. initiated. Walter S. Church now claims to be the owner of it by assignment, and states that he has had control of the action from the. commencement; that on the 7th day of February, 1867. an execution was issued for the costs only, which was afterwards withdrawn without having been executed or satisfied; and on the 24th of December, 1867, a writ of possession and execution for costs was-also issued, but afterwards withdrawn, without having been executed or satisfied; and that the judgment for costs remains wholly unpaid and the recovery of possession unexecuted; that the real estate still, remains in possession of defendant.

The defendant Wright makes affidavit that he holds the land; under a perpetual lease; and the action was instituted because of' the non-payment of rent. He denies the assignment of the judgment to Church, and states that said judgment for rent and costs is fully paid and satisfied. Hpon these premises, the order of the-Special Term was made, giving leave to Church to issue writ of possession against defendant upon the judgment.

By section 376 of the Code of Civil Procedure a final judgment' or decree for a sum of money, rendered in a court of record, is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. This presumption is, by the section, made, conclusive, except, etc.

As there is no pretense that in this case anything lias been done to bring it within the exceptions stated, the presumption is conclusive. Without the aid of this statute, there would be great reason ta-believe that the judgment recovered in this case had been in someway satisfied. It was a case where the tenant in possession before the enactment of the Code would have been allowed, at any time before actual ouster, to have paid up the rents and costs recovered,, and, by section 1508 of the Code, at any time within six months, after ouster.

It is not probable that after such a recovery in a contested case it would have been permitted to rest upwards of twenty years, unless-something had occurred between the parties which -satisfied the plaintiff. As the defendant has made affidavit that it was paid and ■satisfied, the order allowing execution ought not to be sustained. In case of a stale demand slight evidence of payment will do.

A payment and settlement or a compromise with Yan Rensselaer in his lifetime, or with James Kidd or Peter Cagger, or their personal representatives, would have been good ; and, for aught that appears on this motion, the judgment may have been satisfied in that direction. Mr. Church, who now claims to be the owner, cannot know how that may be.

The title of Church to the judgment is not very clearly established. No assignment from Yan Rensselaer to Kidd or Cagger is produced; nor is there any such document from Kidd and the heirs or the personal representatives of Cagger; only the general statement by affidavit of Church that it was so assigned. The denial, by defendant, of the assignments puts the allegations of Church at issue; and he is called upon for further proof that he is the assignee.

But the statute is clearly in the way of any party seeking to ■enforce the judgment.

If the rent and costs were paid, even after the recovery, the ■defendant remaining in possession, that ended all right to further enforce it. The defendant says that it was paid; and the statute, .after a delay of twenty years, makes the presumption of payment ■conclusive.

The theory of the plaintiff’s counsel, that this was not a decree for a judgment or sum of money, and for that reason section 376 of the Code ■of Civil Procedure does not apply, is not sound. It is a recovery of the possession of the land because the defendant failed to pay the rent. ‘The statute requires that the sum of the rent shall be determined, so that the defendant may pay it and stay the recovery. It is only' another way of recovering rent. The section certainly applies to so much of the judgment as fixes the sum of the rent and costs ; and, if that is paid, the judgment cannot be further enforced. The case is clearly within the spirit and letter of the section.

The order must be reversed, with costs and disbursements.

Order reversed, with ten dollars costs and printing disbursements, •and motion denied.


source: Caselaw Access Project

author: Iandon, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE BROADWAY RAILROAD COMPANY OF BROOKLYN, Appellant.
    Quo warranto — forfeiture of franchises, by reason of delay in the construction of an. elevated railroad in certain streets of Brooklyn when “ opened, graded and paved ” — subsequent legislation precluding the continuance of the construction of the road — Laws 1860, chapter 461.
    An action of quo warranto was brought to annul the charter of the Broadway Railroad Company of Brooklyn, or to vacate and annul the additional franchises, because of the non-user thereof, granted to it by chapter 461 of the Laws of 1860, by section 8 of which act it-was provided: “ Said railroad company shall, complete the tracks upon the said several streets and avenues or roads named in. the first section of this act, on or before the 1st day of October, 1861, or as soon thereafter as the said streets and avenues within said city shall have been opened,, graded and paved, and upon any plank-road or roads whenever the consent of the plank-road authorities shall have been obtained.”'

      Held, that the act of 1860 was a grant in presentí, to the defendant, of all the privileges and franchises mentioned in it; that time was not annexed to the; vesting of the grant, nor was it to the possession and enjoyment of the franchise: granted.
    That the defendant had a right to postpone the construction of its road until th& streets mentioned should have been opened, graded and paved, but that such postponement did not prevent the vesting of the franchise itself.
    That this privilege of postponing the construction of its road extended, as to each branch, until the streets on the line of the whole branch should have been, opened, graded and paved.
    That the fact that the defendant, prior to such work of opening, grading and paving throughout an entire branch, constructed a portion of its road upon one of the paved streets of such branch, was not an admission by the defendant of its duty to complete that portion of the road extending over the entire branch, that year.
    That the defendant had, at its option, the privilege to construct its railroad over any of the streets, on either branch of the road, which were opened, graded and paved when the act of 1860 was passed, and to continue the construction as further parts of the branch should be opened, graded and paved, but that it was not its duty to do so, and that it could safely await the opening of all the streets on any branch before its duty to complete any part of that branch would mature.
    That where, by reason of subsequent legislation, it became legally impossible to construct a certain branch, there would exist no forfeiture because of its non-construction.
    That the failure to construct any one branch would not be a cause of forfeiture as to other distinct branches.

      'That the fact that the act of 1860 conferred additional franchises upon an exist ing corporation enjoying other franchises conferred no better title to abuse or disuse the additional franchises than if the same had been granted to a corporation created solely to enjoy them.
    Where the State has fairly and expressly granted a franchise the courts do not, in actions to declare it forfeited, resort to narrow or forced constructions in order to condemn the grantee and establish a forfeiture of the franchise on its part.
    Appeal by the defendant from a judgment, entered on the 5th ■day of September,- 1889, in the office of the clerk of the county of Albany, after a trial at a Special Term held in said county, where it was decided that the defendant, by reason of its omissions and failures to construct its road in accordance with the terms thereof, had surrendered all the corporate privileges and franchises granted to it by. an act of the legislature passed on the 16th day of April, 1860, entitled “ An_ act to amend an act to authorize the laying of a rail track in Broadway and through certain other streets in the city of Brooklyn and New Lots in the county of Kings,” and debarring the defendant from exercising any of the corporate rights, privileges ■or franchises given to it in and by the said act.
    The action was in the nature of a quo warranto brought by the ■attorney-general to annul the charter of the defendant, or to vacate •and annul the additional franchises granted to it by chapter 461, Laws of 1860, because of the non-user of said franchises.
    Judgment of forfeiture of the franchises granted by the act of 1860 was awarded and the defendant perpetually enjoined from their ■exercise.

      George W. Wingate, for the appellant.

      ■Jesse Johnson, for the respondent.
   Iandon, J.:

The Broadway Railroad Company of Brooklyn was organized in 1858, under the general railroad act of 1850, and under chapter 303, Laws 1858, for the purposes of constructing and operating a street railroad from the East river, at the foot of Broadway, easterly through ■that street to the village of East New York, at or near the southeasterly line of the city of Brooklyn, a distance of four and three tfourth miles.

It completed that line of railroad in 1859, and has since maintained and operated it. No complaint is made that it has failed in its duty or obligations to the public respecting the franchises conferred by its original charter, and the judgment under review .reserves to it such franchises unimpaired. The questions presented for review arise under chapter 46 i of the Laws of 1860, entitled “ An act to amend An act to authorize the laying of a rail track in Broadway, and through certain other streets in the city of Brooklyn and New Lots, in the county of Kings,’ passed April .seventeenth, eighteen hundred and fifty-eight.”

The object of this act was to authorize the defendant to construct three branches from its main line. These branches have not- yet been completed, and the judgment appealed from vacates and annuls the franchises granted by the act to' the defendant. Whether the judgment should be affirmed depends upon the question whether, upon a proper construction of the act, the defendant is in default because of non-compliance with its provisions, or whether it has a valid excuse for a non-compliance with some of its provisions, and the time for compliance with others has not expired.

It will be convenient to insert the material sections of the act, indicating by numerals the three separate branches, and by italics the streets which at the time of the passage of the act were not opened, graded and paved, and by capitals the streets which yet remain either wholly or in part unopened, graded and paved.

Section 1. It shall be lawful for the Broadway Railroad Company of Brooklyn, organized by virtue of the act hereby amended, (1.) to lay down a single line of railroad track commencing at their present track at South Sixth street, through Eighth street, to and across Broadivay, to Ross street, and double lines of railroad tracks through said Ross street and Bedford avenue to Fulton avenue; and whenever Nost/rand or Rogers avenue shall have been legally opened, graded and paved, to extend the line of double tracks through Fulton and either Nost/nand or Rogers avenues to the village of Flatbush. (2.) Also, to lay a single line of railroad track, commencing at their present track on South Sixth street, through Eleventh street to South Fifth street; through South Fifth street, to Montross avenue; through said avenue to Morrell street; through Morrell to Johnson street; through Johnson street to intersect the track of said company on Broadway, and a double line of tracks from Morrell street through t/o/mscw to its intersection with the Cypress Hills plank-road, and through and over said plank-road to Cypress avenue; and whenever Cypress avenue shall have been legally opened and graded, to extend a double or single track on said avenue to Cypress Hills Cemetery. (3.) Also, whenever White, Bogart or Thames streets, and Central or Knickerbocker avenue^ shall have been legally opened and graded, the said company are authorized to lay a double or single line of railroad tracks through and over the same to the city line, from the intersection of either White or Bogart street with the Cypress Hills Plank-road and the track hereinbefore authorized to be laid on said plank-road, with the privilege to lay tracks for the necessary turnouts, which tracks, when laid, shall be maintained and operated by said company in conformity to the several provisions of the act hereby amended relative thereto.

“ Section 3. Said railroad company shall complete the tracks upon the said several streets and avenues or roads named in the first section of this act on or before the first day of October, eighteen hundred and sixty-one, or as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any plank-road or roads, whenever the consent of the plank-road companies shall have been obtained.”

Hpon the first or Flatbush branch the defendant has never attempted to construct any railroad. It is about two and one tenth miles long. Bedford avenue forms about one half of this branch. The trial court found that the defendant might have constructed that portion of this branch between its main line and Fulton street on Bedford avenue, by October 1, 1861; the streets for that distance being opened, graded and paved. From Fulton street to Flatbush the streets were unopened and that portion of the branch was still farming lands. By chapter 905, Laws of 1867, the construction of any railroad on Bedford avenue was absolutely prohibited, and the court found that thereby it became, and now is, impossible for the defendant to build the line from Broadway to Flatbush. Before the act of 1867 took effect Nostrand avenue was unopened, unpaved and ungraded for a distance of half a mile, and Rogers avenue wholly unopened. These avenues are nearly parallel and the defen dant had the option to take either of them from Fulton street to Flatbush.

TJpon the second or Cypress Hills Cemetery branch, the defendant did, before October 1, 1861, construct so much of the road as extended from Broadway up through Eleventh, South Eifth and Montrose streets, to and through Morrell street, and thence down Johnson to Broadway; these streets, being on those portions occupied by the tracks, opened, graded and paved. This formed a loop or the prongs of a fork, touching the main line at different points, the handle of which was to extend, whenever the Cypress Hill plank-road and Cypress avenue should be opened, to the Cypress Hills Cemetery. The prongs of the fork and their connection through Morrell street were about a mile long; the extension from Morrell street to the cemetery was about three miles long and through farming lands. The court found that it was then impossible to build the extension, because Johnson avenue (then Cypress Hills plank-road) was not then opened, graded or paved beyond Bushwick avenue, and no part of Cypress avenue was opened, graded or paved. The defendant operated the loop until 1876, when it took up the tracks and has not since relaid them. The court found that it took up the loop, because it did nokpay to operate it, and because it saw no prospect of the streets forming the extension to the cemetery being opened so as to permit it to lay the extension. It also found that defendant has not since rebuilt it, because the streets forming the extension still remain, in great part, unopened, ungraded and unpaved.

Respecting the third branch, none of the streets composing it were opened when the act of 1860 was passed. Some of them are yet wholly unopened. Central avenue forms the greater part of it. This avenue is now opened, graded and paved in part. The court found that in January 1887, the defendant commenced, in good faith,, the construction of its road on Central avenue; it spent in so doing $12,400, and had laid 3,367 feet of track in that street, when it was stopped by adverse litigation, by which it has since been, without laches upon its part, prevented from continuing and completing said route.

The court held and decided that it was the duty of the defendant to construct the railroad by October 1, 1861, upon each branch, upon such of the streets as were opened, graded and paved when the act was passed, and upon the remaining streets as fast as they should, respectively, be opened, graded and paved; that because it was in •default in these several respects it had forfeited all of the privileges and franchises conferred by the act of 1860, and judgment of forfeiture was directed, also, perpetually enjoining the defendant from the use or exercise of any of them.

The theory ujion which the judgment is founded is, that, so far as the route through the several branches was upon streets which were •opened, graded and paved when the act of 1860 took effect, the act was a grant in presentí, and the duty was enjoined upon the defendant to complete such portions by October 1, 1861; and that, so far as the route was upon streets thereafter to be opened, graded and paved, the act was a grant wifioturo, and completion, was postponed as to each street until it should be opened graded and paved; and fhat defendant was in default as to any street so opened, graded and paved upon which the railroad Avas not complete upon the completion •of the pavement, irrespective of the fact that it could not complete -the whole line. It will be seen that at no time since the act was passed has any one of the three branches been completely opened, graded and paved throughout its entire length.

We think the judgment must be reversed. It seems to us that the act of 1860 was the grant in presentí to the defendant of all the privileges and franchises mentioned in it. The defendant accepted it, and upon that acceptance became fully vested in presentí of all it conferred. Time was not annexed to the vesting of the grant, nor was it annexed to the possession and enjoyment of the franchise granted. Immediate possession and enjoyment of the entire privileges and franchises were permitted, so far as the State could confer them. But as some of the streets had not yet been legally opened, the State could not, as against private owners of the farm lands through which they were delineated on the map, confer present title to them. But, had the defendant bought such private lands, its franchise to lay its railroad thereon was complete. The right to postpone the construction of its road, until such streets should be opened, graded and paved, was a privilege granted to the defendant in addition to its franchise, and not a burden annexed to it, much less a postponement of the vesting of the franchise itself. The defendant was not forbidden to enter upon such streets; it was privileged not to enter. The important question is, did this privilege extend, as to each branch, the time of its completion until the streets of the whole branch should be opened, graded and paved? We think it did: The trial court found that the ■object of the act was to enable the defendant to construct three branches from its main line to three separate points. Nothing is said in the act of 1860 respecting the time in which to begin the ■construction of any one branch; only the time for its completion is ■specified. -Manifestly, the completion of the branch, not of its separate fragments, is provided for. The third section, above quoted, contains the privilege of postponement of completion. It is not there said that one pai’t shall be completed earlier than another; it is not declared that anything less than the whole shall be completed before the alternative appointment of time. It is urged that the intention of the legislature must be regarded. True; but to do that we must go back to the stand-point of 1860. It is probable that in 1860 it was not foreseen that the tide of population would avoid for so many years the streets and avenues designated as the route of these branches. It probably was expected that it would move thitherward and give the impulse of self-interest to the speedy completion of these branches. But it was not known, and hence it is probable the alternative provision of time, dependent upon the opening, grading and paving of the streets, was inserted with the just purpose of not insisting upon the completion of these branches before there should be passengers to use them.

It is urged that the construction in 1861 of the loop upon the paved streets of the second branch was a practical admission by the ■defendant of its duty to complete that portion that year. The defendant had the privilege to build the loop that year, and, doubtless, did so, in the expectation that it could speedily construct the remainder. It made a mistake as to the future, but it lost no privilege by its error in hopefulness or prophecy.

If each branch is to be separated into fragments and each fragment be separately considered, then it ought to follow that the franchise is forfeited by non-user only of such fragments of the route .as have been opened, graded and pav¿d, and remains in full vigor as to such other fragments as yet remain to be opened, graded and paved. It seems like an absurdity to suggest that, for the purposes -of condemnation, all of the branches, or all of any one branch is to be considered, as an indivisible entirety, the default in the least portion of which is the forfeiture of all, and yet to hold that the completion of the entirety within the time allowed for such completion is not a timely completion of the parts composing the entirety. As the act of 1860 provides that “ it shall be lawful ” for the defendant to lay the tracks, and also extends the time for completion until the streets are opened graded and paved, it seems to be a natural construction that “ it shall be lawful ” until the time shall have expired. From aught that appears in the act or the case, the parts of any branch are valueless except as parts of a completed whole.

It is urged that, because it appears from the act that some streets forming portions of the first and second branches were ready for enjoyment, and the date of October 1, 1861, is first assigned to “ complete the tracks upon the said several streets and avenues or roads named in the first section of this act,” that such date must be construed as referring to the railroad upon the streets already opened,, graded and paved, and that the alternative future date has reference-only to the streets not then opened, graded and paved. But it is. seen that all the streets, avenues and roads are grouped together. It would have been simple and easy to have distinguished between them, if any distinction was intended. A construction which should require the defendant to build parts of any branch — valueless as parts — thirty years before the valuable whole could prudently be completed, would be harsh in the extreme.

The construction insisted upon by the people is narrow, but this narrowness is defended upon the ground that, as between the State and its grantee of a franchise, the grant must be construed most strongly against the grantee. That principle is applicable when invoked against a corporation which, claims that it is protected or exempted by its charter from liabilities and duties common to others, or claims privileges oppressive to the public. But it is not to be invoked in support of the forfeiture of a franchise. Such a forfeiture is in the nature of a penalty for wrong doing. The judgment of forfeiture is self-executing and instantly annihilates or confiscates the defendant’s estate, or so much of it as is forfeited.

The law may justly hold that whoever asserts a franchise to commit a nuisance, or avoid taxation, or to be exempt from competition, or from common liability or the performance of common obligations, must put bis finger upon the express grant of privileges so odious and onerous to others. But it does tbis at the instance of those who assert rights in hostility to such claims and then straitly construes the charter, which is the pretended warrant for them. (Charles River Bridge v. Warren Bridge, 11 Pet., 496; Fertilizing Co. v. Hyde Park, 97 U. S., 659; Auburn and Cato Plankroad Co. v. Douglass, 9 N. Y., 444.) But when the State has fairly and expressly granted a franchise, the courts do not, in actions to declare it forfeited, resort to narrow or forced constructions in order to condemn the grantee and establish the forfeiture. On the contrary, they exercise great caution and seldom adjudge a forfeiture unless there is a manifest and substantial violation of the grant. (High on Extraordinary Remedies, § 649; Thompson v. People, 23 Wend., 537, 586; People v. Williamsburgh Turnpike amd Bridge Co., 47 N. Y., 586.)

The terminus of every branch is still inaccessible. The defend.ant’s privilege is to proceed from the beginning to the end of each branch, and it would seem that, if it shall arrive at any terminus within the time appointed in the act conferring the privilege, it will he there when due.

We think the proper construction of the act of 1860 is, that the defendant had, at its option, the privilege to construct its railroad over any of the streets on either route which were open, graded and paved when the act was passed, and to continue the construction as further parts of the route should be opened, graded and paved; but that it was not its duty to do so, and that it could safely await the opening of the entire route of any branch before its duty to complete any part of that branch would mature.

The foregoing views apply to each branch and require a reversal of the judgment. But it is to be observed, respecting the first or Flatbush branch, that by the act of 1867, forbidding the construction of any railroad upon the Bedford avenue portion of it, if any cause of forfeiture then existed, the legislature took its own measure of satisfaction therefor. The legislative recall of the substantial part of the Flatbush franchise either revoked the whole or confirmed the little that was left, and in either case removed all grounds for judicial forfeiture for past defaults. The finding that, since the passage of the act of 1867, it has been legally impossible to construct this branch precludes the liability of incurring a forfeiture for non-construction, since no legal duty can exist to perform what is legally impossible.

The failure as to any one branch cannot be a cause of forfeiture as to other distinct branches. The first, or Flatbush, branch is practically removed from the case by the act of the legislature. The second branch, in considerable part, still lies upon unopened or unpaved streets. The third branch is in a similar condition, and the defendants, in 1887, in advance of any immediate prospect of opening of all its parts, lawfully commenced to lay its tracks upon it,, and continued to do so until stopped by injunctions procured at the instance of rival parties. The time for completion not having been reached the defendant’s franchises continue.

The defendant objects that the court has not jurisdiction to vacate some of the franchises granted to a corporation, but must vacate and annul the entire charter or nothing.

We have preferred to consider this case upon the merits. We assume jurisdiction in the court to render the judgment appealed from, provided its construction of the act of 1860 is valid. If a corporation had been organized to exercise the franchises granted 'by the act of 1860 to the defendant, and had been for twenty-eight years in default in their use without valid excuse, judgment in a proper action vacating both charter and franchises would be within the jurisdiction of the court. The fact that the act of 1860 conferred additional franchises upon an existing corporation, enjoying other franchises, cannot give any better title to abuse or disuse the additional franchises than if granted to a corporation created solely to enjoy them. It may be that this case does not fall within the letter of section 1797 and the other sections of the Code of Civil Procedure relating to an “ action by the people to annul a corporation.” But we think the case is within the spirit of those sections, and of the common law which they were intended to embody.

We have not thought it necessary to consider whether the several acts cited by the defendant granting extensions of time to railroad corporations to complete their roads, and chapter 788, Laws of 1873, granting it additional privileges, constitute defenses against forfeiture. If they do, the defendant holds its franchises by a title additional to the one we consider to be valid.

The judgment is reversed, with costs; and, since there is no dispute as to the facts, judgment is directed in favor of the defendant dismissing the complaint, with costs.

Learned, P. J., and Fish, J., concurred.

Judgment reversed and complaint dismissed, with costs.


author: Landon, J.:

text:
    FRANCIS B. DELEHANTY, as Administrator, etc., Respondent, v. ST. VINCENT’S ORPHAN ASYLUM SOCIETY, Appellant, Impleaded with MARY CUNNINGHAM and Others.

      Will — residua/i'y clause — when it includes the remainder in a trust fund created by the will — presumption against pm'tial intestacy.

    A testator, by liis will, provided as follows: “First. After all my lawful debts are paid and discharged I give and bequeath to my beloved wife, Mary Cunningham, if accepted by her within two months after my decease, in lieu of and in discharge of her dower in my estate, both real and personal, the sum of $6,000, to be invested in some safe securities in the State of New York by my executor hereinafter named, the interest to be paid to her semi-annually for her support and maintenance so long as she remains my widow.”
    The testator then gave certain sums of money to certain institutions named in his-will, and “ the surplus, if any, to be distributed by my executor to the above-named persons and institutions in such proportion as in his judgment he may see fit to do.”

      Held, that the $6,000, directed to be invested by the first item of the will, constituted a portion of the surplus to be divided as above stated.
    The court will assume an intention on the part of a testator to avoid partial intestacy unless the contrary intention actually appears in the will itself.
    Appeal by tlie defendant-, St. Vincent’s Orphan Asylum Society of the city of Albany, from a judgment, entered in the office of the clerk of the county of Albany on the 19th day of July, 1889, after a trial before the court at a Special Term held in the city of Albany, where it was adjudged, among other things: Fifth,-that the remainder in the said fund of $6,000, after the life of the defendant Mary Cunning]]am, is not disposed of by, or subject to the power granted, the executor of the said will to distribute the “ surplus; ” that the said remainder was not distributed, nor were- any rights thereto created by the said executor, and that the said remainder passed to the next of kin of the testator.

      The action was brought to obtain a construction of the will of Daniel Cunningham, deceased, who died January 1, 1873, leaving his widow, Mary Cunningham, but no children or descendants, parent, brother, sister, nephew or niece him surviving. The will was executed in November preceding his death, and provides :

      “First. After all my lawful debts are paid and discharged, I give and bequeath to my beloved wife, Mary Cunningham, if accepted by her within two months after my decease, in lieu of and discharge of her dower in my estate, both real and personal, the sum of six thousand dollars, to be invested in some safe securities in the State of New York, by my executor hereinafter named, the intei’est to be paid to her semi-annually for her support and maintenance so long as she remains my widow.
    “ I give and bequeath to the following institutions the following sums of money, to be paid to each of them by my executor hereinafter named, within eighteen months after my decease:
    “To St. Vincent’s Orphan Asylum of the City of Albany ^ ‘ Female,’ fifteen hundred dollars. To St. Vincent’s Male Catholic Orphan Asylum of Albany, one thousand dollars. To the Catholic Institute of the City of Albany, known as the Little Sisters of the Poor, one thousand dollars. To St. Vincent’s de Paul Society, attached to St. Joseph’s Catholic Church of Albany, five hundred dollars. To Ann Limbach, my deceased wife’s daughter, five hun dred dollars. The surplus, if any, to be distributed by my executor to the above-named persons and institutions in such proportion as in his judgment he may see fit to do. I direct my executor and hereby authorize him to convert my real estate into money and convey the same to the purchasers, and dispose of the avails thereof in the manner aforesaid. I likewise make, constitute and appoint John McElroy to be executor of this my last will and testament, hereby revoking all former wills by me made.”
    The executor qualified and acted until his death, May 2i, 1887, and the plaintiff was thereafter appointed administrator with the will annexed. The testator left an estate consisting of a house and lot on First street, in the city of Albany, and premises known as the “ Soap Factory,” and some personal property, altogether of the value of upwards of $12,000. The widow accepted the provision made in the will. The executor sold the soap factory premises and paid the money legacies to the several legatees, amounting to $4,500. He conveyed to the widow for life the house and lot on First street, and she accepted such conveyance as a satisfactory investment of $3,000, part of the provision for her benefit as provided in the will, and the executor set aside $3,000 more in bond and mortgages to complete such investment. The executor wasted some of the surplus, and there has only come to the hands of the plaintiff the $3,000 aforesaid, which, with the house and lot on First street, not worth $3,000, constitute the property, subject to the widow’s life estate therein affected by this action.
    The executor, in order to distribute the surplus mentioned in the will, and in execution of the power given him therein, did, twelve years after the testator’s death, by an instrument under seal, declare that he did thereby distribute and give to the persons and institutions named in said will, the sum of one dollar to each of them, other than the defendant, and to the defendant the rest and residue of said surplus, real and personal.
    The Special Term held that the $6,000, constituting the principal to produce the income for the widow during her widowhood, formed no part of the surplus to be distributed by the executor, and hence the instrument executed by him to effect distribution of the surplus did not operate upon or include that sum, and that the testator died intestate as to the remainder in that sum. The St. Vincent’s Orphan Asylum appealed.

      John T. McDonough, for the appellant.

      Tracy dc Oooper, for the respondent.
   Landon, J.:

The question is not free from doubt, but we have reached the conclusion that the remainder in the sum of $6,000, forming the principal of which the testator’s widow was given the income during her widowhood, is embraced in the surplus, to be distributed by the executor.

It appears quite satisfactorily that the testator intended to make a disposition of his entire estate; that he intended that the persons and institutions to which he gave particular sums and benefits should have his entire estate, and that no others should have any part of it.. He specified with exactness, no doubt as fully as he could foresee the result, and had confidence that his estate could fully respond, the sums which should be the source or measure of his bequests. He thus bequeathed $4,500 absolutely and $6,000 during the life of his widow, provided she did not remarry. He thought it possible that she might remarry, and, also, that his estate would exceed the sums thus disposed of. The provision for his wife was conditional upon her acceptance of it “ in lieu of and discharge of her dower,” and he did not know how she would elect. He realized that some further provision should be made in order to make a complete disposition of his estate ;■ he had no near kindred; he had fixed upon the persons and institutions named in his will as the sole objects of his bounty; he could not foresee the action, or faithfulness of his widow to his memory, or her ultimate needs, or how much his real estate, which by his will he ■ equitably converted into money and disposed of as such, would realize; he had confidence in his executor, and he therefore declared “ the surplus, if any, to be distributed by my executor to the above-named persons and institutions in such proportion as in his judgment he may see fit to do.” He thus designated the persons and institutions who should receive this surplus, and loft it to his executor to fix the proportion which each one should take. The will directs the executor “ to convert my real estate into money and convey the same to purchasers and dispose of the avails thereof in the manner aforesaid.” The testator’s intention to avoid partial intestacy is thus strongly implied. The courts will presume such an intention, unless the contrary intention actually appears in the will itself. (Vernon v. Vernon, 53 N. Y., 351; Floyd v. Carow, 88 id., 560; Riker v. Cornwell, 113 id., 115; Kerr v. Dougherty, 79 id., 360; Thomas v. Snyder, 43 Hun, 14; Lyman v. Lyman, 22 id., 26.)

No particular form of words is required to pass a residuum. Thus the words “ balance of estate ” (Roman Catholic Church v. Wachter, 42 Barb., 43); “ balance of my capital ” (Vernon v. Vernon, supra); “ what is left, my books and furniture, and all other things” (Goods of Cadge, Law Rep., 1 Pro. and Divorce, 543); “the balance of my estate” (Grimes v. Smith, 70 Tex., 217; 8 S. W. Rep., 33), are apt words for the purpose.

Suppose the widow had elected to take her dower and not th& semi-annual provision, the surplus then would have been different, but the testator in such case intended it should go to his legatees, including his widow, and he left it to his executor to fix the proportions among them as in his judgment he should see fit; and in either case, in the light of the event, the residuum may go within the provisions of the will, and this affords a strong argument that it does go. But the respondent’s contention is that the word surplus is so used in this will as not to include, but to exclude, the remainder in the $6,000. The argument is, that the testator first gives the $6,000 as the principal for the annuity to his widow, then $4,500' in the aggregate to the other legatees, and then disposes of the surplus if any; ” these words, meaning if any over and above the-sums already mentioned, and not including any of them. This construction is supposed to be strengthened by the fact that the will directs the sums composing the $4,500 to be paid within eighteen months after the decease of the testator, thus implying, in connection with the direction respecting the surplus, that, if there be any surplus, it will then be ascertained and distributable; that if the-testator had intended to include the $6,000 in the surplus, he could not expect that it would be distributable at the end of eighteen months, and he would not have suggested the doubt respecting a. surplus which the words if any imply ; that the doubt in his mind was whether there would be any surplus over $10,500; that the-$6,000 fund was to come into the executor’s hands for investment,, and not for distribution. Admitting that this reasoning is entitled to respectful consideration, we still think it must yield to the consideration first adduced. The testator’s intention, which must control, we think, was to designate unmistakably the beneficiaries of all his estate, to apportion among them, within safe limits, the larger part of it, and to confide to his executor the apportionment among-them of the surplus or residuum.

It follows that the judgment of the Special Term must be reversed. As the widow does not appear to have been served with the summons nor to have appeared in the action, we do not think any part of the investment or estate by which her annuity is to be produced should be disturbed by this judgment. The costs of the parties to' be paid out of the surplus, if any, over and above the amount by -which her annuity is secured.

Learned, P. J., and Fish, J., concurred.

Judgment reversed and will construed as in opinion; judgment, with costs accordingly, to be settled by Landon, J.


author: Fish, J. :

text:
    PATRICK H. JUDGE, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Erjeatment — damages for withholding land used as a highway — decision as to the plaintiff’s right in remainder after the termination of a corporate existence.

    An action of ejectment was brought against a railroad company to recover land constituting part of a public highway in front of the plaintiff’s premises, and thereafter, pending the action, the land was condemned by the railroad corporation in proceedings by eminent domain:

      Meld, that the plaintiff was not entitled to recover anything more than nominal damages for the withholding of the land from his possession from the time of the railroad company’s first use thereof to the time of the award by the commissioners of appraisal in the proceedings by eminent domain.
    In an action of ejectment, where the land has been acquired by a railroad corporation by the exercise of the right of eminent domain, the court is not called upon to decide whether or not the plaintiff has a right in remainder after the corporate existence of the defendant shall have terminated.
    Appeal by the defendant from a judgment, entered in the office ■of the clerk of the county of Albany on the 24th day of May, 1889, after a trial at the Albany Circuit before the court without a jury. At the trial it was adjudged that the plaintiff was the owner in fee •simple of the premises claimed in the complaint, subject to the right ■of the defendant, the New York Central and Hudson River Railroad Company, to occupy and use the same for railroad purposes under the right obtained by it in proceedings by eminent domain •set forth in the answer, and that the plaintiff was entitled to recover the possession thereof after the expiration of the defendant’s Tight to the same for railroad purposes, and that the plaintiff recover from the defendant the sum of $200 damages and interest, together with the costs of the action.

      Matthew Hale, for the appellant.

      A. J. Parker, for the respondent.
   Fish, J. :

The action is in ejectment for the recovery of the possession of land and damages for withholding the same, accompanied with a. prayer for an injunction restraining defendant, etc.

The land in dispute constitutes part of a public highway in the-city of Albany, known as Broadway. The plaintiff claims the title-in fee subject to the public easement. The possession of the defendant is the use and occupation for railway purposes. The action was-tried before a trial judge without a jury. A decision followed in favor of plaintiff," for the recovery of the possession of saidpremises,, subject to the right of the defendcmt aforesaid, and after the expireetion thereof, and for two hundred dollars damages,” upon which judgment has been entered. The defendant took possession of the locus in quo on the 23d of May, 1882, and has since continued in possession in the manner stated.

If this state of affairs constituted the whole case as against the plaintiff, the defendant was wrongfully in possession, and ejectment might be maintained, or some other form of action which would afford a proper remedy. (See Henderson et al. v. N. Y. Central R. R. Co., 78 N. Y., 423.)

Although Broadway had been a public street from time immemorial, yet the title of plaintiff as adjoining owner is presumed to extend to the center of the street, and the owner may control the land as against everbody, except as against the rights of the public as an avenue of travel.

The defendant entered the premises in pursuance of an agreement with the mayor of the city, made under the authority of chapter 258 of the Laws of 1881. That act and the proceedings under it-put defendant in possession of all the rights of the public, but it did not take away from plaintiff his title to the street as far as the center thereof. The city undertook under that act to save defendant harmless from claims for compensation to the owner of the adjoining property, for damages -which accrued by reason of the change of grade; and this plaintiff, having presented to the city of Albany his claim for such damages to his adjoining property, and obtained .and accepted an award therefor, and executed a release, has been fully compensated for all 1ns damages to his adjoining lot.

It was so adjudicated in Matter of New York Central and Hudson River Railroad Company to acquire title of the land of Patrick H. Judge (11 N. Y. St. Rep., 866), and it is so held by the learned justice who decided this case. This then left no other question to be determined except as to the title of plaintiff to the land in the •street and damages for withholding it. Section 3 of chapter 258 of the statute of 1881 gave defendant the right to acquire the title to so much of the land covered by said street as defendant needed for the purpose named, in pursuance of the provisions of the act of 1850, entitled “An act to authorize the formation of railroad ■corporations and to regulate the same,” and the acts amendatory thereof.

At the time this action was commenced no proceedings to that end had been taken, but soon after the commencement of the action •defendant did institute the necessary proceedings for condemnation ■of the land for the uses of defendant in the operation of its railway. The learned justice in his decision finds that such proceedings were ■prosecuted to a determination; that an award of the damages was made to plaintiff for the value of his title in the street, which was fixed at a nominal sum, probably because the title to the land in the street was of no practical value to him ; that the appraisal .and report thereof was by the court confirmed, and the sum was after-wards tendered to the plaintiff and accepted by his attorney. And ■the learned justice has found, as conclusion of law, in terms, “ that 'by the award of five dollars, made by the commissioners, as set ■forth in the supplemental answer herein, and the confirmation ■of the said award and the payment thereof to the plaintiff, the defendant became entitled to enter upon, take possession of and use the land described in the complaint for the purposes of its corporation during the continuance of its corporate existence. That by .said award and order of confirmation and the payment thereof to the plaintiff, the plaintiff became and was divested and barred of •all right, estate and interest in the real estate described in the complaint during the corporate existence of the defendant. That by reason of said award, order of confirmation and payment, the plaintiff is not entitled to any judgment that the defendant surrender to the plaintiff the said real estate described in the complaint, or any part thereof during the corporate existence of defendant.”

The defendant, then, was rightfully in possession of the land at the time of the trial and decision. It does not matter that the right of possession came to defendant after the commencement of the action. The defendant was allowed by the court to interpose the supplemental answer setting up this defense, and it is presumed to have been allowed upon such terms as were just.

It is not material, for the purposes of this action, whether or not, under the proceedings to condemn the land, the defendant took a fee or whether the fee remains in plaintiff, subject to the occupation, possession and user during the corporate existence of defendant. The defense to the ejectment is as perfect in one case as the other. The action of ejectment can only be maintained to recover possession of land wrongfully withheld. The court, therefore, was not called upon to decide in this action whether or not the plaintiff has a remainder after the corporate existence of defendant shall terminate (if that time ever comes). Sufficient unto the day when that emergency confronts the courts. So much of the decision and judgment us determines' the question as to the remainder, and as directs the judgment in favor of plaintiff for recovery of possession of the premises, is clearly erroneous.

Finally, can plaintiff recover anything for damages in a case where he cannot recover the possession ? In this case he has recovered §200. There is no proof making a basis for such a finding. The ■case is stripped of all claims for damages, except what accrued for witholding the locus in quo from the time of defendant’s entry to the time of the award by the commissioners of appraisal. "When we ■consider that the land was a part of the public highway for the use of which plaintiff could get no benefit, that its value to the plaintiff was only five dollars, which sum included interest on the value since defendant took possession, and which sum was accepted by him, as there was no evidence in the case furnishing a. basis for naming any particular sum beyond a nominal sum, the recovery should not ■exceed a nominal sum.

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

Learned, P. J\, and Landon, L, concurred.

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


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ORRANDO P. DEXTER v. JAMES K. MOSIER, as Late Commissioner of Highways, and ROBERT R. McLANE, as Town Clerk of the Town of Waverly, in the County of Franklin and State of New York.

      Highways — laying out of — 1880, chap. 114, unconstitutional becatise of insufficient provision for notice— certiorari — review by, where no appeal is authorized.

    Section 2 of chapter 114 of the Laws of 1880 authorizes the commissioner of highways, on the petition of six freeholders, to lay out a road and to adjust the damages, and provides that on the making out and filing of an'order containing a correct survey of the road, and a statement of the amount of damages allowed for the same, the road shall become a public highway.

      Held, that as no provision was made in the statute for giving any notice to any owner of property, either of the taking of his property or of the ascertaining of his damages, the act was unconstitutional.
    That, although section 3 of the act might, in an imperfect way, furnish notice of the assessment of damages, there was no provision of the statute under which the owner, whose land was taken, had an opportunity to be heard on that question.
    That, as the act made no provision for an appeal, the action of the commissioner of highways thereunder was reviewable by certiora/i’i.

      People ex rel. Oook v. Hea/ring (37 3ST. Y., 306) distinguished.
    The remedy by certiorwi is not to redress a trespass, but to correct a judicial wrong or quasi judicial action, which action is just as wrong whether it is contrary to constitutional or contrary to statute law.

      Qucere, whether the “last assessment-rolls,” referred to in chapter 114 of the Laws of 1880, refers to the last assessment-rolls before the passage of the act, or the last assessment-rolls before the opening of the highway under the provisions of said act.
    Certiorari to review an order of James K. Mosier, as commissioner of highways of the town of "Waverly, Eranklin county, New York, in laying out a highway in said town across lands of the relator and other parties.

      The highway in question was assumed to have been laid out under and pursuant to chapter 114 of the Laws of 1880.

      John P. Badger, for the relator.

      Jacob W. Webb, for the respondent.
   Learned, P. J.:

The statutes which have to be considered in this case are flagrant specimens of careless and ignorant legislation. A highway system was established by the Revised Statutes. Chapter 431, Laws of 1875, amended section 60, article 4, title 1, chapter 16, first part Revised Statutes, and began by calling it “section 75.”

Chapter 114, Laws 1880 exempted from the provisions of the aforesaid amendatory act all towns whose real estate is assessed, as shown by their last assessment-rolls, at an average price of less than five dollars per acre. And it provided a very summary mode of laying out highways in such towns. The assessment-roll referred to-might mean the last before the passage of the act or the last before the opening the highway. Then chapter 696, Laws of 1881, amended section 75, article 4, title 1, chapter 16, part 1, Revised Statutes. Finally, chapter 267, Laws of 1885, was passed to amend certain errors in the Laws of 1880 and 1881. And one of the dozen amendments was in the last named act to make “section 75” read “section 60.”

Now, whether, the amendment of 1881 was to do away with the exemption of 1880, or whether that exemption was to remain, probably no legislator knew or cared. And all were probably equally careless whether the exemption of 1880 from the provisions of 1875 was also an exemption from the provisions of the Revised Statutes.

The commissioner of highways in this case assumes that chapter 114, Law of 1880 is in force, and that it applies to his town of ~Waverly, because the assessment-roll of 1888 showed an average of less than five dollars per acre. And in pursuance of that act he has laid out a road. That act provides for no appeal. Therefore, this certiorari lies.

Section 2 of the act authorizes the commissioner of highways, on the petition, of six freeholders, to lay out a road and to adjust the damages, and on making out and filing an order containing a correct survey of the road and a statement of the amount of damages allowed for the same, the road shall become a public highway. No provision is made for giving any notice to any owner of property either of the taking of his property or of the ascertaining of his damages.

It has so often been held that due process of law ” must include notice to the party whose property is to be taken, that we need only state the principle. Whether section 3 of that act might not, in a very imperfect way, supply the lack of notice of the assessment of damages we need not say. It is enough that the statute has no provision by which the owner, whose land is to he taken, has an opportunity to be heard on the question of taking his land for a highway.

The defendant says that if his act is illegal it cannot be reviewed by certiorari, that the only remedy is trespass. The case cited (People ex rel Cook v. Nearing, 27 N. Y., 306), does not sustain that doctrine. The doctrine is to be found only in the head note of the reporter, which in some volumes of those reports is not good authority. Whether any trespass was committed we do not know. The certiorari is not to remedy a trespass, but to correct a wrong judicial or quasi judicial action. And the action is just as wrong when it is contrary to the Constitution as when it is contrary to statute law.

The proceedings must be reversed, with fifty dollars costs and disbursements to the relator.

Landon and Fish, JJ., concurred.

Proceedings reversed, with fifty dollars costs and disbursements to relator.


text:
    HUDSON RIVER TELEPHONE COMPANY, Respondent, v. THE WATERVLIET TURNPIKE AND RAILROAD COMPANY, Appellant.

      Electrical interference with the working of telephones by the use of electric railway motors — rights of the respective companies in the streets — remedy for such interference.

    In an action brought by a telephone company, incorporated under the general act providing for the incorporation of telegraph companies, to restrain a street railroad company from operating in the city of Albany, by means of single-trolley electric motors, cars which had previously been drawn by horses, it appeared that the railroad company was in 1862, by its charter, authorized to use “the power of horses, animals, or any mechanical or other power, or the combination of them, which the said company may choose to employ, except the force of steam.”

      Held, that, under the terms of its charter, the railroad company was entitled to use electricity as a motive power.
    That, as the telephone company was also lawfully using electricity for telephonic purposes, each company was vested by public grant vgith franchises and privileges for unlike occupations of the street, the grant of which to one was not necessarily repugnant to the grant to the other, nor in derogation thereof, unless it was impossible for the one to co-exist upon the same street with the other.
    That the claim of exclusive privilege would not be allowed when not expressly conferred by the terms of the grant.
    The business of the telephone company was seriously prejudiced by reason of the disturbances created in the electric current, passing through its wires to its subscribers and returning through the earth, by the much stronger electrical current used by the railroad company for its electric motors, for the return of which the earth was also used.
    It was found by the court that of the two methods suggested to prevent the interference of the respective electric currents used by the plaintiff and defendant, namely, a metallic circuit by the telephone company and a double trolley-system by the defendant, that the former would be the loss expensive and would obviate the difficulty.

      Held, that as the intention of the legislature in making the grants to the respective corporations was to promote the public welfare, and as these grants should be so construed, if practicable, as to permit both companies to occupy the same street, beneficially to themselves and to the public, each company was bound to adopt, upon equitable terms, such reasonable methods and safeguards as would . most effectually prevent interference with the other or injury to itself.
    That as the plaintiff could by the use of a metallic circuit, which would dispense with the use of the earth for the purpose of the return current, protect itself against the injurious effects of the greater volume of electricity employed by the defendant, no necessity existed for denying the use of electricity to the defendant.

      Quwre, whether the railroad company should contribute in whole or in part to-the expense to which the telephone company would he put in the construction, of this metallic circuit.
    A preliminary injunction was granted, which was continued pendente lite at Special Term, preventing the use of the electric motors by the railroad company.

      Held, that such injunction should be continued until the railroad company should stipulate that the trial court might consider the necessary expense to the telephone company of preventing by metallic circuit, or otherwise, the interference-with the operation of its telephones; what damages, if any, the telephone-company had sustained, and would sustain, until such interference could be-prevented, and that the trial court might adjudge to the telephone company against the railroad company such recovery for said expense and damages as. might be just and equitable, and that the railroad company should give a bond, by way of assurance of its payment of any amount that might so be adjudged against it, upon compliance with which conditions the injunction should be vacated.
    Appeal from an order of tbis court, made at a Special Term held at the city of Albany on the 26th day of November, 1889, and filed in the Albany county clerk’s office, January 3. 1890, restraining and enjoining the defendant from operating its road or running its cars between the south bounds of the power-house of the said defendant in North Albany, so-called, and South Ferry street, in the city of Albany, by what is known as the single-trolley or single-wire system of electricity, until the final determination of the above-entitled action, and from the whole of said order, and also from certain other orders, respectively, dated November 12,1889, November 16,. 1889, and November 18, 1889, and entered in the office of the clerk of the county of Albany, the order of November, 16, 1889, on January 3, 1890, and the order of November 18,1889, on January 4,. 1890, and from each of said orders.
    This action was brought by the plaintiff upon the ground that the-operation of the defendant’s cars by the single-trolley system would irreparably injure and damage the plaintiff, and that the amount of such injury and damage could not be computed in money; and that if the defendant were allowed to operate its cars, in order-to conduct a telephone business at all, the plaintiff would have to entirely change its plant, system and mode of doing business from that which is the accepted and almost universal method of conducting and furnishing the telephone service; and a judgment was demanded restraining the defendant from operating its railroad through the city of Aibany by the eleptric single-trolley system.

      The plaintiff was incorporated in 1883 under chapter 265 of the Laws of 1848, as amended hy chapter 471 of the Laws of 1853, relating to the incorporation of telegraph companies, and was ■engaged, before the introduction of electric motors upon the defendant’s road, in furnishing telephonic service to the citizens of Albany.
    The defendant was a domestic corporation duly incorporated and ■chartered as a turnpike company under and by virtue of chapter 141 •of the Laws of 1828, entitled “An act to incorporate the Watervliet Turnpike Company,” and of other acts amending the same; and by virtue of chapter 233 of the Laws of 1862, entitled “An act to .authorize the Watervliet Turnpike Company to construct and maintain a railroad on their present road, and to extend the same into and through the villages of West Troy and Cohoes and the town of Watervliet, and the city of Albany; to increase the capital stock and to alter their corporate name,” the defendant’s name was changed to the Watervliet Turnpike and Railroad Company; and it was by the said last-mentioned act authorized to construct and maintain one or more railroad tracks and ways through the streets of the village of West Troy, upon obtaining the consent of the hoard of trustees of said village, .and upon and along the turnpike road between said village of West Troy and the city of Albany, and in and through Broadway, in the •city of Albany, to the South Berry, with the consent and with such restrictions as might be deemed proper by the common council ■of the city of Albany.
    After the passage of chapter 233 of the Laws of 1862, the common ■council granted a franchise and consent permitting the defendant to lay a track or tracks for a horse railroad through Broadway to .South Berry street, in said city, under certain restrictions.
    By section 4 of the said chapter 233 of the Laws of 1862, the •defendant was “authorized to take, transport and carry property and persons upon the said railroad track or tracks for a compensation, hy the power of horses, animals or any mechanical or other power, or the combination of them which the said company may ■choose to employ, except the force of steam.” By section 11 of the act the defendant, in addition to certain other powers, authority and privileges granted and conferred by it, was granted the power ■and authority mentioned and defined in and by the first ten subdi■visions of section 28, except the fourth and seventh, and in the thirty-fifth, forty-second and forty-fifth sections of chapter 140 of 1850, providing for the incorporation of railroad companies, excepting the right to use steam as a propelling power on said road.

      Matthew Hale, John S. Wise and L. G. Hun, for the appellant.

      D. G. Jlerriok, for the respondent.
   Landon, J.:

It appears that the plaintiff is lawfully incorporated as a telephone company, and is lawfully in possession of its lines, poles, stations and apparatus and that it lawfully operates the same.

The defendant was incorporated in 1828 as a turnpike company, and by chapter 233, Laws of 1862, it was authorized to operate a street railroad. The plaintiff challenges the right of the defendant, to use electricity as its motive power. The act in question authorized the defendant to use the power of horses, animals or any ■mechanical or other power, or the combination of them, which such company may choose to employ, except the force of steam.” The plaintiff bases its challenge upon the fact that, in 1862, electricity, as a propeller of railway cars, was unknown, and hence not within the-intention of the legislature. But the legislators of that day were not ignorant of the inventive and experimental activity of the age and had they intended to grant to the defendant the right to use any power except steam, which subsequent invention or experiment, might demonstrate to be most beneficial to the.company and to the public, the language employed would have been apt for the purpose. We, therefore, think the terms and intent of the act embrace electricity as a motive power. By the grant of the State the plaintiff' lawfully uses electricity for telephonic purposes, and the defendant lawfully uses it for railway propulsion, and each company has its respective rights and privileges along the same streets and highways. As the public grant vests in each company franchises and privileges, for unlike occupations, the grant to one is not necessarily repugnant to the grant to the other, nor in derogation of it unless it is impossible for the one to co-exist upon the same streets and highways with the other. The grant of public franchises and privileges by the State is strictly construed, and hence, as between claimants under <~Hffp.rp.rit grants, unless more is expressly granted, no more j>asses than is reasonably necessary for the beneficial enjoyment of the grant. (People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y., 396.) The claim of exclusive privileges will not be allowed when not expressly conferred. (Syracuse Water Co. v. City of Syracuse, 26 N. Y. St. Rep., 364.) The grant of franchises and privileges is unlike a grant of land. The grantee of land is vested with exclusive dominion, and whoever, without permission, injuriously invades it, whether by personal entry, by polluted waters or noxious vapors, infringes upon the owner's rights. To the extent that there is here a grant of the use of land as space on the surface, or above or beneath it, having measurable dimensions, the grant to the telephone company may be likened to a grant of land, and the defendant may not exclude it from that space, though it might be competent for the court to readjust the occupancy so as to afford mutual accommodation. Thus one may, by municipal permission, lay his gas, water or sewer pipes beneath the surface of the street. A railway company may subsequently be granted the privilege to lay its tracks upon the same street, subject to the proper readjustment of the gas, water and sewer pipes, and the owner of the latter has no vested right to prevent such readjustment. No complaint is here made as to any visible invasion of the plaintiff’s defined or enclosed field of space. The plaintiff alleges an invasion of its electrical field, or rather that the defendant extends its electrical field so as to include or co-occupy that of the plaintiff. Unlike fields of land, these electrical fields are not definitely measurable. They extend into the regions above and below the surface of the earth, but to what extent, or how constant or variable, the president of the plaintiff, in his affidavit, declares that he “ is entirely unable to state.”

It is obvious that rules applicable to a definite acreage of land may not be applicable here. The grant to each company is to employ upon the same street the invisible energies of nature; and, since it is in vain to define the fields that confine them, we are per force constrained to seek for methods which will neutralize or reduce to a minimum the injurious effects of their contact or interference with each other. That method, it seems to be conceded, exists in the device for a metallic circuit for the return current of the electricity. The earth completes with the outgoing wires a natural return circuit for tlie electricity sent forth, upon the wires from the generating stations; but, since the earth is common to both companies, and both cannot use it, but one company may safely use it. If the One company must use an aerial metallic circuit, the problem seems to be which company, under the circumstances, ought to use the metallic circuit; ana if the plaintiff ought to use it, ought the defendant to pay the expense thereof wholly or in part.

The method which either party should employ for the return circuit for its current of electricity is not defined in the grant of its franchises, and, therefore, is not expressly, much less exclusively, bestowed. Neither company, therefore, has any exclusive privilege to use what is called the grounded or earth circuit. Both companies are granted privileges upon certain streets. The public motive inducing the respective grants was to promote the public welfare, ánd to enlarge the public benefits to be derived from the streets. It is plain that if these grants can be so construed as to permit both companies to occupy the same streets beneficially to themselves and to the public, such construction should be adopted. To accomplish this each company should adopt, upon equitable terms, such reasonable methods and safeguards as shall most prevent interference with the other or injury to itself. Each grant, therefore, as against the necessary requirements of the other, has no greater extent than is reasonably necessary for its beneficial enjoyment. What is reasonably necessary must depend in some degree upon what is known to be the most approved available appliances both to avoid inflicting injury or receiving it between each other. The same rule which binds them to care to avoid injury to third persons binds them as to each other. Both companies can maintain and operate their respective plants upon the same streets, and each should do what is reasonably necessary to avoid interference with the other and to protect itself. The railroad company does not threaten to come into contact with the poles of the telephone company nor with its wires, except as the greater volume of electricity employed by defendant may, by induction above ground and conduction under ground, disturb the proper and more delicate operation of the smaller volume of electricity employed by the plaintiff. If there were no reasonable and practicable method to obviate this interference, the defendant must needs desist from the use of electricity as a railway motive power upon the streets preoccupied by the plaintiff. This, for the reason that the privilege to operate the telephone beneficially gives the real value to the established lines and is valuable property. It cannot be presumed that the State intended to destroy or diminish this property in the absence of an express revocation of chartered privileges. But, as the plaintiff can be protected or can protect itself against the injurious effects of the electricity employed by the defendant, no necessity exists for denying the use of electricity to the defendant. Clearly, if there are two methods open to the plaintiff, ■one exclusive of the defendant and the other not, and both equally serviceable and practicable, the latter should be adopted. It remains to consider whether the railway company ought to do more or otherwise than it has done to prevent electrical interference with the telephone company, and whether the telephone company can reasonably be required to adopt other and approved methods to protect itself from such electrical interference. Upon the evidence before us it seems to be true that the single-trolley system adopted by the railway company is the best now known, regard being had to mechanical, ■electrical and financial considerations, but without regard to electrical interference with the telephone, which uses the grounded or ■earth circuit instead of a metallic circuit. The plaintiff does not use the metallic circuit. It is much cheaper to construct the metallic circuit for the telejxhone than for the railway. It appears to be shown by the evidence that the metallic- circuit, if employed by the telephone company, would obviate the electrical interference of which plaintiff complains. We should certainly, in the interest of the public, as well as that of the railway company, permit the latter to construct its road upon the most approved system. Other methods for the protection of the telephone are suggested. But it does not appear that any other is equally effective to prevent disturbances. To construct the metallic circuit for the telephone would be expensive, but how expensive does not .appeal’. Assuming, then, that the adoption of a metallic circuit for the telephone is the most reasonable method of obviating the injury from electrical interference, the question will arise whether the telephone or railway company ought to bear the expense. This is ■an equity action in which, Upon the trial, the court will have jurisdiction to administer all the relief which the nature of the case and the facts demand, and to frame its judgment in such terms as shall compel obedience by both parties. "Whoever seeks equity must do-it, and hence the court, in its equitable mandate against the defendant, can impose equitable conditions upon the plaintiff. In one sense the injury complained of is neither irreparable nor necessarily continuous, since it can be removed by incurring the necessary expense. But if the plaintiff shall incur all the expense without, compulsion or legal duress, it might be regarded as voluntarily incurring it, and hence could not recover it from defendant, and. would suffer to that extent irreparable loss. The present methods of the plaintiff are all it requires if the defendant should not interpose its destructive agency. It may be that the defendant ought to bear the expense of a change of plan. That expense would be less and the advantages to the defendant greater than if it were compelled to adopt the double-trolley system. It maybe that plaintiff’s • obligation to maintain a metallic circuit after it shall have been established will be the proper measure of its share of the burden. It may also be that priority in time gives the better equity. The defendant may lawfully enter upon the street, but the condition may be implied that it shall also indemnify others already rightfully there against the additional expense which its entry subjects them to, as in the case of the gas, water and sewer pipes already referred to. But we cannot now well decide who will ultimately be liable-for this expense, or whether, equity requires its apportionment. This matter was less fully considered upon the argument than the-electrical and other important features of this somewhat novel case..

"We cannot place the burden of this expense in the first instance upon the defendant, since the plaintiff ought not to yield control of its lines to the defendant. The necessities of the case compel us to require the plaintiff to assume it in order to protect itself against, the defendant.

Ordered, that the injunction be continued as follows for thirty days and until the defendant shall stipulate:

1. That the court may determine on the trial what has been or what will be the necessary expense to the plaintiff of preventing,, by metallic circuit or otherwise, the injury to and interference with the operation of their telephone, complained of in the complaint.

2. And that the court may further determine on the trial what, damage, if any, plaintiff has sustained to its business or will sustain by reason of the matter set forth in the complaint before the same can be, with reasonable care, prevented as aforesaid.

3. And that in this action the court may adjudge to the plaintiff,, against the defendant, such recovery for said expense and for said damages as may be just and equitable on the proof established at the trial.

And further, until the defendant shall have given to the-plaintiff a bond in the penal sum of-dollars, with two sufficient sureties, duly acknowledged, said sureties to justify in the-usual manner; conditioned that the defendant will pay to the plaintiff any sum or sums which may be adjudged against defendant in this action.

Upon the giving of said stipulation and bond the defendant may apply, on two days’ notice to any judge of the General Term,, for a certificate that said bond and stipuiation have been duly given. On filing said certificate the injunction shall be raised.

Should the injunction be vacated as above provided, the-plaintiff may within twenty days thereafter (or such further time as m&j be granted by any justice) serve a supplementary complaint so as to seek the recovery of such expense and damage, or other or further relief as it may be advised. No costs of this appeal; order to be settled.

Learned, P. J., concurred.

Injunction continued for thirty days, and until stipulation and bond as provided for in opinion; no costs; order to be settled by Learned, P. J., and Landon, J., on two days’ notice.


text:
    In the Matter of the Application of MICHAEL McGRATH for a Writ of Mandamus against the Green Island Water Company. THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL McGRATH, Appellant, v. THE GREEN ISLAND WATER COMPANY, Respondent.

      Water supply — rights of a party, supplied under a special contract for a limited supply, who subsequently increases the amount used and claims to come under the general rates — -peremptory mandamus, not proper where the facts a/i'e in dispute.

    On an application for a peremptory writ of mandamus, requiring the Green Island. Water Company to furnish the relator with water, it appeared that the relator had first received water into his house from the company through one faucet under a contract with it for five years.at five dollars per year, made the 3d ■ day of January, 1888. He subsequently put in another faucet for another family, and the company charged him ten dollars for both faucets. The relator tendered five dollars and fifty cents for the supply for one year, which the _ company refused to accept.
    The claim of the relator was based upon a contract between the water company and the village of Green Island, to the effect that the rates to be charged by the company to consumers should not “ exceed the present tariff charged in the city of Troy,” which tariff for a whole house like that of the relator would not exceed five dollars and fifty cents.

      Meld, that as the contract for the first faucet at five dollars still continued in force, it governed the rights of the parties as to that faucet; and as there was no provision in the Troy schedule that, in such case, additional faucets should be supplied at the rate of fifty cents each, the relator was not entitled to the relief sought for.
    'That he was not at liberty to take advantage of his special contract so long as it was beneficial to him, and repudiate it whenever he found that the Troy schedule would be more to his advantage.
    'On an application for a peremptory writ of mandamus the legal right of the relator must be clear, and it must appear that there are no material facts in dispute between the parties.
    Appeal by tlie relator from an order entered, in the above-entitled matter, in the office of the cleric of the county of Albany on the 10th day of January, 1890, denying a motion made by the said Michael McGrath for a peremptory mandamus against the ■defendant, the Green Island Water Company, and directing that an alternative mandamus issue.

      The relator is a resident of Green Island. Tie at first received water in his house from the company through one faucet' under a. contract with the respondent for five years at five dollars per year. Subsequently he adapted his house for two families and-put in another faucet for -the other family. Water was thereafter received through both faucets for about one year. The respondent charged him ten dollars for both faucets. The relator tendered five dollars, and fifty cents for the supply for one year, which the respondent, refused to accept.
    The relator bases this motion upon a contract which had been made between the respondent and the village of Green Island, to the effect that the rates to be charged by the respondent to consumers-should not “ exceed the present tariff charged in the city of Troy,” and he claimed that such tariff for a whole house like his would not exceed five dollars and fifty cents. The respondent does not deny the contract or the Troy rates, but claims that they do not apply to-a house used for two families, nor supersede the special contract for five years. Pending this disagreement the respondent cut off the relator’s whole supply of water.

      H. A. King, for the appellant.

      R. A. Parmenter, for the respondent.
   Landon, J.:

Chapter 737, Laws of 1873, as amended by chapter 422, Laws of 1885, under which the Green Island Water Company was incorporated, imposes upon the company the duty to supply the inhabitants, of Green Island with pure and wholesome water at reasonable rates.

The contract between the authorities of the village of Green Island and the company, for the company to supply the village and its inhabitants ” with such water and at rates not to exceed those specified in the schedule forming part of the contract, and providing that the rates to consumers shall not exceed the present (1887) tariff charged in the city of Troy, was made for the benefit of consumers, and relator, as one of such consumers, could avail himself of it, or could make whatever special contract with the company they-could agree upon. Whichever contract the relator adopted he could enforce, and performance being made or tendered upon his part would give-him the right to the supply of water in accordance with its terms..

The respondent is a corporation, undertaking, in view of its franchises of a public character, and expressly charged with the duty, to perform a certain service to all who pay certain fees or rates therefor; .and can, therefore, be compelled by mandamus to perform such .service. (People v. N. Y., L. E. and W. R. R. Co., 104 N. Y., 58; People v. N. Y. C. and H. R. R. R. Co., 28 Hun, 543.)

When the character of tile service charged upon the corporation is such as it would be competent for the legislature to intrust to municipal corporations and public officers, no reason is perceived why a mmidamus will not lie at the suit of the party aggrieved in the same manner as it would in like case against such corporations •or officers.

The relator must be destitute of any other adequate remedy. •Still the courts will be slow to assume that he has any adequate remedy for the non-performance of a quasi official duty in his behalf, or for the deprivation of one of the necessaries of life. But his legal right must be clear. In this case the relator is entitled to the writ of peremptory mcmdamus if he has paid or tendered payment of the rates legally due; otherwise not.

It appears that in January, 1888, he made a contract with the respondent for the supply of water from a single faucet at the rate ■of five dollars per year for'five years. His house was then occupied by one family only. Since then he has adapted it to two families, .and put in an additional faucet for the second family, and he now claims the right to the supply for both families at the Troy rate of five dollars and fifty cents for the whole house, and refuses to pay more. We do not think this position tenable. Bor the contract ■exists as to the first faucet at five dollars, and so long as that contract remains it governs as to that. There is no provision in the Troy schedule that, in such case, additional faucets shall be supplied at the rate of fifty cents each. He cannot be permitted to take the benefit of his special contract so long as it most benefits him, and repudiate it when lie finds that the Troy schedule would be more ■beneficial. The relator claims that he has tendered the respondent .a bond to pay whatever rates the court may adjudge. But that is not full tender of present performance; it is a conditional tender ..and, therefore, does not give a clear present legal right. Suppose •the county clerk is entitled to one dollar for recording a paper, and tiie relator should tender fifty cents in money and a bond to pay the balance if the court should so adjudge-. It would .not be claimed that a mandamus would lie against the clerk to compel him to' record the paper. This case does not differ in principle.

If, before the water had been cut off, the relator had brought his action to restrain the respondent from cutting it off, at the same time offering to pay whatever sum should be found due, such action, perhaps, would be well brought. The action would have for its object the settlement of a dispute, relief against injury pending the action, and provision for doing what equity requires. Such was Sickles v. Manhattan Gas-Light Company (64 How., 33; 66 id., 304). But an application for a peremptory writ of mandamus assumes that no material facts are in dispute. Both parties stand upon their legal rights. If the relator is clearly right, he succeeds; ■otherwise he fails.

The order should be affirmed, with ten dollars costs.

Learned, P. J., concurred; Matham, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.


author: Learned, P. J".:

text:
    MARGARET KAIN, as Administratrix of the Estate of DAVID KAIN, Deceased Appellant, v. PATRICK LARKIN, Respondent.

      Contributory negligence — application of the rule to the case of an assault cmd battery.

    Tlie rule applicable to cases of negligence, that the plaintiff cannot recover if the party injured in any degree contributes to the injury, does not apply to an action for injuries caused by an assault made by the defendant.
    An act of the plaintiff, however slight, which excites the defendant to commit an assault, however violent, will not prevent a recovery for such assault by the plaintiff.
    Appeal by the plaintiff from a judgment entered, in the above-entitled action, in the office of the clerk of the county of Bister on the 3d day of April, 1888, and also from an order denying plaintiff’s motion for a new trial on the judge’s minutes, entered in said office on the 3d day of April, 1888, after a trial at the Bister Circuit before the court and a jury, which' latter rendered a verdict of no-cause of action.
    The action was brought, under section 1902 of the Code of Civil Procedure, to recover damages, in favor of the personal representative of one David Kain, alleged to have been caused by the wrongful act of the defendant.
    It appeared in the evidence that about ten o’clock in the evening one Larkin, who was a police officer, while patrolling his beat, met Kain on the sidewalk of one of the streets in -the city of Kingston, where they got into some contention, and Larkin pushed Kain off the sidewalk. Kain returned to the sidewalk, when Larkin drew a pistol and shot and killed him.

      6r. R. Adams, for the appellant.

      F. L. Westbrook, for the respondent.
   Learned, P. J".:

The Code of Civil Procedure, section 1902, authorizes this action in case the defendant would have been liable to an action in favor of the decedent if death had not ensued. Section 1899 shows that the defendant is liable to this action, although he might also be criminally prosecuted.

"Whether the proof, therefore, would justify a recovery would depend upon whether the deceased could have recovered against the defendant if death had not ensued. The learned justice who tried the cause charged that the plaintiff could not recover if the decedent in any degree contributed to the injury. In thus charging he applied the rule which governs actions based solely on the negligence of the defendant. In such actions if the negligence of the plaintiff contributed to the injury, he cannot recover. But this rule does not apply to an action for injuries caused by an assault of the defendant. An assault committed by the plaintiff on the defendant does not necessarily justify the defendant in shooting at and wounding the plaintiff. What the defendant may do in self defense is another matter. How far acts of the plaintiff may mitigate damages is also another matter. But it is not the law that an act of the plaintiff, however slight, which excites the defendant to commit an assault, however violent, will prevent a recovery.

Now, in this ease the defendant, who was acting as an officer, told Kain, the deceased, to go about his business and shoved him off the sidewalk. Kain came back and defendant again told him to go home. He said defendant could not make him. Then defendant shot him. On this evidence, which is substantially the evidence in the case, there was no justification whatever for the defendant’s wanton and cruel act. There could be no doubt that if Kain had not died he could have recovered against the defendant. The statutes which have allowed a recovery by the executor or administrator in case of death have not been intended to change the grounds of liability, only to continue the right of action, which formerly abated with the death of the injured party. If this had been an action for negligence, the rule would have been properly applied by the court. But as it was an action for an intentional wrong, an assault and battery, the rule did not apply.

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

Landon, J., concurred; Mayhaai, J., not acting.

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