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    VERINA S. M. CHAPMAN, Plaintiff and Appellant, v. THE PHENIX NATIONAL BANK OF THE CITY OF NEW YORK, Defendant and Respondent.
    Confiscation of property used for insurrectionary purposes,
    UNDER ACT OF CONGRESS OF AUGUST 6, 1861, AND OF PROPERTY OF REBELS, UNDER ACT OF JULY 17, 1863.—JURISDICTION OF COURTS, GENERAL RULES.—JURISDICTION OF UNITED STATES DIS- ■ TRICT COURTS UNDER THESE STATUTES.
    War gives to the sovereign the right to take the persons and confiscate the property of enemies wherever found.
    The right to condemn and confiscate the property of enemies captured on. the high seas, exists by the law of nations. Before the courts of the United States can condemn and confiscate, as a consequence of the declaration of war, any property of an enemy found on land at the commencement of hostilities, provision by law must be made for that purpose. The right to enact such a law exists, and when enacted by the- sovereign power of‘the United States, the judicial department must give effect to the same..
    But until such enactment, no power of condemnation can exist in the courts (Brown v. United States, 8 Oranch, 110; Miller v. United States, 11 Wall. 368).
    The acts of-Congress above cited fully reviewed and commented-upon.

      The provisions of these acts taken together and construed with reference to the purposes therein avowed and also expressed in their respective titles, unmistakeably show that the intention of Congress was to provide not only a complete system for the capture and condemnation of property, liable to be considered as enemy’s property; but a system that should be most effective in times of great national commotion, peril, and distress; and with that end in view, it invested the district courts of the United States with full and general powers to take cognizance of, and inquire into all offenses under said acts.
    Want of jurisdiction renders void the judgment of any court, whether the same is a court of superior or inferior, of general or limited jurisdiction. The recital of jurisdictional facts in the record of a judgment of any court, is not conclusive, but only jprima facie evidence of the facts recited; and a party, against whom a judgment is offered, is not estopped or prevented by the fact of such recitals appearing, from establishing by evidence that those recitals were untrue.
    If a court had no jurisdiction to pionounce the decree at the time it was made, the decree could not become valid, because of the action of the court subsequently in denying a motion to vacate the same5 such denial does not constitute the position of “res adjudicates ” so as to bar an action. Where a statute prescribes that some fact must exist before jurisdiction of the court can attach, then such fact must appear, or there can be no jurisdiction, and the court cannot acquire it by erroneously deciding that the fact exists, and that it has jurisdiction.
    But where general jurisdiction is given to a court over any subject, and that jurisdiction depends upon facts brought before the court and submitted as evidence for its consideration and determination, and the court is required to act upon such evidence, then its decision, upon the question of its own jurisdiction, based upon such evidence, is conclusive until reviewed or vacated, so far, at least, as to protect its officers and all other persons who act upon the same in good faith (Roderigas i>. East River Savings Institution, 63 JV". Y. 460, and cases there cited).
    The jurisdiction of the United States district courts in these cases does not depend upon the fact of the commission of the offense alone, but embraces the power to hear and determine all cases arising under these statutes; and if in any case it shall be found that the property brought before the court belongs to a person guilty of an ofíense under said acts, then it may be condemned as enemies’ property.
    In the case at bar all the proceedings and formalities required by said acts, and necessary to confer jurisdiction upon the district court, and render its decision binding, were had and complied with, and the decree of condemnation was made in the course of a judicial inquiry, in a matter over which the court had jurisdiction, and the decree cannot be impeached in any other court. The case comes directly within the principle enforced by the court of appeals in Roderigas ®. East River Savings Institution, ■ 63 N. 7. 460, and reaffirmed in recent case of Lange ®. Benedict, 18 Alb. Law J. 11, and Hunt ®. Hunt, referred to in 6 N. T. Weekly Big. 313.
    Before Sanford and Freedman, JJ

      Decided November 4, 1878.
    The action was brought March 9, 1870, to recover certain dividends declared between June 1, 1861, and February 1, 1870, upon eighty-four shares of the capital stock of the Phenix Bank, and upon the same stock of the Phenix National Bank, into which the Phenix Bank became merged.
    On January 8, 1859, the plaintiff (then Verina S. Moore), who resided in North Carolina, owned the said eighty-four shares, and the bank issued to her a certificate therefor, which the plaintiff retained ever since. In 1861 she was married to the Rev. Robert H. Chapman, D. D., and has ever since continued to be his wife. During the late civil war she resided in the southern States, cut off from all communication with the North.
    No demand was ever made by the plaintiff for any of the dividends in suit until a short time before the commencement of the action.
    The dividends declared between June 1, 1861, and March 1, 1864, remained in the possession of the defendant until March 31, 1864, when, in compliance with the decree of the district court of the United States for the southern district of New York, condemning them, and the stock on which they had been declared, as forfeited to the United States, the same were paid to the clerk of said court.
    The proceedings by which the stock and dividends were condemned as forfeited to the United States, were as follows:

      First. Robert Murray, Esq., the marshal of the United States for the southern district of New York, on February 24, 1864, by and under the authority of the President of the United States, and in obedience to the instructions of the attorney-general of the United States, and to the directions of the district attorney of the United States for the southern district of New York, and in pursuance of the act of congress entitled “An act to confiscate property used for insurrectionary purposes,” approved August 6, 1861, and of the act of •congress entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” approved July 17, 1862, seized the said stock and dividends, to the end that the same might be confiscated, forfeited, and condemned, as required and provided in the said acts of congress.

      Second. After the seizure a libel of information was filed and a monition was duly issued, and the marshal in obedience to the monition attached the property, and gave due notice as required by law, and made due return.

      Third. After the return of the marshal, the decree of condemnation was made and entered. The defendant upon being served with a certified copy of the decree, on or about March 31, 1864, directing it so to do, canceled the stock certificate of said eighty-four shares on its books, and issued a new certificate for a like number of shares in its stead, to George F. Betts, Esq., clerk of said court, and paid to said clerk said unpaid dividends.
    Afterwards said stock was -duly sold by virtue of said decree, and in pursuance of a writ of a venditioni exponas, to other parties, who had said stock transferred on the defendant’s books, and they afterwards received the dividends thereon, the same having been paid to them before the commencement of this action.
    On or about March 12, 1869, the plaintiff petitioned the said U. S. district court to set aside said decree and said sale, and that the plaintiff might be allowed “to come in and defend said proceedings,” on the ground that the allegations in the libel o‘f information concerning the plaintiff’s rebellious acts were untrue, which is substantially the same question which the plaintiff is seeking to litigate in this action.
    The application for relief upon the petition was made on notice to the United'States and to the defendant, and after hearing counsel for the respective, parties the prayer of the petition was denied.
    The plaintiff then brought this action.
    Upon the trial by the court at special term without a jury the defendant had judgment for a dismissal of, the complaint on the merits, and plaintiff appealed.

      James S. Stearns, attorney, and of counsel, for appellant, urged:
    I. By the law of nations, the only lawful judicial proceeding for the confiscation of the property of enemies was upon its capture upon the high seas. No such court was known to the law as a court for the confiscation of the property of enemies on land (United States v. Stevenson, 3 Ben. 119 ; United States v. 1756 Shares of capital stock, 5 Blatchf. 231). The power of congress to enact laws for such a purpose has been reviewed and affirmed in the case .of Miller v. United States (11 Wall, 268). Under the authority so assumed by congress, it saw fit, for the purposes therein set forth, to enact the two laws in question, whereby, for and by reason of certain offenses therein set forth, the property should be condemns and forfeited to, and become the property of the United States ; and by the said acts the district courts of the United States were constituted the ministers through which the purposes of the acts should be carried out, so far as to secure the condemnation and sale for the benefit of the United States, of the property which had so become vested in the United States.
    II. The proceedings for the condemnation and sale of the property are entirely founded upon, and dependent upon the question of the use of the property in aid of the rebellion, or the hostile acts of the offender, as the case may be (see Conrad v. Waples, U. S. Sup. Court, No. 122, Oct. Term, 1877). The guilty act of the offender was held in McVeigh v. United States (11 Wall. 259), to lie at the foundation of the proceeding, and the questions of guilt and ownership were held to be fundamental in the case. The title of the United States is transferred to it by the act of the offender as decided in the case of United States v. Stevenson (3 Ben. 119), where it is held that the forfeiture takes place at the time of the commission of the offense, which operates of itself as a statutory transfer of the right of property to the government eo instanti (see also United States v. Bark Reindeer, 2 Cliff. 57; United States v. 56 Barrels of Whiskey, 1 Abb. U. S. 93). And the courts, when vested by these acts of congress withj the power and authority to condemn and sell the property, were constituted instruments by which the property then belonging to the United States should be dealt with as therein set forth. In carrying out this power so delegated to the district courts, the first step which lay at the foundation of the whole was the vesting as aforesaid, of the property in the govern.ment by reason of the said hostile acts, and without such transfer of title the whole superstructure erected upon such supposed transfer , must necessarily fall. It too, was even more necessary as the foundation of the proceedings, than the manual seizure of the property was necessary for the retaining of the property in the custody of the court, and the absence of such seizure, as one of the preliminary proceedings for such condemnation and sale, would be fatal (see Miller v. United States, 11 Wall. 268).
    III. The belligerent rights of our government, and •the extent to which those rights have been used, is decided in recent case of Conrad v. Waples, U. S. Supreme Court, October Term, 1877, in which Mr. Justice Field, in delivering the opinion of the court, held that the right to confiscate the property of enemies wherever found was conceded, but, until that right was exercised, it lay dormant. He quotes, as authority, the opinion of the court in Browne v. United States, 8 Craneh, and says, the right “remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court.” The supreme court held that until the passage of the two acts in question there was no power of confiscation, and that after the passage of those act?, the power was limited to the specific cases mentioned, and did not include the “ seizure and confiscation of property in enemies’ territory, or of enemies generally.”
    IV. There is a distinction between a court of general jurisdiction, exercising that jurisdiction under its general powers, and the same court enforcing special proceedings, under a special limited power conferred upon it for a special purpose. The supreme court of this State would be a court of limited jurisdiction in special statutory proceedings instituted for certain specific purposes. In these cases, notwithstanding the general powers of the court, every step from the commencement to the final determination of the matter, is jurisdictional. The U. S. supreme court holds that if there is any irregularity about the seizure, the whole proceeding is void (Alexandria v. Fairfax, 95 U. S. Sup. 774). There the seizure was no part of the proceedings in court, but ante-dated them ; on the same principle, the status of the property, or of the person, which also ante-dates the proceedings, and in fact, is the foundation thereof, is a jurisdictional fact, as to necessity of seizure (see also U. S. v. Stevenson, 3 Ben. 119).
    Y. It is claimed by the defendant that this question is one to be passed upon by the court itself, but this position is a fallacy. No court can, by any process or proof, take upon itself a jurisdiction which the law has not given it. No court, whose jurisdiction is limited to a certain class of cases, can so adjudicate upon its own powers, as to deprive other courts of the power to examine and determine for themselves the question of jurisdiction of the court so adjudicating. And here comes in the distinction in regard to the effect of a judgment of a court. Where the jurisdiction of a court is unquestioned, its judgment can only be inquired into by appeal or some application addressed to the court itself; and irregularities and errors are only to be corrected in that way ; but where its jurisdiction is assailed, it is competent for any other court, whenever called upon, to inquire into that jurisdiction, whether the defect is apparent on the record itself or is proved by extrinsic evidence. The courts of this State have recognized this position, and have several times affirmed it in the following cases: Starbuck v. Murray, 5 Wend. 148; Kerr v. Kerr, 41 N. Y. 272; Buchanan v. Rucker, 1 Camp. 67; Story on Conflicts, § 549, note (7th Ed.); Gray v. Larremore, 2 Abb. U. S. 542; Freeman on Judgments, § 117; Campbell v. Mc-Cahan, 41 Ill. 45; McNamara on Nullities, 77 (Law Lib., Vol. 87, p. 77); Mayor, &c. v. Porter, 18 Md. 285; N. Y. Fire Ins. Co. v. DeWolf, 2 Cow. 66.
    YI. And this principle has been recognized as well in respect to proceedings in rem as to those in personam. The. actual presence of the property within the limits of the court’s process never being regarded as conclusive upon this subject (Freeman on Judgments, § 614. p. 511, also, p. 509, § 612; Rose v. Himeley, 4 Cranch, 241; see also Buchanan v. Rucker, 1 Camp. 67; Boswell v. Dickerson, 4 McLean, 262 ; The Acorn, 2 Abb. U. S. 445). See also Allen v. United States, Taney’s Decisions, 112, where it is held that the doctrine of notice in proceedings in rem applies. only to civil cases, and not to cases of penalty and forfeiture.
    VII. In every case under these acts, which has been reported, there has been evidence to sustain the decree; and the remarkable case is here presented of a decree of condemnation against a loyal citizen, upon an unverified libel, and no evidence whatever, without her knowledge, and while she was out of reach of even a published notice, which, under similar circumstances was called a mere idle form in Lasere v. Rochereau, 17 Wall. 439 (quoting from Dean v. Nelson, 10 Wall. 172). It is unreasonable to suppose that congress meant to give the district courts power thus to deprive persons of their property, upon a mere irresponsible statement; when tho owners of that property were cut off from all communication, and unable either to appear to assert a claim, or even to obtain information of the proceedings. It cannot be believed that congress intended to make these laws an engine of oppression and robbery to innocent parties.
    VIII. The case of Roderigas v. East River Savings Institution, is, of course, fresh in the minds of the court. There the superior court first decided that the surrogate’s determination of the death of a party was not conclusive, even upon legal proof presented to him according to law, and that the payment to the administrator of the person erroneously sworn to be deceased was no payment at all. The court of appeals, however, reversed this decision (63 N. Y. 460). Earl, J., in delivering the opinion, says (p. 463) that the jurisdiction of surrogates’ courts “to grant administration upon the estates of deceased persons is general and exclusive. No court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in the particular case, can make a valid record, or confer any rights. When a statute prescribes that some fact must exist before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court cannot acquire jurisdiction by erroneously deciding that the fact exists and! that it has jurisdiction.” But, he holds, that where general jurisdiction is given, and the jurisdictional fact is to be determined by the court, upon evidence, its decision upon the question of jurisdiction is conclusive until reversed, revoked or vacated, so far as to protect its officers and all other innocent parties who act upon the faith of it. This is the gist of the whole case. The court must determine the 'jurisdictional fact upon evidence presented to it. In the present case, as shown above, there was no evidence whatever for the court to pass upon—not'even an affidavit. Judge Miller says, on page 472, if the statute “had provided only for the issuing of letters, and not proceeded to state what proof was required, it might well be argued that no jurisdiction was acquired. So, if the surrogate had issued the letters without the requisite proof, the same result would follow.” The judgment of the superior court was reversed by a vote of four against three, showing that even when the determination of the surrogate was founded upon legal evidence, the court was almost evenly divided as to its effect. The principle is recognized in that case that there must be evidence, in order to give the determination any effect, and, if there had been no such evidence, the court of appeals would, of course, have held the letters of administration to be a nullity. Applying this decision to the present case, the proceedings were of no force or effect, and no title to the stock would pass thereby.
    IX. The plaintiff could not be barred without her day in court—without an opportunity to be heard. No notice published in the proceedings could affect her, because she was out of reach of any such notices. A notice directed to her, and published in a newspaper was a “mere idle form,” she “ could not lawfully see nor obey it.” As to -her, the proceedings were wholly void and inoperative (see Dean v. Nelson, 10 Wall. 172; Lasere v. Rochereau, 17 Id. 437). This is not the case of a capture within the enemy’s country, but is that of a proceeding in the courts of the northern States for the condemnation of property forfeited for certain offenses mentioned in the laws, and the jurisdiction of the courts is confined to those cases.
    X. It cannot be contended that in order to create a forfeiture, congress must call it by that name. The acts provided that for certain offenses the property should be seized, and in the one case the entire proceeds go to the United States, and in the other one-half to the United States and one-half to the informer. What is this but a forfeiture? Forfeitures—“ The losing of some right, privilege, estate, honor, office or effects, by an offense, crime, breach of condition or other act.” — Webster's Die. Burrill defines “forfeit” as follows : “To lose as the penalty of some misdeed or negligence. The word includes not merely the idea of losing, but also of having the property transferred to another without the consent of the owner and wrong-doer.” The fact that congress so carefully defined the causes or grounds of condemnation, limiting them to special classes of persons and special predicaments of property, shows that it was the intention of congress to make these jurisdictional facts. Why ? Because otherwise every person within the rebel lines would be at the mercy of the harpies and jackals who infested the north at this period. If this property was subject to forfeiture, then the property of every loyalist, north or south, was also subject. All that was needed was an information like the present, and a complaisant bailee like the defendant, and any loyalist, male or female, idiot or infant, in the enemy’s country, or out of it, could be stripped of his estate. No proof was needed, an unverified libel did the work; Congress did not intend to sanction this class of land piracy.
    XI. What do the acts of congress give the president power to do % To seize and condemn, in the courts of the loyal state, any property belonging to any person in any of the loyal or disloyal states, upon an allegation that the property was within any of the specified classes % No, but on the contrary it is on the one hand the estate, &c., of the person named in the acts ; that of persons who were, in fact, in one or the other of the categories, or on the other hand, the property actually used in aid of the rebellion. If the proceeding was against a mere citizen it was not enough to show him in sympathy with the rebellion, or an alien enemy, but it must appear that after the passage of the act he has committed one of the offenses specified, and the caution of congress is shown in the provision which declares that to bring certain persons within the penalties of the statute, it must appear that they took office subsequent to the adoption of the ordinance of secession, or took the southern oath of allegiance. What is the legal proceeding for % It is to make effectual,,to reduce to manual possession, and put in a condition to be available for the purposes of the government “the property above described,” i. e., the property actually within the condemnation of the law, and therefore forfeited to the government., Here the effort of the defense is to sustain a technical condemnation by default, under highly penal statutes, where there was no proof.at the time it was had, that the property was liable to condemnation, by technical rules, in opposition to the conceded facts that there was not only nothing in the case to justify that condemnation, but that the defendants well knew that this was so. The construction urged by the defendant leaves the innocent owner wholly without remedy. The proceedings were entirely null and void, the property was proceeded against as that of “Ver. S. Moore,” and no proceedings were taken against the plaintiff as the owner of the stock. The court had no power or jurisdiction to condemn property in this way (see Conrad v. Waples, U. S. Sup. Ct., Oct. T. 1877.
    XII. But even if the court had jurisdiction and had attempted to assert it, the notices given before the filing of the libel are not such a seizure as could be construed into a manucaption of the property by the marshal. In other words, the title to stock cannot be changed in the manner claimed by defendants in this case (Pelham v. Rose, 9 Wall. 107). Upon this subject the dissenting opinion of Justices Field and Clifford' in the above case of Miller v. U. S. (11 Wall. 325, &c.), furnish a very strong argument, and one which is worthy of consideration (Holbrook v. New Jersey Zinc Co., 57 N. Y. 616). The contract which the company makes is always binding. It is bound to recognize those to whom-the certificates have been issued, or their legal transferees. Plaintiff is, and has been throughout, a corporator, a member of the defendant corporation, and entitled to all the rights and privileges of such. She is, and has been, a part owner of the franchises of the corporation, and can not be deprived of these rights in the manner attempted. This interest in the franchise cannot be transferred by a mere decree of a prize court, directing or declaring the transfer. A court, obtaining jurisdiction of the person, may compel an assignment, and delivery of the certificate, but until the certificate is actually surrendered into the possession of the corporation, no title passes. This is the necessary result of the decisions which are authority. Stock is not a chattel which can be handled, or real estate, which can be attached. It is intangible. It follows the person of the owner, to whom the certificate is issued. It is, in fact, a mere right, which entitles its possessor to certain privileges, and it can no more be made the subject of process than the debt in the Pelham v. Rose case. The issue of the certificate of stock to Blossom was ineffectual to deprive the plaintiff of her stock, or affect her in any way. The bank could not create any new stock, or deprive plaintiff of hers. The plaintiff’s shares “belonged to ‘ her ’ in ‘ her ’ individual right, and were as much ‘her’ separate and individual property as any other possession which ‘she’ could acquire. The entire capital was represented in the property and franchises of the corporation, and the owner of each share was entitled to a fixed and unalterable proportion of that capital.” There is no power to increase either the nominal or real capital beyond the amount fixed, and the issue of a certificate for shares in excess of the number is of no force or effect whatever (Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 13 N. Y. 617). It being the recognized law in this State that stock cannot be transferred in the manner claimed by defendant, if there is any conflict between the State and federal courts on the subject, those of the State must control (Poole v. Kermit, 37 N.

      Y. Superior Ct. 115; Town of Venice v. Breed, 1 N. Y. Supreme Ct. 131).

      Edgar S. Van Wintcle, attorney, and of counsel for respondent, urged :
    I. The confiscation and condemnation of the stock mentioned in the complaint, and of the accrued dividends thereon by the United States district court in the proceedings and by the decree .mentioned in the answer, is a defense to this action. 1. The United States district court had jurisdiction of the subject matter by the terms of the two acts of congress before referred to (12 Stat. at L. 319 and 589). (a) Jurisdiction was hot lost by reason of the absence of the party charged with the offense. The decree of condemnation and confiscation was given in accordance with the provisions of United States statutes, which, as intended for times of peculiar national peril and emergency, were extraordinary in their character, and evidently contemplated the probable necessity of an absolute decree of forfeiture against parties who, owing to their residence in distant and rebellious States, might have no opportunity to defend. The proceedings were an action in rem, in which all parties interested had a right to appear, and which for that reason and from certain considerations of public policy must be held conclusive against all the world (1 Greenleaf on Evidence, §§ 525 and 543, Redf. Ed.). “ Where on an information under the said act, the information alleging that the property belongs to A., and that it is liable to forfeiture under the act (all the allegations being in form), the court has proceeded as the act directs it to do, after default, and, hearing and determining the case only after such hearing and consideration condemns the property, it must be presumed that the property belonged to a person engaged in the rebellion, or one who had given aid or comfort thereto ” (Confiscation Cases, Slidell’s Law, 20 Wall.).
      (5) It cannot be argued that, becausó of the innocence of the party charged with the treasonable offense, the United States district court had no jurisdiction. Defendant claims that all evidence admitted at the special term tending to prove the innocence of the plaintiff, was irrelevant and improper, but assuming that such innocence has been established, and that the district court erred in deciding that said plaintiff incurred the penalty of forfeiture of her stocks and dividends, by bringing herself within the terms of the statutes, that mistake cannot be reviewed by this court, but can only be cured on appeal. Otherwise there would virtually be no end to litigation, for any party condemned might have recourse to another tribunal of concurrent jurisdiction, and again offer proof of his innocence on the ground that if he was innocent the first court had no jurisdiction (see authorities cited below, and also United States v. Arredonda, 6 Pet. 709). This last cited case seems conclusive on this point: “The power to hear and determine a cause is jurisdiction ; it is coram judice whenever a case is presented which brings this power into action ; if the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction ” (United States v. Arredondo, 6 Pet. 709). (c) It appears that all the proceedings and formalities required by the two acts of congress and necessary to give the United States court jurisdiction and render its decision binding, were followed out in this case as prescribed. And even if it did not so appear, the authority of the United States district court would be presumed until the contrary were shown (Ruckman v. Cowell, 1 N. Y. 505, 507 ; McCormick v. Sullivant, 10 Wheat. 192; Miller v. United States, 11 Wall. 299, 30 by it are to be pursued, and the powers delegated by it are to be exercised in a special and summary manner, the proceedings of the court will be considered as of the same character as the proceedings of courts not of record, but when the statute confers new powers and rights, to be brought into action by the usual form of common law or of chancery practice, the proceedings and judgment of the court will have all the characteristics of the proceedings and judgments of courts of record (Harvey v. Tyler, 2 Wall. 342). Moreover, an irregularity, if there were one, could not be reviewed 'by this court in a collateral proceeding (Kelsey v. Beers, 16 Abb. Pr. 228 ; Voorhies v. Bank of U. S., 10 Pet. 440). The fact that the libel of information was not verified did not render it irregular. (Rules 3 and 5 of U. S. District Court, 1865). Rule 3. Libels (except on behalf of the United States), praying an attachment in personam or in rem, or demanding the answer of any party, must be verified by oath or affirmation. 2. The decree of condemnation by the U. S. district court was a judgment in rem, which judgment of itself divested the plaintiff of her title to the stock and the dividends thereon, and vested the title in the United States. “In all forfeitures accruing at common law, nothing vests in the government until some legal steps shall be taken for the assertion of the right. . . When a forfeiture is given by a statute . . . the thing- forfeited may either vest immediately (on commission of the offense), or on the performance of some particular act (as obtaining judgment). This must depend .upon the construction of the statute” (Opinion of Marshall, Ch. J., United States v. Grundy, 3 Cranch, 337). Unless the phraseology of the statute expressly declares that the forfeiture shall take place upon the commission of the offense, “it is proper to resort to analogy and the doctrine of forfeiture at common law to assist the mind in coming to a conclusion” (United States v. Bags of Coffee, 8 Cranch, 405). Of the statutes affecting the present case, the act of 1861 declares that all such property (property declared subject to capture) shall be lawful subject of prize and capture wherever found. And it shall be the duty of the President of the United States to cause the same to be seized, confiscated and condemned. And further, ‘ that the attorney-general or any district-attorney of the United States may institute the proceedings of condemnation. And the act of 1862, section 5, authorizes and makes it the duty of the President of the United States to cause the seizure of the property in question, and section 7 further enacts that, to secure the condemnation and sale of any of such property after the same shall have been seized, proceedings in rem shall be instituted in the name of the United States in any district court. The only reasonable construction of these statutes requires that the change of title date from the decree of the court, and not from the commission, of the offense ; but this point is immaterial to the present discussion, for in either event the alleged case certainly came within the jurisdiction of the court (Gelston v. Hoyt, 3 Wheat. 246; Williams v. Armroyd, 7 Cranch, 424). 3. Decrees of a court of competent jurisdiction on the point in issue before it can only be reviewed by appeal, except in cases of fraud, and while unreversed are conclusive upon all other courts (Bigelow v. Winsor, 1 Gray, 299 ; Burhaus Van Zandt, 7 N. Y. 523 ; Cooke v. Halsey, 16 Pet. 71; Stilwell v. Carpenter, 59 N. Y. 414 ; Smith v. Nelson, 62 Id. 286 ; Cases cited in 1 Abb. Nat. Dig. p. 122, § 139 ; and cases cited below under (5) and (c) ; In re Tobias Watkins, 2 Pet. 207). (a) Judgment by default a bar where no proof was offered (Ogsbury v. La Farge, 2 N. Y. 113 ; Binck v. Wood, 43 Barb. 315). (b) The judgment of a court of the United States, the ■ subject matter of which is within its jurisdiction, cannot be impeached by a State court (Kelsey v. Beers, 16 Abb. Pr. 228; Kenape’s Lessee v. Kennedy, 5 Cranch, 185. See opinion of Marshall, Ch. J., in Ex parte Tobias Watkins, 3 Pet. 193; Chemung Canal Bank v. Judson, 8 N. Y. 254; Elliott v. Peirsol, 1 Pet. 328, 340; Ruckman v. Powell, 1 N. Y. 507, and cases there cited ; Watson on Sheriffs, 53, 54, 55, 7 vol., Law Library; Harrison’s Digest, 3 vol., p. 6373, 4, 5; 2 Cranch, 168; 6 Id. 267 ; 10 Pet. 449 ; 3 Ohio, 306 ; 2 Metc. 408; 3 Id. 460; 6 How. U. S. 31). (c) This is true as well in the case of a judgment in rem (Gelston v. Hoyt, 3 Wheat. 246; Williams v. Armroyd, 7 Cranch, 423; Hudson v. Guestier, 6 Id. 281 ; 1 Greenleaf on Evidence, § 525, and § 543, Red. Ed.). 4. The judgment of the United States district court was properly pleaded in this action (See Code of Procedure, § 161; 4 Abb. Digest, title Pleading under Code, 1586; Bement v. Winser, 1 Code Rep. N. S. 143).
    II. It follows, therefore, that the exception in the case, that the U. S. district court record showed no jurisdiction and was void, insufficient and irrelevant, was not well taken. It has been shown above that the court had jurisdiction of the subject matter and over the property, and that the record was not' void, but valid, because the case presented by the libel of information was one which the U. S. district court had the right to consider and determine. And the court’s determination in that case, whether right or wrong, cannot be questioned in this action or collaterally. The record, therefore, showed jurisdiction, was valid and sufficient. It was therefore relevant, and was, in fact, a bar to this action.
    III. The objection that it was immaterial what the bank had done with the stock, was not well taken. That fact was material, because the ■ dividends followed the stock, and it was material to show that after the stock and dividends thereon were confiscated and condemned, the stock was transferred and the dividends which thereafter were declared on that stock were paid over to the owners of the stock. The exception to introducing in evidence the certified copy of the decree which was served on the bank when the stock was transferred to the clerk of the U. S. district court, and the dividends paid over to him as directed by the decree, and the new certificate thereafter issued to represent the eighty-four shares of stock was not well taken. These were material to show that the bank paid over the dividends to the proper parties.
    IV. First.—It may seem to be a hardship that the plaintiff should have forfeited her stock when she was not guilty of the offense charged to work the forfeiture, and was not present at the trial to defend, but it must be remembered that the proceedings were taken under the authority of certain laws which were made necessary by civil war, and which have been declared constitutional in the case of Miller v. U. S. (11 Wall. 268), and certainly this court has no discretion to set aside these proceedings by reason of commiseration for the party affected. This is but a particular case of hardship, and the party, although without fault, must submit to the inevitable misfortune. Second.—On the other hand, to sustain this claim of the plaintiff against the bank, would be to establish a general principle which might affect with a like misfortune hundreds of innocent parties. The bank, in this case, has acted under the protection of the law, under the duress of the law, and it would be introducing a new principle and a pernicious example to render it liable to the plaintiff in opposition to the established law, and would bring discredit and distrust upon all the decrees of the courts of the United States.
   By the Court.—Freedman, J.

This action is sought to be sustained on the theory that the plaintiff had no notice or knowledge of the proceedings instituted in the United States district court, which resulted in the decree of condemnation ; that said proceedings were founded upon alleged offenses on the part of one Ver. S. Moore of which the plaintiff was wholly innocent ; and that consequently the decree of the United States district court was made without jurisdiction and is void.

If that court had no jurisdiction to pronounce the decree at the time it was made, the decree could not become valid by the denial of the motion to open it, and such denial does not constitute res adjudicates, so as to bar this action.

As to the question of jurisdiction, it is true that want of jurisdiction renders void the judgment of any court, whether it be of superior or inferior, of general, limited, or local jurisdiction, or of record or not; and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only prima facie evidence of the facts recited; and a party against whom a judgment is offered, is not, by the bare fact of such recitals, estopped from showing by affirmative facts that they were untrue.

But the difficulty is to find and determine the conditions upon which the jurisdiction of the district courts of the United States in this class of cases depends.

When a statute prescribes that some fact must exist before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court cannot acquire jurisdiction by erroneously deciding that the fact exists, and that it has'jurisdiction.

But where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in a particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until reversed, revoked, or vacated, so far as to protect its officers and all other innocent persons who act upon the faith of it.

Roderigas v. East River Savings Institution, per Earl, J., 63 N. Y. 460 (464), and cases there cited.

War gives to the sovereign the right to take the persons and confiscate the property of enemies wherever found. This rigid rule still exists, though the exercise of the right may have been more or less affected by the humane policy of modern times. The right to condemn and confiscate the property of enemies captured on the high seas, exists by the law of nations. But before the courts of the United States can condemn and confiscate, as a consequence of the declaration of war, any property of the enemy found on land at the commencement of hostilities, provision must first be made by law for that purpose. The right to enact such a law exists, and when the sovereign authority of the United States shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in any of the courts (Brown v. United States, 8 Cranch, 110).

The power of congress to enact laws for such a purpose has been reviewed and affirmed in the cas§ of Miller v. United States, 11 Wall. 268.

In the exercise of this power "congress enacted the act of August 6, 1861, entitled “An act to confiscate property used for insurrectionary purposesand the act of July 17, 1862, entitled, “ An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.”

The act of 1861 applies only to property acquired with intent to use or employ the same, or to suffer the same to be used or employed, in aiding or abetting •insurrection, or in resisting the laws ; and' the act of 1862, so far as it relates to the confiscation of property, applies only to the property of persons who thereafter might be guilty of acts of disloyalty or treason (Conrad v. Waples, U. S. Supreme Court, No. 122, October Term, 1877).

By these acts it was further provided that for the offenses therein set forth the property of the persons so offending should be condemned and forfeited to, and become the property of the United States, and that the district courts of the United States should have jurisdiction to carry out the purposes of said acts so as to secure the condemnation and sale, for the benefit of the United States, of the property thus liable to seizure, condemnation and sale.

For the purposes of the present appeal, it is immaterial whether the title of the offender is transferred to the United States by his guilty act, as has been held in United States v. Stevenson (3 Ben. 119), or pursuant to judicial sentence of condemnation, for in every case the property claimed must be seized and brought into court before it can be finally condemned and applied as directed by said acts.

The question then remains whether the jurisdiction of the courts Of the United States to entertain proceedings for condemnation, depends exclusively upon the fact of the commission of the offense, or whether it includes the general power to inquire and determine whether an offense has been committed, and to pronounce judgment according to the fact as it may be made to appear.

This question must be determined upon the construction of said acts and in accordance with the general legislative intent apparent from their enactment.

In addition to the provisions already referred to, the act of 1861 provides that all property liable to capture under it, shall be lawful subject of prize and capture wherever found, that it shall be the duty of the President of the United States to cause the same to be seized, confiscated and condemned ; that the attorney - general or any district - attorney of the United States may institute the proceedings for condemnation, in which case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts ; and that such prizes and capture shall be condemned in the district or circuit court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same may be ■ seized, or into which they.may be taken and proceedings first instituted.

The act of 1862 makes it the duty of the President of the United States to cause all property liable to seizure and condemnation under said act, to be seized and the proceeds thereof to be applied for the support of the army of the United States (§ 5). It also provides that to secure the condemnation and sale of any such property, after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings in rem shall-be instituted in the name of the United States in any district court thereof, within whose territorial jurisdiction the property, or any part thereof, may have been found, or into which the same, if movable, may have been first brought; that such proceedings shall conform, as nearly as may be, to proceedings in admiralty or revenue cases ; and that, if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies’ property and become the property of the United States, and thereupon it may be disposed of as the court may decree (§ 7). It further provides that the said district courts shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof, where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of the act, &c., &c. (§8). And finally the said act confers upon the said court full power to institute proceedings, make orders and decrees, issue process, and do all other things necessary to carry the act into effect (§ M).

These provisions, taken together, and construed with reference to the purposes therein avowed and also expressed in the titles of the respective acts, it seems -to me, unmistakably show that the intention of congress was to provide not only a complete system for the capture and condemnation of property liable to be considered as enemies’ property, but also one which should be effective in times of great national peril and commotion, and for that purpose to invest the district courts of the United States with the general power to take cognizance of and inquire into all offenses under said acts. Their jurisdiction is not made to depend upon the fact of the commission of the offense, but embraces the power to hear and determine all cases arising under the statute; and if in any case it shall be found that the property brought before the court belongs to a person guilty of an offense under the said acts,- then it may be condemned as enemies’ property.

In the case at bar, all the proceedings and formalities required by the two acts of congress, and necessary to give the district court jurisdiction and render its decision binding, were had and complied with. The proceeding was in rem/ the property was brought before the court, after seizure by the marshal, a libel of information was filed, and a monition duly issued ; all persons interested in the said property were cited, in general and special, as the law directs, to answer the matters alleged against it; and upon the marshal’s return of the monition, and proof of such notice, no one intervening, the decree of condemnation was made and entered. The court throughout acted according to its rules and course of practice adopted and promulgated for the disposition of such cases, and hence the decree of condemnation was made in the course of a judicial inquiry in a matter over which the court had jurisdiction. This being so, the decree of condemnation cannot be impeached in any other court. The case comes directly within the principle enforced by the court of appeals in Roderigas v. East River Savings Institution (63 N. Y. 460), and reaffirmed in the recent cases of Lange v. Benedict, reported 18 Alb. Law J. 11, and Hunt v. Hunt, referred to in 6 N. Y. Weekly Dig. 313.

These authorities being quite conclusive, it is not necessary to refer to the decisions of the supreme court of the United States, to the effect, that a decree of a court of competent jurisdiction on the point in issue before it, can only be reviewed by appeal, except in cases of fraud, and that, while unreversed, it is conclusive upon all other courts, and also that the judgment of a court of the United States, the subject matter of which is within its jurisdiction, cannot be impeached by a State court.

It therefore can make no difference that the libel of information filed in this case was not verified. It was filed by the district attorney of the United States for the southern district of Hew York in the discharge of his official duty, and under the responsibility of his official oath, and by the rules of the district court for said district, libels filed on behalf of the United States are excepted from the general requirement that libels praying an attachment in personam or in rem, or demanding the answer of any party, must be verified by oath or affirmation. This point presents only a question of pleading, or, at most, one of regularity. It does not touch the question of jurisdiction.

Nor can it make any difference that the plaintiff was not actually served with process, and remained ignorant of the proceedings. Service was made in the method prescribed by law in such cases as a substitute for personal service, and this was equivalent to personal service. Similar seiwice is even sufficient in certain personal actions. Thus, in Hunt v. Hunt {supra), it was held that in an action for divorce a valid judgment in personam, so as to effect a dissolution of the marriage contract which shall be prevalent everywhere, may be rendered against a defendant not within the territorial jurisdiction during the progress of the suit, if that be the place of his citizenship and domicile, though process be served upon him only in some method prescribed by the laws of that jurisdiction as a, substitute for personal service, and though he has not voluntarily appeared. In cases like the one at bar, the statutes of the United States evidently contemplated the probable necessity of an absolute decree of condemnation against parties who, owing to their residence in distant and rebellious States, might have no opportunity to defend, and suitable provision was made for the contingency. The proceedings -are by action in rem, in which all parties interested have a right to appear pursuant to the monition issuing from the court. But no personal service or actual notice is necessary ; and finally it cannot avail the plaintiff that she is innocent of the alleged offense for which her property was condemned and sold. Assuming that her innocence has been fully established, and that the district court erred in condemning her stock and dividends, such error cannot be rectified by this court. Her remedy is by application to the court that made the decree or by appeal. Her case, as made out, discloses great hardship, especially as she did apply for relief to the district court and the prayer of her petition was denied. But we have no discretion to set aside the decree of the former court by reason of commiseration for her. On the other hand, to sustain plaintiff s claim, even if it could be done, would entail equal hardship upoti the defendant. The bank in this case has acted solely under the compulsion of the law as pronounced by the district court, and for any other court to compel it, though without fault, to pay a second time, would be introducing a novel principle and a dangerous precedent.

For the same reasons the plaintiff cannot escape from the decree of the district court by insisting that the seizure by the marshal of her stock and the dividends accrued thereon, was not, while she had the actual possession of the certificates, such a manucaption of the property as was necessary to confer jurisdiction upon the court, and that consequently her title could not be changed by judicial sentence in the manner attempted. The act of 1862 applies in express terms to “all the estate and property, money, stocks, credits and effects ’ ’ of the offender (§ 5). Therefore, the questions relating to the sufficiency of the seizure and the liability of the property seized to condemnation, were questions to be determined by the district court according to its course and practice. If they were of a jurisdictional character, the court, in pronouncing judgment, of necessity decided in favor of its jurisdiction, and so, under the statutes referred to and already shown, it had the general power and jurisdiction to inquire into all offenses under said acts, its judgment, standing unreversed, must, under the decisions in Roderigas v. East River Savings Institution, and Hunt v. Hunt (supra), be held conclusive upon these as well as all other questions properly embraced therein. At any rate, the seizure, as made, was followed up by the condemnation and sale of the property, the transfer of the stock on the books of the company, and the payment into court of the dividends now claimed, and for these reasons the plaintiff stands confronted not merely with a judicial, sentence on paper, but also with the results of the sentence as executed. Pelham v. Rose, 9 Wall. 103, is not in point. It was an action against a marshal for a false return. He had been commanded to attach a certain note and to detain the same in his custody. For the purpose of determining his liability upon a certain return made by him, it was held that the due and legal, service of the writ required him to take the note into his actual custody and control.

Holbrook v. New Jersey Zinc Co., 57 N. Y. 616, was decided upon the theory that in an action against a corporation by a bona fide purchaser for value of certain certificates of its stock, the corporation was estopped from repudiating the terms of transfer to which it had consented ujion the face of the certificates.

This decision was placed upon grounds of public policy. It turned mainly upon the facts of the case, and was in nowise controlled by the provisions of any statute. The present case, on the other hand, turns entirely upon statutory provisions which are clear and explicit in themselves, and call for their own enforcement in preference to any other principle of law, which but for the existence ©f the statute, might apply.

The judgment appealed from should be affirmed with costs.

Saneobd, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    CORNELIUS MEINERS, Plaintiff and Respondent, v. WILLIAM STEINWAY and CHRISTIAN F. T. STEINWAY, Defendants and Appellants.
    I. Evidence.—Witness.
    1. EXPERTS.

      (a) Capacity of a machine to do certain required work.
    1. Where in an action to recover the price of a machine sold upon the contingency that it was to be tested for a certain length of time, and in that time was to perform certain work, the issue was on the performance of the contingency, and the testimony was conflicting on the question as to how and for what length of time the test was to be made, and whether it had in fact been completed according to the real terms of the sale, and in a certain view the further question presented itself whether the completion of the test agreed on had or not been prevented or secured by the conduct of the defendants:
    Held,
    that the testimony of experts, to the effect that from inherent imperfections plainly to be seen, the machine was incapable of performing the required work, had a material bearing on all the disputed points, and its exclusion was error.
    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    Appeal from a judgment entered upon the verdict of a jury, and also from an order denying defendant’s motion on the judge’s minutes for a new trial.
    The motion for a new trial was made on the exceptions taken during the trial, and also on the ground that the verdict was excessive and contrary to the evidence and the law.

      G. W. Gotterill, attorney, and of counsel, for appellants.

      Wm. W. Badger, attorney, and of counsel, for respondent.
   By the Court.—Freedman, J.

This action was brought upon an absolute and unqualified sale of a band saw-mill at the agreed price of $3,000.

During the trial the plaintiff obtained leave to amend the complaint by alleging an absolute and unqualified sale to the extent of $2,500, and a subsequent modification of it under which the plaintiff was to receive an additional $100 for each thousand feet that the mill sheet cut above 5,000 and up to 10,000 feet per day.

The.trial thereupon proceeded with the understanding that as against the complaint thus amended the defendants would continue to rely upon their general denial; but that, if it should become necessary, they would show that whatever contract of sale there ever was was a conditional one, and depending upon the performance of a certain test, and that the machine never performed the test, nor could it do so.

Subsequently, however, testimony offered by the defendants for the purpose of demonstrating that the machine was incapable of performing the test, was excluded, to which rulings the defendants excepted. The objection which led to this exclusion, was that evidence of experts as to the mechanical construction of the mill was irrelevant, for the reason that there was nothing in the nature of a warranty set up in the answer.

At the close of the evidence on both sides, it was apparent that the plaintiff had failed to establish the allegations of both the original and the amended complaint, and thereupon, against defendants’ objection and exception, he obtained leave to again change his complaint so as to aver a sale at a price not less than $2,500, contingent upon the mill sawing 5,000 feet per day, and with the additional contingency that the price should be increased $100, for every thousand feet that the mill sawed per day over 5,000, and to 10,000 feet, and that the plaintiff so performed this contract as to become entitled under it to the sum of $3,000.

The questions remaining under the issues as thus changed, were thereupon, upon the evidence as" it then stood, submitted to the jury.

The principal difference then remaining between the parties related to the actual capacity of the mill to do any of the required work for the time during which the test was to be continued. There was quite a conflict of testimony upon the questions, as to how, and for what length of time the test was to be made, and whether the test had in fact been completed according to the real terms of the sale. In a certain view which the jury were authorized to take, if they saw fit, the further question presented itself, whether the completion of the test agreed upon had or not been prevented or excused by the conduct of the defendants.

Upon every one of these disputed points the excluded évidence, it seems to me, would have had a more or less important, but material, bearing; for if the contract, as a whole, was made to depend from the beginning upon the performance of a specified test for a specified length of time, and the conflict created by the testimony of the parties left it in doubt whether the test had been substantially performed, the testimony of experts to the effect, that from inherent imperfections plainly to be seen, the mill was incapable of performing it, might have turned the scale. For this purpose the excluded evidence was admissible under the pleadings as, ordered to stand amended, and its exclusion was calculated to prejudice defendant’s case before the jury.

Upon the whole case I am very clear in the opinion that the ends of justice require a new trial, especially as since the trial, the plaintiff has expressly refused to complete the record by the insertion of the amendment of the complaint granted for his benefit at the close of the testimony.

The judgment and order should be severally reversed, and a new trial ordered, with costs to appellants to abide the event.

Speir, J., concurred.


text:
    WILLIAM P. BENSEL, et al., Exrs. &c., Plaintiffs and Appellants, v. HORATIO N. GRAY, Defendant and Respondent.
    I. Municipal Corporation Leases.
    1. Agreement to assign.

    O) Constitutes agreement to grant and assign an estate in
    THE DEMISED LAND FOR THE REMAINDER OF THE TERM, WHEN.
    1. When it contains a clause “with all and singular the premises therein mentioned and described, and the buildings thereon, with the appurtenances, to have and to hold the same' for and during all the rest, residue, and remainder yet to come of and in the term of years mentioned in said indenture of leases,”,with a covenant that the assigned premises are free from incumbrances.
    1. Incidents to such an agreement.
    Implied covenants.

      (a) Title.—A covenant that the vendors have a good title to the premises described in the lease, for the residue of the demised term, is to be implied.
    (5) Lessors' right.—A covenant that the corporation had the right and power to grant the estate and term in manner and form as in the lease expressed, is also to be implied. .
    2. Regularity and validity of lease; Burthen of proof.
    The burthen of proof is on the vendors, to show the regularity and validity of the lease.
    II. Tax sales—Invalid.
    The sales for the taxes of the years 1841, 1842, 1843, and the leases given thereon, and the sale for the years 1853 and 1854, and the leases given thereon, are invalid and void.
    HI. Title to lands.
    1. Possession, necessity of to sustain.

      (a) One of the cases in which it is not requisite.
    1. Where one traces a clear paper title from a conceded owner, and is in possession, it is unnecessary for him, as against one whose only claim is under a lease made by a municipal corporation on a sale for taxes, to show a possession prior to his by the conceded owner, or any subsequent grantee deriving title from such conceded owner.

      (a) This although he who claims under the tax lease had been in actual possession over twenty years, and the one claiming the fee had but recently entered upon the premises and obtained possession by putting the holder of the tax lease off his guard.

      IV. Vendor and vendee of bead estate.
    1. Estoppel as to setting dp defects in title.

    After a contract of purchase and sale of a lease, and of the demised premises for the unexpirfed term, the key of the house on the premises was delivered to the vendee, who held on to it until he had obtained the fee from the owner thereof, when he took visible possession.
    Held,
    that he was not estopped from setting up in an action by the vendor for the specific performance of the contract, that the lease was invalid and void.
    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    This action was brought to compel the specific performance of the following agreement:
    “ Know all men by these presents, that for and in consideration of the sum of five hundred dollars, lawful money of the United States, to us duly paid by Horatio N. Gray, we agree to sell, and by these presents do agree to grant, convey, assign, transfer and set over, unto the said Horatio IT. Gray, two indentures of leases, bearing date the second day of October, in the year one thousand eight hundred and forty-six, and November twenty-second, one thousand eight hundred and fifty-nine, made by the corporation of the city and county of New York, State of New York.
    “The conditions of this assignment are, said H. N. Gray to pay seven thousand dollars, and to assume the assessment of opening Lexington avenue; five hundred dollars to be paid on signing this agreement, fifteen hundred dollars on May 1st, ensuing, and bond and mortgage for five thousand dollars at three years, from May 1st, 1871, with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances; to have and to hold the same unto the said Horatio N. Gray, his assigns, from the 1st day of May, for and during all the rest, residue and remainder yet to come of and in the term of years mentioned in the said indenture of leases, subject nevertheless to the rents, covenants, conditions and provisions therein also mentioned. And we do hereby covenant, grant, promise and agree, to and with the said H. ET. Gray, that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments and incumbrances whatsoever.
    “In witness whereof, we have hereunto set our hands and seals this first day of April, one thousand eight hundred and seventy-one.
    “ WM. P. SEELEY, [l. s.] “WM. P. BENSEL, [l. s.j “ Executors.”

    The leases referred to in the agreement were:
    1st. One dated October 3, 1848, for a term of fifty years, given on a sale for the taxes of 1841, 1842, 1843.
    2d. One dated November 23, 1861, for a term of five hundred years,' given on a sale for the taxes of 1853 and 1854.
    The complaint alleged that defendant, on or about May 1, 1871, received from plaintiffs under said agreement “ possession of said lot of land, and that thence hitherto he has retained possession of the same.”
    The prayer of the complaint was as follows :
    “ Wherefore they demand judgment against the defendant for the said $1,500, with interest thereon from May 1, 1871, and that he shall be compelled to execute and deliver to them a bond and mortgage-according to the requirements of the said agreement; and that as security for payment by him, according to the terms of the said agreement, these plaintiffs may have a lien upon the said indentures of lease and upon the said lot of land of which the following is a description : All that certain lot of land situated on the southerly side of Eighty-seventh street, between Third and Fourth avenues, containing in width in front and rear, twenty-five feet, six and two-thirds inches, and in depth on each side one hundred feet, eight and a half inches, and the improvements thereon ; and that in the event of failure by the defendant to pay for the same as aforesaid, the same may be sold by and under the direction of this court, the defendant being compelled to unite in such sale, and the proceeds thereof applied so far as necessary to such payment, and that for any deficiency these plaintiffs may have judgment against the defendant and that they may recover against him the costs of this action.”
    The answer as amended on the trial averred that the contract was one to convey a good and valid title to the premises therein referred to, for the full term of the leases described, and that the consideration paid and agreed to be paid by and in said contract was for said title; that plaintiffs had no title other than such as they derived under the tax leases mentioned in the agreement, which were void and worthless ; that there was no consideration for said agreement, and that defendant never received, entered into or took any claim, occupation, or possession of said land of or from the plaintiffs or any act of theirs according to, or under or by virtue of said agreement, or any agreement whatever with plaintiffs, but that he did take title and possession from the actual owner of the fee of said lands, of whom he purchased the same after plaintiffs had failed to give him a good and valid title thereto. It also averred the payment of the sum of $500, mentioned in the contract, and the sustaining of damages to the extent of $250, for examining the title, and of $500, for removing buildings, and preparing to take possession, which three several sums defendant prayed to counterclaim.
    On the trial it appeared that defendant was in possession, that the lot was a part of the Harlem common lands, and was conveyed by the Harlem common commissioners to Dudley Selden by deed recorded Lib. 194 of Conveyances, p. 44, and by Dudley Selden and wife to Isaac Adriance, by deed recorded in Lib. 291 of Conveyances, p. 594. It also appeared that Isaac Adriance had died, leaving a will by which he devised all his property real and personal to his wife, Margaret E. Adriance, which will was admitted to probate October 21,1862 ; and that Margaret E. Adriance, by deed dated August 1, 1871, and recorded in the Lib. 1175 of Conveyances, p. 672, for the consideration of $5,000, conveyed the lot in question to the defendant. There was no proof that Selden or Adriance ever went into actual possession of the lot; the evidence tended to show the contrary. There was conflict of evidence as to under whom and under what defendant entered and the manner of his entry.
    There was also evidence as to defects and irregularities in the levying of the taxes for which the premises were sold, in the proceedings for the sale, and in the compliance with the statutes requiring certain things to be done after the sale before the giving of a lease.
    The cause was tried at special term without a jury.
    The learned judge before whom it was tried, found, as matters of fact:
    “I. That the parties entered into the agreement in question.

      “II. That the said leases were irregular and defective, and that the requirements of the statute of 1843 were not complied with ; and that the proceedings taken to authorize the making of said leases on the part of the mayor, aldermen and commonalty were defective or irregular, in these respects, to wit: As to the first lease. 1. That there is no certificate of the comptroller of the fact of the service of the notice of redemption, as required by § 24, art. 3, c. 230, Laws 1843. 2. The notice of redemption, dated December 11,1849, signed by Gordon L. Ford, was unauthorized and invalid, and its service a nullity. 3. The taxes for payment of which the lot in this lease was sold were illegally assessed for the years in question, viz. : 1841 and 1842 and 1843. 4. No legal demand for the payment of the taxes for those years was or could be made. 5. The certificate of the assessors attached to the assessment roll and signed by them is not verified or sworn to (53 Af. T. 49). 6. No certificate of the assessors is attached to the assessment roll for the years 1842 and 1843. As to the second lease. 1. No order was taken by the comptroller for advertising the lands or tenements in said lease described, pursuant to § 1, art. 3, c. 230, Laws of 1843. 2. There was no publication of the delivery of the assessment rolls to the tax commissioners three times in each week, in newspapers in New York, employed by the corporation of said city, during the years 1853 and 1854. 3. The notices served requiring payment of the taxes for the years 1853 and 1854, were defective in form and substance and service, viz.: (1) It was not served upon the person from whom the tax was due, nor with sufficient time. (2) It did not specify the amount of the tax, (3) Nor the percentage to accrue thereon. (4) Nor that payment should be made on or before January 1. 4. The redemption notice of February 18, 1862, as served by Phineas 0. Kingsland, was irregular in form and false in substance. (1) It does not state for what £ taxes and ■ regular rents for Croton water ’ the premises were sold. (2) It does not state the name of the purchaser of the premises. (3) The notice recites that £ the' said premises have been conveyed to me,’ and is signed £ Eliza C. Kip.’ The conveyance was in fact to Wm. B. Peyton. (4) The notice recites that the premises were sold for taxes and Croton water rents upon the same, without stating for what year or years, and also recites the amount of the taxes and charges as $31.58, which is incorrect, as shown by the lease. 5. The sale for the year 1859 was irregular, and also the redemption notice. (1) Four lots were sold, of which one was illegal, as exempt from any sale. (2) Two of the lots were redeemed for $44.49, out of $88.98, for the four lots sold; the sale as to the other lot was canceled, leaving $22.24 against the lot in question. The redemption notice erroneously required payment of $31.58. 6. The demand of the forty-two per cent, upon $31.58 was unauthorized and invalid. 7. The premises were in occupation, but there is no proof of service of redemption notice upon the occupant by a person residing in the city of Kew York. 8. There is no proof of proper service of said notice upon the last assessed owner.
    £ 1 III. That the defendant did not enter into nor take possession of the premises in question, under the contract, but refused so to do when requested by the plaintiffs, and notwithstanding their offer of indemnity"; that the delivery of the key of the building situated thereon was not intended to be, and was not accepted as, a delivery of possession of the premises.
    “IV. That the defendant did take possession on or after July 15, 1871, under license and authority from Mrs. Margaret Adriance, the owner of the fee, and not otherwise, and that he afterwards acquired title to the said premises in fee by conveyance from her, dated August 1, 1871, ‘Exhibit E.’
    “V. That on or about April 1, 1871, the defendant paid to the plaintiffs the sum of $500 as part of the consideration of the said contract then executed.” .
    And found the following conclusions of law :
    “I. I find that the contract between the parties for the specific performance of which this action is brought, is an undertaking on the part of the plaintiffs to transfer something more than mere municipal corporation tax lease, defeasible under certain circumstanced by redemption or otherwise.
    “I find that by the terms of the contract the plaintiffs were bound to grant, convey and assign to the defendant not only such indentures of lease, but with them an estate in land, viz.: ‘ in all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances,’ to be held by the defendant and his assigns, from May 1, 1871, for and during the residue of the term of years mentioned in said indentures.
    “II. I find that the contract being an executory agreement, for the sale of an estate in land, is not within the prohibitions of the Revised Statutes with respect to the implication of covenants in conveyances of real estate (1 B. S. 738, § 140).
    “ III. I find therefore that a covenant, that the vendors had a good title not only to the instruments purporting to be the leases, but to the premises therein described, for and during the residue of the term purporting to be granted thereby, is accordingly to be implied.
    “IV. I also find that in the case of municipal corporation leases where the contract provides for an assignment not merely of the instruments as such, but of the estate and term thereby purporting to be granted, there is also to be implied a covenant that the corporation had the right and power to grant the estate and term, in manner and form as therein expressed.
    “V. I find that under the construction of the said contract as above found, the burden of proof was upon the plaintiffs, to show the regularity and validity of the instruments by the tender of which they claim to have sufficiently established performance of or readiness to perform the contract on their part.

      “ VI. I find that the said leases being defective and irregular, as found in the second finding of fact above stated, were void, and conferred upon the lessees and their assigns no estate, title or interest whatsoever in the premises thereby purporting to be demised, and that there was a failure of the consideration of the said contract of April 1, 1871.
    ‘1VII. I find that the defendant is entitled to recover back the $500 paid by him on account of said contract with interest from the date of payment, and that he should have judgment therefor, and for dismissal of the complaint upon the merits with costs.”
    Judgment was entered for defendant accordingly, and plaintiffs appealed.

      Man & Parsons, attorneys, and John E. Parsons, of counsel, for appellant.
    I. The contract implied no covenant that the title of the plaintiffs to the lot was good for the demised term. It was error for the special term to hold the reverse of this. 1. That in an agreement to convey tax leases there is no implied covenant of title to the premises, was expressly decided by the court of appeals, in Boyd v. Schlesinger, 59 N. Y. 301; Bensel v. Gray, 62 Id. 632 ; where, in deciding this very case, the court of appeals affirmed Boyd v. Schlesinger as authority, and as requiring the reversal of the decision of the general term.
    II. The contract was not, as found by Judge Sarford in his opinion, a contract by the terms of which the plaintiffs were bound to grant to the defendant an estate in the lot for the residue of the term of years mentioned in the leases. 1. The contract is written into a printed blank for the assignment of a lease. By it the plaintiffs agreed to transfer to Gray the two leases, describing them, and that is all (fol. 44). The contract then goes on to specify the conditions of the assignment; that Gray was to pay $7,000, &c., &c. After that follow the printed words which would be applicable to an actual assignment, but they have no application to the agreement to assign. The words expressing the agreement to assign, &c., relate to the leases alone. The contract cannot be read in any such way as to make them apply to the lot.
    ITT. It was error for Judge Sanford to find that Mrs. Adriance was the owner of the fee of the lot, and that Gray acquired title in fee by her conveyance, and that it was under her that he took possession. 1. The lot in question was alleged to form a part of what was formerly known as Harlem commons, in the twelfth ward, of the city of Hew York (fol. 350). It was one of the lots described in a deed from Dudley Selden and wife, to Isaac Adriance, dated April 23, 1832, and recorded February 8, 1833, in the office of register of the city and county of Hew York, in liber 291 of Conveyances, p. 594. Heither Dudley Selden nor the Adriances were ever in possession. It was a wild lot (fol. 453), and there was no possession of it until under one of the tax leases Mrs. Kip took possession, erected buildings, &c. At that time the lot was only worth $300 to $350 (fol. 450). Title to real estate must originate in actual possession (Smith v. Lorillard, 10 Johns. 338). Heither the Adriances nor Gray as Mrs. Adriance’s grantee would maintain an action of ejectment upon the evidence in the case. It is probably impossible for any body to make out a legal Harlem commons title. However this may be, it was not made out in Mrs. Adriance. It is to be observed that the Dudley Selden deed to Isaac Adriance, which conveys a very large number of lots, expresses only a nominal consideration. Isaac Adriance never paid taxes or assessments, and neither he or his family made any claim to the lot until Gray put himself in communication with them (fols. 392-400), he doubtless using the tax leases for which he was to pay $7,000 as-an argument by which to obtain the claimed title in fee for $5,000. 2. Gray could not, therefore, enter under Mrs. Adriance. She had no title: she was not in. possession, and could not give possession to him.
    IV. Gray did take possession of the lot under the contract in question. Judge Satteord was in error in finding the reverse of this. 1. Upon precisely the same testimony, so far as concerns this point, Judge Freedmatt, on the first trial, found that Gray did enter under this contract, and that, for the purpose of depriving the plaintiffs of their possession and improvements without payment, he held on to 'possession until he procured the Adriance deed.
    Y. Gray having put himself in possession under the contract, was estopped from disputing the plaintiff’s title. By taking possession he put plaintiffs at this disadvantage, that it was necessary for them, if they sued in ejectment, to succeed upon the strength " of their title. This advantage he gained from them under their agreement with him, and it effectually precluded him from disputing the title under which he entered (Jackson v. Stewart, 6 Johns. 34 ; Jackson v. De Walts, 7 Id. 157; Bk. of Utica v. Mesereau, 3 Barb. Ch. 528; Jackson v. Hotchkiss, 6 Cow. 401; Jackson v. Walker, 7 Id. 637, and numerous other cases, laying down the rules in ejectment).
    YI. By his deed from the Adriances, according to • the finding .of Judge Satteord that it conveyed a title In fee, Gray has himself cured all difficulties in the leases. 1. That deed merged the plaintiff’s title, under which Gray entered (4 Kent’s Com. 99-101 ; 3 Greenl. Cr. 467; Roberts v. Jackson, 1 Wend. 478; James v. Morey, 2 Cow. 246, 248, 300 ; Clift v. White, 12 N. Y. 519). 2. A purchaser who has entered cannot defeat specific performance by reason of alleged defects which he has cured (Smedberg v. Moore, 26 Wend. 238). 3. And so Gray’s deed put it out of the power of the plaintiff to obtain a title which would cure the alleged defects, and one cannot defend against the performance of a contract on the ground of impossibility which he himself has created (Chitty on Contracts, 636, and cases cited ; Fleming v. Gilbert, 3 Johns. 528, 534; Betts v. Perine, 14 Wend. 219; Young v. Hunter, 6 N. Y. 203). 4. As Gray took possession without waiting for an actual assignment of the leases, the plaintiffs had until the trial of their action to make their title complete (Brown v. Half, 5 Paige, 235; Reformed Dutch Church v. Mott, 7 Id. 77; Vielle v. Troy & B. R. R. Co., 21 Barb. 381; S. C., 20 N. Y. 184; Cleveland v. Burrill, 25 Barb. 532).
    VII. Gray has himself obviated the inequitable objection which he himself took. He has quieted all questions of the validity of the leases, and though his purpose in doing so was to consummate the wrong he designed for the plaintiffs, it is just that his act should enure to their benefit.

      Wakeman & Batting, attorneys, and Abram, Wake-man, of counsel, for respondent.

       Note.—See Bensel v. Gray, 38 N. Y. Superior Court, 447.

   By the Court.—Freedman, J.

Though the defendant may not have entered into actual possession under the contract, it seems clear upon the evidence that, for the purpose of putting plaintiffs off their guard, he held on to the'key delivered to him until he could, make some arrangement with the record-owner for acquiring the fee. Such arrangement he finally succeeded in making and then he took visible possession. But in view of the intimations given by the court of appeals, on defendants’ appeal, to the effect, that possession under a tax lease cannot become adverse to the right of the real owner, the conduct of the defendant becomes immaterial, if the contract was as found below. Indeed, if this rule is to govern the case, it is difficult to see. how the plaintiffs can have any relief whatever.

Under the changed issues of the case the learned judge below was correct in holding that the contract called for a conveyance of a leasehold interest in the land, and not merely for a conveyance of the paper title.

This being so and the tax-leases being clearly invalid, if plaintiffs could ground no rights upon adverse possession, the defendant was legally justified in doing as he did, however wrong his conduct towards the plaintiffs may have been from a moral point of view.

• The case is one involving great hardship to the estate of which the plaintiffs are executors, but in view of the intimations given by the court of appeals by way of admonition, we cannot see how this court can help them.

The judgment must be affirmed with costs.

Speie, J., concurred.

Note. This is the decision on the appeal from a judgment entered on a second trial of this action.

On the first trial plaintiffs recovered judgment, the court resting its decision on the proposition (as controlling the decision of the case) that there was no warranty to be implied in an agreement to assign a tax lease by a municipal corporation, and consequently refusing to pass on the evidence adduced as to the invalidity of the lease.

On appeal by defendant, the general term held that a warranty was implied, and that the refusal of the court below was error, it also held that the fact that the defendant went into possession, under the contract, did not deprive him of the right to acquire it in fee, and to contest the tax title. The judgment below was reversed, and a new trial ordered (38 N. Y. Superior Court, 447).

Plaintiffs stipulated and appealed to the court of appeals. That court (62 N. Y. 632) held, in conformity with its previous decision in Boyd v. Schlesinger, 59 N. Y. 301 (then still in MSS.), that in an agreement to assign a corporation tax lease there was not an implied warranty of title to a leasehold interest, and that consequently the general term decision could not be sustained on the basis on which it was placed. It, however, held that in either of two aspects (which were not presented to or passed on by either the special or general term, and need not have been, under the views which controlled the decision there) it was necessary to pass on the evidence given as to the validity of the leases. (1) If the agreement undertook to assign, not only the leases as merely instruments in writing, but also to transfer the right in the premises for the term in the leases named, it was necessary that the force of that testimony should be passed on. (3) It was equally necessary, even if the agreement did not so undertake, but only to assign the -writing, and thereby agreed to transfer nothing valuable, and so left the contract of the defendant without consideration to support it. It, however, declined to construe the contract, because, if it was construed favorably to the defendant, it might involve the necessity of determining the question of fact as to the validity of the leases, and if the determination was against the validity it would lead to a reversal of a judgment of the special term on a question of fact as to which that court had made no finding, which would be contrary to the established rule.

The court also declined to reverse the judgment of the general term and affirm that of the special term, on the ground that the former was wrong and the latter right on the question of implied warranty, and that the positions taken by the defendant in that court were not in the way of its so doing, inasmuch as they were not pleaded by his answer, nor taken in the court below, because fliere were exceptions taken on the trial by the defendant, which were not considered by the general term, and which might have been presented in his favor if that court had thought it necessary to have noticed them, and which the defendant had a right to urge on the plaintiff’s appeal. (Simon v. Canaday, 53 N. Y. 298).

But for various reasons, among them the fact that the objections to evidence taken by the defendant did not enter into a consideration of the case by the general term, the court concluded to exercise a power which it had frequently in analogous cases felt called on to exercise, and permit the appellants to take a dismissal of their appeal and proceed to a new Prial.

The court referred to previous decisions made by it as'to the effect of municipal tax leases as clouds on titles, as to bills guia timet, and as to its not being possible that possession under a tax lease could become adverse to the right of the real owner.


author: By the Court.—Curtis, Ch. J.

text:
    EDWARD R. DUNHAM, Plaintiff and Appellant, v. THE MERCANTILE MUTUAL INSURANCE CO., Defendant and Respondent.
    Examination before trial.
    In this case the objections of the plaintiff (a non-resident) to his examination before trial were sustained on the ground that the affidavit upon which the order was granted omitted to state plaintiff’s residence, or that inquiry had been made to ascertain it, or that there was difficulty in learning it. It also omitted to state whether plaintiff had appeared by attorney, no name, residence, or office-address of any attorney on plaintiff’s behalf appearing in defendant’s affidavit. Also, upon the ground that there was no proof of any notice to plaintiff of the order, or that any order, affidavit, or subpoena in relation thereto was served upon him. The affidavit and order were served upon plaintiff’s attorney.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal by the plaintiff from an order overruling his objections to the proceedings for his examination before trial.
    The defendant obtained an order for the examination of the plaintiff before trial, and on the same day a copy of the order and affidavit on which it was obtained was served on the attorney for the plaintiff. Upon the return of the order the plaintiff’s attorney made several objections to proceeding with the examination, which objections are recited in the opinion.

      William G. Peckham, Jr., for appellant,
    Cited Beach v. Mayor, 4 Abb. N. C. 236 ; Levy v. Loeb, and Corbett v. De Comeau, ante.

      Scudder & Garter, attorneys, and George A. Black, of counsel, for respondents,
    Cited Peake v. Proul, 2 Abb. N. C. 418; Webster v. Stockwell, 3 Id. 115; Friebey v. Branigan, Id. 122; Wood v. Keal, Id. 122.
   By the Court.—Curtis, Ch. J.

The affidavit upon which the defendant applies for the examination of the plaintiff, fails to comply with the requirements of sections 872 and 886 of the new Code of Civil Procedure.

It omits any statement of the residence of the plaintiff, or that any inquiry has been made to ascertain it, or that there is any difficulty in learning it. It omits to state, whether the plaintiff has appeared by attorney, nor does the name, residence, or office address of any attorney on plaintiff’s behalf appear in the defendant’s affidavit. There is no proof of any notice to the plaintiff of this order for his examination, or that any order, affidavit or subpoena have been served upon him in respect to it.

To sustain the order under such circumstances, might subject non-resident parties to great hardships. It appears from the defendant’s affidavit, that the plaintiff resides in another State, and if so, he is entitled to the protection given him as a non-resident of this State by section 886.

The order appealed from should be reversed with $10 costs.

Sedgwick and Freedman, JJ., concurred.


author: By the Court.—Curtis, Ch. J.—The

text:
    JEREMIAH B. GRUMAN, Assignee, &c., of HENRY FITCH, et al., Bankrupts, Plaintiff and Appellant, v. ISAAC T. SMITH, Defendant and Respondent.
    Conversion.—Sale of stock without notice.
    Plaintiff's assignors, who were stock brokers, purchased stock for defendant on a margin, and carried the same. Their request for more margin being disregarded, three days after making the same, they sold the stock without notice to defendant, which sale he refused to accept, and thereafter sent defendant an account showing a balance thereon against him, for which this action is brought.

      Held, that the relation between said brokers and defendant being that of pledgee and pledgor, the sale of the stock without notice to defendant was an act of conversion that debars plaintiff from maintaining this action.

      Also held, that a subsequent offer by said brokers of stock to replace that improperly sold, was nugatory (see cases cited in opinion).
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal by the plaintiff from a judgment dismissing the complaint.
    The facts are stated in the opinion.

      Mr. Yan Wyck, for plaintiff.

      Geo. Putnam Smith, for defendant.
   By the Court.—Curtis, Ch. J.—The

plaintiff’s assignors, Fitch & Co., purchased one hundred shares Rock Island R. R. stock for the defendant, on a margin, May 14, 1870, and carried the stock for him. Fitch & Co. called for more margin September 8, 1873, and the defendant paid them, September 10, 1873, $500 additional margin. Pitch & Co. called for more margin September 17, 1873, and not receiving it, three days after, sold the stock without notice to the defendant of the sale, and sent him an account showing a balance against him of $1,596.29, for which their assignee brings this suit. The defendant refused to accept the sale, and Pitch & Co. then offered to let the defendant have one hundred shares of the stock if he would pay them the balance claimed in their account.

This was a speculative purchase of stock, and the relation between Pitch & Co., the brokers, and the defendant, for whom they acted, was that of pledgee and pledgor. The defendant was entitled to notice of the time and place of sale, and the sale of the stock with an omission to give such notice, was an act of conversion on the part of the brokers, that debars their assignee from maintaining this action against the defendant. Nor was their position altered by their subsequent offer of stock to the defendant upon his paying them the balance claimed of $1,596.29 (Markham v. Jaudon, 41 N. Y. 235 ; Stenton v. Jerome, 54 Id. 480 ; Baker v. Drake, 66 Id. 518 ; Taussig v. Hart, 58 Id. 425). .

The judgment appealed from should be affirmed with costs.

Sedgwick and Freedmah, JJ., concurred.


text:
    CHARLES W. CLIFFORD, Plaintiff and Respondent, v. ANDREW J. DAM, et al., Defendants and Appellants.
    Coal-hole, when considered nuisance.—Pleading.—Damages.
    A coal-hole in the side-walk, maintained without license from the proper city authorities, is a nuisance, and the party upon whose premises it is, irrespective of his negligence, becomes responsible to any one passing upon the sidewalk who is, without fault on his part, injured by it.
    Defendant cannot prove the usual license as a defense to such an . action, unless the same was pleaded in his answer.
    The court below charged, as to damages, that the jury had ‘s a right to consider the nature of plaintiff's business, its extent, and the time he was prevented from attending to the same.” Sdd, correct.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided January 6, 1879.
    Appeal by defendants from a judgment in plaintiff’s favor, entered upon a verdict for $600.
    The action was brought to recover damages for injuries received by the plaintiff in falling through a coal-hole in the side-walk of defendant’s premises.
    The answer alleged that the injury was caused by the negligence of the plaintiff.

      George M. Curtis, for appellants.

      T. Frank Brownell, for respondent.
   By the Court.—Curtis, Ch. J.

The defendants at the trial offered to prove, that "at the time of the construction of the building occupied by them, the usual permit in writing was obtained from the proper authorities in the City of New York and paid for, and that under such permit the coal-hole in question was made. This license was not pleaded in the answer, and the proposed evidence was for that reason excluded by the court under the defendant’s exception. If the defendants had a license from the proper authorities to maintain this coal-hole, they should have pleaded such license in their answer, and the plaintiff would have been notified of the defense upon which the defendants relied, and would have had an opportunity of preparing to meet it at the trial.

This was required "under the former system of' pleading, and greater reason exists for its continuance under the present system. The defendants were not in a position at the trial to claim that the coal-hole was ¡authorized by competent authority (Selden v. Delaware & H. Canal Co., 29 N. Y., 639 ; Beatty v. Swarthout, 32 Barb. 293; Irvine v. Wood, 51 N. Y. 228).

If this hole was unauthorized, it may be regarded and treated as a nuisance, and the defendants by continuing it on their premises, became responsible to any person passing upon the sidewalk, who might be injured by it, irrespective of any question of negligence on their part (Congreve v. Smith, 18 N. Y. 82; Congreve v. Morgan, 18 Id. 85; Creed v. Hartman, 29 Id. 597; Irvine v. Wood, 51 Id. 228).

The court excluded testimony offered by the plaintiff at the trial, as to the amount of plaintiff’s income from his professional business during 1875 and 1876, but in the latter part of the charge, the jury were instructed as follows:

“How, to arrive at the amount of damages, if any, he sustained by inability to attend to business, you have a right to consider the nature of plaintiff’s business, its extent, and the time during which plaintiff was prevented, wholly or partially, from attending to his business.”

To this the defendant excepted.

This portion of the charge is sustained by the views expressed in Masterton v. Village of Mount Vernon (58 N. Y. 391), and in Walker v. Erie R. R. Co. (63 Barb. 260), and affords a just and reasonable basis for the jury to arrive at the amount of damages sustained by the plaintiff from inability to attend to his business in consequence of the injury.

The amount of the damages found by the jury, when the injury and loss shown to have been sustained by the plaintiff are considered, appears to have been very reasonable.

The exceptions presented in the case fail to furnish sufficient ground for granting a new trial, and the judgment appealed from should be affirmed with costs.

Sedgwick, J., concurred.