author: By the Court.—Sedgwick, Ch. J.

text:
    MARY McKAY GREENWOOD, et al., Respondents v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Action for damages to premises and easements thereof caused by the construction of defendants’ railway on Chwch street, in the city of New York.

    The premises in question are situate on the southwest corner of Church and Vesey streets, known as Nos. 31 and 33 Vesey street, and there was one building upon them. They had been formerly known as Nos. 37 and 38 Vesey street, and owned by Trinity Church Corporation, who sold and conveyed first the lot known as No. 37, corner of Church and Vesey streets, and afterwards this lot by mesne conveyances became the property of John Greenwood, whose title plaintiffs represent. The Trinity Church Corporation afterwards sold and conveyed, in two-parcels, lot No. 38, and by mesne conveyances this lot became the property of John Greenwood. At the time Greenwood went into possession of lot No. 38, there was a dwelling house on the easterly half thereof fronting on Vesey street. Since then this dwelling house has ■ been removed, and there has been built a single building fronting on Vesey street. The depth of the lot No. 31, formerly No. 37, is 64 feet on Church street. The defendants’ railroad is in Church street, and the claim in this action is for damages for the impairment of the easement of light, etc., from that street.
    On the trial the plaintiffs were allowed to prove, and recover for, a diminution on that part of the-premises that was within the lines of lot No. 38, and the jury were allowed by the court to find damages for this cause to lot No. 38. Held, that this was error, and that for this reason the judgment should be reversed-and a new trial ordered.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided January 5, 1891.
    . Appeal from judgment entered against defendants upon verdict of jury, and from order denying motion for a new trial made upon the judge’s minutes. •

      Davies, Short & Townsend, attorneys, and EdwardB. Thomas of counsel, for appellants, argued :—

      There was no easement appurtenant to lot 38 that was the subject ' of recovery, and the state could authorize the construction and operation of the railway without compensation to ¡the owner of the lot. Lot 37 was laid out with reference to Church and Vesey streets, and fronted on the latter, and was so conveyed ; and lot 38 was laid out with reference to the fronting on-Vesey street, and was so conveyed. The map was by proper reference incorporated in the conveyance, and so they came to Greenwood with all the benefits and limitations that had been put upon them, for to these deeds and accompanying map the plaintiffs return for the evidence of their- primary rights. In the first place we should consider what an owner of land may do with his own with reference to the public streets already existing, or those which he undertakes to create and dedicate to the public. While the parcel of land upon which, the lots were erected was yet in one parcel, it was, we will admit for the argument, his privilege to lay out the same into streets and lots, or into lots with reference to existing streets, and when, as in this case, he thereafter grants the lots to the several subsequent grantees, the original arrangement becomes fixed and irreversible. The public either as accepting a new street dedicated, or as the owner of an old street owing a dirty to abutting property, is asked, may be required, to allow these several lots that enjoyment of the streets on which they abut, which the law has declared, viz.: access, light, air, and the machinery of the law is used to charge upon these lots from time to time such burdens by way of taxation as their relative conditions justify. If the owner chooses to demand his easements upon Church street for certain portions of his parcel, perhaps his disposition of it cannot be denied, but having assumed this attitude towards the public highway, neither he nor his grantees can add to that street a burden to. be borne by the public that it did not before possess, nor ask the city or state in administering its trust to increase its easements as already- attached, nor transfer them to additional propérty. If the public cannot diminish the easements the abutting owner has in the street, neither can it be required by such abutting owner to protect additional property in the enjoyment of that easement. So that after the owner of lands has parcelled them into city lots there are several parties interested with him, the public either as already owning an existing street, or accepting the dedication of the new one ; as it must undertake certain duties respecting these lots, and the several purchasers, who take their holdings with just the easement and burden that the original grantor put upon it. These purchasers are presumed to contract with reference to the visible condition of the property at the time of sale, and no one of them has a right ,by altering arrangements, then openly existing, to change the benefits and burdens that pertain to the several lots and the street. Lampman v. Mills, 21 N. Y. 505 ; Roberts v. Roberts, 55 lb. 275. When the public has entered upon the use of a grant and while the use continues, the privies in estate cannot resume the grant, but are bound by the deeds and acts of the grantor. Warren v. Jacksonville, 15 Ill. 236. The grantor cannot sell or dispos.e of the ground, or use it for any other purpose ; he has no individual interest remaining, except the nominal fee in trust of his adjoining ground not disposed of. Wyman v. Mayor of N. Y., 11 Wend. 501. It has even been held that when the precise location, manner or way of enjoying an easement is indefinite, yet if it ever be practically used in a certain manner it constitutes an election, and cannot be therefore changed. Outhauk v. Lake Shore, etc., Co., 71 N. Y. 174. The plaintiffs’ contention here, however, is that although the grantor of 87 and 38 gave to those several lots a definite relation to the public streets, and that too a relation harmonizing with the general distribution of land in the city into lots of fixed dimensions; and while this relation demanded an easement of light, air and access to No. 38, from Vesey street alone, excluding it from any easement in Church street, yet that he having purchased 38 may demand for it, what it had not before, an easement in the street on which it neither abuts, nor was fashioned to enjoy, and which by no title conveyed to the plaintiffs it could enjoy. With this preliminary thought, let us proceed to discover what rights lot 37 had in Church street that would entitle its owner to compensation. If the condition of facts that justify compensation in the case of 37 do not exist as to 38 it may be concluded that the latter lot is not the subject of compensation. In the Story case (90 N. Y. 124, etc.) the land had been owned by the city, and surveyed and laid out into lots and streets, and designated on a map (see pp. 144,163). Judge Danforth said: “ The official survey, its filing in a public office, the conveyance by deed referring to that survey, and containing a covenant for the construction of the street and its maintenance, makes as to him and the lot purchased a dedication of it to the use for which it was constructed. * * There was thus secured to. the plaintiff the right and privilege of having the street forever kept open as such. For that purpose, no special or express grant was necessary ; the dedication, the sale in reference to it, the conveyance of the abutting lot with its appurtenance, and the consideration paid were c£ themselves sufficient. * * The right thus secured was an incorporeal hereditament : it became at once appurtenant to the lot and formed “ an integral part of the estate” in it. It follows the estate and constitutes a perpetual incumbrance upon the land burdened with it. From the moment when it attached, the lot became the dominant, and the opening or street a servient, tenement.
    From these holdings it may be gathered that if a parcel of land has been laid out, one part as a street, one part as abutting thereon, or if a piece of land has been laid out as abutting on a street, there is a covenant implied from this arrangement that the abutting lot shall not be interrupted in its easements of light, etc., from the street. With these principles in view we can turn to the Trinity Church map, and the Trinity deed from that church to Greenwood. Trinity Church laid out 37 upon Church and Yesey, and lot 38 in Yesey street. There was a covenant, that as to these streets, subject to street uses, these lots should receive light and air, etc., the former from Yesey and Church, the latter from Yesey. With this arrangement made by the first grantor, as this evidence shows him to be, Greenwood becomes a purchaser, taking with reference to a map, that showed the relations of his lot to every other lot, and to the streets. He took, as the above opinion illustrates, all the rights and easements in the streets his grantor could convey to him, save as modified by the deed and the map that is a part thereof. In the same way when the church .conveyed lot 38 to Livingston by deed. It faced him on Yesey street; bounded him by lot 37. When Greenwood purchased 37 he took an easement appurtenant thereto and thereto alone. He did not therewith acquire a right to acquire 38 that had no such easement, or 39, or 40, and so on with the other lots through the block, and “leaven the whole mass ” with the quality that pertained to his own purchase. If he could stretch the benefit of his easement over 38, its power of elongation was limitless, and no piece of property could be sufficiently remote to escape the attachment to it of an easement which it would lose or acquire, as it might from time to time acknowledge-the owner of 37 as its own proprietor. There is a time-honored rule of law that the servient tenement cannot be burdened by any addition to the dominant estate. To the latter nothing may be tacked so as to enjoy an easement that it possesses, or that will in any estimate increase the servitude. Greenwood took 37. The law and his deed gave him certain privileges in Church street; Livingston took 38. The law and his deed gave him no privileges in Church street. Livingston conveyed to Greenwood what he himself had and no more, and when the title of the two lots united in Greenwood there was nothing in the contract that enlarged the estate conveyed to him. The attachment of lot 38 to 37 under the plaintiffs’ claim gives it an easement it did not have when it left the ownership of Trinity Church ; it puts a burden on Church street not contemplated nor conveyed, and simply increases the easement accruing to 37. This is not allowed. That a right of way to a particular close cannot be enlarged or extended to other adjoining close is simple enough learning. French v. Marsten, 32 N. H. 316 ; Hills v. Miller, 3 Paige, 254 ; Roberts v. Roberts, 15 N. Y. 275 ; Evans v. Dana, 7 R. I. 306; Baldwin v. City of Buffalo, 35 N. Y. 375, 384. In connection with this point, the attention of the court is asked to the case of Mooney v. The N. Y. El. R. Co., 3 N. Y. State Rep. 561, decided by the Court of Common Pleas of this city. It will be observed in that case that the property decided not to be the subject of damages was a part of a lot that was, from its original relation to the street, whereon the railway was, entitled to light therefrom, and yet, as it was not by its use intended or arranged to take light therefrom, it was not included as a subject of damage. How much the less should an easement of light, etc., be ascribed to a lot that by its relation to the street was never entitled thereto.

      Robert S. Rudd, attorney, and James M. Hunt of counsel for respondents, argued :—
    There was no error committed by the trial judge in his rulings upon the admission of evidence. The proof showed that the building in question was a single building, containing no dividing partition. In view of this fact it could make no difference whatever to any issue in this case, that this building -was known by two street numbers as it is, i. e. 31 and 33 Vesey street, or that the ground upon which this building now stands was formerly included in two separate lots, each with a separate number upon the map of the old*church farm. Certainly, the question at which the objection was aimed was proper. The objection was properly sustained. It had already been proven that the building in question was a single building, and upon cross-examination of the present witness defendants’ counsel had brought out the fact that the building had been so built by one Abel Thompson. It certainly could make no difference what was contained in this agreement, so long as the fact remained that there actually was no partition or division into parts of the present building.
    Five exceptions are found in the record to refusals to charge as requested. Two requests attempt to raise the question already sufficiently discussed, that, notwithstanding the fact that the building in question was actually but a single building, the arbitrary street and map numbers thereto applied should be controlling and compel a new or different rule of law to be applied.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from the defendants building the roadway and running their railroad immediately along the side of plaintiffs’ premises in Church street.

The premises were on the southwest corner of Church and Vesey streets. There was one building upon them. They had been formerly owned by the corporation of Trinity Church, and then, on a map made by it, were known as lots Nos. 38 and 37. The premises are now known as Nos. 31 and 33 Yesey street. The Trinity church corporation first conveyed the lot, known as No. 37 on its map, and then by mesne conveyances it became the property of John Greenwood, of whose title the plaintiffs are the representatives. The Trinity church corporation afterwards conveyed, in two parcels, lot No. 38, and by mesne conveyances it became the property of John Greenwood. At the time Greenwood went into possession, there was upon the easterly half of lot No. 38 (now No. 31) a dwelling house, which fronted on Yesey street. That dwelling house has been taken down since and there has been built a single building,’fronting on Yesey street. The depth of the land is 64 feet on Church street. The defendants’ road is on Church street, and the claim here is for damages for the impairment of the easement of light, etc., over that street.

On the trial the plaintiffs were allowed to recover for a diminution of light in that part of plaintiffs’ premises that was within the lines of lot No. 38.

Assuming that formerly there was an easement of light over Church street existing in favor of lot No. 38, it was possible for the owner of the lot to extinguish it by any method of dealing with the property that would, for instance, convey the property without the appurtenant easement so that the grantee would not have such an appurtenance. And if he would not have it, it would not be revived or rather re-created by his conveyance. Corning v. Gould, 16 Wend. 531; Parker v. Foote, 19 lb. 309; Crain v. Fox, 16 Barb. 184; Lattimer v. Livermore, 72 N. Y. 174.

It is apparent that enjoyment by lot No. 38 of light from Church street as a right depended upon the right of that lot to prevent building upon No. 37 in such a way that the' light would be cut off from No. 38, or to prevent any other use of the lot that would have that effect. But when the Trinity corporation conveyed to Greenwood No. 37, it became the right of Greenwood to cut off the light from No. 38. Myers v. Gemmel, 10 Barb. 537, and cases there cited. This was inconsistent with the continuance in lot No. 38 of a right' to the easement, and when lot No. 38 was conveyed subject to this condition, it was conveyed without the appurtenance of the easement ; and the subsequent conveyance to Greenwood did not make a new easement or did not create a right that had not been conveyed by the Trinity corporation.

The jury were allowed to find damages from the diminution of light over the space that had been lot No. 38. For this reason there should be a reversal of the judgment and order and a new trial ordered, with costs to abide the event. '

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    CHARLES J. QUIMBY, Appellant v. EDMUND H. CARHART, et al., Respondents.

      Plaintiff should claim in his complaint and on the trial whatever he deems himself entitled to.

    In the ease at bar, the plaintiff did not in his complaint, nor in the course of the trial, advance the claim which, on the motion for a new trial, he for the first time advanced, namely, that he is entitled to ten per cent, discount on certain purchases; that he has not received the same and that the jury should have given a verdict for that amount at least. Held, as no such claim or suggestion was made before the rendition of the verdict, the court will not indulge in the presumption that he did not secure it for the purpose of reversing the judgment.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered in favor of the defendants upon the verdict of a jury, and from order denying plaintiff’s mission for a new trial.

      M. M. Silliman, attorney, and William P. Piero of counsel, for appellant.

      Ira D. Warren, for respondents.
   By the Court.—Freedman, J.

I am of the opinion that the issues have been retried in substantial compliance with the rule laid down by this court on the former appeal (see 57 N. Y. Superior Ct. R. 452). .

The instruction given by the trial judge to the jury that by the pleadings it stood admitted that the transactions between the plaintiff and the defendants amounted to a purchase of the goods by the plaintiff, must be construed in connection with the other parts of the charge and the particular passages in the pleadings referred to, and when so construed, it applied only to the transactions prior to March 5, 1884. Whether on that day the plaintiff did or did not notifiy the defendants not to send any more goods to Matthiesen & Doolittle under the previously existing arrangement, remained still a question for the jury and it was submitted to them.

The plaintiff did not in his complaint, or in the course of the trial, advance the claim which, on the motion for a new trial, he for the first time advanced, that he is entitled to • ten per cent, discount on certain purchases'; that he has not received the same and that the jury should have given him a verdict for at least that amount. As no such claim or suggestion was made before the rendition of the verdict, the court will not, in the absence of any evidence that he did not receive it, indulge, for the purpose of reversing the judgment, in the presumption that he did not receive it.

None of the exceptions taken by the appellant seem to be tenable and substantial justice appears to have been done.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


text:
    OCEANA A. BANCROFT, Appellant v. HOME BENEFIT ASSOCIATION OF NEW YORK, Respondent.

      Life insurance, conditions of policy, making application part of same.—Award of additional allowance of costs, practice of appeal therefrom.

    In the case at bar, the applicant kept and performed all the conditions appended to, or contained in, the policies, except that he did not make true answers to the questions in the application for insurance. He stated therein that he had never been afflicted since childhood with catarrh, spitting of blood, or any disease not enumerated, and that no material fact regarding his past health and condition had been omitted. The findings of fact of the trial judge established that this statement or statements in the application were untrue.

      Held, that these findings were sustained by sufficient evidence, and that the ailments specified did not exist as mere functional derangements, or temporary complaints from which Bancroft recovered, but were sufficiently serious to have an important bearing upon his general health and to cause his death within a short time after the procurement of the insurance, and that consequently there was a breach of warranty sufficient to avoid the contract of insurance.

      Held also, that the printed record does not disclose sufficient facts for disturbing the award of an additional allowance of costs to the defendant. If appellant’s counsel was surprised, as claimed, he should have moved upon affidavits to vacate the award and for a hearing, and upon a denial of the motion should have appealed from the order of denial.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment dismissing the complaint with costs, entered upon the decision of a judge after trial of the issues at special term.

      Wilson & Wallis, attorneys, and William G. Wilson of counsel, for appellant.

      Francis Lawton and Osborne E. Bright, attorneys and of counsel, for respondent.
   By the Court.—Freedman, J.

This action was brought upon two certificates of membership, constituting in effect policies of insurance, for $5,000 each, issued in April, 1885, to John S. Bancroft upon his life, and payable upon his death to the plaintiff. It was found by the trial judge that the certificates were so issued, and that John S. Bancroft kept and performed all the conditions appended to or contained in said certificates, except the making of true answers to the questions put to him upon his application in certain particulars specified in the'findings. In that application John S. Bancroft had declared and agreed that any untrue statement or any concealment of facts should forfeit and cancel any benefit under the contract, and the certificates provided that any misrepresentation or concealment should render them absolutely void. Each certificate further expressly declared that the application is a part of the contract, and the statements therein the assured “ adopts as his own, admits to be material and warrants to be full and true.”

The opinion of the Court of Appeals (Second Division) in the present case, 120 N. Y. 14, fully recognizes the validity of these provisions, and consequently it is only necessary to see whether there was a substantial breach of any of the warranties.

In his application for insurance the assured stated that he had never been afflicted since childhood with catarrh, spitting of blood or any disease not enumerated, and that no material fact regarding his past health and condition had been omitted. The trial judge found that these statements were untrue in the following particulars, viz: (1.) that in the months of January and Feburary 1884, the said Bancroft was afflicted with the complaint of spitting of blood ; (2.) that for several years prior to March 2, 1884, the said Bancroft had been afflicted with the complaint of catarrh of the nose and larynx; and (3.) that for many years prior to March 2, 1884, the said Bancroft had suffered from disease of the throat.

There can be no doubt that, if sustained by the evidence, these findings establish a breach of warranty sufficient to avoid the contract of insurance with the authorities. Foot v. Ætna Life Ins. Co., 61 N. Y. 571 ; Cushman v. U. S. Life Ins. Co., 63 lb. 404 ; Dwight v. Germania Life Ins. Co., 103 lb. 341 ; Bancroft v. Home Benefit Assoc., 120 lb. 14.

A careful examination of the evidence has satisfied me that these findings rest upon sufficient evidence and that the ailments specified-did not exist as slight functional derangements or temporary complaints from which Bancroft recovered, but were sufficiently serious to have an important bearing upon his general health and the cause of his death within a short time after the procurement of the insurance. The evidence is quite lengthy and complicated, and a detailed statement of it here can serve no useful purpose. It is enough, therefore, to saythat it sufficiently supports the findings referred to. The case, as now presented, is entirely different from what it was on the former appeal, and it is no longer subject to the criticism made upon it by the Second Division of the Court of Appeals.

The points submitted by the appellant do ■ not call upon us to review any exception taken to the admission of evidence.

The printed record does n.ot disclose sufficient facts for disturbing the award of the additional allowance which was made. If appellant’s counsel was surprised, as claimed, he should have moved upon affidavits to vacate the award and for a hearing, and, upon a denial of the motion, appealed from the order of denial.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and Ingbaham, J.. concurred.


author: By the Court.—Freedman, J. Ingbaham, J. (concurring).

text:
    PATRICK J. KELLY, Respondent v. ROBERT E. J. MILES, and Another, Appellants.

      Landlord and tenant—Undertenant—Damages under lease where undertenant is deprived of the possession and use of the premises.

    The case at bar was considered and decided by the court and the judgment reversed for error in the court below in allowing the plaintiff to give evidence, and the jury to consider it, of loss of profits in the business during the time plaintiff was deprived of the use of the premises, limited to a period of six months.

      Held, That loss of profits, as an element of damages, must be the direct and immediate fruit of the contract, and must be independent of any collateral engagement or enterprise entered into in expectation of the performance of the principal contract. If they are of this character, they are part and parcel of the contract itself and enter into and constitute a portion of its very elements; and if they are not of this character, they should be excluded, not because they are in themselves remote, but because they depend wholly upon contingencies, which are so many, so various, and so uncertain. If they are also remote, that constitutes an additional reason for their exclusion. Judged by these rules the profits sought to be recovered in this case were clearly contingent, if not remote. Whether or not plaintiff could have made any profits for six months continuously, depended upon many, various and uncertain contingencies. It was purely problematical, and consequently the supposed lost profits were, purely contingent and speculative, and it was error to allow the plaintiff to testify, and.the jury to consider the testimony, as .to the alleged loss of profits. That the measure of damages that should have been adopted was the amount represented by the excess of the actual rental value which the premises would have had if they had been completed in time, over the rent reserved in the lease.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendants’ motion for a new trial.

      Leonard 8. Wheeler, attorney, and Robert G. Ingersoll of counsel, for appellants.

      J. K. Hayward, attorney and of counsel, for respondent.
   By the Court.—Freedman, J.

The plaintiff leased certain premises at No. 1237 Broadway from the defendants to be used as a saloon. The lease was for three years from May 1, 1883, at a rent of $375 per month payable in advance. The plaintiff covenanted that he would yield up possession of the premises for two months during the summer of 1883, but still pay the rent for the same. The defendants were themselves lessees of the same property, and the object of surrendering the possession for the two months was to enable the owner to make alterations in the property by changing it and partially rebuilding it and adding one or two stories to the building. The plaintiff entered under the lease and paid the rent as agreed down to July 1,1883, when he vacated the premises to allow the owner to make the contemplated alterations, but he was unable to regain possession, because of the dismantled condition of the premises, until on or about March 10, 1884, when he obtained only a part thereof. He then continued in such possession until November 28, 1884, when, at the suit of the defendants, he was dispossessed because he refused to pay full rent for the six months between September 10th and March 10th, and also refused to pay full rent from March 10th to November 28th. At the time of taking the lease the plaintiff deposited with the defendants the sum of $2,300, as security for the payment of the rent. After November 28th he commenced an action in the Supreme Court to recover that sum, setting up that he was not bound to pay rent during the six months that the premises were entirely destroyed, and only bound to pay rent to be apportioned for that portion of the premises which he occupied thereafter, and praying to have the apportionment determined by the court and deducted from his deposit and for judgment for the balance.

In that action the court held that the plaintiff was not liable for any rent during the six months from September to March, and only for rent to be apportioned for the period between March and November, and after determining what that was, and deducting it from the amount of the deposit, the court gave to the plaintiff a judgment for the balance. This judgment was affirmed upon appeal and the litigation covered by it is at an end.

The plaintiff then commenced the present action to recover damages to the amount of $20,000 alleged to have been sustained in consequence of the failure of the defendants to have the premises completely rebuilt within the two months referred to.

The defendants, by their answer, denied the damages and pleaded that all claim therefor was waived by the voluntary return of the plaintiff without objection to the premises, and also that the judgment of the Supreme Court was res judicata as to such claim. '

The trial judge refused to dismiss plaintiff’s complaint, refused to hold that the said judgment was res judicata as to the claim, and allowed the plaintiff to give evidence, and the jury to consider it, of loss of profits in the business carried on upon the premises and of expenses’incurred by the plaintiff in making the premises fit for his use. The exceptions taken by the defendants call for a review of these rulings.

The loss of profits was limited to a period of six months preceding the 10th day of March, but even with this limitation the ruling constituted error.

Profits, to be recoverable, must be the direct and immediate fruit of the contract, and must be independent of any collateral engagement or enterprise entered into in expectation of the performance of the principal contract. If they are of this character, they are part and parcel of the contract itself and enter into and constitute a portion of its very elements. If they are not of this character, they are excluded, not because they are in themselves remote, but because they depend wholly upon contingencies, which are so many, so various and so uncertain. If they are also remote, that constitutes an additional reason for excluding them. Parsons on Contracts, vol. 3, pp. 181-183. To the same legal effect is the rule as stated in Griffin v. Colver, 16 N. Y. 489, and in Dodds v. Hakes, 114 lb. 260.

Judged by these rules the profits sought to be recovered in this case were clearly contingent, if not remote. The plaintiff was kept out - of the premises by no fault of the defendants, but by the act of their paramount landlord, and hence it cannot be deemed that the loss of profits was contemplated by the parties at the time of the execution of the lease as a direct and immediate result of a possible breach of the contract. The plaintiff in fact did business for about two months only, and then vacated the premises under his covenant that he would do so for two months to enable repairs and alterations to be made. Whether or not he could have gone back after the expiration of the two months last referred to, if the premises had then been completed as they should have been, and could have made any profits for six months continuously thereafter, depended upon many, various and uncertain contingencies. It was purely problematical, and consequently the supposed lost profits were purely contingent and speculative.

Moreover, in Hayden v. Florence Sewing Machine Co., 54 N. Y. 221, it was expressly held that in the case of a tenant suing to recover damages for having been wrongfully removed from the premises under a warrant issued by ajustice in summary proceedings, damage done to his business is not recoverable. In Giles v. O’Toole, 4 Barb. 261, which was an action by a lessee against the lessor to recover damages for a wilful refusal to give possession of the demised premises, and the decision of which has been approved and followed in many cases, the same ruling was made as to profits, and the measure of damages was held to be the damages arising from expenses incurred in preparing to remove to and occupy the premises together with the difference between the real value of the rent and the sum agreed to be paid. And in Dodds v. Hakes, 114 N. Y. 260, the rule as to damages for failure to give possession of demised premises was stated as follows : “ The rule in all cases when damages are claimed solely from the failure of the lessor to give the lessee possession of the leased property, is well settled, and limits the plaintiffs recovery to an amount represented by the excess of the actual rental value over the rent reserved in the lease. Trull v. Granger, 8 N. Y. 115 ; Pumpelly v. Phelps, 40 lb. 59.”

These rules clearly show that it was error to allow the plaintiff to testify, and the jury to consider the testimony, as to the alleged loss of profits, and that the measure of damages which should have been adopted, was the amount represented by the excess of the actual rental value which the premises would have had if they had been completed in time, over the rent reserved in'the lease.

The error pointed out necessitates a new trial, and consequently it is not necessary to determine the other questions in the ease.

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

Sedgwick, Oh. J., concurred.

Ingbaham, J. (concurring).

I concur in Judge Fbeedman’s opinion, but do not wish to be considered as deciding that upon the evidence the defendants were liable. There was no express covenant in the lease to plaintiff. It did not appear that defendants were under any obligation to make the repairs or that they assumed to do so. The agreement between the parties to this action provided that the owner of the building, who was. the paramount landlord, was to make the repairs, and plaintiff agreed to yield up the possession of the premises to allow him to make such repairs. There was no evidence that the defendants were ever in possession of the property leased to plaintiff, and I don’t see how these defendants could be held, to be responsible for the default of the owner in making the repairs within the two months, or for his failure to restore possession of the premises to the plaintiff.


author: By the Court.—Freedman, J. Ingraham, J.

text:
    CHARLES B. De KLYN, Appellant v. SILVER LAKE ICE COMPANY, Respondent.

      Rescission of contract—Reinstatement—Letters excluded on the trial should he printed.

    In this ease it was established on the trial, that the contract had been rescinded, by consent of both parties, by letters passing between them March 5th and 15th, 1888. Held, that no action can be maintained upon the contract after such rescission by either party thereto. That proof of deliveries of ice, that was the subject of the contract, by the defendant to plaintiff after .such rescission, could not have the effect of reinstating the contract between'the parties.
    Certain letters were offered in evidence on the trial by the plaintiff, and were excluded, and exception duly taken. These letters were not printed in the case, and consequently it cannot be held that their exclusion on the ground of immateriality constituted error.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered upon a dismissal of the complaint at the trial.

      Morrison & Kennedy, attorneys, and L, J. and H, Morrison of counsel, for appellant.

      Putnam & Slocum, attorneys, and Wallace Macfarlane of counsel, for respondent.
   By the Court.—Freedman, J.

The evidence given at the trial established that the contract upon which this action was brought, had been rescinded by the letters of March 5 th and March 15th, and consequently no action can be maintained upon it by either party. The claim of the plaintiff that the letter of March 5th should be treated as a mere brutum fulmen cannot be sustained. There having been a rescission, proof of deliveries of ice subsequent to March 17th could not have the effect of reinstating the contract. Such deliveries may have been made at market rates as proposed by the letter of March 5th, but it was not necessary to determine the precise point. The letters excluded are not printed in the case and consequently it cannot be held that their exclusion on the ground of immateriality constituted error. Upon the whole case no sufficient reason appears for disturbing the judgment.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., concurred.

Ingraham, J.

I concur in the result.


author: By the Coubt.—Fbeedman, J.

text:
    WILLIAM PALM, Respondent v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      Action for the recovery of a penalty of fifty dollars, under chapter 185 of the Laws of 1887, entitled ‘ ‘ An Act to prevent extortion by railroad companies. ”
    The plaintiff claimed that on the 20th of August, 1889, he took passage on a passenger train of the defendant to be carried on the defendant’s road from 134th street, in the city of New York, to Morris Park, in the state of New York, and thence back to said 134th street. That he was charged and compelled to pay, contrary to the laws of the state of New York, fourteen cents in excess of the sum that the defendant had the right to ask. and receive, whereby defendant became liable to pay to the plaintiff under and by virtue of the statute of the state of New York, entitled “ An Act to prevent extortion by railroad companies,” passed March 27th, 1857, the sum of fifty dollars, together with the sum of fourteen cents so asked and received as aforesaid, in excess of the legal fee.
    The defendant is a foreign corporation chartered by the state of Connecticut in the year 1844, and in 1846, by chapter 195 of the laws of the state of New York, it was granted permission to extend its railroad from the state line of Connecticut to thé New York and Harlem Bailroad, connecting therewith at Williams Bridge, upon certain conditions, one of which provided that the charge for transportation of any passenger Shall not exceed three cents per mile in the state of New York. This condition is not applicable to the case at bar, because it is expressly limited to that part of the road specified in the act, and defendant was not a passenger over that part of the road. The passage of the plaintiff, from which plaintiff’s claim arose, was on a railroad known as the Harlem Elver and Port Chester Bailroad, used and operated by the defendant under a lease, and the liability of the defendant rests upon the legal status of the last named company, and the rate of fare it had a right to charge. This company was shown to have been organized under chapter 763 of the Laws of 1866, as amended by chapter 722 of the laws of 1869. Neither of these laws fixes or limits the rate of transportation over the road, and taken together authorize the construction, maintenance and operation of the road in a certain manner, which includes a lease by certain persons, specifically named, and their associates “when duly formed into a corporation under and pursuant to an act to authorize the formation of railroad corporations and to regulate the same, passed ” April 2,1850. This is the general railroad act of New York. Subdivision 9 of section 28 of this act confers upon railroad corporations organized and formed under its provisions, the power to regulate the compensation to be paid to them for the transportation of passengers, providing, however, that such compensation shall not exceed three cents a mile, and it was upon this subdivision and the amendments to said act in 1857 and 1886, that the trial judge rested when he held the defendant liable for the penalty.

      Held, that it was essential and necessary that the actual and due formation of a corporation, under this general railroad act, as provided in the Acts of 1866 and 1869, should be shown before the prohibition contained in the said general railroad act can be enforced by the infliction of a penalty under it or the pets amendatory thereof, for the general railroad act in terms applies only to corporations formed under it. Under the assumption that the defendant, as a foreign corporation, under its lease of the Harlem Elver and Port Chester Railroad, had no right to charge a higher rate than the Harlem Biver and Port Chester Railroad Company, when legally organized, could have charged under the general railroad act, and that the defendant, as lessee, is liable for the penalty in every case in which its lessor would have been liable, yet it still remained incumbent upon the plaintiff to establish at the trial and as a part of his case, that the special acts authorizing the formation of the Harlem Biver and Port Chester Bailroad Co. were followed up, and carried out, by an actual and due formation of a corporation under and pursuant to the general railroad act. There being no evidence on this point, its absence is a fatal defect and error, for the judgment rests upon the provisions of a penal statute. The claim is that defendant- is guilty of extortion. In such a- ease the rule is well settled, that all doubtful points are to be construed in favor of the defendant, and the plaintiff must show a clear right to the penalty, and that he must bring himself strictly and literally within the operation of the statute, which he failed to do.
    Before Sedgwick, Ch. J., Feeedman and Ingbaham, JJ.

      Decided January 5, 1891.
    Appeal from a judgment entered upon the decision of a judge after a trial before him without a jury.

      Page & Taft, attorneys, and John E. Parsons of counsel, for appellant, on the questions considered, argued :—
    I. The defendant is a foreign corporation, organized under the laws of the state of Connecticut. It is operating a railroad in this state from Williams Bridge to the Connecticut state line, under a permissive act of the New York legislature, passed May 11, 1846. The application of the restriction contained in section 4 of that act, as to the rate of fare allowed for each passenger, is expressly limited to the line of the road mentioned in the act, and is not applicable to the Harlem River and Port Chester Railroad, an entirely distinct line. The plaintiffs counsel stated that he relied on section 4 of the Act of 1846. The court, however, refused to charge, as a matter of law, that there was no violation in this case of that section. This was error. The only other statutory regulation of the compensation railroad companies in this state may receive for transporting passengers is contained in subdivision 9 of section 28 of the general railroad act (Laws of 1850, ch. 140). The section provides : “ Every corporation formed under this act shall * * * have power * * * 9. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor. But such compensation for any passenger and his ordinary baggage shall not exeeed three cents per mile.” * * * This provision does not apply to the defendant company, because it is not a corporation formed under the Act of 1850. There being no other act in this state limiting the compensation a railroad company may receive, the defendant, being a foreign corporation, is subject to no restriction whatever.
    II. Assuming, however, that the defendant is subject to the provisions of the general railroad act, yet subdivision 9 of that act is not applicable under the circumstances of the present case. Subdivision 9 provides for “ the time and manner in which passengers and property shall be transported, and the-compensation to be paid therefor,” and restricts such compensation to three cents a mile for each passenger. Compensation is to be received under subdivision 7 for transportation “ on their railroad” The compensation received by the defendant for carrying the plaintiff from the Harlem River to Morris Park was not received for the transportation of the plaintiff on the defendant’s railroad within the meaning of the statute. The main features of the service furnished by the defendant to the plaintiff were as follows: The trains were furnished for the exclusive use of himself and others who purchased the special service tickets. The train made no stops on the defendant’s railroad except at the Harlem River station. When it had arrived" at a point below Van Nest station it went off on to the spur track and conveyed the passengers over land owned by its lessor and not acquired for railroad purposes, to a place easily accessible t.o the racecourse grounds, and about one-half mile from the nearest station of the defendant’s railroad. The spur track was used for the sole purpose of accommodating the special trains to the race-course and only at the time when race' metings were held in Morris Park. Tickets were sold from the Harlem River station to Morris Park and return for fifty cents for the special service. No stops were made between Harlem River and Morris Park. The statute refers only to “ transportation on their railroad.” This obviously has reference to transportation from station to station on the road itself, and Morris Park is not within the meaning of the statute a station on the road. It is no more so than a restaurant maintained on land of the defendant, separate and dis-. tinct from its railroad service, in the strict meaning of that term. Suppose that a grand stand stood on the line of the spur. Can there be doubt that the company would be permitted to charge for transportation with the right to use the grand stand, at a rate in excess of three cents a mile ? In principle there is no difference between the use of the grand stand placed upon the spur and the use of the other advantages which the spur provides. It means to the public the prevention of confusion, great saving of time, and greatly increased facility for visiting the races. All of these conditions are outside of transportation. To determine that for them compensation may not be received is to forbid a railroad company to furnish for the convenience of its passengers anything beyond mere transportation. It would prohibit the ownership of a hotel, or a restaurant, etc. It is neither within the policy nor within the letter of the law that this should be done. The extra charge is distinct - from the charge for transportation. Every passenger is given the option of traveling on the road at the legal rate or purchasing for a consideration additional facilities or conveniences in addition to the ordinary transportation. The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case : The land upon which the spur track was built to Morris Park is not a portion of defendant’s right of way ; at no time during the eighteen years it had been owned by the defendant’s lessor had it been used for railroad purposes ; in 1889 the defendant built six tracks upon the said land, about one-half mile long, for the sole purpose of carrying special trains to Morris Park, and furnished extensive terminal facilities at the park end of the tracks ; these tracks and terminal facilities are not used, except at the time when race meetings are held at Morris Park ; all passengers who applied for transportation to Van Nest station were accommodated at a fare within the legal rate. The transportation of passengers over a half-mile of private track off the line of the defendant’s railroad is therefore as foreign to the ordinary transportation business of the company as the furnishing of meals or Seats in a grand stand, or the carrying in elevators or carriages. The land on which the six tracks were built might have been converted into a private road on which to carry passengers from Van Nest station to the race course. The defendant preferred the more convenient arrangement of building a spur track. To do this they needed no statutory authority.
    III. This is a penal action. Its object is to enforce a penalty. The claim is that the defendant has been guilty of extortion. As between the plaintiff who asks to recover the fifty dollars for himself individually, and the defendant, the legislation upon the subject is to be construed as a penal statute, most strongly in favor of the defendant. The plaintiff must show a clear right to the penalty; he must bring himself strictly and literally within the operation of the statute. He may not argue that the use of the spur is not warranted by law, and that' for the convenience which its use affords he is, therefore, not compelled to pay. As between him and the defendant that is not the question. His right, in any event, depends upon the question whether for transportation oyer the defendant’s road he has been charged more than three cents a mile. Clearly there is no limit to the rate which a person may be permitted to pay for facilities, conveniences and transportation off the road. The case comes down to the suggestion made by Judge Teuax : A New York State railroad can only charge at the rate of three cents a mile for transportation between stations, whatever may be the facilities, conveniences and advantages provided by the company on the route; but the defendant maintains that it is not against the policy or letter of the law, and is certainly not against the interest of the public, that facilities and conveniences off the road shall be provided and that a suitable charge shall be made for them. The established rule of construction is, that penal statutes are to be construed strictly. Van Valkenburgh v. Torrey, 7 Cow. 252. The statute declared that the owner of every house used for racing, with his priority or permission on bet, should forfeit the value of the horse. Held, that keeping a horse for and allowing him to be used in trotting on a bet, was not within the section of the statute. Hall v. Sigel, 13 Abb. N. S. 178. An action can be maintained to make trustees individually liable for debts of a social organization when brought within a year after ' debt is due and payable. In the case below the original claim was put in suit, and the judgment recovered was assigned to plaintiff, who brought suit against defendants, but after the expiration of a year. The court held that plaintiff could not recover. “ The statute- is in the nature of a penal one, and this construction is in accordance with the maxim that the general words of a penal statute shall be restrained for the benefit of him against whom it is inflicted.” Seward v. Beach, 29 Barb. 239; affirmed, 53 N. Y. 607. No opinion. The legislature passed a law imposing certain restrictions on the transportation of certain classes of articles over highways, imposing a penalty of twenty dollars for offenses against it; “ one half to the complainant, and the other half to the county treasurer of Dutchess, for the benefit of the poor fund,” * * * without saying who should sue and bring the action for the penalty. The court said : “ James A. Seward, the plaintiff, brings this action to recover five of the penalties imposed by the act, and he is bound to show some authority for bringing the action. Concede that the act has been broken, and the penalties incurred. By what right does James A. Seward institute and maintain this suit ? The law must be so construed as to give it effect, if possible, and at the same time it must be construed strictly, for it is a penal statute.” Judge Tbuax refused to make this, conclusion of law: “ Those statutes in this suit are to be regarded as penal in their character. They are to be construed most strongly in favor of the defendant. For the plaintiff to recover requires that he shall be brought strictly within the terms of the statute,” This was error.

      R. J. Shadbolt, attorney, and E. M. Wight of counsel, for respondent, on the questions considered, argued :—
    I. The defendant had no right to charge for the transportation of any passenger and his ordinary baggage more than three cents a mile. See the act under which (it is alleged and not denied) the defendant does business in this State as a common carrier; chap. 195, Laws of 1846; See charter Harlem River & Portchester Railroad Co; chap. 763, Laws 1866; as amended chap. 722, Laws 1869; chap. 140, Laws of 1850. sec. 28. sub. 9.
    II. The power to demand fare i. e., compensation for transportation of passengers on a railroad is not an implied or incidental power, but is derived from statute and can be exercised only under authority of the statutes. The right to carry passengers at all comes from the statute, and the right to the price comes from the same source. The legislature has seen fit to emphasize this and to say that except the powers enumerated “ no corporation shall possess or exercise any corporate power except such as shall be necessary to the exercise of the powers so enumerated and given.” 1 R. S. 600, § 3; 2 Kent Com. 298; Halsted v. Mayor of N. Y., 3 N. Y. 430 ; Dickinson v. City Poughkeepsie, 75 lb. 73. So jealously does the legislature guard the charges of railroad corporations that special acts have been sought and granted by the legislature to enable railroads to charge for special privileges or extraordinary burdens. Sleeping cars. chap. 123, Laws of 1858; Elevations, chap. 536, Laws of 1887. .
    III. The defendant claims that it was necessitated to build sidings in order to handle the people and not interfere with the regular traffic. “ They could not do it at all, we haven’t the facilities,” says the superintendent, and these sidings, built at Van Nest, at a cost of $42,000 and some additional terminal facilities at Harlem River at a cost of $3,000 are the excuse or justification offered by defendant for charging passengers fifty cents, this being thirty cents more than the regular charge of twenty cents to Van Nest and return—ten cents each way—and no greater number of miles. On August 31st defendant handled 12,000 passengers from which it received $6,000, the extra charge for this day being $3,600, and the unlawful or extortionate charge at fourteen cents being $1,680. The receipts for the twenty race days at an averageof 10,000 passengers would be $100,000, of which $60,000 represented the extra charge and $28,000 the unlawful or extortionate charge.
    IV. The defendant had the right to take real estate by voluntary grant or acquire it by purchase to aid in the construction, maintenance and accommodation of its railroad. It had the right to furnish all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and use of their passengers and business. And it had the further right to regulate the time and manner in which passengers shall be transported aiyl the compensation to be paid therefor ; but such compensation for any passenger and his ordinary baggage shall not exceed three cents per mile. Chap. 140, Laws of 1850, § 28.
    V. The evidence offered by the defendant for the purpose of excusing its extra charge, including the stipulation in which the right to object was reserved, was inadmissible under the pleadings in this case. But even if the plea had been properly made, the evidence shows the contrary of defendant’s claim. The defendant asked and received compensation for nothing except transportation. Defendant, for 50 cents, delivered to the passenger a ticket in two parts, one part having printed on it the figure 1 and the words “Special Service, August, 1889, R. C.” The other part having the figure 2 and the words “ Special Service, August, 1889, H. R.” The initial letters are explained by the superintendent to mean race course and Harlem river respectively, and the ticket “ is a right of passage between those points.” There is no ground for this contention. The claim is absurd, the facilities furnished were absolutely necessary to enable defendant to handle the passengers quickly and safely, and the defendant was bound to furnish them.
    VI. The defendant had acquired title to certain property near the Van Nest station under its chartered rights as a railroad corporation. Having no use for all of it for tracks or stations the company let the rest for pasturage. When use was found for it, spur tracks and sidings with platforms were built, and at the same time other additional terminal facilities were arranged at Harlem river, all for the purpose of enabling the company to handle the extraordinary traffic expected on its road on race days. Defendant furnished ordinary passenger cars and engines for the passenger’s transportation. It regulated the time and manner of his transportation. All this was done under the law and in accordance with the law. But when tickets, were sold entitling the passenger to a ride from Harlem river to the race course and return no reference was had to the charter or the law, but the price was evolved from the greed of a soulless corporation.
   By the Coubt.—Fbeedman, J.

This action was brought for the recovery of a penalty given by statute. The claim of the plaintiff is that on a certain day on which he took passage on a passenger train of the defendant to be carried on the defendant’s road from 134th street, in the city of New York, to Morris Park, in the state of New York, and thence back to said 134th street, he was charged and compelled to pay, contrary to the laws of the state of New York, fourteen cents in excess of the sum which the defendant had the right to ask and to receive, by means whereof the defendant became liable to pay to the plaintiff under and by virtue of the statutes of the state of New York to prevent extortion by railroad companies, the. sum of fifty dollars, together with the sum of fourteen cents so asked and received as aforesaid in excess of the legal fare.

The defendant is a foreign corporation, having been originally chartered by the state of Connecticut in the year 1844 under the name of the New York and New Haven Railroad Co. In the year 1846 it applied to the legislature of the state of New York for permission to extend its road from the Connecticut state line to the line of the New York and Harlem Railroad, and to unite or connect with the last mentioned railroad at or near Williams Bridge. Such permission was granted by chapter 195 of the Laws of 1846 upon certain conditions, and one of said conditions was that the charge for the transportation of any passenger and his ordinary baggage shall not exceed in the aggregate the sum of three cents per mile on that part of said road within this state. This condition is not applicable to the case at bar, because it is expressly limited to the part of the road specified, and because the plaintiff was not a passenger over that part of the road.

The occurrences out of which plaintiff’s claim arose, took place on a railroad known as the Harlem River & Port Chester Railroad and operated by the defendant under a lease, and the liability of the defendant for the penalty was held by the trial judge to rest upon subdivision 9 of section 28 of chapter 145 of the Laws of 1850, and the amendments of said chapter by chapter 185 of the Laws of 1857 and chapter 415 of the Laws of 1886. These provisions constitute parts of what is commonly known as the general railroad act, and they confer upon railroad corporations formed under the said act the power to regulate the compensation to be paid to them for the transportation of passengers, but at the same time they provide that such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile.

It therefore becomes necessary to consider the legal status of the Harlem River & Port Chester Railroad Co. and to determine what rate of fare it had a right to charge. This company was shown to have been organized under chapter 76B of the Laws of 1866 as- amended by chapter 722 of the Laws of 1869. Neither of these acts fixes or limits the rate of transportation over the road, and taken together they only authorize the construction, maintenance and operation of the road in a certain manner prescribed, which includes a lease, by certain persons specifically named, and their associates. “ When duly formed into a corporation •under and pursuant to an act to authorize the formation of railroad corporations and to regulate the same,” passed April 2, 1850. Under the peculiar provisions of these acts it is therefore essential that the actual and due formation of a corporation under the general railroad act should be shown, before the prohibition contained in the general railroad act can be enforced by the infliction of a penalty under the -acts amendatory thereof, for the general railroad act in terms applies only to corporations formed under it.

Even upon the assumption, therefore, the validity of which need not be discussed at present, that the defendant as a foreign corporation, under its lease, had no right to charge a higher rate of fare than the Harlem River & Port Chester R. R. Co., when legally organized, could have charged under the general railroad act, and that the defendant as lessee is liable for the penalty in every case in which its lessor would have been liable, it still remained incumbent upon the plaintiff to establish at the trial, and as part of his case, that the special acts authorizing the formation of the Harlem River & Port Chester R. R. Coi were followed up by actual and due formation of a corporation under and pursuant to the general railroad act.

The case contains no finding nor any evidence upon this point, and consequently there is a fatal defect.

This is a penal action. It rests upon the provisions of a penal statute. The claim is that the defendant has been guilty of extortion. In such a case the rule is well settled that all doubtful points are to be construed in favor of the defendant; that the plaintiff must show a clear right to the penalty and that he must bring himself strictly and literally within the operation of the statute. This the plaintiff failed to do.

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

Sedgwick, Ch. J., and Ingraham, J., concurred.


text:
    LIDA C. SCHWARZ, Plaintiff v. THE FAMILY FUND SOCIETY, Defendant.

      Practice—Verdict directed for plaintiff—Exceptions ordered to be heard in the first instance at general term,.—No exception taken to the direction of the verdict—Party against whom, the verdict was directed deemed to have acgv-iesced in the direction.

    In this case, at the trial, evidence was given on both sides, and upon, the close of the evidence plaintiff’s counsel moved that a verdict be directed for plaintiff on certain grounds which he stated. The court granted the motion and directed the jury to find a verdict for the sum of $5,164.99, and the jury rendered a verdict accordingly. The court thereupon ordered the exceptions taken during the trial to be heard in the first instance at general term, and the entry of judgment upon the verdict be suspended in the meantime, and until the hearing and decision of the general term of this court upon the said exceptions. There was no exception by the defendant to the direction of the verdict by the court.

      Held, That in this case the first requisite for a disturbance of the verdiet is that there should be an exception to the direction of the verdict, and, without such an exception, it must be deemed and held that the party against whom .the verdict was rendered, acquiesced in the direction. The necessary consequence of this acquiescence, and of the lack of power in the general term to disturb the verdict as directed, is that all prior exceptions taken before the verdict was directed, and in the course of the trial, have become immaterial, and the exceptions must' be overruled and judgment ordered for the plaintiff upon the verdict.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 5, 1891.
    Exceptions ordered to be heard in the first instance at general term.

      Blumenstiel & Hirsch, for plaintiff.

      Charles S. Noyes, for defendant.
   By the Court.—Freedman, J.

The action was brought by the plaintiff as the beneficiary under a policy for the sum of $5,000 issued by defendant on the life of Louis Schwarz, her husband, who died July 17, 1889. The defence was a general denial and a justification of defendant’s refusal to pay because of alleged false representations in obtaining a reinstatement of the policy.

At the trial evidence was given on both sides, and upon the close of the evidence plaintiff’s counsel moved that a verdict be directed for the plaintiff on certain grounds which he stated. The court granted the motion and directed the jury to find a verdict for the plaintiff for the sum of $5,164.99, and the jury rendered a verdict accordingly.' The court thereupon ordered “ that the exceptions taken during the trial be heard in the first instance at general term, and that the entry of judgment upon the verdict aforesaid be suspended in the meantime and until the hearing and decision of the general term of this court upon the said exceptions.” The case fails to sho.w that the defendant excepted to the direction of the verdict.

There are but two cases in which the proceedings upon a trial before a court and jury can be reviewed at general term in the first instance and before judgment. One is where the unsuccessful party desires to move for a new trial upon exceptions taken by him upon the trial, and the trial judge directs that such motion upon said exceptions be heard in the first instance at general term and that the entry of judgment be suspended until the decision of the general term.

The other case is where, upon the trial, an uncontroverted state of facts is presented, involving only questions of law, without exceptions on either side to the reception or rejection of evidence, and the judge directs a verdict subject to the opinion of the court at general term.

In each of these two cases the jurisdiction of the general term is limited by the order sending the case there.

On an appeal from a judgment the jurisdiction of the general term depends upon the notice of appeal. If the notice states that the appeal is from the judgment, only questions of law can be reviewed. If, however, it states that the appeal is from the judgment and also from the order denying a motion for a new trial, questions of fact as well as of law may be reviewed.

In the two. cases specified in which the general term may consider certain questions before judgment, the order sending the case there takes the place of a notice of appeal and confines the jurisdiction of the general term to those matters which under the provisions of the Code of Civil Procedure may be done under the order.

In the case, therefore, of a motion for a new trial after the direction of a verdict upon exceptions the first requisite for a disturbance of the verdict is that there should be an exception to the direction of the verdict. Without such an exception it must be deemed that the party against whom the verdict was directed after all acquiesced in the direction. The necessary consequence of this acquiescence and of the lack of power in the general term to disturb the verdict as directed, is that all prior exceptions taken in ■ the course of the trial have become immaterial. The case before us is subject to this criticism.

The exceptions must be overruled and judgment ordered for the plaintiff upon the verdict, with costs.

Sedgwick, Ch. J., concurred.


text:
    CHARLES A. SEDDON et al., Appellants v. ROBERT DONALD, Respondent.

      Questions of fact, what acts are necessary on the trial to ensure their review.

    Where the plaintiffs, at the close of the case, made no motion for the direction of a verdict in their favor, and issues were submitted to the jury under a charge to which no exception was. taken, and after the jury had found a verdict for defendant the plaintiffs’ counsel moved generally for a new trial but stated no ground for the motion, and the case contains no certificate that it contains all the evidence, no questions of fact can be reviewed on the appeal under these circumstances.
    Before Sedgwick, Ch. J., and Fbeedman, J.
    Decided January 5, 1891.
    Appeal from judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiffs’ motion for a new trial.

      Stallknecht & Randel, attorneys, and William F. Randel of counsel, for appellants.

      Wilder, Wilder & Lynch, attorneys, and William J. Lynch and James M. Hunt of counsel, for respondent.
   By the Court.—Freedman, J.

The plaintiffs, at the close of the case, made no motion for the direction of a verdict in their favor. The issues were submitted to the jury under a charge to which no exception was. taken. The jury having found for the defendant, the plaintiffs moved generally for a new trial, but stated no ground for their motion. Moreover, there is no certificate that the case contains all the evidence. Under these circumstances no question of fact can be reviewed.

The exceptions to the admission and exclusion of evidence have been examined, but none of them constitutes sufficient ground for reversal.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., concurred.