text:
    HENRY MUHLKER, Appellant v. JACOB RUPPERT, Respondent.

      Vendor and vendee—Vendee's claim of title in third person not sustained— Party walls may be regarded as monuments—Certainties in some particulars, of a description, with other considerations, will override a given distance at which a point of beginning is placed—New avenue, East, and Madison avenue; a description in 1873, referring to the easterly line of Madison avenue may be regarded as referring to a line which was the easterly line of New avenue, East. The maxim “falsa demonstratio quee non nocet ” applied.

    1st. The controversy here arises between a vendor and vendee as to whether the vendor or a third party had title to a part of the land contracted to be sold, to wit: a strip five feet in width lying east of and adjoining a party wall, the question depending on what particular piece of land was included in tire description contained in a mortgage, under a foreclosure of which the vendee claimed that the third party had title; and this question depending on the point whether the mortgage description carried the easterly line of the property intended to be mortgaged only to the center of a party wall, or to a point five feet easterly therefrom, Held, that, as the mortgage description contained two certainties, to wit: that the easterly and westerly lines ran partly through party walls, and that tire width of the property was 18 feet front and rear, and as the mortgagee in foreclosing his mortgage had taken the position that the property mortgaged was that lying between the two party walls, the distance from a certain point given in the description as the point of beginning, which would carry the easterly line beyond the easterly party wall, to. the extent of the five feet in question, and to a point where there was no party or other wall, and make the westerly line thirteen feet west of the easterly party wall, at which point there was no party or other wail, must yield to the two certainties (the party walls in this resqiect being regarded as monuments) ; and the point of beginning must be deemed to be at the middle of the westerly party wall which would exclude from the mortgage premises the five feet in question.
    2d. The point of beginning given in the description in the mortgage (which was made March G, 1873) was 298 feet east from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of 124tli street, which would bring the westerly line five feet east of the westerly party wall, but that distance from the easterly line of an „avenue formerly called New avenue, East, would bring the westerly line to the center of that party wall, Held, that under a possible construction of chapter 220 of the Laws of 1872, which enacted that the piece of ground then known as New avenue, should thereafter be known and constitute part of Madison avenue, the old easterly line of New avenue, might, without any misuse of words be called the easterly line of Madison avenue, and thus the five feet in question would not be included in the mortgaged premises. But if the words Madison avenue do not necessarily refer to New avenue it is a case of falsa demonstratio qua¡ non nocet.

    8d. Under the above holdings, Held, the vendee could not refuse to perform his contract, on the ground of a defect in the vendor’s title to the five feet in question. .
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 6, 1888.
    Appeal by plaintiff from, judgment for defendant entered upon, findings and. conclusions of the court at special term.
    The facts appear in the opinion.

      Theall & Beall, attorneys, and Austin G. Fox, of counsel for appellant, on the questions considered in the opinion, argued:
    I. The defendant failed to show that the intention of the parties to the mortgages was to mortgage any land except the lot and house thereon known as No. 68 East One Hundred and Twenty-fourth street. As to the mortgage to Grace T. Smith: The center line of the westerly party wall of No. 68 East One Hundred and Twenty-fourth street was in fact 298 feet east of an avenue which in fact existed, whether the avenue’s name be Madison or New.
    The only “ corner formed by the intersection of the easterly line of Madison avenue with southerly side of One Hundred and Twenty-fourth street,” was that which in fact then existed and which had existed ever since the avenue called “New” had been open'ed for travel. The two party walls described as inclosing a part of the lot No. 68 East One Hundred and Twenty-fourth street were the only party walls that satisfied the description, and the use of the term party walls, moreover, excluded any possibility of an intention to mortgage the land now in question, for that entire lot was then vacant.
    II. As there was no other lot than No. 68 East One Hundred and Twenty-fourth street to which the description in the mortgages by party walls could possibly apply, those landmarks determined absolutely the eastern and western boundaries of the mortgaged property. Norton v. Hughes, 17 Abb. N. C. 287. The intention of the parties always controls. Drew v. Swift, 46 N. Y. 204, 207; People v. Storms, 97 N. Y. 364; Brookman v. Kurzman, 94 Ib.; Robinson v. Rime, 70 Ib. 154; Seaman v. Hogeborn, 21 Barb. 398.
    III. The defendant failed to show that the effect of chapter 22 of the Laws of 1872, was to widen New avenue, and that irrespective of the intention of the parties they must be held, conclusively, to • have referred, not to the easterly line of the avenue as it actually existed, but to the imaginary line, marking what would have been the easterly side of Madison avenue, if it had in fact, been widened five feet. (1.) The mere passage of the act could not, of itself, operate to widen New avenue, five feet, and the legislature did not intend that it should. The legislature has no power by its mere fiat, to divest owners of the title to property and transfer it to the city, even for a public use. People ex rel. v. Commissioners of Highway, 53 Barb. 70. (2.) The mere passage of the act of 1872 made no change in the width of the New avenue between One Hundred and Twentieth and One Hundred and Twenty-fourth streets, and the blocks between Fourth avenue and Madison avenue are still 405 feet long. So far as the Act of 1872, chapter 220, relates to these blocks, it only changes the name of New avenue to Madison avenue and has no other effect. It does not extend the line of Madison avenue or does it widen New avenue. No proof other than this act is introduced to substantiate the claim of defendant that Madison avenue has been widened. Can it be contended that by the Act of 1872 New avenue was widened five feet, and these five feet taken from the abutting owners on the street ? People v. Comm’rs of Highway, 53 Barb. 70.
    IV. But even if there was a doubt as to the property covered by the two mortgages, there is an estoppel of record against any claim that could be made under the mortgages to any part of the land in question. (1.) Both mortgagees alleged in their complaints for foreclosure that Houston and Fealey conveyed the mortgaged premises to one McCarty, who afterwards conveyed the same to one Magits, and sets out the recording of the deed. (2.) But in the deed made by Houston and Fealey, the lot was described as that “ lot, piece or parcel of land, with the building thereon,..... being known as street No. 68 East One Hundred and Twenty-fourth street.” (3.) The mortgagees themselves became the purchasers, and they and their grantees are estopped of record to claim that the mortgages ever covered any property except that known as No. 68 East One Hundred and Twenty-fourth street. It is difficult to suggest a case of a more thorough estoppel than that which .results from these proceedings. The mortgages became merged in the judgments, and the judgments were based upon the allegations that the mortgaged property was the lot, with the building thereon, known as No. 68 East One Hundred and Twenty-fourth street. There is no proof of pretense that there was any building upon the plaintiff’s lot at the date of the deed to McCarty.

      Ashbel P. Fitch, attorney, and George F. Mott, of counsel for respondent, on the • question considered in the opinion, argued:
    I. The defendant relies on the statutes and the lines of Madison avenue as they existed in 1873, when these mortgages were made. These statutes are as follows: By an act passed April 16, 1867 (chapter 403), all that piece of land 80 feet wide between and parallel with Fourth and Fifth avenues from south side of Eighty-sixth street to the north side of One Hundred and Twentieth street, the east line or side being 400 feet west from the west side of Fourth avenue, and the west „ line or side being 420 feet east from the east side of Fifth avenue, and, being an extension of Madison avenue, is declared to be one of the streets, etc. By act passed May 4, 1869 (chap. 560), all that piece of land 80 feet wide, between and parallel with Fourth and Fifth avenues from north side of One Hundred and Twenty-fourth street to Harlem river, the east line or side being 400 feet west from west side of Fourth avenue and the west line or side being 420 feet east of east line of Fifth avenue, and being an extension of Madison avenue, is declared to be one of the streets, etc. By act passed April 12, 1872 (chap. 220), the piece of land 80 feet wide between the east and west lines of Madison avenue extended north from south line of One Hundred and Twentieth street to the north line of One Hundred and Twenty-fourth. street, now called New avenue, East, shall hereafter be known as and form part of Madison avenue. Or in other words, by these three statutes, Madison avenue 80 feet wide is extended from Eighty-sixth street to the Harlem river. The line is extended in each case. By the first statute the lines of the avenue were run up to One Hundred and Twentieth street, being 400 feet west of Fourth avenue-. By the second statute the line was run from One Hundred and Twenty-fourth street to Harlem river 400 feet from Fourth avenue, and by the last statute the line of the avenue (of course as it existed at One Hundred and Twentieth street, to wit: 400 feet west of Fourth avenue) was extended north from One Hundred and Twentieth street to One Hundred' and Twenty-fourth street. The plaintiff argues, however, that this last ■ statute, by an unfortunate wording does not actually extend the avenue, but simply “describes” it as extended, and changes the name, but by reference to the other two statutes it will be seen that the same form of wording is used in all three statutes, and there can be no doubt of the intent of the legislature to extend o Madison avenue.
    II. The distance from the avenue governs, although the description speaks of party walls. Smythe v. McCool, 22 Hun 595.
   By the Court.—Sedgwick, Ch. J.

The action is for the specific performance of a contract of the defendant to buy and of the plaintiff to sell real estate.

The contract describes the land as beginning at the southwesterly corner of Fourth avenue, and running thence westerly and along the southerly line of One Hundred and Twenty-fourth street eighty-nine feet, etc. The defendant does not claim that the plaintiff is not entitled to any part of the eighty-nine feet, but objects that the plaintiff has no title to a piece bounded by about five feet of the westerly end of the eighty-nine feet.

. Upon the trial it was agreed “ that the only question or issue to be tried is, as to whether by reason of the two mortgages mentioned in the answer, or either of them, and the proceedings taken thereunder, the title of the plaintiff to a portion of the premises to be conveyed by him has become defective to such an extent as to justify the defendant in refusing to accept such title,” etc.

As the respondent before us rests the objection upon the terms of one only of the two mortgages, there will be no further reference made to the other.

That mortgage was made by persons named Houstoun and Feely under whom the plaintiff holds title, and was made before the conveyance of the title which plaintiff claims. The mortgage was to Grace T. Smith, and was dated March 6,1873. Its description was: “ Beginning at a point in the southerly side of 124th street, distant easterly 298 feet from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of 124th street, at or in front of the middle of a party wall, and running thence southerly and parallel with Madison avenue and partly through the center of said party wall, 100 feet and 11 inches to the center of the block, thence easterly on the center line of the block and parallel with 124th street, 18 feet, thence northerly and parallel with Madison avenue and partly through the center of a party wall, 100 feet and 11 inches, to the southerly side of 124th street, and thence westerly along the southerly side of 124th street 18 feet to the place of beginning.”

The defendant contends that the easterly line of Madison avenue, given in the deed, is at a certain place, and is intersected by the southerly line of 124th street, and measuring from such intersection two hundred and ninety-eight feet, and then 18 feet as the north dimension of the property mortgaged, the conjoined measurements will,, include the piece of five feet in dispute.

This position assumes, in agreement with the plaintiff, that the easterly line of the land as described by the mortgage, is conterminous with the westerly line of land to which the plaintiff had a valid title, and it also assumes that the mortgagor and mortgagee intended by their description, that the land mortgaged should be eighteen feet broad at both ends.

This latter assumption is no doubt correct, and for a like reason the land intended by the description was one hundred feet and eleven inches in length. These matters are certainties. It was equally certain from the description alone, that the intention was to mortgage a piece of land, the sides of which should run in part through party walls.

It was proved on the trial that as matter of fact, there were party walls, or rather that there were walls, assumed in the examination to be party walls, eighteen feet from each other, and that the easterly one of these was about eighty-nine feet from Fourth avenue.

My difference from the learned judge below is at this point. He was of opinion that the description did not show where the westerly party Avail was. It seems to me, that if one should go upon the land, attempting to apply the description and bearing in mind that it was certain that the parties meant land eighteen feet wide at the north, and situate betAveen the centers of two walls, he would find that the end of the measurement of two hundred and ninety-eight feet easterly from the line of Madison avenue, as defendant claims it Avas, Avould leave him five feet east of the westerly party wall and thirteen feet west of the easterly party wall, Avith no other wall further east, as the land stood at the time of the mortgage. Or if the land were viewed as it noAv is, any wall easterly of the east party wall of the mortgage would be excluded, by the necessity of remaining at the end of íavo hundred and ninety-eight feet plus eighteen feet. The result would' be that as the line of eighteen feet must end at the east party line, its starting point AArould necessarily be the west party Avail.

These certainties, viz., that the lot was to be eighteen feet wide on One Hundred and Twenty-fourth street, and also that the line of these eighteen feet was between two Avails that can be identified as monuments, are corroborated by the position taken by the mortgagee, in foreclosing the mortgage. She proceeded to foreclose the mortgage, and gives the description of the property mortgaged, by averring the description as made in her mortgage. She further averred that the mortgagors had delivered to one McCarty “ a deed of conveyance of the mortgaged premises hereinbefore mentioned, subject to the mortgage aforesaid, wherein and whereby the said McCarty assumed and agreed to pay said mortgage. She also averred that McCarty delivered to one Magits a deed of conveyance of said mortgaged premises, subject to the mortgage hereinbefore mentioned, wherein and whereby said Magits assumed and agreed to pay said mortgage,” etc. The mortgage specified where these deeds of conveyance are recorded. In these deeds the description is: “ Beginning at a point on the southerly side of 124th street distant 89 feet westerly from the corner formed by the intersection of the westerly line of 4th avenue (as widened) with the southerly fine of 124th street, running thence southerly and parallel with said 4th avenue (as widened) and part of the way through the center of a party Avail, to' the center line of the block, thence westerly along said center line of the block eighteen feet, thence northerly again, parallel Avith 4th avenue, as widened, and part of the Avay through another party wall, to the southerly line of 124th street, thence easterly along said southerly line on 124th street to the point of beginning, subject, hoAvever, to certain mortgages iioav on said premises, amounting in the aggregate to $10,000, which mortgages the party of the second part assumes and agrees to pay.” These mortgages of $10,000 Avere the one being foreclosed and another, to Avhich it has been said there is no call to refer.

Two things thus clearly appear—that the mortgagee understood that the measurement from Madison avenue Avas intended to end at the west party Avail, eighteen feet west of the east party wall, and that the east party wall was eighty-nine feet west from Fourth avenue.

It may be said here that Fourth avenue had been Avidened some years before the mortgage under examination.

Attention should now be given to the claim of defendant, that tAvo hundred and ninety-eight feet from Madison avenue was the intended point of beginning, and therefore as it is further claimed no land west of that point could have been intended to be conveyed.

ft is a rule applicable to records, contracts and conveyances composed of detailed particulars, that if there is certainty as to all the particulars save one, which is not harmonious with the rest, the meaning is to be inferred from the certain particulars, and the other is to be bent to them, or even rejected, if it is not a modification or limitation of the others. Brookman v. Kurzman, 94 N. Y. 272; Danziger v. Boyd, 53 Super. Ct. 398.

The case is not out of the rule because the particular to be subordinated, speaks as to the point of beginning. There may be a mistake or inadvertence as to that, as well as to any kind of specification.

In this case it has been before suggested that taking the two party walls as monuments, and it being certain that the parties intended that the land should be eighteen feet on 124th street, between those party walls, there was no uncertainty as to the land mortgaged being west of the land of the contract. This might justify an entire rejection of the first statement as to the point of beginning.

But it will appear upon an analysis of that statement, that certain parts of it are consistent with the rest of the description. Instead of measuring from what is assumed to have been Madison avenue, but beginning at the other end of the line at the center of the west party wall, west two hundred and ninety-eight feet, a point would be reached five feet west of the assumed easterly line of Madison avenue. This point would be on the easterly side of a street called New avenue, down to 1872. In April 12, 1872 (chap. 222), the legislature recognizes the earlier existence of this New avenue, but describes it as eighty feet wide. The act says the piece or parcel of land eighty feet wide lying between'the easterly and westerly lines of Madison avenue extended northerly, etc., now called New avenue, East, shall hereafter be known as and form part of Madison avenue. The general situation was complicated in a manner that cannot be further alluded to for want of time. It, however, naturally would give rise to a doubt whether New avenue, per se, was identical with Madison avenue as intended by the act, or whether New avenue with an easterly addition was. In March, 1873, the old line of New avenue might be called the line of Madison avenue without any misuse of words, if one possible construction of the statute were taken as the correct one, viz.: a piece of land lying between the two sides of Madison avenue, but not extending from one side to the other, and extended from the southerly line of 120th street to the northerly line of 124th street, which piece of land is now called New avenue, East, shall hereafter be known as Madison avenue and form part of it, from the south to the north, in like manner and like effect as if the same had been originally laid out for a public street or avenue. There is no indication of any intention to take private land to make the new part of Madison avenue, or to place the line of the eighty feet east or west, of the old lines of New avenue.

Without going farther, it may, I think, properly be said that if the words Madison avenue do not accurately refer to New avenue it is a case of falsa demonstratio qum non nocet.

I am of opinion that the judgment should be reversed, and a new trial had, with costs to abide the event.

Truax, J., concurred.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    MICHAEL E. DUNSTER, et al., Appellants v. PATRICK KELLY, Respondent.

      Costs—title to realty, when not involved in issue—Allegation of license and of party wall.

    Plaintiffs being owners of certain premises, brought action against defendant, the owner of adjoining premises, to recover damages caused by emission of smoke, dust and dirt upon their premises, through certain pipes inserted by defendant into the wall separating said premises. Defendant admitted the title of the premises to be as alleged in the complaint, but denied the damage. The jury found for plaintiffs in six cents damages.

      Held, that defendant was entitled to have his costs taxed; that no claim to title to real property was raised by the pleadings; that an allegation that the holes in the wall were there when it was built, and had been in use for more than twenty years, if intended to show a license in defendant, would not raise a question of title; that the allegation in the answer that the wall was a party wall was immaterial as affecting plaintiff’s cause of action, and did not in any event raise a question of title, under the admissions of the answer.
    Before Truax and Dugro, JJ.

      Decided March 6, 1888.
    Appeal from order.
    The plaintiffs were the owners of certain premises in the city of New York, and the defendant was the owner of the premises adjoining on the east. The plaintiffs brought their action to recover damages for injuries which they alleged they sustained, by reason of the emission of smoke, dust, and dirt upon their premises, through certain stove pipes which the defendant had inserted into the wall separating the plaintiffs’ premises from those of the defendant. The defendant admitted the title of the premises mentioned in the complaint to be as there alleged, but denied the allegations of damage. The defendant' further alleged as a defense, that the holes through which the stove pipes had been inserted, were built into the wall when the houses were erected, and had been in use for more than twenty years; that the wall was a party wall; and that the chimney was intended for the use of those occupying defendant’s premises. On the trial, the jury found a verdict for plaintiffs, and assessed the damages at six cents. Each party served a bill of costs. The clerk taxed the defendant’s bill, the plaintiffs objecting that a claim to title of real property was raised by the pleadings, and therefore they were entitled to costs.
    The plaintiffs then applied at special term for an order vacating and setting aside the taxation of the clerk, and directing him to tax the plaintiffs’ bill of costs. This motion was denied, and the plaintiffs appeal from the order.

      Herbert F. Andrews, for appellants:
    I. Plaintiffs claim damages for trespass committed by defendant in making use of the chimney belonging to them. The defendant alleges that the chimney belongs as much to him as to the plaintiffs. The entire right of recovery thus depends upon the title to the chimney. Anything built or erected upon the land is real property. 1 Washburn Real Prop., 5th ed. 6 ; 3 Kent Com. 401.
    II. Defendant in his answer claims a right by prescription and this also raises the question of title. Heaton v. Ferris, 1 Johns. 146; Eustace v. Tuthill, 2 Johns. 185; Randall v. Crandall, 6 Hill 342 ; Rathbone v. McConnell, 21 N. Y. 466; Dinehart v. Wells, 2 Barb. 432. The last case cited holds that if the question of title is raised by the pleadings, plaintiff, if the verdict be in his favor, is entitled to costs, no matter what the nature of the action may be, whether trespass, nuisance, waste or assault and battery, and further that a claim of easement, or anything that in any way affects the estate, puts the title in question.

      III. If the question of title arises upon the pleadings no certificate that it arose upon the trial is necessary to entitle plaintiff to costs. Kelly v. N. Y. & M. B. R R. Co., 81 N. Y. 233.

      William H. Sage, for respondent:
    I. The complaint and answer both admit the titles of the respective owners. The answer claims : 1. That the wall in question is a party wall; 2. That each party owns to the center of the wall; 3. That the stove holes aré all in the defendant’s half of the wall; 4. That those holes open into chimney flues that are a vacant space in the common wall. Therefore Kelly does not claim any part of Dunster’s wall, but only the right to use his own half, where the stove holes are, and no judgment for damages that could have been recovered would have affected in the least the title of either plaintiffs or defendant. Scully v. Sanders, 77 N. Y 598.
    II. As mere possession was sufficient to uphold the action for damages (if proved), an allegation of title does not entitle the plaintiff to costs. Muller v. Bayard, 15 Abb. Pr. 449; Squires v. Seward, 16 How. Pr. 478; Rathbone v. McConnell, 21 N. Y. 466.
    III. Even in an action for trespass (and this is merely an action for an alleged nuisance), where the boundary line between two adjoining lots is admitted, and the plaintiff claims that the defendant’s building, or any appurtenant thereof, trespasses on plaintiff’s property, the issue thus formed is one of location depending upon the accuracy of measurement, and does not involve any question of title. Heintz v. Dellinger, 28 How Pr. 39 ; Squires v. Seward, 16 Ib. 478; Burnet v. Kelly, 10 Ib. 406; Rathbone v. McConnell, 20 Barb. 311; Rathbone v. McConnell, 21 N. Y. 466; Muller v. Bayard, 15 Abb. Pr. 449; Smith v. Riggs, 2 Duer 622; Ehle v. Quackenbush, 6 Hill 537.
   By the Court.—Truax, J.

The only material issue raised by the pleadings was, were the plaintiffs injured by the acts of the defendant ? The allegation in the answer that the wall between plaintiffs’ premises and defendant’s premises was a party wall, was an allegation of an immaterial fact, because, if the allegation that the plaintiffs were injured by the emission of smoke, dust, and dirt, from the defendant’s premises, upon theirs, was true, it was no defense that such emissions were made from a party wall.

If the defendant by the allegation that the wall had been in use inore than twenty years, meant to allege that he had a license to do the acts complained of, that allegation would not raise a question of title. Rathbone v. McConnell, 21 N. Y. 466 ; Muller v. Bayard, 15 Abb. 449 ; Mechl v. Schwieckart, 67 Barb. 599.

But even if we consider the allegation, that the wall was a party wall, to be a material allegation, it did not put in issue the title to the wall, or to any part of plaintiffs’ premises, for it was admitted by the answer that the plaintiffs owned the premises claimed by them in the complaint, and that the defendant owned the premises adjoining the said premises of the plaintiffs,” and the premises were described in the complaint, and the description was admitted by the answer.

If plaintiffs had only the right of possession, they were entitled to recover damages for the injury that the evidence showed they had sustained to their right of possession. No damage to the freehold is alleged in the complaint.

In Kelly v. N. Y. & Man. B. R. R. Co., 81 N. Y 233, and Green v. The Village of Canandaigua, 30 Hun 306 (actions for trespass, quare, clausam fregit), the complaints alleged that the plaintiffs were owners of the property which, it was alleged, the defendants had injured, and the answers denied- tiffs allegation of ownership.

The order appealed from is affirmed with costs.

Dugro, J., concurred.


author: Truax, J. By the Court.—Dugro, J.

text:
    ELIZA T. BRYSON, as Trustee, &c., Respondent v. EDWARD F. JAMES, Impleaded, et al., Appellant.

      Mortgage—Receiver clause.

    When the parties to a mortgage' agree therein upon the time when the routs, issues and profits shall become security for the debt, by a clause providing for the appointment of a receiver, etc., such agreement is virtually a contract, and will be enforced, unless it would be unconscionable to do so.
    By such a covenant, i. e., a “ receiver clause,” the mortgagor pledges the rents, issues and profits of the mortgaged premises.
    Appeal from an order appointing a receiver of the rents, issue and profits of the mortgaged premises, during the pendency of an action to foreclose the mortgage.
    The motion was based upon the following covenant in the mortgage : “ And it is further expressly covenanted and agreed, by and between the parties hereto, that if default shall be made in payment of the principal sum mentioned in the condition of the said bond, or of any part thereof, or of the interest which shall accrue thereon, or of any part thereof, or of any tax or assessment, or of any part thereof, or of the interest thereon, or of any part thereof, at the respective times therein specified for the payment thereof, the party of the second part, her successors, legal representatives or assigns,, shall have the right forthwith, after any such default, to enter upon and take possession of the said mortgaged premises, and receive the' rents, issues and profits thereof, and apply the same, after payment of all necessary charges and expenses, on account of this mortgage, and of the bond accompanying the same.”
    “ And the party of the second part, her successors, legal representatives or assigns, shall be at liberty iim mediately after any such default, upon a complaint filed, or any other proper legal proceedings commenced for the foreclosure of the mortgage, to apply for and shall be entitled as a matter of right, and without regard to the value of the premises above described, or the solvency or insolvency of the party- of the first part, or of any owner of said premises, and on eight days notice to the party of the first part, his heirs or assigns, to the appointment by'any competent court or tribunal of a receiver of the rents, issues and profits of said premises, with the power to lease the said premises for a term to be approved by the court, with power to pay taxes, assessments and water rents, which- are or may become liens upon said premises, and keep the same insured, and with power to take proceedings to dispossess tenants, and make all necessary repairs, and with such other powers as may be deemed necessary, who, after deducting all charges and expenses attending the execution of the said trust as receiver, shall apply the residue of the said rents and profits to the payment and satisfaction of this mortgage, and the bond accompanying the same, or to any deficiency which may arise after applying the proceeds of the sale of said premises to the amount due, including interest and costs and expenses of the foreclosure sale.”
    The following opinion was delivered by the court at special term, on granting the order for receivership :
   Truax, J.

This court decided in MacKellar v. Eogers, 52 Super. Ct. 360, that the parties to a mortgage like this had made the rents of the premises a part of the security for the payment of the amount of the bond and its interest, and that therefore the mortgagee was entitled under the provisions of the mortgage to apply to the court for the appointment of a receiver. This now seems to be sustained by the intimation of the court of appeals in the case of Hollenbeck v. Donnell, 94 N. Y. 342 (see page 349), where a reference is made to the fact that the plaintiff in that action had omitted to take a pledge of the rents and profits of the whole premises in order to keep down the accruing interest and instalments, and therefore was not entitled to a receivership for the protection of that portion of the mortgage debt which was not yet due, or that portion of the premises as to which his right to sell had not yet accrued.

Isaac L. Egbert, for appellant:

I. Code Civil Procedure, § 713, limits the power of appointment of receivers to those cases where the party applying establishes an interest in the rents and profits, and shows that “ that there is danger that it (the rents, etc.) will be removed beyond the jurisdiction of the court, or lost, materially injured or destroyed.” 1. To establish an interest in the rents it Avas necessary to show, in addition to the covenant contained in the mortgage, that respondent was entitled to have the rents applied towards payment of the mortgage debt because the mortgaged premises were a-n insufficient security, and the mortgagor was insolvent. 2. Conceding that the covenant for a receiver was sufficient to show such interest, the respondent was bound to show that such rents were in danger of being lost. These requirements the respondent failed to meet, while it did appear on the part of the appellant that the premises are an adequate security, that the appellant offered to furnish any additional security required by the court to account for the rents, thus placing the rents out of all conceivable peril or danger of being lost. Code Civ. Proc., § 713; Hallenbeck v. Donnell, 94 N. Y. 342; Sea Ins. Co. v. Stebbins, 8 Paige 568.

But there is another reason why the court should award to the plaintiff the right which was provided for by the contract of the parties. The plaintiff shows that the defendant has not paid the insurance and the taxes, and that in order to maintain and protect her rights it was necessary and will be necessary for the plaintiff to advance money to maintain the insurance and to pay the taxes. This the plaintiff should not be required to do at her own expense. If it is to be done at all it should be done at the expense of the defendants.

II. No semblance of- equity existed in favor of the application of the plaintiff in view of the following authorities: Hallenbeck v. Donnell, supra; Sea Ins. Co. v. Stebbins, supra; Burlingame v. Parce, 12 Hun 148; 31 Barb. 201; 1 Ib. 306, 4 Paige 204; 7 Ib. 38; Ib. 309 ; 8 Ib. 436; 11 Ib. 436 ; 3 Edw. Ch. 588. In point of fact the applicant made no appeal to the equity powers of the court, which powers should have been invoked to authorize the order granted. The poAver to appoint such receiver is principally derived from the practice of the court of chancery, and the true rule is to be sought for in equity. Hallenbeck v. Donnell, supra. The rule that must be observed to invoke the equity powers of the court is: 1. It must affirmatively appear that the mortgage security is inadequate; 2. It must also appear that there is no one personally liable for the debt, or that the person so liable is insolvent. (Cases cited above.) The contention of the respondent-in the present case is that the clause in the bond known to conveyancers and to the court as the “Receiver Clause,” takes this application outside of the equity rule above quoted and' presents a contract specifically charging the rents and profits Avith the lien of the mortgage debt so as to entitle her to the appointment of a receiver, although no equities are shown. MacKellar v. Rogers, 52 Super. Ct. 360, is cited as an authority for such contention. A careful examination of the record in that case, however, fails to discover that any facts tending to show the existence of equitable grounds of objection to the granting of the application' were presented or suggested. The vieAV which the court of appeals has taken of the remedy of receivership in mortgage cases (94 N. Y. 342) renders the receiver clause, contained in bonds and mortgages, wholly superfluous, and the decision of this appeal ought not to be embarrassed by any consideration of that clause. The utmost that can be claimed for that covenant, is, as stated by Ch. J. Sedgwick, in MacKellar v. Rogers, supra, that it is “ a contract making the rents and profits a part of the security for the debt,” and equity will enforce that contract if necessary and important for plaintiff’s protection, but not otherwise. There is a distinction between a pledge of the rents find an agreement to charge them with the lien of the mortgage debt. A pledge is a bailment and requires delivery. In fact the covenant in this case was an agreement to pledge them through the instrumentality of a receiver. The reference in the various cases to specific pledges of the rents relate to cases where the rents are assigned,, or where the mortgagee is in possession. In such cases the rents are pledged. The courts have in no instance departed from observance of the equitable rule, and a distinct agreement making the rents part of the security for the mortgage debt creates but an equitable lien upon such rents, enforceable only when equity requires its enforcement. Hallenbeck v. Donnell, supra. When to enforce such lien the aid of the equity powers of the court is sought, it must appear not only that the mortgage has an interest in or lien upon the rents, but that the rents are likely to be lost, etc. Equity in such a case, is asked for an order for specific performance, and the application should be treated as analogous in principle with actions for specific performance. It must be necessary, must be really important to the plaintiff and not unnecessarily oppressive of the defendant. Beasl. Ch. 497; Adams Eq. 83 et seq.; 3 Barb. 50; 18 Ib. 350. Tested by these well-settled rules this application should have been denied: 1. A receiver is neither important nor necessary to the plaintiff whose remedy against the property is ample and fully adequate. The land itself is only involved as security for the debt, and being abundant security in addition to the shown responsibility of the bondsman, it is needless to resort to the rents. Æquitas supervacua odit (Hoff. 282). 2. To enforce the contract for a receiver is to oppress the defendant. It is an unnecessary interference with his use of the income of the property to guard against the various liens on the mortgaged premises. It deprives him of • the very funds which may be the effectual means of relieving the present default.

There is a positive contract written in the mortgage, in which the mortgagor agreed that in case he failed to pay the money or perform the stated condition within the appointed time the conveyance should become absolute. Yet, in the face of a breach of that plain contract equity says that the real object of the contract is to secure the payment of the debt or performance of the condition, and although the debtor has consented and agreed in writing to be deprived of his right to the property, the mortgagee must be content with receiving his money and damages for the delay by way of interest. The bond in suit which contains the covenant for a receiver, sought to be enforced,* contains an express agreement that should any default be made in the payment of the interest on any day whereon such interest is made payable and remain unpaid for thirty days, that then, at the option of the mortgagee, the whole of said principal sum and all arrearages of interest thereon shall immediately become due although the period limited for the payment thereof may not have expired. Language can express no plainer contract, and yet before the statutes now existing, equity ignored such contracts, excused the default and overruled the mortgagee’s option by allowing the deferred interest to be paid together with costs, and discontinued the action for foreclosure founded upon such default. Recognizing this rule in equity, this state has provided the same relief by statute. R. S., 5th ed., § 91, p. 273; Code Civ. Proc., §§ 1634,1635. The covenant under present consideration by which the defendant James has agreed that a receiver may be appointed, has no greater force or effect in equity than either of the covenants just referred to. No covenant can be written that will effectually close the eyes of court to the one main purpose of the whole contract of mortgage, which is to provide a security for the payment of the debt. Nor will the court impose any burden or penalty, however specifically provided for by the terms of the contract, that is not absolutely necessary to secure the real object of the mortgage, i. e., payment of the debt. The covenant in question was only designed and intended to secure the mortgage debt by resorting to the rents, if necessary; and if the slightest necessity exists to make the apjnopriatión of the rents here asked for, this court will, undoubtedly, so appropriate them through the instrumentality of a receivership. It would do so under the authority of the cases cited, if the covenant for a receiver was not in the bond and mortgage.at all. That covenant is wholly superfluous, and the court will not make the appointment simply because of that covenant and an arbitrary demand for its enforcement.

III. A receiver of the rent and profits in mortgage cases is never appointed where security is offered to account for such rents in case there shall be a deficiency. In this case such security was offered by the appellant on the hearing of the respondent’s application. Sea Ins. Co. v. Stebbins, 8 Paige 565 ; Thomas on Morts., 2d ed., § 886, and cases cited.

Eaton & Lewis, for respondent:

I. The plaintiff is entitled as a matter of absolute right to the appointment of a receiver. The receiver’s clauses in the bond and mortgage constitute an absolute contractual appropriation of the rents and profits to the security of the mortgage, (a) After the statute of 1828, which forbade a mortgagee to maintain ejectment, even after default, against a mortgagor, the courts continued to appoint receivers in foreclosure suits whenever the property was insufficient and the mortgagor insolvent. This was in case of ordinary mortgages which contained no special pledge of rents and profits such as there is in our case. Howell v. Ripley, 10 Paige 43; Bank of Ogdensburgh v. Arnold 5 Ib. 38 ; Quincy v. Cheeseman, 4 Sandf. Ch. 405. The practice continued under the Code of 1848. The ground was thus stated by Raparlo, J., in Hollenbeck v. Donnell, infra: that where the security was inadequate and the mortgagor in default, the law would regard the foreclosure as at once taking place, equity regarding that as having been done which ought to have been done, and as the process of foreclosure required time, the law would put the mortgagee as far as possible in the position he would have' occupied, had the foreclosure at once taken place. This power was also derived under § 244 of the Code of 1848, which section, after providing for-certain specific cases when the court might appoint a receiver, further gave to the court the same power in such other cases as are now provided by law, or may be in accordance with existing practice,” etc. When the Code of Civil Procedure was enacted, § 713, it did not save these general provisions. It was for a time doubted whether receivers might longer be appointed in foreclosure suits. This was set finally at rest by the court of appeals. The provisions of § 713 were held to be not restrictive, but declaratory. The court was considered as retaining its general equity power. Hollenbeck v. Donnell, 94 N. Y. 342; Wyckhoff v. Scofield, 98 Ib. 475. These cases put receivership power in no sense in the light of discretion. Wherever the party made a proper case the court was bound to act, as in other cases of equity jurisdiction. (5) In our case the defendant Edward F. James has specifically contracted that in the event which has happened the plaintiff should be entitled to a receiver. Our right here is therefore absolute, not only as against him, but against all jiersons claiming under him. Our right rests on two grounds: (1) The specific enforcement of the contract. (2) On the ground that the mortgagor has specifically pledged the rent in the event of default; as such pledgee, the plaintiff has an interest in the rents under the terms of Sub. 1, § 713, Code Civ. Proc. It appears that the possibility of pledging rents by bond and mortgage, specifically, was very early recognized. Bank of Ogdensburgh v. Arnold, 5 Paige Ch. 38, 41; Shotwell v. Smith, 3 Edw. Ch. 588; Jones on Mortgages, § 1516. (c) The whole question in this case is practically set at rest by a decision of the general term of this court. McKellar v. Rogers, 52 Super. Ct. 360. There was a receivership clause in the mortgage very nearly like our own. There was a valid answer sworn to and not met by affidavits. No insufficiency of the premises as security for the mortgage debt was shown or even suggested. The plaintiff was held, as a matter of right, to be entitled to a receiver. * The case establishes what we have indicated before to have been the law, viz.: That when there was in any manner specific pledge of the defendants, it was a matter of contract to appoint a receiver, and the courts would treat it as an absolute right. id) This argument also brings the case within the positive provision of the Code of Civil Procedure, § 713, subd. 1, which provides that a receiver may be appointed “ on application of a party who establishes an apparent right to or interest in the property,” etc., the “interest” here being the specific contractual lien upon the rents. Hollenbeck v. Donnell, 94 N. Y. 342, at p. 348.

II. It has been urged in the argument below that, inasmuch as the courts of equity originally regarded apparently absolute mortgages as merely pledges—as they in fact were—the court will so regard this provision here, in furtherance of justice. To this it may be answered that, leaving the question of further extending this doctrine entirely aside for the moment, the question here is one of carrying out, and not thwarting, the very intent of the parties. . Upon breach of the mortgage conditions the clause can no longer be effective. But the condition which we have in this case is an effectual, and the only effectual, pledge of rents, as an additional security for the mortgage; as such, it is as effectual as any provision whatever in the bond and mortgage.

III. The order appealed from is supported by the strongest equities. Taxes to the amount of $5,500, and insurance, $3,000, are unpaid.

By the Court.—Dugro, J.

By this covenant, the mortgagor pledged the rents, issues and profits of the mortgaged premises.

It is well settled that the court may make a decree in foreclosure, when obtained, relate back to the time of the commencement of the action, and where necessary for the security of the mortgage debt (even where no pledge of the rents, etc., is constituted a security for the payment of the debt), appoint a receiver of the rents and profits accruing in the interval between the commencement of the action and final judgment.

It cannot therefore, with any justice, be claimed that, in cases where the parties have themselves agreed upon the time when the rents, issues and profits should become security for the debt, the court should treat as of no force and effect what is virtually a contract between the parties, unless a failure to so treat it would be unconscionable. As was stated in the case of McKellar v. Rogers, 52 Super. Ct. 362. “ The covenant means that the mortgagee shall have the benefit (of rents and profits) while the litigation is pending down to the only sufficient and competent mode of deciding the issues of an action.”

The order is affirmed, with $10 costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Dugro, J.

text:
    FAUSTO COSULICH, et al., Respondents v. THE STANDARD OIL CO. OF N. Y., Appellant.

      Kegligence—Explosion in oil yard—Res ipsa loquitur—Proximate and remote causes of damage.

    In an action to recover damages for the destruction of plaintiffs’ vessel by a fire, alleged to have been caused by defendant’s negligence, it appeared that, at the time of the accident, defendant owned and managed an oil refinery on Newtown Creek, and that plaintiffs’ vessel was then lying at the adjacent dock receiving cargo ; that suddenly there was a flash, and, at the same moment, an overheated, or overpressured iron body, ten feet in diameter, in defendant’s said oil yard, where oil was refined, and in close contiguity to large tanks of oil, exploded, and a fire instantly appeared in defendant’s yard, in or about the locality where the explosion occurred, and the street was filled with burning oil, and the fire communicated to a lighter lying under the stern of plaintiffs’ ship, which lighter exploded and plaintiffs’ vessel lying on the creek was ignited. The primary causes of the explosion and of the fire were unexplained, except as above.

      Held, that the evidence showed that the fire was caused by the explosion on defendant’s premises; that the occurence of the explosion, unexplained, was under the circumstances, prima facie evidence of negligence on the part of the defendant; and that it was proper to submit to the jury the question whether the damage sustained by plaintiffs was the direct and proximate result of said negligence, or only a remote result.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 6, 1888.
    Appeal from judgment for plaintiffs, entered on verdict, and from order denying motion for new trial.
    Action for damages sustained by plaintiffs through the partial destruction of their vessel, the bark “Phison,” alleged to have been caused by defendant's negligence.
    The facts and exceptions appear in the opinion.

      Carter & Ledyard and L. C. Ledyard, for appellant:
    I. The allegation of negligence made by the complaint is that, through the negligence of the defendant, there resulted on a given day an explosion and fire on its premises ; that said fire extended to and was directly communicated to the plaintiffs’ vessel, and that said fire was caused wholly by defendant’s negligence and carelessness. It is to be noticed that there is no allegation here of cause and effect as between the fire and the explosion ; both are alleged generally, and no priority in point of time is assigned to either; the gist of the allegation is that the fire caused the damage, that the defendant’s negligence was the cause of the fire. It is nowhere alleged that the fire occurred in consequence of the explosion. The learned judge, in ruling upon the motion for a nonsuit, was evidently under the impression that the plaintiffs sought a recovery and had by their proofs entitled themselves to a recovery for damages occasioned by an explosion. In this we submit that he was quite in error. The complaint does not seek a recovery for damages caused by an explosion, but for damages caused by a fire. But the learned judge, misled possibly by this erroneous view of the plaintiffs’ cause of action, fell into the further error of assuming that a case had been made out, to which the maxim, “ res ipsa loquitur,” was applicable. Assuming for our present purpose, that there is such a rule of law, we insist that no case admitting of its application had been made out by the plaintiffs.
    II. In order to apply such rule, the plaintiff must establish three things: 1st. That an explosion, the cause of which was left unexplained, occurred upon the premises of the defendant. 2d. That the damages sustained by the plaintiffs were caused by such explosion; and, 3d. That such damages were the natural and proximate, and not the remote, consequence of the explosion, (a) The case contains no proof of any explosion on the defendant’s premises. Further than this, there is no proof in the case tending to show what it was that exploded. (b) Nor is there any proof in the case that the damages sustained by the plaintiffs were caused by any explosion. 1. Evidently the complaint was not drawn with any such view; it alleges distinctly that the damages were caused by the fire as distinct from the explosion. 2. The whole testimony shows, as matter of fact, that the damage to the vessel was caused by the fire. 3. It was conceded in the charge, as in view of numerous decisions, it must have been conceded (Clark v. Foot, 8 Johns. 421; Stuart v. Hawley, 22 Barb. 619; Lansing v. Stone, 37 Barb. 15; Calkins v. Barger, 44 Barb. 424), that the rule which he laid down in resj>ect to explosions had no application to the case of a fire. Therefore it was incumbent upon the plaintiffs to show an explosion antecedent to, and causing the fire. But the testimony may be ransacked in vain for a scintilla of evidence tending to show either that the explosion was antecedent to the fire or that it was in any degree the cause of it. It may well be, for aught that appears to the contrary in the evidence, that the fire had already been started within the works through some unknown or unrevealed cause, and was itself the cause of the explosion. 4. It is not sufficient for the plaintiffs to show that the explosion might have preceded and might have caused the fire; they must establish as part of their prima f acie case that it did cause the fire. The evidence given by them, tends to prove that the fire preceded the explosion and was not caused by it. Payne v. Forty-second Street R. R. Co., 40 Super. Ct. 8; Searls v. Manhattan R. R. Co., 101 N. Y. 662. (c) The proof conclusively shows that the damages were the ultimate and remote but not the proximate and natural results of the explosion. (1.) What are natural and proximate and what are remote damages is a question which depends very much upon the facts of each particular case. 1. Where the act itself is malicious or unlawful a different rule is applied from that which governs cases in which the original act was merely negligent. In the former class of cases damages will be allowed which in the latter class would be excluded by reason of remoteness. Ryan v. N. Y. C. R. Co., 35 N. Y. 210; Kerr v. Penn. R. R. Co., 62 Penn. St. 353; Hoag v. L. S. R. R. Co., 85 Penn. St. 293; Reiper v. Nichols, 31 Hun 491. 2. Upon the assumptions which we have above made, for the purposes of this argument, the case may be thus stated: That an explosion occurred upon the defendants’ premises, bu,t what the thing was which exploded is not shown; that in consequence of such explosion a fire took place, and that from the fire oil ignited; that the oil escaped upon adjoining premises and from those premises to the creek; that it was carried upon the waters of the creek to a vessel not belonging to the defendant or under its control; that this vessel, the lighter, contained inflammable and explosive substances; that she was set on fire and exploded, and that through such explosion burning pieces of the lighter were thrown upon the plaintiffs’ ship and set fire to her. This is not the case of one but of half a dozen different intervening events and causes, the concurrence of all of which was necessary to produce the injury, and we think that there is no rule laid down by any decided case which would carry the principle of liability so far.
    III. The maxim “ res ipsa loquitur ” proceeds upon the theory that where something is shown to have occurred upon a man’s premises which is of so unusual a character that it may be said, as a general rule, that it never occurs except as the result of his negligence, then it is sufficient for the plaintiff to prove the fact of its occurrence, and the law will thereupon presume that it was occasioned by his negligence. Such a rule is applied where the defendant stands in some relation of duty, as in the familiar case of objects dropped into a highway from adjoining buildings. The mere fact of an explosion is not sufficient to raise the presumption of negligence, nor is it the common experience of mankind that explosions occur through negligence. Neligence can be predicated of explosions in general no more universally than it can be alleged with respect to fires. We have no evidence whatever tending in the most remote degree to show any attendant circumstances; the most that can be claimed for the plaintiffs’ evidence is, that it tended to establish the bare fact of the occurrence of an explosion. That is not sufficient to raise any presumption whatever. J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121; Curtis v. R. & S. R. R. Co., 18 N. Y. 534; Olive v. Whitney Marble Co., 103 N. Y. 292; Losee v. Buchanan, 51 N. Y. 476. Probably the best considered case upon the subject is that of Young v. Bransford, 12 Lea (Tenn.) 232. The charge of the judge was in these words: “ When the killing is proved to have been done by the explosion of the defendant’s boiler, the burden is thrown upon them to show that they were guilty of no negligence, and that the accident was unavoidable. So that while the burden of proof is upon the plaintiff to make out her case in the first instance, wdien she has shown the explosion and killing, the burden then shifts upon the defendants to exonerate themselves from presumed negligence by showing that they were in fact guilty of no negligence, and upon this point, whether there is negligence or not, your verdict must turn.” This was held error, for which a new trial should be ordered.

      Ullo, Ruebsamen & Hubbe, attorneys, and Lorenzo Ullo, of counsel, for respondents :
    I. That an explosion raises a presumption of negligence, is well settled by the highest tribunal of this state, and by the United States courts. Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Rose v. Stevens & Condit Transp. Co., 11 Fed. Rep. 438; Posey v. Scoville, 10 Ib. 141; Dunlap v. S. S. Reliance, 2 Ib. 249; The Sydney, 27 Ib. 119. And this presumption of law applies to all cases of injuries caused by explosion. Transportation Co. v. Downer, 11 Wallace 129; The New World v. King, 16 Howard 477 ; Rintoul v. N. Y. C. H. R. R. Co., 21 Blatch. 439; S. C., 17 Fed. Rep. 905; Mullen v. St. John, 57 N. Y. 567. This presumption of negligence is based, as is laid down in Caldwell v. Stevens & Condit Transp. Co. (supra), on the old principles of common law. Church v. Griggs, 2 Camp. 69; Stokes v. Suttonstall, 13 Peters 181; N. J. R. R. Transp. Co. v. Pollard, 22 Wallace 341; Scott v. London & St. Catherine Dock Co., 3 Hurlb. & C. 596; Transp. Co. v. Downer, 11 Wallace 129 ; Rose v. Stevens & Condit Transp. Co., 11 Fed. Rep. 438; Kearney v. R. R. Co., L. R. (69 B.) 759; Byrne v. Boadle, 2 Hurlb. & Colt. 772; Mullen v. St. John, 57 N. Y. 567; Jenney v. City of Brooklyn, 44 Hun 371; Rintoul v. N. Y. C. R. R. Co., 17 Fed. Rep. 905; Edgarten v. N. Y. & Harlem R. R. Co., 39 N. Y. 227; Curtis v. Rochester & Syracuse R. R. Co., 18 Ib. 534; Wildmer v. N. Y. Elevated R. R. Co.; Searles v. Manhattan R. R. Co., 101 N. Y. 861. There was no error, therefore, in charging the jury in this case, that the explosion, if unexplained, raised the presumption of negligence. The defendants cannot complain, for the court went even further than the law requires ; substantially, the jury were charged by the court to look for surrounding circumstances, such as would overcome the presumption of law, and satisfy them that in this case defendants used ordinary care.
    Far from showing ordinary care, the circumstances surrounding the explosion showed a specific act of negligence of the defendants. There was first a rumbling noise, a wobbling or shaking of the boiler, or oil tank, and then the explosion. Boilers or oil tanks do not usually wobble or make a rumbling noise, such as to be heard and noticed across the street, and inside the office of another factory. That noise and wobbling or shaking of the boiler indicated an imminent explosion. This is evidenced by the uncontradicted testimony of Ernest Berger, an engineer of more than thirty or thirty-two years standing, familiar with boilers and the generation ¿of steam. According to his testimony, that rumbling noise or wobbling or shaking of the boiler or oil tank “ indicated overheating or two much pressure on the boiler .... it indicated an overpressured boiler or overpressured body.”
    II. The motion to dismiss on the ground that it appears that the damage sustained is too remote, not being the natural and proximate cause of the negligence imputed to the defendant, was properly denied, and that question was properly submitted to the jury. It is now well settled that it is proper to submit the question Avhat is natural and proximate cause of damage to the jury. Ehrgott v. Mayor, etc., 96 N. Y. 265; Lowery v. Manhattan R. R. Co., 99 Ib. 158; Webb v. P. W. & O. R. C., 49 Ib. 424; Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U. S. (4 Otto) 469; Louisiana Mutual Ins. Co. v. Tweed; 74 U. S. (7 Wall.) 44-53. But contra, defendants rely on Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210; Penna. R. R. v. Kerr, 62 Penn. 353. The controversy raised by these last quoted cases has been laid at rest, and is now only interesting as ancient history. Milwaukee v. Kellogg (supra); Webb v. R. R. Co., 49 N. Y. 420; R. R. Co. v. Hope, 80 Pa. 373 ; Kellogg v. R. R. Co., 26 Wis. 224; Perly v. R. R. Co., 98 Mass. 414; Higgins v. Dewey, supra; Fent v. R. R. Co., 59 Ill. 349; Ehrgott v. Mayor, etc. (supra); Webb v. R. W. & O. R. R. Co. (supra) 431. As a matter of law, the \\Trong-doer is responsible .for all the natural and proximate consequences of his acts. The damages by burning to the Phison, were the natural and proximate effect of the explosion. There is no proof, and none Avas offered, or even intimated, that an independent cause intervened.
   By the Court.—Dugro, J.

The material allegations of the complaint are as folloAvs:—

First. That the defendants, at the time of the accident, owned and managed a petroleum refinery on Newr town Creek, and the plaintiffs’ vessel was then lawfully lying, for the purpose of receiving a cargo, at the wharf next adjacent to the defendants’ said oil works on New-town Creek, to wit, at the wharf of the Devoe Manufacturing Co.

Second. That, although the defendants well knew that said business of refining petroleum was dangerous and necessitated extraordinary care, yet they were so negligent and careless in the construction and management of their said works and refinery, that there resulted on the day of the accident, from such negligence and carelessness, an explosion and fire on defendants’ premises, and that such fire extended to, and was directly communicated to the “ Phison ” from said premises, whereby the bark was greatly injured and partly destroyed.

Third. That said fire was caused wholly by defendants’ negligence and that the injury to plaintiffs’ véssel was the result solely thereof.

The defendant in its answer admitted that “it owned and managed a petroleum refinery on Newtown Creek,” denied that it was negligent in the construction and management of its works, and denied that there resulted, from any negligence of carelessness on its part, an explosion and fire on its premises, and further denied that such fire was directly communicated to the bark from such premises. The defendant alleged that the fire which occurred on its premises, was accidentally begun, and charged contributory negligence- on the part of those in charge of the vessel.

The case was presented to the court on the plaintiffs’ evidence alone, the defendant after the denial of its motion for a nonsuit, having declined to put in any evidence in defense. •

Among other exceptions taken by defendant was one to the following portion of the judge’s charge : “ I have to say to you, however, that from the mere fact of the explosion, if unexplained, a presumption arises that somebody in the defendant’s employ was negligent, and the case therefore comes down to this, whether the circumstances surrounding that explosion in themselves show that the defendants used the ordinary care which the law requires of them.”

The first point made by the appellant is that the complaint does not seek a recovery for damages caused by an explosion, but for damages caused by a fire. Accepting, for the purposes of argument, the point as well taken, we then have the cause of action alleged one for damages caused by a fire. The evidence shows that the fire resulted from the explosion, and that the explosion occurred on the defendant’s premises, for from the testimony of the witness Berger, it satisfactorily appears that the explosion took place in the oil yard of the defendant, behind a wall which was around the whole yard on Ash street. Great stress is laid by appellant upon the following question, put to the witness Berger, and his answer thereto, it being claimed that it is the only evidence which shows the place of the explosion, and that there is therefore no proof of the explosion having occurred on defendant’s premises: Q. And that brick wall—did that belong to the Standard Oil Company or any other company ? A. As much as I know, the Standard Oil Company.” Now the witiless had before this question was put to him, said: “ The Standard Oil Company’s works extended from the river up to Ash street, on the other side of Ash street was our factory; there was a wall around the whole yard on Ash street.” It was not therefore of any account to whom the wall belonged, as the wall only bounded the oil yard. There was evidence in the case showing that the explosion caused the fire, for the witness Berger in answer to' the question, “ What was the very first thing you noticed ? ” said, I heard a little grumbling in the air—I see the boiler begin to wobble.” Later .he said, “I knew that an explosion was to happen; when the explosion came it was a terrible effect because the air pressure throwed me down, and the same moment when I turned again, it gives out much dust;—everything was on fire and the whole street was all one fire burning oil.” The witness, Gasbach, says: I saw a flash and at the same moment all at once an explosion . . I saw the fire first in the yard, a little forward where the big tanks of oil is, where they refine oil, it was on the other side of the yard.”

From these and other parts of the, testimony it seems to me to be established beyond reasonable doubt, that the explosion caused the fire. Certain it is, that nowhere in the evidence does it appear that a fire occurred before the explosion, and it would be simply a guess at possibility to assume that it did. The first appearance of fire was instantly after the explosion, and in or about the very locality in which the explosion took place. There is no evidence in the case which makes it matter of conjecture whether the fire was caused by the explosion, or by some other particular cause, for no other possible cause is shown to have had existence.

The case of Losee v. Buchanan, 51 N. Y. 476, on a hasty reading, might lead to the supposition that evidence of negligence, as distinguished from such evidence as would raise a presumption of negligence, in cases similar to this one, is necessary; but after careful consideration, I do not believe this to have been the meaning of the decision. In the case of Mullen v. St. John, 57 N. Y. 567, the former case is explained as not affecting the presumptions which may arise from the fact of certain occurrences, for Dwight, J., speaking of the case, says, “ While that case holds that there must be evidence of negligence, it does not at all prescribe the mode of proving it.

It seems that the presumption arises, in cases similar to the one under consideration, from the nature of the act, not from the nature of the relations between the parties. Rose v. Stevens & Condit Trans. Co., 11 Fed. Rep. 438. So it appears to me that an explosion, unexplained under the circumstances shown, of an overheated or overpressured iron body, ten. feet in diameter, in an oil yard in close contiguity to “ big tanks of oil,” and “ where oil is refined,” that is near material which common knowledge teaches will by an explosion be rendered extraordinarily dangerous to all persons and property in the vicinity, is such an occurrence as demands in justice, the application of that rule of law which makes the fact of certain occurrences prima facie evidence of negligence.

In Scott v. London and St. Catherine’s Dock Co., 8 Hurl. & N. 596, the court said: Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident, arose from want of care.” This case is cited with approval in Transp. Co. v. Bowner, 11 Wall. 129. To the same effect it has been held in Mullen v. St. John, 57 N. Y. 567; Losee v. Buchanan, 51 N. Y. 476; Gerlach v. Edelmeyer, 47 Super. Ct. 292 ; aff’d, 88 N. Y. 645 ; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Rose v. Stevens & Condit Transp. Co., 11 Fed. Rep. 438; Wiedmer v. N. Y. Elevated R. R. Co., 41 Hun 286; Lyons v. Rosenthal, 11 Ib. 46.

It is needless to discuss whether or no cases may arise where it would be proper, from the nature of the occurrence, to submit to the jury the evidence of the fact of an explosion, and leave to them a determination of the question as to whether in a particular case the mere fact of an explosion, unexplained, should or should not be considered as establishing negligence; for the case under consideration is certainly not one where there can be any fair doubt in regard to the reasonableness of the application of the rule as above stated. The propriety of such a submission must certainly be met with decided objection where the undisputed evidence shows no case of trivial explosion, no case where the very occurrence seems to offer fair explanation or raise a doubt as to its being due to human agency; but a case occurring under circumstances of extraordinary danger, and where no explanation whatever of the primary cause can be perceived from the circumstances of the occurrence, and no fair reason to doubt that negligence occasioned the explosion is apparent from the facts known.

The case of Young v. Bransford, 12 Lea (Tenn.) 282, upon which the appellant seems greatly to rely as establishing a rule of law, contrary to that which I hold to be applicable to this case, relied somewhat for the rule it declares upon the case of Rose v. Stevens & Condit Trans. Co., 21 Am. Law Reg. 522. A careful reading of the latter case will show, however, that it goes further than Young v. Bransford, and does not vary from the rule, as I understand it, and far within which this case seems to me to stand. Wallace, J., in his opinion denying a motion for a new trial, adopted the rule as applied herein to the case under consideration, although in his charge he did not go so far.

The remaining point of importance to be considered is, whether the learned judge, committed an error at the trial in leaving to the jury the determination of the question, as to whether the damage sustained by the plaintiff was the direct and proximate result of the defendant’s negligence, or only a remote result.

The case of Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210, held that from the facts in that case, it appeared that the damage sued for was not the necessary and natural result of the negligent act complained of. A different state of facts in the case under consideration makes the rule there laid down inapplicable. I am of opinion that the learned judge properly left the question as to whether the injury complained of was a probable consequence of the negligent acts of the defendant to the jury. Webb v. The Rome W. & O. R. R. Co., 49 N. Y. 420.

The best statement of the rule of law as applicable to a case such as this, is that “ the wrong-doer is responsible for the natural and proximate consequences of his misconduct, and what are such consequences must generally he left for the determination of the jury.” Ehrgott v. Mayor, etc., 96 N. Y. 264.

In the charge, the law applicable to the case was fairly presented and no error committed.

The admission of that part of the witness Berger’s testimony to which an exception is noted, was proper, but even if not so, material error did not occur by its reception. None of the other matters presented by the appellant would warrant action other than an affirmance of the judgment and order,which is hereby ordered, with costs and disbursements of appeal.

Sedgwick, Ch. J., and Truax, J., epneurred.

         The charge as to this point was as follows :
      “ You must inquire whether the injuries sustained by the plaintiffs were the direct and natural result of defendant’s negligence, or only a remote result. If the plaintiffs’ vessel was set on fire by the explosion of the cargo of the lighter in the stem of it, and if the explosion on board of that lighter was not in direct connection with and directly caused by the explosion which occurred in defendant’s yard; if a new intervening cause came in which had no direct, natural and ordinary connection with the explosion in defendant’s yard, then the defendant is entitled to your verdict. But if the plaintiffs’ damages were the direct and proximate result of the defendant’s negligence within the rule laid down by me, and without any other intervening cause, then the plaintiffs are entitled to your verdict.”
      There was evidence that the fire was communicated to the lighter through a pipe running to it from the shore.