text:
    TIFFANY & CO., Respondents, v. THE UNITED STATES ILLUMINATING CO., Appellant.

      St/reets, injunction restraining erection of poles in—Right of property— when infringed thereby.— Weight of evidence—scale turned by inferences from, conceded facts.

    The complaint alleged that defendant was about to erect a pole for the purpose of sustaining wires, in front of plaintiff’s premises, on the south ■west corner of Broadway and 15th street, and'affidavits were read in support of said allegations; the allegations of the complaint were fully denied by the allegations of the answer, and plaintiff’s affidavits were fully met by those of defendant. . Held, that the inference arising from the fact that defendant had already placed, from point to point, from 28d to 17th street on Broadway, poles and wires on them, the pole on the corner of Broadway and 17th street having the end of the wire twisted about it, coupled with the averments in the answer that the defendant “ has been and is authorized to erect its poles and place wires thereon upon Broadway at the several points and places mentioned in the complaint and in front of the premises therein described,” being the plaintiff’s premises, makes a preponderance of evidence in plaintiff’s favor.

      Decided February 2, 1885.
    When the poles are to be used as well for private purposes as for public ones, and it does not appear that a pole about to be erected in front of plaintiff’s property would be necessary for the public use, its erection is restrainable by injunction, as being an infringement of plaintiff’s right of property.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from order of injunction.
    The order enjoined the defendant from placing in the street, in front of plaintiff’s house, a pole intended to sustain wires to conduct electricity for the purpose of light. ,
    The facts sufficiently appear in the opinion.
    Butter, Stillman & Hubbard, attorneys, and Thomas H. Hubbard, of counsel for appellant,
    upon the questions discussed by the court, argued :—I. The denial of intent to do an act would not countervail, upon an application of this kind, proof that the act was, in fact, being done. The intent in such a case would be inferred from the act. But where, as in the case at bar, there is no proof of any act, the denial of intent does countervail the plaintiff’s charge of intent. The mere denial by a man of his intention to do an act, or to infringe a right, will not prevent the court from interfering ; but if a man asserts positively that it is not his intention to do a certain act, or to infringe a certain right, and there is no evidence to show any intention on his part to do the act or infringe the right, the court will not interfere ” (Kerr on Injunctions, ch. 15, § 2, ""p. 198, and cases there cited). This court has applied the law as stated above in the case of Reiff v. Western Union Telegraph Co., decided by Judge Arnoux, December 28, 1882., There, as here, the court was asked to accept inferences in place of facts and to grant the injunction, because it could only prevent or impede the carrying out of a project which the defendants aver they do not entertain. But this court denied the motion, and said it would be far better to abolish all courts of equity, and leave injured parties to then-actions at law for damages, than to permit such use of equity powers.
    II. The defendant has the right to erect poles in front of the plaintiff’s premises, under the supervision of the department of public works. The plaintiff’s rights are only those of abutting owners. The case of People v. Kerr (25 N. Y. 188), and Story v. N. Y. El. R. R. Co. (90 N. Y 122), show that the state and the city together have full ownership and control of the streets, and that the right of the abutting owner is to insist that the streets shall not “ be extinguished,” but shall be kept open and used as public streets are, and ought to be. In other words, the easement of the abutting owner, which the Story case holds to be property, is subject to all street uses. For such uses payment was made to property owners when the streets were opened. Abutting owners can have no further payment for such uses, nor can they enjoin such use. Their right of compensation or objection implies only to some appropriation of the street to uses injurious to the abutting proprietors, and to which public streets have not been and ought not to be put. But the use of a street for fighting is and has always been considered a street use. In the Story case the court says : “ Very ancient usage permits the introduction under it ” (the street) “of sewers and water pipes, and upon it, of posts for lamps.” Of these things an abutting owner could not complain (90 N Y. 161). The court also recognized “ the propriety of extending the law of city ways to meet the demands of a progressive civilization.” The structures of the defendant are for the convenience and benefit of the public, and to meet its needs. It is no answer to say that the street may be lighted in some other or even in a better way. Such a position enables the abutting owner to enjoin the use of oil lamps for public ways, if he can satisfy a court that gas lighting is preferable; or to enjoin the use of lamp posts for gas lighting, if he can show that calcium lights can be arranged at intervals in such way as to furnish the same illumination, and dispense with the posts. The fact is, however, that the municipal authorities must decide what kind of light shall be allowed in the streets, and such is the law. The situation, then, is as follows, viz : The plaintiff has a right to require the owners of the street to use it as a street. The use which the owners have allowed is one declared by law to be proper for a street, and is for the public convenience (See Tompkins v. Hodgson, 2 Hun, 146 ; Greene v. N. Y. Central & H. R. R. R. Co., 65 How. Pr. 154).
    III. To authorize the erection of its poles, the defendant refers to the law and the city ordinances. Chap. 512, Laws of 1879, p. 175, is an authorization for the defendant to do what the plaintiff claims it has no right to do, and it is an authorization from the power which has full control of the subject treated (People v. Kerr, 27 N. Y. 188; People v. Bowen, 30 Barb. 24; affirmed, 21 N. Y. 517). The authorization would be complete and sufficient in itself if it did not specify that the consent of the municipal authorities should be had. The consent of the municipal authorities was obtained. The resolution of the board of aldermen, adopted May 3, 1881, authorizes the company, among other things, to erect lamp posts in the streets, avenues, parks and public places of the city, for the purpose of conveying, using and supplying electricity or electrical currents. The decision of Judge Haight, and of the general term in the McManus case are adjudications of the defendant’s right by a court of co-ordinate jurisdiction, and the same question has been decided favorably to the defendant by this court in the case of Smith v. U. S. Illuminating Co. : People ex rel. McManus v. Thompson (32 Hun, 93).

      Chittenden, Townsend & Chittenden, attorneys, and James M. Townsend, Jr., of counsel for respondent,
    on the questions considered by the court, argued:—I. Neither the act of February 16, 1848, c. 37, nor the act of June 16, 1879, c. 512, either alone, or as amended by the act of April 17, 1882, c. 73, nor any other act of the legislature can protect the defendant, because it is not in the power of the legislature to gratuitously divert the streets to a use other than a street use, and the erection of electric light poles is not such a use (Story v. N. Y. El. R. Co., 90 N. Y. 123. Opinion of O’Gorman, J., in the case at bar; Met. Telephone & Telegraph Co. v. Colwell Lead Co., 18 J. & S. 488.)
    There is nothing to show, and defendant has carefully avoided mating any statement, that the poles already erected adjacent to plaintiff’s premises, and the particular poles threatened to be erected in front of and over and upon plaintiff’s premises have any connection with lighting the streets, under any contract with the city, and in the absence of such showing, poles bearing electric wires can in no event be deemed to lie a street use (Metropolitan, &c. Co. v. Colwell Lead Co., supra).

    II. Even if the legislature had conferred upon the defendant the fullest power it could give, and the municipal authorities had united in granting all that it was in their power to grant; still, even such a combined grant of power would merely exempt the defendant from liability to suits, civil or criminal, at the instance of the state, and would not affect any claim of a private citizen for any special inconvenience and discomfort not experienced by the public at large, in which case such abutting owner is entitled to an injunction until his damages are ascertained and paid (Baltimore & P. R. Co. v. Fifth Baptist Church, 2 U. S. S. C. Rep. 729 ; Story v. N. Y. El. R. Co. supra; Cooley Cons. Lim. 702 ; Dusenbury v. Mutual Tel. Co., supra).

    III. The defendant had intended just before the injunction was granted to construct the line in front of plaintiff’s premises. 1. It admits in its answer that it had obtained a permit to do so. 2. The line was built above and below plaintiff’s premises, and was left in an unfinished state each side of them. 3. The connection of these two unfinished ends was to be made, as the defendant’s president said, “if the property owners did not make too much trouble.”
    The property owners had made the trouble alluded to when the injunction was granted and the answer verified after the injunction was granted, truly stated that there was no intention then to complete the line.
   By the Court.

Sedgwick, Ch. J.

The learned counsel for appellant argues that there is no legal and sufficient evidence that the defendant was about to place a pole for the purpose of sustaining wires, in front of the house of plaintiff. This is argued because the allegations of the complaint on that subject are fully denied by allegations of the answer, and the affidavits for plaintiff on the point are fully met by affidavits for defendant. There are, however, two things that make a preponderance in favor of plaintiff. The first is, that the defendant had already placed, from point to point, from 11th to 23d streets on Broadway, poles and wires on them. The pole on Broadway and TTth street had the end of the wire twisted about it. The continuation of the line, in the direction it had already taken, would involve carrying the line in front of plaintiff’s house. These facts are to be connected with the second consideration, that the answer of defendant avers that by license or permit of the department of public works, “the defendant has been and is authorized and permitted to erect its poles and place wires thereon, upon Broadway in said city, at the several points and places mentioned in the complaint and in front of the premises therein described.” The answer, with the testimony, sufficiently proves that the object-of the incorporation of defendant and of the obtaining of the permit, was the pecuniary benefit to the defendant. It is to be inferred that the defendant was about to do that which it had obtained the permit to do.

The defendant also maintains that the use they were about to make of the street was not inconsistent with the public use of the street, and therefore no property of the plaintiff would be taken, or right of property infringed. It may be assumed, while not necessary to decide, that the proposition of law involved is valid, yet the ground of fact is to be examined. Under certain acts specified in the answer, it avers, that by said acts it is authorized, among other things, to lay, etc., wires, etc., with the necessary poles, on, etc., the streets, etc., of cities, etc., for conducting and distributing electricity, etc., then it avers that its business is to furnish electric lights to the public ; that it lights various streets in the city of New York, under contract ; that it also furnishes lights to numerous individuals and corporations residing and carrying on business in said city, and that its said business cannot be carried on without the úse of said poles and wires. Its business,, that is, is to furnish light to the city corporation for the public fighting of the streets, and to private individuals to light private houses. The former may involve a public and ordinary use of the street; the latter would involve a use of the street for private purposes. On the plaintiff showing that the defendant, a private corporation, is about to obstruct the streets with poles, etc., it would appear prima facie, that it was without authority to do so. The defendant, to absolve itself from responsibility, must show the authority. Its evidence on this point is most general and does not show that every part of its proposed work is necessary or highly convenient for both the public and the private use. It is entirely consistent with the testimony, that the particular pole and wire that would be in front of plaintiff’s house, would not be necessary to the public use.

Order affirmed, with costs.

Truax, J., concurred.


source: Caselaw Access Project

author: Sedgwick, Ch. J.

license: Public Domain

text:
    FRANCIS W. WHITTAKER, Respondent, v. THE NEW YORK & HARLEM R. R. CO., Appellant.

      Negligence case.—Evidence, what not merely negative—City ordinance, admissibility of.—Light, necessity of—Charge, construction of.—Requests to charge, what sufficient compliance with.

    The evidence of witnesses, who testified that they were looking toward the place where, if a light had been where a witness swore it was, there was room to infer they would have seen it, to the effect that they did not see a light there, is more than mere negative testimony, although the subject of light specifically was not in their minds at the time, but they were looking to see all that could be seen.
    Consequently, a request to charge in the case at bar, that as against positive affirmative evidence that there was a light, the evidence of witnesses whose attention was not directed to the facts, that they did not see one, ought not to prevail, was held to have been properly refused, as such a charge would have misled the jury.
    An ordinance requiring certain precautions to be taken, is receivable in evidence, with proof that the precautions were not taken, to go to the jury with the other facts, for their consideration in passing on the question of defendant’s negligence.
    Where the evidence is such that the jury would be at liberty to find that if a -ight had been shining, the injured man would have been warned and been enabled to escape, the question of its absence or presence is very material.
    The judge charged that there was no evidence that one driver was insufficient to control the car, but it is a question for the jury to determine under the circumstance whether it was negligence. Held, that the judge meant, and must have been so understood, that there was no testimony, specifically and directly, that one driver was insufficient, but that there was circumstantial evidence on that point upon which the jury should pass; and there being, in fact, such circumstantial evidence, the charge ■was held correct.
    The accident occurred in the Bowery, where there are four tracks, two belonging to tlie defendant, and two to the Third Avenue Railroad. The defendant’s counsel requested the court to charge that it was not enough for the plaintiff to have looked up and down the Third avenue track; he knew of the Fourth avenue track, and was bound to look up and down that track also. The court charged, “ Of course, a man, before crossing the street, is bound to look up and down the street, and to take all the precautions that a prudent person would take under like circumstances. If he failed to do so then he is guilty of negligence, and if you find he did not exercise ordinary care and caution he cannot recover.” Defendant’s counsel then requested the court to charge, that if the plaintiff failed to establish by proof that he looked up and down the Fourth avenue track, he is chargeable with negligence, if by so looking he could have seen the horses and car approaching. To which request the court said, “I make the same remarks in regard to that, that I did in regard to the former request.” Defendant’s counsel excepted severally to the refusal of the court to charge these requests in the language of the requests, and also excepted to the modifications of such requests in each case. Held, that such exceptions were untenable.

      Decided February 2, 1886.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendant, from judgment entered on the verdict of a jury.
    The action was for damages, from negligence of defendant’s servants.
    The facts sufficiently appear in the opinion and head-notes.

      Anderson & Howland, attorneys, and Henry H.. Anderson, of counsel for appellant,
    on the questions discussed by the court, argued :—I. An effort was made at the trial to create the impression in the minds of the jurors, that there was not, or perhaps might not have been a light upon defendant’s car, as required by a city ordinance. The testimony offered on the part of the 'plaintiff on this point is absolutely worthless. His witnesses, with a disposition to help the plaintiff out as much as possible, say that they did not see a light, and hence, conclude that there was none; they admit that their attention was not called to the matter at the time and that they made no examination for a light.- This was nothing more than a present impression upon the witnesses’ minds, referring back to an event more than three years past. It was not proof to submit to the consideration of the jury. So ordinary a detail as a light on the car would not make any impression upon the mind of a spectator at such a time, unless his attention should be called to it in some way. The presumption is that the light was there, it being the ordinary course of things and also required by law, until some positive affirmative evidence is produced that it was not there. The objection taken by defendant’s counsel, to the admission of this negative evidence should have been sustained.
    II. The driver testifies as positively and explicitly as possible that the hght was on the car; that it was put on when he started from the depot down-town, and that he handed it off, still burning brightly, when he reached the depot up-town, after Mr. Whittaker’s mishap.
    The defendant’s counsel requested the trial judge to charge the jury that “as against positive affirmative evidence that a hght was placed and burning upon the car, the evidence of witnesses, whose attention was not directed to the fact, that they did not see any hght, ought not to prevail.” The judge refused so to charge and left the question to the jury on the evidence. This was error and was material (McKeever v. N. Y. C. & H. R. R. Co., 88 N. Y. 661; Culhane v. N. Y. C. & H. R. R. Co., 60 N. Y. 133).
    III. The admission of the ordinance, to which defendant’s counsel excepted, on the ground that it was irrelevant and incompetent, and that under the evidence in the case it was not pertinent, was error, and defendant’s objection should have been sustained. The mere absence of a hght would not charge the defendant with neghgence, nor reheve the plaintiff from the necessity óf watchfulness under the circumstances. There is not a particle of evidence in the case, nor was any attempt made, to show that the presence or absence of a hght did make, or could have made any difference whatever. But the mere raising of the question was calculated to create a prejudice in the minds of the jury, which could not but be further emphasized by the reading of the ordinance in evidence. Its effect would be to befog the jurors as to the real issues in the case, and to indicate to them that, in case they failed to see any other particular in which the defendant was shown to be neghgent, they were at liberty, at least, to find negligence from the possible absence of this light.
    IV. Defendant’s counsel asked the court to charge that there was no evidence in the case that one driver was insufficient to control the car. The Court : That I charge, but it is a question for you to determine under the circumstances whether it was not negligence. Defendant’s counsel excepted to the qualification. The qualification was manifest error. Does it not contain, in fact, a flat contradiction ? For, if there was no evidence in the case that one driver was insufficient to control the car, it follows that there was no evidence in the case that the defendant was negligent in providing only one man to drive the car ; and if there was no evidence in the case that the defendant was negligent in providing only one man to drive the car, then there was no evidence (circumstances) in the case from which the jury could deduce negligence in that regard, and they were not at liberty to do so. The expression, “under the circumstances,” means under the circumstances in this case, and implies that there were circumstances (evidence) in this case from which negligence in having but one driver could be inferred. The province of the jury is to find conclusions only from the facts before it. If the request was in accordance with the fact, the defendant was entitled to have it charged with its full force and effect. The jury were not at liberty to find that under any and all circumstances without special reference to the facts in this case, it is negligence to provide only one driver. The fact is that one driver is sufficient, and there is no proof, nor attempt to prove, that one was not enough in this case. The point is material to the defendant, because the court, while seeming to grant the request, ruined its force, and gave the jury to understand in the same breath that, faffing all other grounds, they might find negligence on the part of the defendant, from the fact that it provided but one man for the car (Gupper v. N. Y. C., 40 N. Y.
      34, 41 Semel v. N. Y., N. H. & H. R. R. Co., 9 Daly, 321).
    Y. The defendant was entitled to have its requests charged in the language of the requests or else in substance. The modification of the requests made by the court, destroyed their force, and was equivalent to a refusal to charge as requested. This was error, and bore materially on the defendant’s case.

      Chaunccy S. Truax, attorney and of counsel for respondent,
    on the questions discussed by the court, argued I. The ordinance was admissible in evidence (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; McGrath v. N. Y. C. & H. R. R. Co., 63 Ib. 522 ; Beisegel v. N. Y. Cent. R. R. Co., 14 Abb. Pr. N. S. 29; Rehberg v. Mayor, &c., 91 N. Y. 137).
    II. As to the charge in relation to there being but one driver. Had the court refused to charge defendant’s request, it would not have been error. For (a.) It appears from the testimony of Mr. Schwenck, that when he asked the driver “why he didn’t stop,” he replied, “the track was so slippery.” (6.) It is a fact, that when struck by the right front horse, plaintiff was standing about three feet to the eastward of the N. Y. & H. car track. The front team must therefore have been traveling, not on the company’s track, but, through the inability of the driver to control the four horses, to the eastward of it. (c.) As to the charge as made, the mere fact, that there was only one man on the freight car, who had to perform the double duty of driving four horses and controlling the car, was a circumstance to be taken into consideration by the jury, in determining the question of defendant’s negligence (Johnson v. Hudson R. R. R. Co., 20 N. Y. 65 ; McGrath v. N. Y. C. & H. R. R. R. Co., 63 Ib. 522).
    HI. The requests as to looking up and down were charged in substance. This was sufficient. The court is not bound to charge the jury in the precise language of a request (Abbott v. People N. Y. State, 86 N. Y. 460, 471; Allen v. Stout, 51 Ib. 668). The defendant’s request as to the evidence on the question as to there being a light, being based upon a misapprehension of the testimony of plaintiff’s witnesses as to the absence of a light, was an improper one. Such was not the evidence.
   By the Court.

Sedgwick, Ch. J.

On the trial, defendant’s counsel asked the court to charge that “as against positive affirmative • evidence that a light was placed and burning upon the cars, the evidence of witnesses, whose attention was not directed to the fact, that they did not see any light, ought not to prevail.” This, if charged, would have misled the jury. The jurors would have thought that there were witnesses in the case, whose attention, by the testimony, had not been called to the existence or non-existence of the light. Each of the witnesses intended to be referred to by the request, had given some attention to the facts, that the jury had the power to say, sufficiently showed that if the light had been there the witness would have seen it. The witnesses swore, in substance, that their looking was toward the place, where, if the light had been where the driver swore it was, there was room to infer the witnesses would have perceived it. They were not at the time looking, for the purpose of ascertaining if there were a light, nor did they havé in their minds the subject of a light specifically, but they were looking to see all that could be seen. Their testimony was more than the mere negative testimony that they, did not see a light. The true question was, whether their evidence was true, and whether the jury were or were not convinced that if there had been a light, they would have noticed it (Culhane v. N. Y. Central & H. R. R. Co., 60 N. Y. 137 ; McKeever v. N. Y. Central & H. R. R. 88 N. Y. 667).

The counsel for defendant objected to the admission as evidence of an ordinance of the city, that every railroad company shall provide each freight car, etc., with a good light or lantern, “which shall be placed in a conspicuous position on the front of said car to warn persons of its approach,” etc. The ground of the objection was, that the mere absence of a light would not charge the defendant with negligence. It was, however, admissible as one fact, which should go to the jury with the other facts, all of which the jury were to consider in passing upon the issue as to defendant’s negligence. The charge of the court accorded with the case of Houghkirk v. President, etc. D. & H. C. (92 N. Y. 221). In that, the opinion was, that “ the fact maybe proven as one of the circumstances, under which the train was moved and by which the degree of care requisite in its handling and running may be affected ; so that the question never is, whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether in view of its presence or absence, the train was moved with prudence or negligence.” It is argued that there was no evidence to show that the presence or absence of a light did or could have made any difference whatever. This does not consider that the plaintiff testified that, as he crossed the street, he looked in the direction from which the car was actually coming, for the purpose of ascertaining, as the jury may find, if there was a danger against which he should guard. The jury were at liberty to find that if a light had been shining from the car, he would have been warned.

The court was asked to charge that there is no evidence in the case, that one driver was insufficient to control the cars. The court said that is so charged, “but it is a question for you to determine, under the circumstances, whether it was not negligence.” There was an exception to the matter added by the court. The judge evidently meant to charge, and must have been so understood, that there was no testimony specifically and directly, that one driver was insufficient, but that there was circumstantial evidence on the point upon which the jury should pass. The circumstances, as the jury might find them, were, that as the plaintiff was standing in a place of safety outside of the defendant’s tracks, the driver of the car negligently drove his four horses, so that the leading horses went off the track, struck the plaintiff, and knocked him down; that at this point, the driver saw him and tried to stop the horses, by pulling them back, and the car by turning the brake; that if he had not been alone, and there had been another with him, to take the horses or the brake, the car might have been stopped before its wheels turned upon the arm of the plaintiff. The charge was not erroneous.

The court was asked to charge that if the plaintiff has failed to establish, by proof, that he looked up and down the Fourth avenue track, he is chargeable with negligence, if by so looking he could have seen the horses and car approaching. The court said, that in regard to that, he made the same remark, that he had made as to the preceding request. That was, “of course a man before crossing the street is bound to look up and down the street, and to take all the precautions that a prudent person would take under the circumstances. If he failed to do so, then he is guilty of negligence, and if you find he did not exercise ordinary care and caution, he cannot recover.” It is argued that this remark did not embrace all that there was noted in the request. It seems to me that the court, in using the words “crossing the street is bound to look up and down the street,” must have been understood to refer to looking up and down the Fourth avenue track.

My opinion is, that there was sufficient testimony as to plaintiff’s freedom from contributory negligence, to make a case for the jury on that point.

Judgment affirmed, with costs.

O’Gorman, J., concurred.


author: Van Vorst, J.

text:
    LUCY E. WHITE v. JAMES M. KANE.

      Decided February 2, 1885.

      Devisee of real estate with debts charged generally—power to eonvey, free of debts.—Devise to widow of entire estate, charged generally with debts—■ claim of dower, ejfeet thereon.

    Where real estate is devised charged generally with the testator’s debts after the expiration of three years from the granting of letters testamentary, a bona fide purchaser from such devisee will take a good title, completely free and discharged from the debts.,
    In case of a devise to the widow of the testator, of the entire estate charged generally with debts, the will not declaring that the devise was in lieu of dower, the widow is not called on to elect ; and the estate being insolvent, her claim to dower is not inconsistent with her taking an immediate vested interest under the will, and does not constitute a refusal to take under the devise.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Case submitted to the general term, on a statement of facts agreed to by the parties.
    The controversy between the parties arose under the last will and testament of John H. White, late of the city of New York, deceased.
    The first clause of the will is in these words : “ After all my lawful debts are paid and discharged, I give, devise and bequeath, all my estate, real, personal or mixed, to my beloved wife, Lucy E. White, for her sole use, benefit and behoof forever.” Mrs. White was then sole executrix of the will. She contracted to sell to the defendant certain real estate, owned by the testator, at the time of his decease, of which she claimed to be seized, through her husband’s will. The plaintiff, in pursuance of the contract of sale, tendered to the defendant a deed, such as was required by the agreement, which the defendant refused to accept, and fulfill the agreement on his part, on the grounds, among others, that the lawful debts of her husband had not been paid, and that his estate was insolvent, and the plaintiff had not a title free from incumbrances. The testator died on February 26, 1877. On March 21, 1877, his will was proved before the surrogate of New York, and on the same day letters testamentary were issued to the plaintiff as executrix. In August, 1879, the executrix filed her account, and asked for a final settlement, which was accomplished, and a decree made in November, 1879. The contract for the sale of the real estate was made between the plaintiff and defendant on July 14, 1884, and the deed was tendered and refused in September of that year.
    Other matters appear in the opinion.

      Elial F. Hall, attorney and of counsel for plaintiff,
    argued :—The direction in the will “after all my lawful debts are paid and discharged,” operated as a charge of the debts of the testator upon his real estate (Lupton v. Lupton, 2 John. Ch. 623; Reynolds v. Reynolds’ Exrs., 16 N. Y. 259 ; Fox will case, 52 Ib. 536 ; Wood v. Wood, 26 Barb. 356 ; Smith v. Soper, 32 Hun 46).
    A devisee of land which is charged generally with the payment of debts, takes an immediate vested interest, may sell the land, and a bona fide purchaser is not bound to look to the application of the proceeds (Jarman on Wills, 743 [marg. p.] 3d Am. Ed.; Sugden on Vendors, 660, 14 London Ed. of 1862 ; Story Equity Juris. § 1130, and see also §§ 1129-1131; Washburn on Real Property, book II, chap. III, § 4 § 20 ; Perry on Trusts, 2d and 3d Ed. § 802; Dart on Vendors and Purchasers, 5th Ed., vol. II, pp. 602 and 603 ; Elliott v. Merryman, 1 White & Tudor’s Leading Cases in Equity, 5th London Ed. p. 64; Gardner v. Gardner, 3 Mason R. 219 ; Banks’ Rev. St. 5th Ed. vol. 3, p. 15, § 50 ; 7th Ed. vol. 3, p. 2180, § 50 ; Newman v. Johnson, 2 Vernon, 45 ; 2 Perry on Trusts, § 569 ; Hargrave v. Tyndal, Reported in note to Newton v. Bennet, 1 Brown’s Ch. 124, m. p. 136; Walker v. Smalwood, Ambler, part 2, 676 ; Bailey v. Ekins, 7 Vesey, Jr. 319; Ball v. Harris, 4 Mylne & Craig, 264; Shaw v. Borrer, 1 Keene, 559 ; Colyer v. Finch, 5 House of Lords

      Cases, 923 ; Corser v. Cortwright, Law. Rep. Ch. App., vol. 8, p. 975 ; 7 House of Lords Cases, 731. Garnett v. Macon, 2 Brockenbrough, 185 ; Andrews v. Sparhawk, 13 Pick. 393 ; Lawrens v. Lucas, 6 Richardson’s Equity).

    The widow was not required to elect (Lawrence v. Lawrence, 3 Brown’s Parliamentary R. 483 ; Fuller v. Yates, 8 Paige, 325 ; Sandford v. Jackson, 10 Paige, 266 ; Church v. Bull, 2 Den., 430 ; affirming 5 Hill, 206; Matter of Frazer, 92 N. Y. 250; Scribner, vol. 2, 451, 2d Ed. of 1883 Ib. 455 ; Adsit v. Adsit, 2 John. Ch. 451; Ellis v. Lewis, 3 Hares R. 314; Roper on Husband and Wife, top page 343, m. p. 582; Philadelphia Law Library, N. S., vol. 16 ; Lewis v. Smith, 5 Seld. 502; Bond v. McNiff, 6 J. & S. 83 ; 9 Ib. 543 ; §§ 1280, 1281, Code Civ. Pro.).

      Weeks & Forster, attorneys, and Frederick P. Forster, of counsel for defendant,
    argued :—I. The will of John H. White, charges the payment of his debts upon his real estate. After the formal introductory portion, the first words of his will are “ after all my lawful debts are paid and discharged, I give, devise and bequeath, all my estate, real,” &c. To give these words any meaning, they must charge the real estate. Their natural construction and interpretation is, that the testator did not give anything until his debts were paid (Willard’s Eq. Juris. 488; 2 Jarman on Wills, 588 ; Balson v. Lindegreen, 2 B. C. C. 94; Kidney v. Consmaker, 12 Ves. 136; Tompkins v. Tompkins, Pre. Ch. 397 ; Buckley v. Buckley, 11 Barb. 43; Story Eq. § 1133; Harris v. Fly, 7 Paige, 421; LeFevre v. Toole and others, 84 N. Y. 95 ; Hoyt v. Hoyt, 85 N. Y. 146 ; Lupton v. Lupton, 2 Johns. Ch. 614).
    n. The debts due the creditors are still a lien on the property, the statute of limitations is the only bar to the commencement of proceedings by creditors, for the sale of decedent’s estate. The time that intervenes between the decedent’s death, and the accounting of the executors, is not a part of the time limited for commencing proceedings against the estate (Mead v. Jenkins, 95 N. Y. 31; Leavilt v. Wooslet, 14 N. H. C. 550 ; 2 Jarman on Wills, 582; Hallett v. Hallett, 2 Paige, 15 ; Harris v. Fly, 7 Id. 421; Dodge v. Manning, 1 N. Y. 298 3 Russ 346; Scott v. Stebbins, 91 N. Y. 606 ; Scott v. Stebbins, 27 Hun 335 ; Loder v. Hatfield, 71 N. Y. 104).
    TTT. The heirs at law of John H. White, held the fee of the land, and not the plaintiff, as the plaintiff renounced the devise; she did not pay and discharge the debts, or enter into possession, but as executrix, she collected the rents, and paid the charges on the real estate, and in her account elected to take her dower in the property and rents, she could not therefore convey a fee.
    IV. By her election to accept dower in the real estate she, under all circumstances, lost her right to the fee in such real estate, and the fee of such real estate, descended to the testator’s children, from whom the plaintiff had no release, and two of them are minors.
    V. The estate of John H. White was insolvent, and the debts were not paid or discharged, nor did the creditors release the property sold from then claims, and as the defendant had notice of the claims, he could not therefore have taken the title, and hold it free from the incumbrance of the debts of John H. White. (Cases cited under point II.)
   By the Court.

Van Vorst, J.

By force of the language of the testator’s will, above given, his lawful debts were charged upon the real estate devised to his wife.

The existence of these debts however, did not prevent the vesting of the estate in the devisee. Seized of the estate, she had the right as devisee to convey the land.

The gift of the land, charged with his debts, was made to her individually, and not as executrix. The will did not clothe the executrix with a power of sale. The proceeds realized on the sale of the land, she would be entitled to receive, and if the personalty was insufficient to pay the debts, she would be obliged to apply these proceeds of the real estate, to the payment of the debts. By the devise to her, of the land, subject to the payment of the debts, she would take and hold such proceeds, for the purpose of paying debts, and they could be reached in her hands to to that end. But a purchaser from the devisee, in good faith, would not be bound to look to it, that the moneys were so applied. This has been repeatedly decided in the English courts (Elliot v. Merryman, Barnardiston’s Ch. 78).

A late case is Corser v. Cartwright, which went to the house of Lords. (See vol. 7, House of Lords Cases, 731.) There are numerous cases in the courts of this state, which treat more or less upon this subject. It is not necessary to refer to any other than Reynolds v. Reynolds (16 N. Y. 257), in which the rule is stated in harmony with the English cases, that “ where a testator devises real estate, after the payment of debts and legacies, it has been held that the real estate was charged.” Where there is a charge for payment of debts generally, followed by specific dispositions of real estate, the purchaser is not bound ‘.to see to the application of the purchase money. “The charge is equivalent to a trust, and the same effect will be given to it by a court of equity, as if a direct devise had been made to trustees for payment of debts” (1 Leading Cases in Equity [White & Tudor] page 88,4th Am. ed. m. p. 76, note to Elliot v. Merryman). The result of the rule in England is that where the debts are charged generally, they do not follow the land in the hands of a bona fide purchaser, otherwise however, where there is a charge of a specific debt or legacy. The reason for the distinction is stated in the cases.

The rule is stated in 2 Perry on Trusts, § 802, and is sustained by the cases, that if a testator “ charges payments upon real estate, and then devises it, to be held absolutely, the devisee can sell the estate and give valid receipts and discharges for the purchase money.”

But in this state, although the debts are charged generally, yet they become and remain hens on the devised land, and run with it, for the term of three years 0Code of Civil Procedure, §§ 2749, 2750). By section 2750 it is provided in substance, that any time within three years, after letters granted upon the estate of a decedent, an executor, administrator or a creditor of the decedent, may present to the surrogate’s court, a petition praying for the sale of the decedent’s real property for the payment of his debts, &c.

The Revised Statutes contained similar provisions. Hyde v. Tanner (1 Barb. 75), decides that this creates, what is called a statutory lien for three years, running with the land, not only in the hands of the devisee, but in the hands of a purchaser from the devisee.

After three years, however, the land is discharged of the hen, and the bona fide purchaser takes the same free and discharged from the debts.

In Slocum v. English (62 N. Y. 494), Church, Ch. J., says: “The object of the statute was to fix a certain period after which bona fide purchasers would be protected, and actions might be maintained against heirs and devisees” (Jewett v. Keenholts, 16 Barb. 193 ; Parkinson v. Jacobson, 18 Hun, 353). This view was also advanced as late as February, 1884, in Smith v. Soper (32 Hun, 46), in which the general term of the second department say “the statute is based upon the principle that the purchaser having paid his money in good faith, it devolves upon the creditor to see that it is applied in payment of the debt of the testator, and upon the further principle that the creditors having three years in which to enforce their lien, if they neglect to do it within that time, bona fide purchasers shall not be prejudiced by such neglect.”

In the case before us, when the plaintiff agreed to sell the land to the defendant, more than seven years had elapsed since the probate of the will, and the issue of letters testamentary. No delay appears to have been allowed in making and filing an inventory of the personal estate, and in administering it, or in proceeding to a final decree. The executrix seems to have made a full ex-Mbit of the condition of the estate for the guidance of creditors, and all concerned. No action or proceedMg of any kind, has been commenced in the surrogate’s court, or in any court, by any person for the sale of the real estate, for the payment of debts.

Upon such state of facts it seems clear to us, that the devisee can give a good title, umncumbered by the debts of the testator. The statutory lien, so called, is at an end.

Nor can creditors be prejudiced by the sale of the land. It is in fact a movement in the direction of paying the debt, by raising a fund for the purpose. The price agreed to be paid, is presumably the full value of the land. The creditors must look to it, that the proceeds go to the satisfaction of debts. In no other way than through a sale, can the real estate be utilized in favor of creditors.

The objection to the title, therefore, that the real estate is incumbered by the debts of the testator, is not well taken.

Nor does the objection that the widow was put to her election between the gift to her under the will, and her claim of dower, furnish any sufficient reason to question the goodness and completeness of the conveyance she proposes to make, or the title she has tendered.

All that remains to her is m substance her claim of dower. The estate is insolvent. The testator presumably knew the condition of his estate, and the value of Ms gift to his wife.

In the proceedings m the surrogate’s court, upon the settlement of her account as executrix, the plaintiff asserted her claim “as widow to her dower out of the proceeds of the real estate when sold.” She proposed “ to wait until the sale, and then have her dower-right adjusted.”

The will does not declare that the devise was in lieu of dower. And when the condition of the whole estate is considered, the devise to her is not necessarily, or by implication, inconsistent with her claim of dower, to be adjusted and paid out of the proceeds of the sale. The claims of creditors must needs be adjusted out of the residue of the proceeds. They will look after that.

The result reached is, that the objections taken by the defendant to the title, are not well founded.

There should be judgment in favor of the plaintiff for a specific performance on the part of the defendant of the contract, with the costs of this action.

Sedgwick, Oh. J., and Freedman, J., concurred.


author: O’Gorman, J.

text:
    RICHARD DEEVES, Appellant, v. ALEXANDER LOCKHART, Respondent.

      Decided February 2, 1885.

      Voluntary payment for services—effect on action thereafter brought for negligence in the rendition thereof.

    In an action brought against a veterinary surgeon, to recover damages, suffered by reason of his unskillfulness, etc., in the treatment of plaintiff’s horse, the evidence showed that before the action plaintiff had been sued by the defendant for said services and had paid the amount of the claim prior to the return day of the summons, and plaintiff's counsel admitted that such payment was made without protest. On this, the court directed a verdict for defendant.

      Held, error, that such testimony and the admission, at most, were only matters of evidence to go to the jury on the question of the existence of defendant’s negligence; and that neither the principles of “res adjudícala, ” nor estoppel have application to this case.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by the plaintiff from a judgment against him for costs, on a verdict rendered under the direction of the trial judge, and also from an order denying the plaintiff’s motion for a new trial.
    The facts appear in the opinion.

      Thornton, Earle & Kiendl, for appellant.

      W. C. Milnor, for respondent.
    I. The payment by plaintiff of the defendant’s charges for his services as surgeon, was tantamount to a former recovery. This suit to recover damages is the same, so far as the principles are involved, though not eo nomine, as a suit to recover back money voluntarily paid, and should be governed by the decisions on those subjects.
    II. A former recovery for services as a physician will bar a claim for damages for malpractice (Gates v. Preston, 41 N. Y. 113 ; Blair v. Bartlett, 75 Ib. 150 ; see also Schwinger v. Raymond, 83 Ib. 197; Davis v. Talcott, 2 Kern. 184 ; Bellinger v. Craigue, 31 Barb. 534; Dunham v. Bower, 75 Ib. 150 ; Glacius v. Fogel, 88 Ib. 441). A voluntary payment, by defendant, after suit commenced, of the whole amount sued for (as was the case here in the suit for services), is to all intents and purposes the same as if judgment had been recovered by plaintiff, and is a conclusive admission that plaintiff would have been entitled to and would have obtained judgment if his claim had been litigated, and for that reason should operate as a bar now, just as fully as if the cause had been litigated, and judgment had after trial.
    III. A party cannot recover back money voluntarily paid, with full knowledge of all the facts (Harmony v. Brigham, 12 N. Y. 109). It will be remembered that when Deeves paid the bill for services, the horse was already dead, and the bill was paid with knowledge of all the facts alleged as his cause of action in the suit now before the court.
   By the Court.

O’Gorman, J.

The action was brought to recover damages from the defendant, who was a veterinary surgeon, by reason of his alleged unskillfulness, carelessness and neglect in his treatment of plaintiff’s horse. The defendant, in his answer, denied such unskillfulness and negligence.

It appeared by the evidence of the plaintiff that, before the commencement of this action, he had been sued by the defendant for payment of his professional services in the treatment of plaintiff’s horse, and that before the return day of the summons, the plaintiff had paid the defendant’s demand. It was also admitted by the plaintiff’s counsel, that at the time the payment was made, there was no protest on the part of the plaintiff, but that he had protested all along before. This admission the learned trial judge held to be decisive of the case, and he thereupon directed a verdict for the defendant.

To this ruling, the counsel for the plaintiff excepted, and the chief question now to be determined, is whether or no that ruling was correct.

It is contended on the part of the plaintiff, and I think successfully, that the principle of “res adjudicata ” has no application to this case, because, in the action brought by the defendant against the plaintiff, no judicial determination of any competent court was had—no judgment was rendered or entered—no pleadings were used—no issue was raised between the parties to the action—no trial took place—no evidence was produced, and no proof of facts was made (Webb v. Buckelew, 82 N. Y. 559-60-61).

The case of Blair v. Bartlett (15 N. Y. 150), cited in the defendant’s brief, is not an authority against these views, for there, a judgment had actually been obtained in a case otherwise similar to the case at bar.

The question still remains, whether the payment by plaintiff to the defendant was not an admission of the justice of the defendant’s claim on account of professional services rendered, inconsistent with plaintiff’s claim in this action for damages, by reason of defendant’s alleged negligence and malpractice, and whether that admission does not create an estoppel and bar to plaintiff’s recovery herein.

The appellant’s contention, that the payment made by plaintiff was made under duress, or was other than a voluntary payment, cannot prevail (Quincey v. White, 63 N. Y. 376).

And if this were an effort to recover back the money thus paid by plaintiff to the defendant, the action could not be sustained (Peyser v. Mayor, 70 N. Y. 501).

There may be, no doubt, certain inconsistencies and contradictions between the plaintiff’s claim in this action to recover damages from the defendant, and plaintiff’s previous voluntary payment of defendant’s demand, from which an admission of the absence of negligence or malfeasance on the part of defendant might be inferred (Schwinger v. Raymond, 83 N. Y. 197; Gates v. Preston, 41 Ib. 113 ; Blair v. Bartlett, 75 Ib. 150).

Such an admission, however, would not be an irrevocable or conclusive admission, binding the plaintiff by way of estoppel. It would be, at most, only matter of evidence, which should have gone to the jury for what it was worth, and should have been considered by them with all the other evidence in the case.

To treat this payment by the plaintiff as a bar to this action, would be to give to the act of a party, from which an admission might be inferred, even more than the conclusive and irrevocable effect of a judgment recovered against him, for it is held, that the conclusive character of a judgment extends only to identical issues, and they must be such not merely in name but in fact and in substance (Palmer v. Hussey, 87 N. Y. 306).

Taking then the evidence of the plaintiff altogether, it cannot well be inferred that in making the payment to defendant of the amount of defendant’s claim for professional services, the plaintiff intended thereby to extinguish his own claim for damages, for the loss of his horse, caused, as he claimed, by the malpractice or neglect of defendant. The doctrine of estoppel, although well sustained by motives of public policy, is sometimes, in its application, rigid and harsh, even to the exclusion of the truth, and should not be stretched beyond the strict limits, within which it has been confined by authoritative decisions.

The judgment and order reversed, with costs to abide the event.

Sedgwick, Oh. J., and Truax, J., concurred.


text:
    NEW YORK ASSOCIATION FOR THE PROTECTION OF GAME v. NORTHRUP DURHAM.

      (fame laws—Act June 20, 1879, for the preservation of—possession of, during prohibited, time—storage of same by commission merchant, when deemed to be his possession—pleading—security for costs.

    Defendant being a commission merchant, in New York city, on January 2, 1884, received from Chicago, on consignment for sale, a quantity of dead quail, with directions to hold for a certain price and to put them in a freezer. He stored them in a refrigerator warehouse, in his name and under his control, and two barrels of the same were subsequently, and in April, 1884, taken therefrom by his written order, and the remainder continued there until the seizure by plaintiff in this action, under chapter 584, Laws 1879, the balance remaining after the seizure, being taken by the consignor without defendant’s order.
    Held, though said act was penal, that defendant was liable thereunder; that the possession of the quail by the warehouse company, was the possession of the defendant, and that the fact that plaintiff had. brought an action against the warehouse company for the penalties, which had been ■discontinued, did not prevent the maintenance of this action.
    •Section 83 of this statute provides that all penalties imposed by the act, may be recovered by any person in his own name, or by any society in its own name upon such society giving security for costs. The complaint did not state that the plaintiff had filed the security as required by the statute. Defendant did not demur to the complaint, on this ground, but •at the commencement of the trial moved for such reason, to dismiss the ■complaint, which was denied and exception taken, and subsequently evidence was given (against the objection of defendant) that security had been furnished.

      Held, that this defect in the complaint was one that the trial judge had power to disregard, under sections 539 and 723 of the Code; also that giving security was not a condition precedent to the commencement of the action, nor was its statement in the complaint necessary to confer jurisdiction on the court.

      Decided February 2, 1885.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Exceptions ordered to be heard in first instance, at general term.
    This is an action against the defendant to recover penalties incurred by him for having in his possession, quail in April, 1884, in violation of the prohibition in sections 8 and 36, chapter 534, Laws 1879.
    The facts appear in the opinion.

      Whitehead & Dexter, for plaintiff.

      Lindsay & Flammer, for defendant.
   By the Court.

O’Gorman, J.

The action was tried before Judge Truax and a jury, who, under the direction of the trial judge, rendered a verdict for the plaintiff association, and assessed damages in the sum of five thousand dollars.

The learned trial judge directed that the exceptions taken by the counsel for the defendant be heard and decided in the first instance at the general term.

The chief questions that call for examination in the case, are these :

First, The counsel for the defendant claimed that the complaint was fatally defective, in failing to allege that the plaintiff association had given security for costs, as required by section 33, chapter 534, Laws of 1879.

This section provides, that all penalties imposed by the act may be recovered by any person in his own name, or by any society, in its own name, upon such society giving security for costs. I do not think, that the section was mandatory, or that the giving security was a condition precedent to bringing the action, or necessary to confer jurisdiction on the court. The defendant did not demur to the complaint, and although he did not thereby waive the objection, yet the defect was one, which the trial judge had power to disregard, under sections 539 and 723 of the Code ; evidence having been subsequently produced by the plaintiff that security for costs had in fact been given.

The second exception of the defendant depends on the refusal of the trial judge to dismiss the complaint, on the ground that it appeared from the evidence that the defendant was not in possession of the quails within the period prohibited by law.

The facts are these:—The defendant, Durham, was, in 1883 and 1884, a commission merchant doing business in Eeade street in this city. On January 2, 1884, he received from one Warner of Chicago, a consignment of dead quails contained in barrels and boxes. Defendant received also from Warner, a letter dated December, 1883, in which defendant was directed to hold the quails for two dollars a dozen until further orders, and to put them in a freezer. Defendant, on the same day that he received the quails, sent them to the refrigerator warehouse company in Washington street in this city, where they remained until seized by the plaintiff association in April 1884. Defendant was not himself in the business of buying or selling quail. The refrigerator company made an entry on the stub of their storage receipt book, of the receipt of these quails from defendant, and the barrels and boxes were marked with his name. Two of these barrels were removed in April, 1884, from the refrigerator company’s charge on orders signed with the name E. Durham.” The remaining quails, not seized by the plaintiff, were taken away by the consignor Warner without any order from the defendant.

The plaintiff claims that the quails, having been placed in possession of the refrigerator company by defendant as his agent, and kept there under his control, were constructively in his possession, so far as the legal requirements to sustain this action are concerned.

The defendant contends, that the possession prohibited in the act was an actual physical possession, and not a merely constructive possession, and he offered to prove by production of the record of an action, which had been brought by the plaintiff against the refrigerator company, (but afterwards discontinued) on account of their possession of these same quails during the same period, that the plaintiff had admitted that the possession was in them. The trial judge refused to admit the evidence as being immaterial, and the counsel for the defendant excepted. This, I think, was not error.

The act, under which the plaintiff sues is in derogation of common law and a penal act, and should be construed strictly, so as not to embrace cases not fairly within the scope of the language used in the act (Burnside v. Whitney, 21 N. Y. 148 ; Washington Cemetery v. Prospect Park, &c. R. R. Co., 4 Abb. N. C. 19).

These quails were in the actual possession of the refrigerator company, when seized. When placed by defendant in their charge on January 2, 1884, their receiving and storing them and keeping them in their freezer involved no violation of law. But when they continued to hold the quails, after February 1, they held them in possession in violation of law, and the fact that they acted therein as the agent of the defendant, did not absolve them from responsibility. There is no evidence that they made any effort to surrender the goods to the defendant. This act of disobedience to the law was their own act for which they became responsible.

But it is in evidence that in April, 1884, and long after it had ceased to be lawful to have these quails in possession in this city, defendant exercised over them the right of disposition, withdrew some of them from the refrigerator company on his written order, leaving the rest still in their charge. He thus recognized that company, as being still his agents, and as still holding the quails for him and subject to his use ; and their possession was, in law, his possession, and his liability therefore became fixed. He then assumed the responsibility of the refrigerator company, and was, if not the chief tort-feasor,” at least a “ co-tort-feasor ” with them, and hable to a separate action.

The fact, therefore, that plaintiffs had brought action against the refrigerator company, which had been discontinued, did not prevent them maintaining the present action, and evidence that it had been brought was immaterial. '

The defendant’s exceptions are overruled, and judgment ordered for the plaintiff in accordance with the verdict, and for costs.

Sedgwick, Ch. J., concurred.


author: O'Gorman, J.

text:
    ERNEST LUDWIG, Respondent, v. LOUIS C. GILLESPIE, Appellant.

      Decided February 2, 1885.

      Realpa/i'ty in interest.—Trustee of express trust.—Principal and agent.

    In case of a breach of a written express contract, made by or with an agent acting for his principal, but contracting in his own name, with or without description of agency, the agent may sue in his own name without joining his principal.
    The contract in this case, under the facts proved, held to be within the provisions of the Code, § 449, which provides that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted, and that such a trustee is “a person with whom, or in whose name a contract is made for the benefit of another.”
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from judgment in favor of the plaintiff entered ■ on the report of a referee.
    The facts appear in the opinion.

      William-Hildreth Field, for appellant.
    Plaintiff cannot sue upon the contract in suit in his own name. 1. Before the Code all actions were prosecuted in the name of the party who held the legal title. If a contract was made with a party as agent, the legal title was in his principal, and any action upon the contract had to be brought in the name of the principal (Gunn v. Cantine, 10 Johns. 387). If, however, a contract was made with a party described as agent, and was, by its terms, made payable to such party, then the words of agency were descriptive merely, the legal title was in the agent, and. he could, sue in his own name. But this decision was put upon the ground that the contract was by its express terms made payable to the agent (Harp v. Osgood, 2 Hill, 216). 2. The Code changed the rule of parties by enacting that suits should be brought in the name of the real party in interest, excepting that “the trustee of an express trust ” may sue in his own name, and subsequently the Code enacted that “a person with whom or in his whose name a contract is made for the benefit of another is a trustee of an express trust, within the meaning of this section.” The effect of this enactment in suits brought upon contracts made with agents has been to leave the rule as to proper parties plaintiff the same as before the code. For the courts have held, that unless the agent is the “trustee of an express trust,” the suit must be in the name of the principal; and also, that an agent is the “trustee of an express trust” only when he is vested with a beneficial interest under the contract, or where the contract is by its express terms payable to him. Neither of these conditions exist in the present case (Iselin v. Rowlands, 30 Hun, 488 ; Considerant v. Brisbane, 22 N. Y. 389 ; Funch v. Abenheim, 20 Hun, 1). The printed report of Funch v. Abenheim, does not show that the contract was expressly made payable to the agent, but the printed case on appeal shows that the charter party, upon which the action was brought, was made payable to “ the party of the first part,” who was “ Funch, Edye & Co. as agents of the owners.” See also Hughes v. Merc. Mut. Ins. Co., 44 How. 351 (overruled in Ct. of App. on another point, see 55 N. Y. 265).

      Martin & Smith, and M. W. Devine, for respondent.
    —I. Whether plaintiff’s principals were disclosed or not is wholly immaterial. Plaintiff would still be entitled to maintain this action. The contract was in writing and was made by defendant with the plaintiff in his, plaintiff’s own name. The addition of the word “agent ” was descriptive merely (De Witt v. Walton, 9 N. Y. 513). By the Code, § 449, it is provided that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust is there defined to be “a person, with whom or in whose name a contract is made for the benefit of another. ” Under this provision and the similar one added to the old Code in 1851 it has been held repeatedly that an action can be maintained by one in whose name the contract is made even though it appear that he was acting for a principal (Bogart v. O’Reagan, 1 E. D. S. 590 ; Harrison v. Marshall, 4 Ib. 217 ; Morgan v. Reid, 1 Abb. 217;, Arosemena v. Hinckley, 43 Super. Ct. 443 ; Davis v. Reynolds, 48 How. Pr. 210, affirmed 5 Hun, 651). The provision of section 449 (§ 113 Old Code) extends to a case where the contract is stated to be made with one for the benefit of another. In Considerant v. Brisbane (22 N. Y. 389), an action was brought by the plaintiff on two notes, in which the promise was to pay “ To V. Considerant, as executive agent of the company, Bureau, Guillon, Godin & Co., the sum of $5,000, for which I am to receive stock of said company, known as premium stock, to the amount of $5,000.” Here the principal was clearly disclosed, but it was held that the action could be prosecuted in the name of the plaintiff (See also Pitney v. Glens Falls Ins. Co., 65 N. Y. 6 ; Knapp v. Simon, 96 Ib. 284; Story on Agency, §§ 268-396).
    It is not. necessary where the trustee of an express trust sues in his own name that the complaint should show that other parties are beneficially interested (Hoagland v. Trask, 48 N. Y. 686 ; Merchants’ Bank, &c. v. Union R. & T. Co., 69 Ib. 373; Wetmore v. Hegeman, 88
      Ib. 69). Hence assuming that the plaintiff was acting as the agent of Arles, Dufour & Go., it was not necessary to set this up in the complaint, and this is so whether the principal was disclosed or not.
   By the Court.

O'Gorman, J.

In April, 1882, a contract in writing was entered into, between the plaintiff and the defendant for the sale, by the plaintiff, to the defendant of four thousand cases of “ Syrian bitumen.”

This contract was executed in two parts, the part known as the “ sold contract,” beginning thus : “ Sold for account of Mr. E. Ludwig to Mr. L. 0. Gillespie, &c.,” and across its face were written by the plaintiff the words: “Accepted, E. Ludwig, Agent.” The contract provided for the times at which the bitumen was to be delivered and the quantity to be delivered at each time and the prices to be paid for the same in “cash thirty days from each delivery.” It was also provided that the seller should not import more of the bitumen, nor make sales of the same in the United States, during the unexpired time and fulfillment of the contract. All the bitumen contracted for was delivered to the defendant in the city of Hew York, and payments were duly made to the plaintiff for all of the same, except for the lot last delivered, the contract price of which amounted to $22,251.60. This sum the defendant refused to pay because : First. The plaintiff did not sell the goods on his own account, but as a known agent of the firm of Arles, Dufour & Go. his disclosed principals, under a special contract in writing, and without authority to receive the proceeds of such sales ; and: Second. Because the seller had violated the contract by importing large quantities of Syrian bitumen into the United States and selling the same at less price than the prices to the defendant, to the great damage of the defendant.

The referee has found that at the time of making the contract the plaintiff was in fact the agent for Arles, Dufour & Go., of Marseilles, and had been their agent for three years prior to August 31, 1884, and that the bitumen was sold and delivered by the plaintiff, not on his own account, but for and on account of Arles, Dufour & Go. and as their agent, but that there was no proof that the name of Arles, Dufour & Co. was disclosed or mentioned as principal of the plaintiff in the negotiations for the sale, nor at any time before the contract had been executed and delivered. It is in evidence that on each of the bills sent by the plaintiff to the defendant on each delivery of bitumen, these words were used :—“Bought of E. Ludwig, agent for Arles, Dufour & Co.,” and each of the payments made by defendant to the plaintiff was in a check payable to the order of E. Ludwig, and each of said checks were indorsed by E. Ludwig. Each of the receipts for payments made by the defendant was signed thus: “Rec’d pay’t, E. Ludwig.” Ludwig, the plaintiff, carried on business in the city of New York, using on the sign attached to his place of business the words, “ E. Ludwig, agent of Dufour & Co.”

In April, 1883, during the pendency of this contract, the defendant, in a letter to the plaintiff, refers to the bitumen as due him and “to arrive under contract with you, &c.”

It is clear that the plaintiff was not the owner of the bitumen or the real party in interest, and the question is whether he was, as he contends, entitled to bring this action as a person with whom or in whose name a contract was made for the good of another, as provided for in section 449 of the Code.

The decision of the court of appeals in Considerant v. Brisbane (22 N. Y. 389), is authority in favor of the plaintiff’s contention. There, the plaintiff Considerant, entered into a contract “as executive agent of Bureaux & Co.,” and it was held that these words indicated the existence of an express trust and that the plaintiff could recover. The court says, written express contracts by or with agents contracting in their own names, with or without description of agency were, even before the Code, not exceptions to the general rule, that the right af action followed the legal title ; that such a contract was with the agent, when executed by him in his individual name, without expressing the agency, through the other party knew he was acting as agent, and contracted with him in that capacity,” and the contract was equally with him and in his name, though he was described as agent on its face. The words expressive of the agency might, if necessary for convenience of the remedy, be rejected as a mere description of the person.

The principle and reasoning of this decision were followed by the superior court in Arosemena v. Hinckley (43 Super. Ct. 45).

This right in the agent thus contracting for the benefit of his principal, to sue in his own name for breach of the contract, imposes on him a personal responsibility for the due performance of the contract by his principal (Cobb v. Knapp, 71 N. Y. 348). And the party thus contracting with an agent can reheve himself of liability to him, only by showing that he has performed his part of the contract to the satisfaction of the principal (Knapp v. Simon, 96 N. Y. 289).

The defense interposed in the case at bar, that the plaintiff had no right of action against the defendant, but that the right of action was vested only in Dufour & Co. the principal of the plaintiff, cannot be sustained.

The defendant’s affirmative defense or counter-claim is equally without merit. The referee has found, that there was a breach by the plaintiff of that provision in the contract which forbids the seller to import into the United States, or make sales of more of the bitumen, during the unexpired time and fulfillment of the contract. Inasmuch, however, as no substantial damages to the defendant were shown to have been caused by such breach, the referee properly disposed of the defendant’s counterclaim by awarding him only six cents damages.

The various questions raised at the trial as to the admissibility of evidence were properly disposed of by the referee.

The judgment in favor of the plaintiff must be affirmed, with costs.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    PEOPLE, ex rel. JOHN TOWNSHEND, Relator, Respondent, v. ARTEMUS S. CADY, Clerk of Arrears, Respondent, Appellant.

      Decided February 2, 1885.

      Taxes—payment of.—Statute of limitations.

    Relator, as the owner of certain premises, obtained a mandamus, to compel the Clerk of Arrears of the city of'New York, to furnish the relator bills of taxes on his lands, and to accept and receipt for payment of the same. The return admitted the imposition of the taxes, arid the tender of payment by the relator, and alleged that the taxes had been paid by purchasers of said lands at tax sales before relator acquired title to the lots, and also claimed that the right of the relator to maintain this action was barred by the statute of limitations. ■

      Held, that in the absence of evidence that the taxes on relator’s land were lawfully imposed and the tax sales thereon lawfully made, the payment by the purchasers at said tax sales of said taxes was not a payment at the same, and they are still a lien on the lots and a cloud on the title, and it was the duty of the respondent to accept the taxes and discharge the relator and his lands from the same. Clementi r. Jackson (92 N. Y. 591), followed.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Exception by respondent to direction of the court for judgment in favor of relator, ordered to be heard at general term in first instance.
    Relator obtained an alternative mandamus, alleging (1) the ownership of lots 3Í, 38, 39 and 40 in block 12J1 on the tax map of the Twelfth ward, New York; (2) the assessment thereon of the taxes for the years 1852, 1853, 1854, 1859, 1860, 1861 and 1862; (3) that said taxes remained unpaid; (4) that the taxes were a hen on his land ; (5) and tender of payment and refusal to accept, and commanding the respondent to furnish the relator with bills for said taxes, or make return why he had not complied with said mandate. The respondent made return to said writ. 1. Admitting that said lots were assessed as alleged. 2. Denying that said taxes remained unpaid, and alleging that they had been paid by purchasers in proceedings taken to collect said taxes. 3. Admitting the alleged tender. 4. Alleging that relator was barred of his right by reason of the lapse of ten years since his right to pay said taxes accrued. 5. Denying knowledge or information as to the other allegations. By direction of the court a verdict was found for the relator, exceptions to be heard in the first instance at general term, to which respondent excepted.
    The only evidence adduced by the relator was proof of a conveyance of the premises to him, and his possession thereunder. The evidence for the respondent was that proceedings were taken by the corporation of the city of New York, to enforce payment of said taxes, and'to sell said lots, and that the purchaser at those sales paid the amount of the said taxes. It is conceded that the proceeding was commenced September 1, 1884.
    The respondent on the trial moved to direct a verdict for him. I. Because the relator had failed to prove ownership. II. Because there is no proof the taxes were unpaid, and it appeared affirmatively that the city of New York had received the amount of the taxes and interest. III. On the ground stated in paragraph 4 of the return, viz., that ten years had elapsed since the right to pay the taxes accrued.
    The respondent’s motions were all denied, and he excepted.

      E. Henry Lacombe, for appellant.

      John Townshend, for respondent.
   By the Court.

O’Gorman, J.

The respondent denies that the taxes are unpaid and in arrear, and avers on the' contrary, that they were paid before the relator acquired title to the lots ; that proceedings weré taken by the corporation of the city of New York to enforce payment of those taxes; that under those proceedings, the lots were sold and the taxes paid by the purchasers at the sales, which sales took place in 1859, and November, 1866.

Respondent further avers, in opposition to relator’s claim, that more than ten years before commencement of the present proceedings have elapsed, since the right to make this demand on the Clerk of Arrears accrued.

The relator acquired title to the lots in 1871. These proceedings were begun September, 1881, and the relator seeks this relief as a means of removing a cloud on his title.

If the taxes in question are not in arrear and unpaid, and do not constitute a hen or a cloud on his title, he is not entitled to the relief he asks. The respondent, the Clerk of Arrears, should not be compelled to accept from relator now and give a receipt for money in payment of taxes, which are not in arrear, but were in fact paid by another person in 1866, and which have since then ceased to be a hen on the lots.

All the evidence given on the part of the respondent on that subject is, that proceedings were taken to sell ‘ these lots. At the sales, the city received the amount of the taxes for which the property was sold, and the money was turned into the city treasury. “It was the purchaser at the sale who paid the money ; the purchasers at the sales paid the taxes.” No evidence was given on the part of the relator, impugning the legality and validity of these proceedings and of the sales thereunder.

In the case of Clementi v. Jackson, Registrar of Arrears of the city of Brooklyn (91 N. Y. 591), a mandamus was issued similar in its purpose and form to that in the case at bar. But there, it was proved that the taxes in question were illegally issued, the sales were void, and the purchasers acquired no right or title by virtue of the sales or of the leases subsequently granted. It was there, as in the case at bar, contended by the respondent, that the taxes did not remain unpaid, as the purchaser at the tax sale paid them. The court says: “We do not think the payments made by the purchaser were payments of the taxes. He did not make the payments for the benefit of the relator, or on her behalf, nor for the purpose of discharging the property from the hen for taxes, but made them on his own behalf, for the purpose of acquiring an interest in the property by virtue of the sales made by the city to enforce that lien, in consequence of non-payment of the taxes.” The court, therefore, held that it was the duty of the respondent, the Registrar of Arrears, to accept the sum tendered by the relator in discharge of the taxes.

If then it does not appear in the case at bar, either by evidence or by legitimate presumption of law, that the taxes on relator’s lots were lawfully imposed and the sales of the same were lawfully made, the payment by the purchaser of the amount of the taxes was not payment of the taxes and they are still a lien on the lots and a cloud on the title.

As has been above stated, there is no evidence here either in favor of or against the legality of the taxes or sales, and unless there is some legal presumption in their favor, the case comes under the influence of the decision of the case of Clementi first above referred to.

It is well settled, that every statutory authority in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued. It is not a case for presuming that public officers have done their duty, but their acts must be shown and the “ onus ” is on the purchaser (Hilton v. Bender, 69 N. Y. 81).

In the absence of affirmative proof, therefore, in the case at bar, of compliance, as to these sales, with the jurisdictional pre-requisites for their legality, they must be held to be illegal and to confer no rights on the purchaser, and his payments of the purchase money were not payments of the taxes, which are, as far as these payments are concerned, still in arrears (Re Clementi, supra).

The next question raised by the respondent, is, whether the relator’s right to tender payment and demand a receipt for payment of these taxes is not barred by limitation. (Code, § 414, sub. 4 ; §§ 388-410). Taxes laid on real estate continue to be hens thereon until paid (Ch. 381, Laws 1811). The debt remains, and while it remains a debt, can be discharged (Waltermire v. Westover, 14 N. Y. 20).

It is a cloud on the relator’s title, and while it remains a cloud, it can be removed (Miner v. Beekman, 50 N. Y. 343; People ex rel. Townshend v. Cady, 50 Super. Ct. 399).

The relator here has no contention with the purchaser at the sales. He is not a party to this proceeding, and is not affected by it.

The judgment of the special term appealed from must be affirmed, with costs.

Sedgwick, Oh. J., concurred.


author:
O’Gorman, J.
      Sedgwick, Ch. J.

text:
    JESSE W. POWERS, Respondent, v. MORRIS SILBERSTEIN, Impleaded, &c., Appellant.

      Decided February 2, 1885.

      Accommodation indorser—how released from liability.

    Mere indulgence on the part of the holder of the note to the maker does not release the accommodation indorser, thotigh in the mean time the makers become insolvent; it is necessary that the holder should actually tie himself up from suing.
    Where no provision is made in the note for the payment of interest, the mere fact that upon the maturity thereof, and annually for several years thereafter, the maker pays to the payee the amount of the legal interest to date, does not operate as a bar to the recovery against the accommodation indorser, there being no evidence that such payments were made • and accepted as payments of interest in advance.
    Upon consideration of all the evidence in this case, held that the defendant, the accommodation indorser, was not released from liability by any acts or laches of the plaintiff, the payee.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from a judgment against the defendant, Silberstein, for the sum of $1,684.20, entered on a verdict of a jury, and from an order denying a motion for a new trial.
    The other defendants, Joy & Bowman, did not put in any defense nor appearance in the action.
    The facts appear in the opinion.

      John H. Drake, for appellants.

      Frank M. Chite and Charles Blandj, for respondent.
   By the Court.

O’Gorman, J.

It appeared in evidence that Joy & Bowman, a firm doing business in the city of New York in 1880, applied to Powers, the plaintiff, for a loan of $1,500. He refused to lend the money unless they procured a satisfactory indorser on their note. The defendant Silberstein consented to indorse for their accommodation, and they gave to the plaintiff their note for $1,500, dated April 10, 1880, and payable to their own order one year from .date. This note was indorsed by them and by Silberstein and sent to the plaintiff, who thereupon sent his check of the same date for $1,500, payable to the order of Silberstein, and Silberstein indorsed the check and forthwith handed it over to Joy & Bowman.

There is evidence, that at the time of the making of this loan, it was contemplated that the son of the plaintiff should be taken into the employment of Joy & Bowman, but no arrangement on the subject between plaintiff and. them had been made.

The note became due on April 13, 1881, and was not paid by the makers, Joy & Bowman. It was put in a bank for collection, and duly protested, and notice of protest served on defendant Silberstein.

His defense was, that by a valid contract made between plaintiff and Joy & Bowman, the time for payment of the note was extended, without the consent or knowledge of him, Silberstein, and against his wish and in violation of his right to pay the note to plaintiff, and to enforce his rights as against the other defendants Joy & Bowman while they were yet solvent and able to respond to his demand.

The onus of proving this defense by a preponderance of evidence, was on defendant Silberstein. He. testified at the trial, that soon after he received notice of protest he went, accompanied by his son, to see the plaintiff at his house, with the intention of paying the note ; that he brought with him a blank check to be filled up for the amount of the note and interest, and that he brought also $1,000 in cash ; that at the interview with the plaintiff, which then took place, he, Silberstein, offered to pay the note, and the plaintiff answered : “ It is no use, I will settle it with these parties,” (Joy & Bowman). “I extended the money while my son is there in business, you need not trouble yourself.” And on being asked for the note he answered—“you need not trouble yourself, so soon as I feel better and go down town, I will send you the note.” He was, in important respects, corroborated, as to what occurred at this interview, by the testimony of his son, and if this evidence stood uncontradicted, it would have warranted the inference, that in consideration of employment of plaintiff’s son, by Joy & Bowman, the plaintiff had bound himself by agreement, express or implied, to extend the time for the payment of the note, and promised to surrender it to Silberstein, and thereby reheve him from his obligation upon it as indorser.

There is evidence, that at the time the note became due, the makers were solvent, and continued to bé so, until 1884, shortly before the commencement of this action.

Silberstein, as an accommodation indorser, held the relation of surety for the makers, and the neglect of the plaintiff to collect the note of the makers in face of the indorser’s readiness to pay it, and his offer to pay it would have discharged the indorser, Silberstein, when, by reason of the subsequent insolvency of the makers, the power to collect the debt as to him, had been lost (Wells v. Mann, 45 N. Y. 327; Pitts v. Congdon, 2 Ib. 352 ; Schroeppell v. Shaw, 3 Ib. 446).

But the testimony of Silberstein and his son was flatly contradicted by that of plaintiff and his son, who denied that the interview occurred earlier than October, 1881, and stated that the conversation had reference only to a house, which Silberstein was then building, and that the matter of the note was not afluded to.

There was also testimony of Bowman, of the firm of Joy & Bowman, on the subject, to the effect that plaintiff refused to take a new note from Joy & Bowman, but consented to let them have the money for another year.

The learned trial judge left it to the jury to reconcile, if they could, this contradiction, and if that was impossible, to determine to which of the statements they would attach credit, and properly instructed them as to the legal effect of the facts as testified to by Silberstein, if they behoved him.

The other circumstance on which the defendant Silberstein relied, is this. The note contains, on its face, no provision for payment of interest before maturity. It became due on April 13, 1881. Joy & Bowman sent their check, dated May 16, 1881, for $90, to plaintiff, which Bowman stated was for interest on this $1500.

On April 8, 1882, Joy & Bowman sent plaintiff their check for $90, and again on April 10, 1883, they sent him a check for the same amount, accompanied with a letter of that date, in which they state that the check was for interest due.

The counsel for the defendant Silberstein argued, that if these checks were paid and taken as interest upon this money, where no interest was due until after the maturity of the note, then Joy & Bowman were paying interest in advance, and if they were paying in advance, that operated as a bar to the recovery of Powers as against Silberstein. The trial judge refused so to charge.

There is no direct evidence of the existence of any intention or agreement, that these payments of interest, or that either of them, should be payment in advance, and the existence of such intention or agreement is not a necessary inference from the payments themselves ; and the trial judge would not have been justified in instructing the jury as requested. Mere indulgence on the part of the holder of the note to the maker does not release the accommodation indorser. It is necessary that the holder has actually tied himself up from suing (Schroeppell v. Shaw, 3 N. Y. 446).

Some effort was made to prove that Powers extended the time for payment of the note, in consideration of an agreement of Joy & Bowman to continue his son in their employment, and evidence was given of a conversation that took place between Powers and Bowman in which Bowman said, “We want you to indulge us. Frank, (meaning Power’s son) is with us. We would like to make him a success in business, and I suppose you like to know that he is doing well; and, I think, for that consideration you would like to leave us the money. To which Powers said, all right,’-and we continued Prank.”

But this conversation, although it might lead to the surmise that the continued employment of the plaintiff’s son by Joy & Bowman may have been an inducement to Powers to treat the firm with indulgence, does not supply evidence of any agreement on his part to leave them the money for any definite time, or to abandon any legal right he had to enforce payment of it when he chose.

The claim that Silberstein, the accommodation indorser, was released by the action or laches of the payee of the note, should have been sustained by sufficient proof. The burden of proof was on the defendant.

Apart, therefore, from the conversation first referred to, testified to by Silberstein, and as to which he was contradicted by the plaintiff, and which was left to the jury for their consideration, there was no evidence to sustain the defense that an agreement had existed between the plaintiff and Joy & Bowman, which gave to them any legal right to an extension of time to pay the note, for any definite period, or which impaired the right of the plaintiff to enforce payment from that firm at any time after maturity.

The protest of the note by the plaintiff, when due, and his refusal to accept a new note from Joy & Bowman seem inconsistent with the intention on his part to surrender any of his rights under the note.

The court cannot say, on examination of all the evidence, that the verdict was against evidence or against the weight of evidence.

The defendants’ exceptions do not disclose any error on the part of the learned trial judge, material or prejudicial to the defendant.

The judgment should be affirmed, with costs, and the order denying motion for a new trial should be affirmed with $10 costs.

Truax, J., concurred.

Sedgwick, Ch. J.

I concur, reserving an opinion as to the effect of the alleged tender by Silberstein, if it had been made in the manner testified to by him.