text:
    DANIEL M. REDMOND, Appellant v. AMERICAN MANUFACTURING COMPANY, Respondent.

      Machines, damages in replevin or trover for unlawful detention of, when restricted to interest on the value.

    Where machines are manufactured by a party for another under an agreement that the latter party should have at the expiration of a specified period the option of either returning them or purchasing them paying therefor a certain ■ agreed price, and such latter party at the conclusion of the period does not elect to purchase, and neglects to return them after due demand, the damages for detention are restricted to interest on the value of the machines at the time of the demand (the element of depreciation in value not being involved), where it does not appear that it was the intention of the former party, or that it was possible for him to use the machines except to sell them, and it not appearing that there were any peculiar circumstances of wilfulness or malice attendant on the detention.

      Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 7, 1889.
    Appeal by plaintiff from a portion of a judgment in his favor.
    This is an action of replevin for certain machinery. The case was submitted to the jury who found the title' to the property to be in the plaintiff, and that he was entitled to its return and assessed the value of the property at $2,100, and the damages for detention at $445.
    Upon this verdict judgment was entered, adjudging the title to the property to be in plaintiff; that plaintiff recover possession thereof; that if delivery of possession could not be had, then that plaintiff recover the value of the property; and further adjudging, that plaintiff’ recover $445, damages for detention of the property.
    It is from the portion of the judgment adjudging a recovery of $445, damages for detention, that plaintiff appeals.
    The facts sufficiently appear in the opinion.

      Charles A. Murphy, attorney and of counsel, and William R. Spooner, of counsel, for appellant, on the questions considered in the opinion, argued:—
    In the case of detention of a chattel, having only a' market or cash value, and not susceptible of use to give' it a special or usable value, interest upon the market or cash value of the article for the period of detention is the correct measure of damages for detention. But in the case of detention of a chattel which is susceptible of use to give it a special or usable value, such as a horse or other domestic animal capable of hire for work, or a machine, or a boat or vessel, etc., the correct measure of damages for detention, is not the interest upon market or cash value, but the usable value of the chattel for the period of detention. Allen v. Fox, 51 N. Y. 562 ; Slocum v. Delano, 17 Weekly Digest, 207.

      Souther & Stedman, attorneys, and C. E. Souther of counsel, for respondent, on the questions considered in the opinion, argued :—
    The rulings on the measure of damages were correct. “ The measure of plaintiff’s damages is the interest on the value of the property while in defendant’s possession, unless the proofs show that the use of the property was of greater value than such interest.” Keep v. Kaufmann, 38 N. Y. Super. Ct. 476.
   By the Court.—Ingraham, J.

The only question presented on this appeal, is the exception to the ruling of the court sustaining the defendant’s objection to the testimony offered by the plaintiff as to the usable value of the machines sued for, during the period of their detention, as the measure of plaintiff’s damages for that detention; and such evidence was excluded on the ground that the damages for the detention of the machines in question must be confined to the interest upon the market value of the machines at the time of the demand.

The complaint alleges that in the summer of 1883, plaintiff being the inventor of certain machines, agreed with the • defendant that plaintiff would manufacture and set up in the defendant’s factory fourteen machines, and that at the expiration of a period named defendant should have the option of returning said machines to plaintiff, or of purchasing the same and paying plaintiff therefor a certain agreed price; that at the conclusion of such period, defendant did not elect to purchase said machines and pay therefor the agreed price or value thereof, and that said defendant has, since plaintiff duly demanded the said machines on or about October 27, 1884, unlawfully detained the same, to the plaintiff’s damage in the sum of $15,000, and demands judgment for the recovery or possession of said machines, or for the sum of $7,500, the' value thereof, together with the sum of $15,000, his damages for the detention thereof, besides the costs of the action.

Plaintiff introduced evidence tending to prove the contract set up in the complaint, and that the machines in question were manufactured for the defendant under the contract and delivered to him.

The theory upon which the case was tried by the plaintiff appears to have been, that the measure of damages for the detention of the machines was what the defendant would have made by them had it kept them and used them properly; not the amount that would compensate plaintiff for the injury that he sustained in consequence of the refusal of the defendant to deliver the machines to him.

The cardinal principle controlling the question of the measure of damages in these cases, is compensation to the injured party for the wrong committed, and it is neither alleged in the complaint in this action nor proved upon the trial that any use could have been made by the plaintiff of these machines which, had the machines been returned to him when demanded, would have enabled him to realize more than the interest of the value of the machines allowed to him by the jury on the trial.

As was said by Earle, Commissioner, in Allen v. Fox, 51 N. Y. 563, “ the proper rule of damages to be applied to cases, as they arise in the courts, has always been a fruitful subject of discussion and difference among judges and jurists. In actions of tort the aim of the law is to give the injured party a full indemnity and no more, unless the injury has been wilful or malicious. Remote, contingent and uncertain damages are excluded, but it is not always easy to determine what damages ought to be classified as such”; and after discussing the duty of the jury in assessing the value of the property in an action for replevin the judge says “ With this rule in view, what should be the measure of damages for the detention ? In many cases, interest on the value from the time of the wrongful taking would be the proper measure. It would be generally in all cases where the property detained was merchandise kept for sale, grain and all other articles of property, useful only for sale or consumption. In such a case if the owner recovers the interest on the value of his property from the time he was deprived of it, he will generally have a complete indemnity, unless the property has depreciated in value, in such case the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will furnish the amount of damage.” I think this rule should be applied to the case at bar.

As before stated, the machines were manufactured not for use by the plaintiff but for sale to the defendant, and there is no evidence that it was the intention of the plaintiff, or that it was possible for him to use the machines, except to sell them, and the plaintiff will be fully indemnified by allowing him as damages for detention, interest on the value of the machines at the time he demanded them, for that would be the amount that he would receive had the machines been returned to him at that time and he had sold them.

The case of Allen v. Fox, supra, was an action of replevin to recover the possession of a horse, and the jury was allowed in that case to assess the value of the use of the horse as damages for the detention. But the damages there allowed was the value of the use of the horse to the plaintiff, and where the value of the use depended upon the particular use to which the article sought to be recovered is applied, there must be at least some evidence to show, or from which the jury can infer, that the property in question would have been so applied had it been delivered to plaintiff. Without such evidence the plaintiff is not only allowed to recover compensation, but profit that it does not appear that he would or could have made..

My opinion is, therefore, that the evidence was properly excluded by the trial judge, and that there was no error in his refusal to charge as requested on the measure of damages for the detention, and as no other question is presented on this appeal, the judgment and order appealed from should be' affirmed with costs.

Sedgwick, Ch. J., concurred.


source: Caselaw Access Project

author: By the Court.—Ingraham, J.

license: Public Domain

text:
    EMILY STEWART, Respondent v. THE METROPOLITAN ELEVATED RAILROAD COMPANY, Appellant.

      Streets in a city, as to ownership of the fee, presumption as to—Encroachment by an erection in the street, as to entitling to substantial damages.-^Case on appeal, effect of embodying in it a statement that it contains the substance of all evidence.

    An owner of premises abutting on a street in the city of New York, there being no evidence how the street was opened as a street, or as to the ownership of the fee thereof, is presumed to own the fee; and the erection of a permanent structure of an elevated railroad in such street in front of such abutting owner’s land, is an encroachment on his freehold and a trespass—and entitles him to recover such substantial damages as the evidence warrants.
    Where the case on appeal contains a statement that “The case is conceded to contain the substance of the testimony offered by either side upon the trial,” it will be presumed that the facts of the ownership of a particular house and lot, and that it abutted on a street, were proved by competent evidence when the record discloses on these points that the plaintiff testified orally, without objection, that she was the owner of and resided in the house and that it fronted on the street, giving the width of the lot on the street, and that a photograph of the house was received in evidence (not printed in the appeal book) and nothing further.

    Before Freedman and Ingraham, JJ.

      Decided January 7, 1889.

      Appeal by the defendant from judgment in favor of plaintiff for $3,540 damages, entered upon verdict of a jury, with costs, and also from order denying motion for a new trial upon the usual grounds.
    . The plaintiff claiming to be the owner of the property No. 156 West Fifty-third street, brought this action for the damages claimed to have been sustained by her in consequence of the maintenance and operation of defendant’s railway in front of her property. The appeal book showed that evidence was admitted without objection to the effect, that the rental value of plaintiff’s-abutting property had been greatly diminished in consequence of such maintenance and operation.
    Other facts sufficiently appear in the opinion.

      Davies & Sapallo, attorneys, and of counsel for the appellant, argued:—
    Upon the trial, there was no evidence whatever of any right appurtenant to plaintiff’s premises in Fifty-third street. In fact the only proof of ownership of the premises was the verbal statement of the witness, to the effect, that she owned and resided in the house in question, fronting on Fifty-third street. No deed of the property was offered in evidence, and even if this oral testimony be sufficient to prove title to the premises in the absence of any objection, it is insufficient to show any of the dimensions of the lot, except those mentioned, to wit, eighteen feet nine inches in width on the street, and it is wholly insufficient to show any easement or property rights in Fifty-third street. No evidence was offered that the street was opened under the act of 1813, or as to the title of the land forming the bed of the street, and there was no evidence-of any property rights or easements appurtenant to the premises. The record shows that the balance of the plaintiff’s case was made up of testimony to the effect that the maintenance and operation of the road in the street diminished the rental value of the premises. The record does not show that any evidence was offered that the light, or the air, or the access was in any way interfered with; nor that cinders, nor other substances were thrown upon her lot. The whole case, therefore, rests upon the bare assertion that the plaintiff owns a house fronting, upon Fifty-third street; that the defendant constructed, maintained and operated a road through the street whereby the rental value, of her premises was lessened. Under these circumstances we claim that no cause of action was shown by the evidence offered by the plaintiff.
    As shown by the decision in the court of appeals, in the case of Story, the whole foundation for the action is the proposition that some distinct right in the street owned by the plaintiff has been, without compensation, taken or interfered with by the defendant.

      A. P. & W. Man, attorneys, and Henry H. Man of counsel, for respondent, argued:—
    I. It was proved without controvérsy or objection that the plaintiff was in possession and ownership of the property; that it fronts on Fifty-third street in the city of New York. It has been determined again and again that the maintenance and operation of an elevated railroad in one of the public streets of New York is a use of the street for other than the lawful street purposes, and constitutes an interference with the easements of light, air and access to which property, abutting on a street in the city of New York, is entitled. Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268.
    II. There could be no direction of a verdict for nominal damages, in the face of testimony by the defendant’s own witnesses that the plaintiff had sustained substantial damage. By reason of a decrease in the rental value of her property of from $150 to $200 a year through the maintenance and operation of its railroad.
    III. The general rule has been laid down again and again that abutting owners on public streets in cities have easements of light, air and access appurtenant tó their property and are entitled to protection against interference with their enjoyment. This rule is laid down in Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268, as having been decided by Story v. El. R. R., see page 287 of the Lahr case. See also page 289, where the court deals with the attempt to distinguish the facts of that case from those in the Story case. The Lahr case was one involving property abutting on a street opened under the act of 1813 applicable to all street openings in the cities of the state of New York. The same rule was laid down as applicable where the street was dedicated by a prior owner. Natl. Ex. Bank Case, 53 N. Y. Super. Ct. 511. Glover Case, 51 Ib. 1.
    IV. The presumption in the absence of proof is that the street exists in accordance with the law of the state of New York. This is the common law of England as modified by the act of 1813.
    If there are any different rights in any street in the city than those existing under the common law as so modified by statute, it must be by virtue of peculiar circumstances sufficient to make the case exceptional. Such circumstances will not be presumed to exist. The defendant should have proved (if it claimed) that they existed.
    By the common law a city street, like any other highway, exists only as a place over which the public has the right to pass and repass lawfully. An elevated railway is an unauthorized encroachment upon the right of an abutting owner on such a street. Matter of 17th St., 20 Johns. .262, 270 ; Jackson v. Hathaway, 15 Ib. 448; Cortelyou v. Van Brundt, 2 Ib. 357, 363.

       This is not to be regarded as intimating that ownership of realty cannot be proved by proper and sufficient evidence of possession under claim of ownership, but only as holding that it was to be presumed that there was proper and sufficient evidence of possession under claim of ownership to establish prima facie the fact of ownership.

   By the Court.—Ingraham, J.

The case on appeal contains a statement that The case is conceded to contain the substance of the testimony offered by either side upon the trial of this action.”

Plaintiff testified that she was the owner and resided in the house in question fronting on Fifty-third street and being eighteen feet nine inches in width on the street. The fact of ownership, and that the premises abutted on the street, must be presumed to have been proved by competent evidence. A photograph of the house in question was received in evidence, but is not printed with the case.

There is no evidence to show how Fifty-third street in front of the premises in question was opened as a street, or as to the ownership of the fee of the street. The abutting owners were, therefore, presumed to own the fee of the street. See Wager v. Troy Union R. R. Co., 25 N. Y. 529, where Smith., J., in delivering the opinion of the court says, “It is an established inference of the common law, that the proprietors of the land adjoining a public highway are the owners of the fee of said highway; that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side presumptively own the soil in fee to the centre of the highway. There is no distinction in this respect between the streets of a city, and highways in the country.”

The plaintiff being presumed to be the owner of the fee of Fifty-third street, the erection of the defendant’s structure on the street was an encroachment upon her freehold and a trespass. Wager v. Troy Union R. R. Co., supra.

It was, therefore, no error to deny the motion of the defendant to dismiss the complaint and the motion to direct a verdict for nominal damages only.

As the only exceptions that appear in the case are the exceptions to these rulings, no other question is presented.

The judgment should therefore be affirmed with costs.

Freedman, J., concurred.


text:
    MARGARET HEARTT, Plaintiff v. ADOLPH KRUGER, Defendant.

      Party wall, one mode of establishing easement of, terminated by destruction of buildings.

    Where the owner of two houses conveys one (retaining the other), making the boundary of the one conveyed the centre line of the wall between the two, that wall becomes a party wall.
    Where the buildings which have for their common support a party wall are entirely destroyed, the party wall itself being so far destroyed that there is nothing left of it but the foundation and two feet of wall on that foundation, the easement of the owners of the land on which the party wall stood in the lands of .each other for the purposes of a party wall is thereby terminated.
    Before Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Application by plaintiff for judgment on the verdict of the jury in favor of the plaintiff by direction of the court, subject to the opinion of the court at general term.
    One Burchell, being the owner of two adjoining lots 503 and 505 West Fifty-fourth street, 503 being the most easterly lot, built on them two houses each five stories high, having a party wall between them twelve inches thick. He sold both lots with the houses erected thereon to one Falk who, on April 20, 1875, gave back to Burchell a mortgage on 503. This mortgage was foreclosed and the defendant on July 2, 1887, derived title to this lot from the purchaser at the foreclosure sale by various mesne conveyances.
    Falk, also, on April 23, 1875, mortgaged lot 505 to Rachel Collins. This mortgage was also foreclosed, and the plaintiff on August 25, 1879, derived title to this lot by deed from the purchaser at the foreclosure sale. The mortgage on 503 was recorded before that on 505.
    The description in the mortgage on, and in the various deeds of, lot 503 gave the westerly boundary as running “ partly through the centre of a party wall.” The description in the mortgage on, and the deed of lot 505 contained no reference to a party wall; but the easterly boundary line as given would run partly through the centre of a party wall.
    In 1887, the buildings on both lots were destroyed by fire, as was also the party wall between them except that its foundation up to the curb and two feet of the wall on this foundation were left standing. After this defendant built on his lot a two-story building, rebuilding the party wall twelve inches thick to the height of his new building.
    This action is brought to recover the strip of land 50 feet 2| inches in length by 5 inches in width on the north and 51 inches on the south covered by the westerly portion of the new brick partition wall.

      James J. Thomson, attorney and of counsel for plaintiff, on the questions considered in the opinion, argued:—
    The only question is one of law.
    It is insisted by plaintiff that the party wall between the houses 503 and 505 had so far been destroyed as to cease to be a party wall. There is no doubt that the wall was down to the top of the foundation wall and that the five-story houses that it separated and supported were utterly destroyed. So far, then, the party wall had served the purposes for which it had been erected. The question then arises, does the law imply a right to re-erect a party wall after the destruction of the wall down to the foundation wall and the total destruction of the houses which it supported and separated ?
    This Court in Sherred v. Cisco, 4 Sand. (Super. Ct.) 480, decides “ that where two owners of adjoining city lots unite in building two stores with a party wall, we have no right to infer from that act an agreement binding upon them, their heirs and assigns to the end of time to erect another like party wall.” p. 488.—But says the learned counsel for this defendant, the wall has not been destroyed; there remain the yellow pine timber foundation and eight feet of foundation wall, that says he gives the defendant the right to erect a new wall to separate new structures of new height, 'etc., etc. This Court answers this claim in Sherred v. Cisco, p. 485. “ The stone foundation that remained does not alter the matter; either party could remove so much of it as rested on his ground with the rubbish on his lot on preparing to rebuild.....Neither was under any obligation to rebuild upon his lot or to suffer the other party to place part of a division wall upon it.”
    Speaking of the rights of parties in a party wall, the Court of Appeals, in Partridge v. Gilbert, 15 N. Y. 601, says of a similar right of support: “ This right existed as long as the wall continued to be sufficient for that purpose, and the respective buildings remained in a condition to need and to enjoy that support.”

      John Hardy, attorney and of counsel for defendant, on the questions considered in the opinion, argued :—
    I. The wall is a party wall. Webster v. Stevens, 5 Duer, 553; Eno v. Del Vecchio, 6 Ib. 17; Partridge v. Gilbert, 15 N. Y. 601; Brooks v. Curtis, 50 Ib. 639.
    II. It did not cease to be a party wall because it became dilapidated. Brondage v. Warner, 2 Hill, 145; Schile v. Brokhahus, 80 N. Y. 614. Campbell v. Mesier, 4 Johns. Ch. 334, and 6 Ib. 21. This is not a case where the old wall is destroyed, and in which the parties are remitted to their original condition, such as Judge Sanford supposed might sometimes occur. Sherred v. Cisco, 4 Sand. 488, and referred to in Partridge v. Gilbert, 15 N. Y. 601, for the proof, showed that it would have cost the plaintiff $200 to remit the lots to their original condition. The entire foundation wall in this cáse was intact, and so substantial that the Building Department approved of it, and allowed the wall to be continued up, Either owner had the right to increase the height of the wall. Brooks v. Curtis, 50 N. Y. 639. Rebuilding in case of necessity for so thorough a work is repairing, within the proper meaning of that term. Partridge v. Gilbert, 15 N. Y. 608.
   By the Court.—Ingraham, J.

This is an action of ejectment to recover possession of a strip of land covered by a portion of a wall erected by the defendant. In 1874 one Burchell was the owner of both plaintiff’s and defendant’s lots. He erected a building on each lot with a party wall between them twelve inches in width. Subsequently he sold both buildings to one Falk, and took back a mortgage on the house and lot now owned by defendant to secure the sum of $7,000, which mortgage describes the westerly boundary of the premises as “ running southerly and paralleled with Tenth avenue and partly through the centre of a party wall fifty feet and five inches to the northerly side of 54th street.”

The defendant claimed title to the property through a Referee’s deed on the foreclosure of this mortgage. The buildings on both lots were destroyed by fire on the 27th or 28th of May, 1887. The party wall was destroyed, except that the foundation up to the level of the curb and about two feet of the wall on this foundation left, was left standing. The other walls of both buildings were all destroyed down to the foundation walls.

This conveyance of one of the houses by the owner of both, had the effect of making this wall between the two buildings a party wall. See Brooks v. Curtis, 50 N. Y. 642, where it was held, that where the centre line of the wall between two houses is by the deed of one made the boundary line of the lot conveyed, the wall becomes a party wall; and that although the land covered by the party wall remains the several property of the owners of each half, yet the title of each owner is qualified by the easement to which the other is entitled.

The controlling question in this case is the extent and duration of this easement. The precise question presented does not appear to have been determined in this state; but a review of the cases in which the easement granted by such a conveyance has been considered will be useful in determining the question here presented.

The first case which it is important to notice is the case of Campbell v. Mesier, 4 Johns. Ch. 334. It does not appear in the report of that case whether the easement there considered had been created by express grant, or by implication, or whether the wall and the land on which it was built was owned by the parties as tenants in common, or in severalty, subject to an easement. Chancellor Kent held, that where one of the buildings had become old and ruinous, the party wall in a state of ruin and decay, and dangerous and utterly incapable of being repaired, and that it was impossible for the owner to rebuild on his lot without taking down the whole party wall to its foundation, the owner had the right to rebuild the party wall, and that the owner of the other house was liable to contribute to the expense of rebuilding the party wall, and that the Court of Chancery would enforce this contribution.”

The next case to which attention is called, is Sherred v. Cisco, 4 Sand. 485. In that case the plaintiff and defendant owned adjoining buildings supported by a party wall resting on a stone foundation, one half of which was on the land of the plaintiff and the other on the land of the defendant. Both of the buildings were destroyed by fire and nothing left of the party wall except the stone foundation. Immediately after the fire plaintiff proceeded to rebuild on his lot. The wall on the side of the defendant’s lot was built on the foundations of the former wall. Subsequently defendant built on his lot using the wall built by the plaintiff as one of the walls of his building.

Plaintiff brought that action to compel defendant to contribute towards the expense of the new wall, and it was held that plaintiff could not recover. Sakdfórd, J., in delivering the opinion of the court says. The parties being confessedly restrained from destroying the wall without mutual consent, how is it where the wall has been destroyed by the elements ? the lands on either side are vacant. The agreement upon which the party wall was built related to that wall only. There was no agreement to build a second wall, or to build houses a second time in the event that the original wall and the houses which it supported, should be destroyed. Neither party perhaps thought of such an event. If they had it by no means follows that they would at that time stipulate for a second joint wall.....But without pursuing the views which parties may well be supposed to entertain on their attention being called to a total destruction of the building they are about to erect on a party wall, it sufficies to say that, when two owners of adjoining city lots unite m building two stores with a party wall, we have no right to infer from that act an agreement binding upon them and their heirs and assigns to the end of time to erect another like party wall at their mutual expense when that one is casually destroyed, and so on, as often as the new one shares the same fate.”

The next case is Partridge v. Gilbert, 15 N. Y. 601. The tenant of the building sued to recover damages for taking down a party wall and exposing one side of the buildings. A new wall was built in exactly the same place that was occupied by the old wall. The jury found that the condition of the old party wall was so dangerous that a just regard to the safety of life and property, rendered the removal necessary.

The action was not for rebuilding the new wall, but for damages sustained by the tenant in taking down the old wall and injuring the plaintiff’s goods in the building. The court held that on the finding of the jury the defendant was entitled to judgment.

Shankland, J., says, that the case of Campbell v. Mesier, 4 Johns. Gh. 334, went further than this case requires: that that case assumed the taking down of the old wall to have been justified, which is as far as it was necessary to go in this case, and then intimated a concurrence in the views of Chancellor Kent. Denio, Ch. J., also delivered an opinion in which he said: “ What then is the law in such a case ? Must a party who is ready to rebuild await the actual falling down of his store if the adjoining owner is unwilling, or from having parted with the possession of his property for $ term is unable', to join in rebuilding the wall ? Thi& position would be highly unreasonable and is not sustained by any authority ; ” and in commenting on the opinion of Chancellor Kent in Campbell v. Mesier and the case of Sherred v. Cisco, says, “I do not perceive any solid distinction between a total destruction of the wall and buildings, and a state of things which should require the whole to be rebuilt from the foundation. In either case there is great force in saying that the mutual easements have become inapplicable, and that each proprietor may build as he pleases upon his own land without any obligation to accommodate the other. Circumstances may have materially changed since the adjoining proprietors were content with such walls as would have supported two adjoining dwellings. If the right of mutual support continues, by means of the original arrangements, or by prescription, it is for just such an easement as was originally conceded, or which has been established by long enjoyment. But in the changing condition of our cities and villages, it must often happen, as it did actually happen in this case, that edifices of different dimensions and an entirely different character would be required. And it might happen, too, that the views of one of the proprietors, as to the value and extent of the new buildings, would essentially differ from those of the other; and the division wall, which would suit one of them, would be inapplicable to the objects of the other. If.it were necessary to determine this point in this case, I should be strongly inclined to adopt the views of the late Judge Sakdford in delivering the opinion of the Superior Court in the case just cited.”

The report then says all the judges concurring the judgment was affirmed.

It will be seen that the question of the right to rebuild the party wall after it has been destroyed, was not determined but was considered open.

Brooks v. Curtis, 50 N. Y. 642, was an action to compel defendant to remove the addition to a party wall which he has carried up two stories, and Rapallo, J., in delivering the opinion of the court says: “We think the right of either of the .adjacent owners to increase the height of a party wall when it can be done without injury to the adjacent building, and the wall is clearly of sufficient strength to bear the addition, is necessarily included in the easement.”

In Schile v. Brokhahus, 80 N. Y. 614, the recovery was sustained on the ground that the jury found that the defendant had tom down the wall, claiming that it was wholly on his own land, and Church, Ch, J., says: “ But the questions presented do not require a determination of the precise right of the defendant to interfere with the wall in question.”

From this examination of the cases, it will appear that the question of the right of the owners of a party wall to rebuild after both of the buildings have been destroyed, has never been determined in this state.

The facts in the case of Sherred v. Cisco, (supra), are very like the case at bar, as the two feet of the old wall remaining on top of the foundation is not material. The two buildings were destroyed. There was nothing in existence that required the support of the party wall, and the decision in that case is authority for the position that the easement implied by the grant was' limited to the period that the buildings upon the property at the time the grant was made, and which required the support of the party wall, existed and that the destruction of the buildings and the wall would terminate the right of either party to an easement in the land of the other. The easement is implied because by the grant of adjoining buildings to different persons, it was necessary for the proper and beneficial use of each building that the wall between them should continue. It is therefore presumed to be the intention of the parties that the wall should be a party wall.

See Brooks v. Curtis (supra), where the existence of such easement is based on the presumed intentions of the parties. Can it, however, be said that because the parties intended that the buildings on the property at the time the grant or conveyance was made should have the support of the division wall between the houses, that it was also intended to grant a perpetual easement for a common or party wall, so that after the buildings on the property were destroyed the strip of land on which the party wall had been built should be subject to an easement for the support of a wall for other or different buildings entirely disconnected with the buildings to supply which the easement was granted. It would appear that this was extending an implied grant much further than it is extended in other cases. Thus when a right of way by necessity is granted, such a right is only commensurate with the existence of the necessity upon which the implied grant is founded, and when such necessity ceases the right of way also terminates. N. Y. L. I. Co. v. Milnor, 1 Barb.Ch. 362.

This case is a good illustration of the injustice that would follow from the continuance of such an easement after the buildings had been destroyed. The buildings that had existed upon the property prior to the fire were five-story tenement houses. The law now in force requires for a five-story building where the wall shall be more than fifty feet in height, that the party wall should be sixteen inches thick. The defendant has seen fit to rebuild the party wall twelve inches thick and to build a two story building. The plaintiff is thus compelled in order to use this party wall that he should build a house on his property less than fifty feet high or to surrender to the defendant six inches of his land.

It is clear that it was never intended by the parties when the party wall was established, that the rights thus granted should produce that result. The requirements of a large and constantly changing city are such that restrictions in the use of property should be limited, rather than extended by implication, and full effect can be given to the implied covenant creating the easement by restricting it to the buildings on the property at the time the easement was created.

I am of the opinion, therefore, that plaintiff is entitled to judgment on the verdict with costs.

Freedman, J., concurred.


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

text:
    MORRIS H. SMITH, Appellant v. JOHN WALKER, Receiver and MAGDALENA BUHLER, Impleaded, etc., Respondents.

      Tax lease, notice to redeem must be given after delivery to bar owner—Tax sale, insufficiency of description in—Franklin v. Pearsall, 53 Super. Gt. 271, the court disclaims having decided in that case that the lease in question there, did not pass any interest on the second ground stated in the head note thereto.

    A notice to redeem from a tax sale given before the delivery of the lease, is ineffectual to bar the owner of his rights in the premises; the owner’s rights to pay the taxes and redeem the land is wholly ineffectual thereby—Per Ingbaham, J.
    In the pamphlet for a tax sale, something else is necessary than a number I of a lot on a map, especially, where by the appearance of the map itself the exact boundary of the property is uncertain—Per Ingbaham, J. Fbeedman, J. concurring.
    In Franklin v. Pearsall, 53 Super. Ot. 271, it was not intended to decide that a tax warrant was void unless signed by the Mayor or Recorder.— Per Ingbaham, J., Fbeedman, J. concurring.
    Before Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment in favor of defendant entered on a verdict of a jury by direction of the court.
    The pamphlet for the tax sale in question in this action contained nine columns.—The first was headed “Number.”—The second “On or between what streets or avenues.”—The third “Between what streets or avenues.”—The fourth “Description.”—The fifth “To whom assessed.”—The sixth “ Block number.”—The seventh “ Ward map number.”—The eighth and ninth had but one heading, viz.: “ Amount of taxes.”
    On the tax sale a lot described in said pamphlet by the following entries in the columns respectively, to. wit: In the first column the figures “1573.” In the second column the figures “ 123rd—124th.” In the third column the figures and words “ 1st and 2nd Avenues.” In the fourth column nothing. In the fifth column the letters and words “J. W. Walkhill.” In the sixth column the figures “ 239.” In the seventh column the figures “ 10.” In the eighth column nothing. In the ninth column the figures “ 168,” on a line with the other entries with the figures 1876 above, was sold to the plaintiff, and thereafter the mayor, aider-man and commonalty executed and delivered to plaintiff a lease of a certain lot, describing it by metes and bounds, and ending with “ said lot being lot 10 in Block 239 on the Tax Receiver’s map of the 12th ward of said city, and also known by the street number 321.”
    By the appearance of the map referred to in the seventh column of said pamphlet and in said lease, the exact bounds of lot 10 thereon are uncertain.
    This action is brought to recover the possession of the premises included within the- metes and bounds given in the description in the lease.
    Other matters appear in the opinion.

      John Townshend, attorney and of counsel for appellant, argued:—
    I. The party against whom a verdict is ordered is entitled to have every doubtful fact found in his favor. Colgraves v. N. Y. R. R., 20 N. Y. 494.
    II. The court will consider, therefore, that plaintiff proved his case, and that the only objections to his recovery were the four enumerated by defendants.
    III. The first ground for verdict for defendants, namely, that the affidavit of the deputy tax commissioner does not conform to the statute' was not well taken. (1) The objection is too general; it does not, as it should, state in what particular the affidavit was defective. (2) Literal compliance with the statute is not required. Substantial compliance is sufficient. Parish v. Golden, 35 N. Y. 462. “The verification of the assessment roll is to be regarded as directory rather than as jurisdictional ” (p. 467). Buffalo Bank v. Super, of Erie, 48 N. Y. 93: “Informalities of the assessors’ affidavit do not render the assessment void” (p. 100). (3) But the affidavit complies with the statute. The statute requires each deputy tax commissioner to furnish under oath a detailed statement of all the taxable property in his district ; that said deputies have personally examined each and every house, etc., “ giving the street and ward map number” of such real estate embraced within said districts, together with the name of the owner or occupant if known. Laws 1859, ch. 302, § 7. (4) The alleged defect in the affidavit is that it states deponent has given the “ ward and block numbers ” instead of saying he has given the “ street and ward map numbers.” There are many lots that have no street numbers. (5) The assessment roll was in evidence and showed that in fact the deputy had given the street number, and that the block was between First and Second avenues and One Hundred and Twenty-third and One Hundred and Twenty-fourth streets and the. ward map wa.s in evidence showing this lot 10 was on One Hundred and Twenty-third street. So that if the affidavit is defective, it appears that in fact the deputy had done his full duty. The affidavit and. assessment roll are to be construed together. In passing upon the sufficiency of a description the court said: “If they had- referred to the map and mentioned lots as there laid down that would have answered.” Sharp v. Johnson, 4 Hill, 103.
    IV. The second objection—namely, that the tax warrant was not signed by the mayor or recorder, was not' well taken. (1) In support of this objection a decision at a general term of this court is cited, Franklin v. Pearsall, 53 Super. Ct. 271. On reference to that case it will be observed that no opinion was written at general term, it was decided upon the opinion of the referee, and he stated seven grounds for his decision; among them that the warrant to the receiver of taxes was not signed by the mayor and recorder. (2) The objection to the warrant, it is submitted, was not well taken, and the court could not have rested its decision upon that point. An examination of the statutes will show this. Laws 1843. ch. 230, art. 11, § 2. Laws 1857, ch. 590. Laws 1858, ch. 321, § 2. Laws 1870, ch. 137, 5 Apl. Laws 1870, ch. 190,12 Apl. Laws 1872, ch. 860. Laws 1873, ch. 335, § 4. Laws 1873, ch. 757. Laws 1873, ch. 763, § 1. Laws 1874, ch. 304, § 1. Laws 1874, ch. 515, § 1.
    V. The third objection, namely, that the pamphlet did not give a sufficient description of the property or of the ownership of the property, was not well taken. (1) The pamphlet referred to is a catalogue of the property advertised to be sold. Laws 1871, ch. 381, § 3. (2) The pamphlet did give a detailed statement of the property to be sold by stating that it was situated between One Hundred and Twenty-third and One Hundred and Twenty-fourth streets, and between First and Second avenues; that it was ward map number 10, in block 239, It also stated the property was assessed to J. W. Walk-hill. This was such a description ,as informed every one of the location of the property. Detailed statement of the property to be sold, does not mean a minute or particular description of each piece of property to be sold, but a detail of the lots to be sold. (3) The obvious intent of the statute is to : 1st. Enable an owner to know whether or not his property is advertised, and, 2d. To enable intended purchasers to know what is the property to be sold. This is done with sufficient certainty by stating between what streets and avenues the property is situated and upon what block of the ward map the property is shown, and the number of the lot upon said map. Then in addition to this it is stated to whom the property is assessed. This may be surplusage but it is really within the contemplation of the statute a statement of the ownership of the property. (4) The word owner does not mean the technical owner of the title but the person in whose name as owner or occupant the land is assessed. People v. Cady, 105 N. Y. 299.
    YI. The fourth objection, namely: That in each of the records where the statute required the ownership to be set forth, it was inaccurately set forth in naming Walkhill as the owner, where there is proof that Meagher was the owner, was not well taken. Laws 1867, ch. 410, § 5. Haight v. The Mayor, 99 N. Y. 280-2. .

      Norwood & Coggeshall, attorneys, for respondent Walker, Gustams U. Hawson, attorney for respondent Buhler, and Carlisle Norwood of counsel, argued :—

      I. The warrant required by law to be annexed to the assessment roll for the tax of 1876, upon the premises in question, commanding the Receiver of taxes to collect the same, was defective in that the warrant was not signed by the Mayor or Recorder. Laws 1843, chap. 230, art. II., § 2; 1 R. S., Banks’ 6 ed., chap. 13, art. 3, p. 1001, § 61. Franklin v. Pearsall, 53 Super. Ct. 271, 274.
    II. The affidavit of the deputy tax commissioner attached to the assessment roll, stated: “ That in the assessment rolls is set down and given the ward and block numbers of such real estate within the said district.” .... The defect was in the failure to state first, that in the assessment roll was set down and given the street number; and second, to state that in the assessment roll was set down the ward map number. The mere “Ward Number” would be the number of the ward, which was the 12th ward ; but the ward map number would be the number of the lot in question put on the map of that ward. The complaint herein stating the same to have been number 10. Sec. 7 of chapter 302 of Laws 1859, Shattuck v. Bascom, 105 N. Y. 39, 45, and cases there cited. Laws 1859, chap. 302, § 7.
    III. The' plaintiff wholly failed to prove that the property described in the complaint by metes and bounds, and further described as lot 10, in block 239, was identical with the property described in the lease.
    IV. The description of the property, contained in the pamphlet of the sales for taxes of 1876 was insufficient. Sec. 3, of chap. 381 of Laws of 1871. The entries relating to the premises in question were as follows. The column headed: “ On or between what streets or avenues,” was filled in with the words, “ 123d and 124th.” The column headed: “ Between what streets or avenues ” was filled in with the words “ 1st and 2d avenues.” The column headed, “ Description ” was a blank. It was proved that the column headed, “Description” is supposed to designate whether it is a house and lot or merely a lot. .It is meant for some further description of the property. As we have shown ante there were no ditto marks even continued down opposite this entry to describe the property. The column headed “ to. whom assessed” was filled in with “J. W. Walkhill.” The block number was stated to be “ 239,” and the Ward map number “ 10.” The page in pamphlet was headed “ Twelfth Ward.” This description was clearly insuEcient. Lalor v. Mayor of New York, 12 Daly, 235, 239; Hubbell v. Weldon, Lalor's Supp. to Hill & Denio, 139, 144; Ronkendorff v. Taylor’s Lessee, 4 Peters, 349, 362; Blackwell on Tax Titles, 4 ed., p. *226; Ib. § 81, and cases cited.
    YI. Service of the notice to redeem required by § 13 of chap. 381, Laws 1871, was made upon the alleged owner and occupant before the delivery of the lease to the plaintiff. This is a fatal defect. Laws 1871, chap. 381, §§ 13, 21; Donahue v. O’Conor. 45 Super. 278, 302 ; Paillet v. Young, 4 Sand. 58 ; Hand v. Ballou, 21 N. Y. 541; § 13 of chap. 381 of Laws 1871.
   By the Court.—Ingraham J.

This is an action of ejectment based upon a lease given by the city "and county of New York on a sale for non-payment of taxes.

The lease is dated on the 26th day of December 1883. The property was sold December 24, 1881, and from the record of the finance department, introduced in evidence, it is stated that the lease was delivered November 15, 1884.

There is no other evidence as to the time when the lease to plaintiff was actually delivered. There is evidence that this delivery refers to the date of the confirmation of the lease by the comptroller’s certificate of being satisfied that there had been no redemption and that notice had been served on the owner.

The notice to redeem was served on the 14th of February, 1884, and there is no evidence to show that the lease in question was actually delivered to plaintiff prior to that time.

It was held in the case of Donahue v. O’Conor, 45 Super. Ct. Rep. 301, that the service of the notice before the delivery of the lease, was premature and ineffective : that the title of the purchaser at the sale is only complete after service of the notice required by section 13, and proof thereof has been made and filed as provided in section 15, and that as no such notice had been served on the owner of the property, he was not barred of his right in and to the premises, and his right to pay the taxes and redeem the land was wholly unaffected.

It is clear that the land sold was not conveyed to the purchaser until the execution and delivery of the lease, and until the lease was actually delivered, the conveyance was not complete, and under the decision before cited, the notice to redeem, to be effectual, must be served after the conveyance, on the person in the actual occupancy of the premises, and upon the person owning the property so. conveyed.

We are also of the opinion that the property was not sufficiently described in the pamphlet containing the catalogue of the property advertised to be sold. The pamphlet is to contain a particular and detailed description of the property to be sold. Something else is necessary than a mere number on a map which describes the bounds of a particular piece of property, but which contains no other description of the pioperty. This is especially true when by the appearance of the map itself the exact bounds of the property are uncertain. In the pamphlet as offered in evidence, there is a column left which is headed Description.” In that column, however, no entries were made, and whether there was a building of any kind upon the property was not disclosed.

For these reasons we think the plaintiff failed to make out a cause of action, and the judgment should be affirmed with costs.

In reference to the case of Frankland v. Pearsall, 53 Super. Ct. Rep. 271, we wish to state that it was not intended to decide that a tax warrant was void unless signed by the mayor or recorder. The judgment in that case was affirmed on the opinion of the referee by a majority of the court. That opinion does not expressly hold that, under the statute, a tax warrant was void unless signed by the mayor or recorder, and the decision was not put upon that ground by the referee.

That point was not pressed upon the attention of the court, nor was it considered in the decision of the case.

Freedman, J., ( concurring).

I agree to - affirm on the- second ground stated in the foregoing opinion: I also concur in the remarks made concerning the decision of the case of Frankland v. Pearsall, supra.


author:
Freedman, J.
      Per Curiam.

text:
    WILLIAM SCHOLLE, Appellant v. JACOB SCHOLLE et. al., Respondents.

      Beal Estate, title to,—Purchasers at public sale, rights of, cannot be compelled, to accept a title that is not free from reasonable doubt,—relief in such cases.

    Where by the devises of a will, real estate is devised to executors in trust, with power, and only one ever qualified, and the others never renounced, all should join in any conveyance thereof, or be made parties to any action affecting the same.
    In this case, the title sought to be forced upon the purchasers, so far as it rests upon the sufficiency of a judgment in foreclosure, is not free from reasonable doubt, because certain executors, as trustees, and the grandchildren of the testator, deceased, were not made parties to the action of foreclosure, and because all of the executors, as trustees, did not join in the execution of the deed.

      Held that the objecting purchasers had a right to expect that they would acquire a good title free from reasonable doubt, and as the plaintiff cannot give such a title, they must be relieved from the purchase.

      Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided January 7, 1889.
    Appeal from order of special term made on the application of Thomas Lyons, a purchaser at the partition sale in the above entitled action, releasing said Lyons from his purchase because of a defect in the title.
    Appeal from order of special term denying the application and motion of plaintiff, made in the above entitled action, that J. Remain e Brown, the assignee of the bid of B. P. Fairchild, another bidder at said partition sale, be compelled to take title to the premises included in said bid; said Brown having declined so to do because of alleged defects in the title.
    The facts and points in the case fully appear in the opinion of the judge at special term, which was as follows :—
   Freedman, J.

This is an action of partition. An interlocutory judgment of partition and sale was entered in this action in May, 1885. As to the premises now in question the sale took place in December, 1886, under a supplemental decree of this court.

At said sale Mr. Thomas Lyons purchased two lots on the east side of Sixth avenue, 49 feet 11 inches north of One Hundred and Thirty-ninth street, being 50 feet upon the avenue and about 75 feet in depth:

At the same sale Mr. Benjamin Fairchild became the bidder for six lots and paid ten per cent of the purchase money and then assigned his bids to J. Romaine Brown, whereupon it was stipulated that Brown should be bound by the printed terms of sale.

Subsequently Mr. Lyons, through his attorney, served upon the referee a notice declining to accept the title and stating several objections to the validity of the title which may be summarized as follows :

1. That the deed from William H. Raynor and wife to Lewis J. Phillips, dated Nov. 30, 1872, and recorded Jan. 13, 1875, in Liber 1317 of Conveyances, p. 102, is void for uncertainty by reason of its omission to specify the amount of interest conveyed.

2. That the descendants of William H. Raynor, that is to say, his grandchildren, were not made parties to the foreclosure suit brought by Abraham Scholle as plaintiff against Benjamin A. Willis and others as defendants.

3. That the executors of William H. Raynor’s will, viz. : William R. Stewart, John H. Morris and Jonathan Edgar were not made parties to such foreclosure suit.

4. That the deed executed by Sarah E. Cornish (formerly Sarah E. Raynor), individually, and as sole acting executrix of and trustee under the will of William H. Raynor, deceased, as party of the first part, to Abraham Scholle, William Scholle and Jacob Scholle, parties of the second part, dated'Nov. 21, 1878, and recorded in Liber 1477 of Conv., p. 171, was void or voidable for want of a consideration, and the further reason that there were creditors of William H. Raynor who might show themselves entitled to have it set aside.

5. That no record title appears to have existed in Garrett Myer, the predecessor in title of Charles Hénry Hall.

6. That the premises in question, or a portion of them, were originally below the high water line of the Harlem river.

Mr. Brown, through his attorney, also served a notice declining to accept title and stating objections to the validity of the title, which were substantially the same as those urged by Mr. Lyons, except that he made no claim that the title to the lots purchased by him was affected by the original line of high water.

Mr. Lyons now moves to be relieved from his bids, which motion is opposed by the plaintiff, and at the same time the plaintiff moves that Mr. Brown be compelled to take title.

These motions present questions of the highest importance because they affect the titles of a large number of lots in addition to the titles of the lots directly involved. In view of such importance I have given to the questions presented the most careful consideration.

The lots in question are claimed by the plaintiff to have been part of a large tract of land north of One Hundred and Twenty-fifth street, in the city of New York, owned and possessed by Charles Henry Hall from about the year 1825 to the time of his death, in the year 1852. From the year last mentioned until the year 1872, nothing seems to have been done with the property. In 1872, Benjamin A. Willis formed a syndicate to buy it, and did acquire title to it from the parties having an interest in it. In substance, the arrangement was that Abraham Scholle should advance $58,500; that Willis should purchase the property and thereupon should transfer to William H. Raynor an equal undivided seven tenths of the property, and that out of these William H Raynor should convey to Abraham Scholle two tenths and to Lewis J. Phillips two tenths. To secure the amount to be advanced by Abrahaná Scholle it was further agreed that Willis should execute and deliver to Phillips and Raynor a bond and mortgage securing the payment of $58,500, and that said bond and mortgage should be assigned by Phillips ¡and Raynor to Scholle.

The arrangement was carried out, and in pursuance ■of it the conveyances and the mortgage and the assignment thereof were made, except that William H. Ray-nor, instead of conveying to Lewis J. Phillips two tenths in terms, executed and delivered to the latter the deed to which the first objection above specified is made.

This deed purported to convey all the undivided tenth parts which had been conveyed to Raynor by Willis, and described them as seven undivided tenth parts. In point of fact Raynor, after having conveyed two tenths to Abraham Scholle, had only five tenths left which he could convey.

In 1873, Lewis J. Phillips mortgaged his interest in two tenths to John D. Phillips. That mortgage was foreclosed and the title to the interest covered by it transferred to Benjamin A. Willis by Referee’s deed, dated Nov. 28, 1876, and recorded in Liber 1400, p. 122. Thus, if the deed by Raynor to Phillips was sufficient to convey at least two tenths, Willis became seized of an equal undivided one half of the property.

Abraham Scholle foreclosed the mortgage transferred to him by Phillips and Raynor, and the title to the property bound by that action became vested in Jacob Scholle by Referee’s deed, dated April 1, 1880, and recorded in Liber 1542, p. 256.

The objection to the deed by William H. Raynor to Lewis J. Phillips cannot in this case be overcome by a mere reference to the statute, which provides that a conveyance of real estate shall pass all the estate or interest of the grantor, unless it shall appear otherwise by express terms or by necessary implication from the terms of the grant, because the agreement called for a conveyance of two tenths only, and because Phillips has made affidavit that the deed was not intended to convey to him the entire or five tenths of the interest of Raynor. It is, therefore, clear that the deed is at least liable to be reformed in equity at the suit of Raynor’s representatives or heirs at law. This being so, it remains to be seen whether all the interest in Raynor’s representatives or heirs at law has been cut off by the judgment of foreclosure obtained by Abraham Scholle. If it was not cut off by that judgment, some substantial interest remains outstanding which affects the title under consideration. This at once requires an examination of the merits of the. second objection above specified.

William H. Raynor died in 1874, leaving a will by which he appointed Sarah E., his wife, as executrix, and three other persons as executors. Of these Sarah E. alone qualified as executrix.

Under this will the grandchildren of William H. Ray-nor had an interest in the remainder after the happening of certain events.

The plaintiff, on the final hearing of the present motion, conceded that under the decision of Argall v. Raynor, 20 Hun, 267, the proceedings in the foreclosure action instituted by Abraham Scholle were defective for the reason that the grandchildren of Raynor who then were infants, had not been made parties, but he insisted that the defect is immaterial by reason of the execution and delivery by Sarah E. Cornish (formerly Sarah E. Raynor) of the deed specified in the 4th objection, which is claimed to be a good and sufficient deed, and by reason of the legal effect of certain proceedings before the surrogate.

Upon this branch of the case the following facts appear among others, viz.: On or about Oct. 9, 1876, Sarah E. Raynor, executrix of and trustee under the will of William H. Raynor, deceased, presented to the Surrogate’s Court a petition for an accounting, and from the schedules filed by her in connection therewith it appeared that Abraham Scholle had presented a claim on his part against Raynor’s estate for $28,948.18, with interest from Nov. 1, 1875. This claim was classified by the executrix among the uncertain and disputed claims. In point of fact, it was based, although the schedule did not show it, upon the written guarantee of Raynor that fifty per cent of the principal and interest of the bond and mortgage for $58,500 should be paid, and that he would. also pay one half of the taxes and assessments. On or about February 8, 1877, Abraham Scholle commenced his action to foreclose the $58,500 mortgage. In the meantime Sarah E. Ray-nor had married again and her name then was Sarah E. Cornish. As such she interposed an answer to the complaint. Thereupon an agreement was made between Scholle and Mrs. Cornish that the former should withdraw his claim against the estate of Raynor and allow the estate to be settled up, and that in consideration therefor Mrs. Cornish should withdraw her answer and relinquish all interest she had in the mortgaged premises individually and as executrix of and trustee under the will of Raynor. The agreement was carried out, and in pursuance thereof Mrs. Cornish executed and delivered to Abraham Scholle, William Scholle and Jacob Scholle the deed dated Nov. 21, 1878. By that deed she conveyed the mortgaged premises and all the estate, right, title, interest, claim and demand whatsoever, both in law and equity, which William H. Raynor had in them in his lifetime and at the time of his decease, and which she had in them by virtue of his will and testament or otherwise.

Thereafter, on or about Dec. 28, 1881, Mrs. Cornish presented to the surrogate a petition for a final accounting, and the accounts and schedules filed in connection therewith showed' that, the claim of Scholle had been settled. The precise nature of the settlement was not fully disclosed, and no copy of the deed was submitted. The schedules’ simply showed that the settlement had been made by a conveyance of Raynor’s interest of three tenths in the mortgaged premises.

Under these circumstances, and inasmuch as no previous order had been granted by the surrogate authorizing a sale of Raynor’s real estate on the ground of the insufficiency of the personal estate to pay the debts of the testator, it is quite a serious question whether the infant grandchildren of Raynor, though represented by special guardian, were absolutely concluded as to the settlement by means of the decree of the surrogate entered upon the accounting and directing the distribution of the surplus.

In Russell v. Russell, 36 N. Y. 581, the decision was to the effect that a power to an executor to sell real estate as he shall deem expedient and for the best interests of certain legatees named, is not well executed by the conveyance to one of the legatees of a portion of the real estate of the testator in payment of a debt due from the testator to the legatee; that the debt is to be discharged by means of the personal estate, and that the real estate can be applied only for that purpose upon an order of the surrogate after the personal estate is exhausted; that a sale authorized by the will, as stated, must be one in which judgment and discretion are exercised, and which the executor, as trustee, believes to be for the interest of the legatees; and that a conveyance in discharge of a debt does not comply with these requisites. It may be argued that that decision does not strictly apply to the case at bar, because in the latter the executrix held not only the power of sale but also the legal title in trust for the purposes of the will. This at once raises the whole question of title under- Raynor’s will.

The fifth clause of the will which affects the lots in question is as follows, viz.:

“Fifthly. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, unto my executrix and executors hereinafter named, and the survivors and survivor of them in trust, with power to receive the rents and profits of the same and to sell, dispose of and convey the same at such time or times and in such manner as to them shall seem proper and best for the interest of my estate, and to invest and keep invested such rents and profits and the proceeds of such sale or sales in bonds of the United States of America, or of the city or state of New York, or in first bonds and mortgages upon good and sufficient real estate, and to divide and apply the same and the income thereof as hereinafter directed.”

And the last clause of the will is as follows, viz.:

“Lastly. I hereby nominate, constitute and appoint my said wife Sarah E., executrix, and my friends William R. Stewart, John H. Morris and Jonathan Edgar, executors of this my last will and testament, and guardians of the property of my children who may be under the age of twenty-one years. And I hereby nominate, constitute and appoint my said wife, Sarah E., the guardian of the persons of my said children who may be under the age of twenty-one years. It is my request and wish that my wife shall qualify as executrix, and that at least one of my said friends shall qualify and act with her as executor, and in case of her decease that at least two of my said friends shall qualify and act as executors.”

It is claimed by the purchasers now before the court, that by these provisions of the will the title to Raynor’s real estate became vested in the persons named as executrix and executors as trustees, and that such result was accomplished irrespective of the question whether or not they qualified as executrix and executors, and notwithstanding the statute contained in 2 Rev. St., 109, § 55, to the effect that in case any executor shall neglect or refuse to take upon him the execution of the will, all sales made by the executor or executors, who shall take upon them the execution of the will, shall be equally valid, as if thp other executor had joined therein. And it is further claimed that, inasmuch as at the time of the execution of the deed by Mrs. Cornish to Scholle Bros., Jonathan Edgar and John H. Morris were living and had not renounced their executorship and trusteeship, the deed bound neither them nor Raynor’s grandchildren.

A similar claim arising upon the above two clauses of the identical will and raised by other purchasers was considered by the general term of the supreme court in Argall v. Raynor, 20 Hun, 267, and disposed of as follows, viz.:

Second. A serious question arises under the devises of the will as to the persons in whom the legal title to the land is vested. The fifth clause of the will devises all the real estate of the testator 1unto my executrix and executors hereinafter named, and the survivors and survivor of them, in trust, with power,’ etc. The testator named his wife, Sarah E. Raynor, executrix, and his friends, William R. Stewart, John H. Morris and Jonathan Edgar, executors. Sarah E. Raynor qualified and took out letters as such executrix. Neither of the other persons named has ever qualified as executors. William R. Stewart had died before the action in foreclosure was commenced; John H. Morris and Jonathan Edgar were both then living, and neither of them had made any formal renunciation either as executor or trustee. Mrs. Raynor (now Mrs. Cornish) was made a party to the suit as executrix and trustee under the last will and testament of William H. Raynor. Neither Morris nor Edgar were made such parties. None of the children or grandchildren of the testator, who are the cestuis que trust named in the will, were made parties. The appellant claims that by force of the will alone the several persons named as executors became trustees, and were vested with the trust estate-. He cites as authorities for this proposition Dunning v. The Ocean National Bank, 61 N. Y. 497 ; S. C., 6 Lans. 298; Dominick v. Michael, 4 Sand. 375, and Burritt v. Silliman, 13 N. Y. 96. If the title vested in all the persons named as executors in the will, then all of such persons should have been made parties to the foreclosure, because it may well be asserted hereafter by the cestuis que trust that the making of one of their trustees a party cannot cut off their interest in the trust estate; and they may be yet heard to assert that a joint estate is vested in the trustees by virtue of which they are jointly entitled to redeem the property sold for the benefit of the cestuis que trust, notwithstanding the fact that Mrs. Cornish was made a party to the action. How these questions should be determined we are not, under the authority of Jordan «. Poillon, above cited, at liberty to decide, because the parties most interested in them are not before us in this action.”

In view of that decision and the doctrine of Jordan v. Poillon, 77 N. Y. 518, I fail to see how I can reach any other conclusion.

Upon the whole case it therefore sufficiently appears the title sought to be forced upon the purchasers, so far as it rests upon the sufficiency of the judgment of the foreclosure obtained by Abraham Scholle, is not free from reasonable doubt because neither Jonathan Edgar and John H. Morris, as surviving executors and trustees of William H. Raynor, deceased, nor the grandchildren of the said testator were made parties to the action of foreclosure, and because the said Edgar and Morris did not a,s trustees join in the execution of the deed made by Mrs. Cornish to Scholle. The objecting purchasers had a right to expect ■ that they would acquire a good title, which means a title free from reasonable doubt, and the law presumes that they bid with that object in view. As the plaintiff cannot give such a title they must be relieved.

The objections already considered are, so far as they have been sustained, so decisive of the motions, that it is unnecessary to express an opinion concerning the others.

The motion of Mr. Lyons to be relieved from his bids must be granted with costs, and the motion of the plaintiff that Mr. Brown be compelled to take title, denied with costs. The orders to be entered should be settled on notice.

Alexander Johnson, attorney and of counsel for appellant.

J. Bleecker Miller, attorney and of counsel for respondent Lyons.

Thomas Hooker, attorney and of counsel for respondent Brown.

Per Curiam.

The orders are severally affirmed upon the opinion of Judge Freedman delivered below.

The receipts of Scholle Brothers, admitting the title of Raynor to three undivided tenths, have great effect in determining, that probably the parties to the deed of Raynor to Phillips, did not intend that it should convey the three tenths referred to, and that there was a clerical omission from the deed.

Orders severally affirmed with $10 costs in each, with the disbursements to be taxed.


author: Per Curiam.

text:
    JOHN O’CONNOR, Respondent v. THE NATIONAL ICE COMPANY OF NEW YORK, Appellant.

      Personal injuries, action for—Evidence.

    Prior to the commencement of this action, the plaintiff had brought a suit (afterwards discontinued), against the Knickerbocker Ice Company to recover damages for the same injuries.

      Held, that the fact of bringing such a suit, did not estop him from bringing this action against the defendant, the evidence in regard to the institution, prosecution and discontinuance of the suit against the Knickerbocker Ice Company, and the explanations of the defendant in regard to the same, were matters for the consideration of the jury.
    So, also, the testimony concerning an offer made by the plaintiff to pay the witness Conway, $100, was properly submitted to the jury, with plaintiff’s explanation concerning the same, to be considered in determining how much weight should be given to plaintiff’s testimony.
    The point raised by defendant, as to the calling and examination of the witness Johnson by the trial judge, presents no ground for reversal. The witness was accepted by the plaintiff as his witness. If the circumstances under which this was done and the remarks that passed between the trial judge and the counsel for the defendant at the time tended to prejudice the defendant’s ease with the jury, the defendant upon a case properly made of the facts, should have moved at special term for a new trial as a matter of discretion. As this was not done, no relief can be granted upon a mere general exception.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial upon the minutes.

      Childs & Hull, attorneys, and Edward D. McCarthy, of counsel for appellant.

      Thain <& Kearney, attorneys, and Alexander Thain, of counsel for respondent.
   Per Curiam.

The action is for personal injuries. The fact that the plaintiff, prior to the commencement of this action, had brought a suit (which was afterwards discontinued) against the Knickerbocker Ice Co. for the same injuries, did not estop him from bringing an action against the defendant. At the trial he explained how he came to do it, and, in view of the explanations given, the evidence concerning his conduct in the institution, prosecution and discontinuance of that suit, was matter for the jury.

So the testimony concerning an offer of $100 made by the plaintiff to the witness Conway was properly left to the jury, together with plaintiff’s explanation concerning the same, to be considered by them in determining how much weight they would give to plaintiff’s testimony.

The point raised by the defendant as to the calling of the witness Johnson by the trial judge, presents no ground for reversal. The witness was immediately accepted by the plaintiff as his witness. If, as is now claimed, the circumstances under which this was done, and especially the remarks which passed between the trial judge and the counsel for the defendant at the time, tended to prejudice the defendant’s case with the jury, the defendant, upon proof of the fact and a case regularly made and settled, should have moved at special term for a new trial as matter of discretion. This was not done. No relief will be granted on a mere general exception.

The rulings of the trial judge on the question of damages, taken together, disclose no error under the decision of Ehrgott v. The Mayor &c., 96 N. Y. 264.

The instructions given to the jury upon this point sufficiently guarded the rights of the defendant.

The case, as a whole, discloses no ground for reversal.

It was á case for the jury ; it was fully and properly submitted to them; and no sufficient reason appears why their verdict should be disturbed.

The judgment and order should be affirmed with costs.


author: O’Gorman, J. O’Gorman, J. Per Curiam.

text:
    UNITED STATES TRUST COMPANY, as General Guardian, etc., Respondent v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY, Appellant.

      Life Assurance Policy, terms and conditions of same, and the proper and legal distribution and payment of amount as provided therein. Demurrer to complaint.

    The facts and claims set forth in the complaint in this action, that were demurred to are as follows:
    That defendant executed a policy of insurance for the sum of $5,000 on the life of Archibald T. Finn, for the sole use of his wife, Jane E. L. Finn, with a provision that in case Mrs. Finn died before her husband . the insurance should be payable to their children ; that Mrs. Finn died in the year 1864 (before her husband), leaving her surviving her husband and three children, namely: Katherine A. Anthon, wife of George C. Anthon, Myraette Miles, wife of Charles A. Miles, and Caroline C. Finn; that Katherine A. Anthon died about the year 1881 (before the death of her father), leaving her surviving three children, namely: Christeane Anthon, and Archibald F. and George C. Anthon, the last two named being the wards of the plaintiff; that Myraette Miles died in November, 1882 (before the death of her father), intestate and without issue, and letters of administration were thereafter issued to her husband, Charles A. Miles; that Archibald T. Finn, the cestui que vie, died in March, 1885, leaving him surviving his daughter Caroline C. Finn (the only one of his daughters surviving him) and his three grandchildren, the children of his daughter Katherine A. Anthon; that in’ November, 1885, the defendant paid one third of the amount of the policy, to said Caroline C. Finn, one third to the administrator of Myraette Miles, and the remaining one third equally among the children of Katherine A. Anthon; that there is now due and owing to the plaintiff, as guardian of Archibald F. and George^C. Anthon, one ninth of the entire amount insured by the said policy, said ninth being equal to the amount wrongfully paid by defendant to the administrator of Myraette Miles, deceased, namely, $555.50.

      Held, that the distribution and payment of one third of the amount insured by the policy to the administrator of Myraette Miles, was unauthorized and illegal; that Mrs. Miles having died before her father, : the cestui que vie, without issue, her administrator had no right to any share of the money payable on the death of the cestui que vie, Archibald Finn, that the defendant must pay to the plaintiff the amount claimed.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from an order overruling a demurrer, and from the judgment entered thereon.
    The following opinions were delivered at special term.
   O’Gorman, J.

The demurrer in this case is not sustained.

By the terms and legal effect of the policy of insurance on the life of Archibald T. Finn the amount of insurance was payable to his wife, if living, and if dead. to such of his children as were then living, and to such of the children of his deceased children as should be then living. These children of the deceased children of Mr. Finn were entitled to the share to which their parents were entitled. Hull v. Hull, 62 How. 100.

Mrs. Finn, the wife of Archibald Finn, died in 1864; Archibald Finn, her husband, died in March, 1885. At the time of his death only one of his children was living, Caroline C. Finn, and there were then also living Christeane Anthon, Archibald F. Anthon and George C. Anthon, children of Katherine, a deceased daughter.

These were the only persons entitled to share in the policy.

Myraette Miles, another daughter of Archibald Finn and his wife, also died before him without leaving any children, and her husband took out letters of administration on her estate.

The insurance company paid to Charles Miles, the said administrator of his deceased wife, one third of the amount of his policy. This payment was unauthorized and illegal, and unlawfully reduced the amount properly payable to Archibald F. Anthon and George C. Anthon, grandchildren of the deceased Archibald Finn, living at his death.

The plaintiff, as their guardian, brings this action to recover the full amount to which they are entitled, giving due credit for any amounts that they have heretofore received.

The plaintiff has a clear right to do so.

The demurrer on all the grounds stated is overruled.

O’Gorman, J.

At the earnest request of the learned counsel for the defendant, I have consented to a rehearing and reconsideration of the argument upon the demurrer herein, and have arrived at the following conclusions :

The defendant claims that the status, rights and interests of the beneficiaries in' the insurance were fixed definitely on the death of the wife of Finn, the cestui que vie, and that Mrs. Miles, one of the daughters living at the time of the death of her mother, then acquired a vested interest in one third of the amount secured by the policy. That on her death, subsequently, but before the death of Finn, the “ cestui que vie,” that interest vested in the administrator and was properly paid to him by the defendant.

On the other hand it is contended on behalf of the children of Katherine Anthon, that the interest of Mrs. Miles was not definitely fixed until the death of the cestui que vie, and that she having previously died without leaving children or grandchildren her administrator had no right to any share of the money payable on the death of the cestui que vie.

I am still of the opinion that the latter is correct.

The intention of the insurance was to provide for the wife and children of the cestui que vie during their lives and for the use and benefit of them only. It looks to a provision for a state of widowhood and for orphan children. Barry v. Equitable Life Ass. Society, 59 N. Y. 587, 593; Eadie v. Slimmon, 26 Ib. 9; Olmsted v. Keyes, 85 Ib. 593; Brummer v. Cohn, 86 Ib. 11, 16, 17; Smillie v. Quinn, 90 Ib. 492, 496 ; Whitehead v. N. Y. Life Ins. Co., 102 Ib. 143,152.

The interest which vested in Mrs. Miles on the death of her mother was then only inchoate and uncertain.

It could not become complete, certain or available until the death of the cestui que vie. If she was then living her interest would have matured and become certain and a chose in action in her favor, or if she had then died leaving a child or grandchild her interest would have matured and become certain and available in their favor. But she, having died before the cestui que vie, her inchoate interest never matured in her favor, and having left neither child nor grandchild there was no one in whose behalf her said inchoate interest could mature and become available. Thus her administrator took nothing, and the payment to him by the defendant was without authority of law. I am not insensible to the force of the arguments presented to me on behalf of the defendant. The cases cited, however, are not so similar in their essential facts to the case at bar as to afford me any sufficient guidance.

The conclusion to which I have arrived seems to me more in harmony with the purpose and intent of the law, as well as of the cestui que vie, than that for which the defense contends. In my opinion that intent was to provide support for a living wife or living children or grandchildren, and the persons entitled to share in the fund were only such as should occupy either of these positions at the time of the death of the cestui que vie, at which time alone the distribution should be made.

I adhere to the opinion heretofore expressed by me.

G. C. Frelinghuysen, attorney, and Horace Barnard of counsel, for appellant.

Stewart & Sheldon, attorneys, and Edward W. Sheldon of counsel, for respondent.

Per Curiam.

The order and judgment are affirmed with costs, on the opinions of the special term, with leave to the appellant to withdraw demurrer and answer on payment of costs.


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

text:
    THE UNION DISTILLING COMPANY, Plaintiff v. UNION PHARMACEUTICAL COMPANY, Defendant. In the Matter of the Application of GEORGE P. ROWELL, et al., Execution Lienors,. Appellants.

      Attachment, Vacation of, conditions of vacation on payment of costs, when imposed, etc. Practice in such cases.

    After the attachment had issued and been levied upon property of the defendants in this action, the applicants obtained judgment against the defendant. Execution was issued and the sheriff levied upon the property in his hands upon which an attachment, in plaintiff’s favor, had been previously levied. The applicants, thereupon moved in this action, under § 682, Code Civil Procedure, as persons' having a lien on the property, to vacate the attachment, upon the insufficiency of the affidavit on which it was granted. It was vacated by an order that directed “that the order of attachment be and the same is hereby vacated and set aside upon payment of the fees of the sheriff.” The applicants appeal from so much of the order of vacation as requires them to pay the sheriff’s fees, holding that the court had no power to .impose such a condition under the circumstances.

      Held, that the appellants were entitled to have their lien, free from the order of attachment, as of the time it was first issued and before the sheriff had levied the same and his fees had accrued.
    Section 709 of the Code is not confined to an application for vacation by the defendant alone, but the ease of an application by other persons is considered and included by this section; but any exaction of such section that provides, that a person’s property shall not be delivered to him until he pays fees, etc-., for which he has no personal liability, is unconstitutional and therefore inoperative in this case, and an order could not competently provide for such an exaction. The applicants (being the appellants on this appeal), were entitled to a simple vacation of the order without condition.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided January 8, 1889.

      Appeal by the applicants from an order vacating the attachment issued in the action, with the condition that the applicants pay the fees of 'the sheriff.
    The appeal is from so much of the order, as required the payment of the fees of the sheriff.

      Philip Carpenter, attorney and of counsel for appellants, argued:—
    I. The court had no power to require the appellants to pay the sheriff’s fees, as a condition of vacating the attachment. The right to so order is claimed under section 709 of the Code, which provides that where a warrant is vacated “ upon the application of the defendant” the sheriff must deliver the property to the defendant, or person entitled to it, upon payment of his fees. This section does not attempt to cover the case at bar, where the warrant is vacated “ upon the application of” execution creditors and not of the defendant. If the court holds otherwise, however, the order is still unauthorized, because the law is unconstitutional. The case of Bowe v. U. S. Reflector Co., 36 Hun, 407 (First Department), is directly in point and decisive of this appeal. The court there very carefully considered the section of the Code referred to, and pronounced it repugnant to the constitution (art. 1, §§ 1, 6), which provides that—“ No member of this state shall be deprived of life, liberty or property, without due process of law.”
    The court cites cases where it has been held that the legislature can never take the property of one person without his consent and give it to another, and they add: “That is precisely, where an attachment has been set aside, vacated or annulled, either by the abandonment of the party in whose favor it is issued or by an order of the court, what this section of the Code has provided may be done with the property of a defendant when it has been seized under an attachment. This direction in its practical effect is to take the property of the defendant, after the lien of the attachment has in this manner been removed, and apply it to the payment or the debt created by issuing and serving it, and after-wards detaining the defendant’s property under its authority, and no more flagrant violation of the rights of an owner of property can well be imagined.” In the case cited the attachment was originally lawfully granted, and afterwards vacated because the plaintiff did not give additional security as required. It is not, therefore, so strong a case as the one at bar, where the court had no jurisdiction in the first place to grant the warrant. An analogous authority is also found in Weston v. Watts, 45 Hun 219, where an order appointing a receiver of a firm had been reversed; the court declined to direct payment of his fees out of the property, but directed that the plaintiffs should pay them. The court, Daniels, J., say: that the appointment of a receiver “was an invasion of the defendant’s rights for which there is no law requiring him or his property to pay the expense.....To take a person’s property from him by an unauthorized proceeding and place it in the hands of a receiver, and then subject him to the expenses of the proceeding, would be very transparently unjust, even if the courts had the power to do that.” “ The law cannot sanction the taking of one man’s property and subjecting it to the expenses or obligations of another. Due process of law requires something more than an unauthorized legal proceeding, set aside by the final action of the courts.” Bartlett, J.: “ It would be a pretty severe rule, even if constitutional, which should compel a litigant to pay the expenses of having his own property illegally taken out of his custody for a while.” It does not seem necessary to cite more of the many cases where the courts have held that one man’s property cannot be legally taken to pay another’s debt.
    In this case the plaintiff employed the sheriff to seize and hold the defendant’s property, upon a warrant which it (the plaintiff) knew was illegally granted. That warrant has been set aside upon the ground that the court had no jurisdiction to grant it. With the fall of the warrant everything done under it also falls, and the property illegally taken must be restored to the defendant, subject only to. legally acquired liens! By the levy of their execution, the appellants acquired such a lien, and they had every right, upon the motion to vacate, that the defendant would have had (Code, § 682). The court could not impose terms as a condition of making an order that it was obliged to make anyway. The affidavit on which the warrant was granted either was or was not sufficient. If it was sufficient the court had no right to vacate the attachment on this motion, with or without terms. If it was not sufficient, as it was not (44 N. Y. 270; 78 lb. 258), the court was bound to vacate it, and could not impose terms. It had no discretion. The appellants were entitled absolutely, as a matter of right, to have the warrant vacated. Moreover, the appellants by their levy acquired a lien upon the defendant’s entire interest in the property attached. His interest included the right to have the attachment vacated without paying the sheriff’s fees. The appellants took no less a right, as they took all the rights the defendant had. !
    ■ II. The sheriff’s rights are amply protected without the order. (1) He either has or has not, at law, a lien upon the property for his fees. If he has not a lien the court cannot give him one by an order. If he has a lien anyway the order adds nothing to it. His possession protects him. (2) The plaintiff who employed him to render the services and is liable for them is responsible, and so far as appears is entirely willing to pay the bill. The sheriff always has the right, too, to demand his fees or security for them in advance. Bowell & Co. (the appellants) did not employ the sheriff to do anything, they incurred no liability to him. But under the order of the court they are required to pay the plaintiff’s debt to him, while the plaintiff itself, who obtained an unfounded attachment, is relieved from all responsibility therefor. The sheriff’s fees might be very large—several thousand dollars—more perhaps than the value of the property; we might then have the absurd case that the execution lienor could better afford to let the property go than pay the fees, while the defendant himself could get the attachment vacated, and, with no fees to pay, walk off with the property unmolested. It is to. be observed, too, that if Eowell & Co. pay the fees they cannot recover them of the plaintiff or defendant or the property. They can tax them against no one.
   By the Court.—Sedgwick, Ch. J.

After the attachment had been levied upon property of the defendant, the applicants obtained judgment against the defendant. Execution was issued and the sheriff levied it upon the property in his hands, subject to the levy of the attachment. The applicants thereupon moved (§ 682,-Code Civil Procedure) as persons having a lien on the property to vacate the attachment. It was vacated by an order that ordered, that the order of attachment “ be and the same hereby is vacated and set aside upon payment of the fees of the sheriff.” The appellants take the position that they were entitled to an unconditional vacation of the attachment, the court having, no power to impose the performance of the condition.

It appears from general reasoning, that the applicants-were entitled to have their lien, free from the order of, attachment, as of the time it was first issued and before the sheriff had leviéd it and his fees had accrued. It was vacated because of the insufficiency of the affidavits on which it had been granted.

The counsel for appellants supposes that no provision' of the Code gives the right of the sheriff to hold the property for his fees when the attachment is vacated on the application of a person, other than the defendant,, and who has acquired a lien upon the property, urging that section 709 is confined to an application by the de-, fendant. I am inclined to think that this is not correct, because in that section it is made the duty of the sheriff “to deliver over to the defendant or to the person entitled thereto ” upon demand and upon payment of his fees, all attached property. This implies that the case of an application of such person, is considered by the section. If this be so, then the first part of the section is to be read “ where a warrant of attachment is vacated or anulled upon the application of the defendant, or any person, etc., or an attachment is discharged upon the application of the defendant,” etc.

But as the counsel shows, the exaction of the section, that a person’s property shall not be delivered to him until he pays fees for which he has no personal liability, is unconstitutional and therefore inoperative. Bowe v. U. S. Reflector Co., 36 Hun, 407; Weston v. Watts, 45 Ib. 219. For like reasons, an order could not competently provide for such an exaction.

I apprehend the true course of practice is, that under section 682 a person making a sufficient application, is entitled to an order vacating the attachment. This order does not directly operate as a mandate to the sheriff that he shall deliver the goods. If there were nothing more, the sheriff would be bound to deliver the goods, because the defendant as the third person would have a right to them, as soon as the attachment was vacated, upon reasonable demand. Such a demand would be necessary if section 709 did not provide for it. Section 709 is not unconstitutional in this respect, or in respect of it making it the duty of the sheriff to deliver the goods or the proceeds. And under that section the performance of the duty may be compelled by order, if before that section there were no such remedy, or if there were.

Upon demand of the property the sheriff may claim fees, and then his right is, for the first, to be determined.

The relevancy of these remarks is perceived, when the fact is noticed that in this case the applicants had no right to a. delivery by the sheriff of the property to them. Their interest was that of a lien by execution. The attachment being out of the way, the sheriff was to keep the property in his hands, until he should sell it, in obedience to the execution. This would follow from the attachment being vacated. What he shall do with the proceeds of the sale is a question for the future. The appellants were entitled to a simple vacating of the attachment and to the benefit of the legal consequences.

I understand the sheriff has not been notified of the motion to vacate the attachment. No decision can be made as to his rights.

The plaintiffs, who are respondents, did not oppose the motion to vacate, nor the reversal of the order. Still, they should pay the costs of the motion to vacate, which was made necessary by their procuring the attachment. On the appeal owing to peculiar circumstances, the costs should not be against them.

The order appealed from is reversed, and the motion to vacate granted, with $10, costs of motion and the disbursements of the appeal, which are to be taxed.

Truax, J., concurred.