author: HaRDIN, P.: MbkwiN, J.:

text:
    FRANK B. REYNOLDS and Another, Appellants, v. JAMES F. EVERETT and Others, Respondents.

      Combination to entice away employees — strikes — “picketing ” — remedy at law — case for equitable relief by permanent injunction not made out — Penal Code, secs. 170, 171, 675, 720.
    It does not follow, assuming that the provisions of the Penal Code (§§ 170, 171, 675, 720) do not take away the legal remedies that existed prior thereto, and that a right exists to maintain an action for damages by reason of a combination or conspiracy which produces injury to property or business, that an action can be maintained on the equity side of the court.
    On the trial of a suit in equity for an injunction to restrain the acts of a combination formed to entice away the employees of a manufacturer, by means of “ picketing ” his premises and addressing persuasions and inducements to his employees, in connection with a strike for higher wages which was in progress when the suit was commenced, but which had ended some months before it came to trial, in which suit a preliminary injunction had been granted and continued, the court refused a permanent injunction and dismissed the complaint.

      Held, on appeal, that the 'exercise of the discretion of the court in refusing a permanent injunction should not be overruled, it not appearing that a case for equitable cognizance was presented by the facts, and it appearing that the occasion for relief by injunction was passed.

      Semble, that the remedy of an employer for the enticement of employees from his service, against a combination formed for that purpose, is by an action at law for damages, and that a court of equity will not entertain an action, the gist of which is the enticement of servants, in the absence of special circumstances calling for the intervention of a court of equity.
    Appeal by the plaintiffs, Frank B. Reynolds, George Tracy Rogers and Frank E. Lay, from a judgment of the Supreme Court, entered in the Broome county clerk’s office on the 16th day of March, 1892, upon a decision made at the Broome Special Term, dismissing plaintiff’s complaint, without costs, after a trial at said Special Term on the 24th day of June, 1891.

      EdrmmcL O' Gonnor, Alex. Gumming arid A. D. Wales, for the appellants.

      George B. Gwrtiss, Boberts & O'Brien and Tracy Becker, for the respondents.
   HaRDIN, P.:

Plaintiffs brought this suit in August, 1890. They were then engaged in the business of manufacturing and selling cigars in the city of Binghamton, and there were other manufacturers engaged in a similar business, and, with the plaintiffs, employed some 3,U00 persons to do the mechanical work of making cigars. The plaintiffs, employ about 400 persons, male and female, in the prosecution of their business, and the complaint alleges that, in order to have the business profitably conducted, it must be “run continuously, and; the stoppage of the business of manufacturing arbitrarily, without, regard to the interests of the business, inevitably results in a large loss to the business.” It is also alleged that on June seventeenth of that year “ almost all of the said employees in said manufactories, to the number of several thousand, and among them the employees, in plaintiffs’ said manufactory, to the number of two hundred (200), struck, as it is called — that is, discontinued working in said manu-factories, and refused to work for the plaintiffs, and for the proprietors of said other manufactories, unless they were paid an increased price for their work in accordance with the demand, which the plaintiffs and said proprietors of said manufactories-refused to give, as they could not reasonably afford, under existing business conditions, to grant said increased price demanded; and that since said June Utli, said striking employees' have, to a great-extent, continued in their refusal to work for plaintiffs and said other proprietors.” It is alleged that by reason thereof the operation of plaintiffs’ manufactory was practically suspended, and that the plaintiffs “ began to engage and employ other and new employees,. * * * and that as soon as plaintiffs began to obtain said new employees, and even for sometime before, the defendants, illegally and wrongfully conspiring, conniving and contriving, and confederating together with themselves, and with other persons whose-names are unknown to plaintiffs, to prevent the plaintiffs and said other manufacturers from carrying on their said business,. determined to execute said determination by. the following methods and devices, that said defendants, with others whose names are unknown to plaintiffs, caused large numbers of striking employees and others to assemble about the entrance to the plaintiffs’ place of business at the time when plaintiffs’ new employees came to and left said place of business in going to and from their work and to their respective places of abode. That, in pursuance ■of said conspiracy and confederation, said crowds interfered with new employees by intimidating them by their numbers, by making threatening remarks to them if they did not leave plaintiffs’ employ, by appealing to them to leave plaintiffs’ enrploy, by hiring them, ■•and trying to hire them, to leave plaintiffs’ employ, and by applying -scurrilous and opprobrious epithets to said new employees when they refused to leave their new employment; and, in pursuance of :said illegal conspiracy, the defendants, with others whose names are unknown to plaintiffs, eauted a disciplined force of said striking employees and others to guard and watch plaintiffs’, and all other of ■said manufactories in Binghamton, for the purpose of obtaining the names aud places of abode of said new employees, so that if unsuccessful in seducing plaintiffs’ new employees from their employment on the way to and from their business, they could still carry out their said illegal purpose at the places of abode of said new employees and elsewhere whenever and wherever they could get the oi^por-tunity, and also for the purpose of intimidating them as aforesaid.” It is further alleged in the complaint, viz.: “ That, in pursuance of j said illegal conspiracy, they enticed away many of the plaintiffs’ said ' new employees from their employment, and prevented many other persons from taking said employment, * * * and that all of said acts and devices, with many others of a similar purpose, were •'part of a said wrongful and unlawful conspiracy, and of a scheme to prevent the carrying on of the plaintiffs’ business, and the business of said other manufacturers, by making it so odious and dangerous, or unpleasant for any one assisting them, that the plaintiffs, and all others of said manufacturers, should be absolutely prevented from conducting their said business, except upon terms dictated by said striking employees. That said defendants * * * also continually interfere with said new employees at their homes and boarding places, and by every device described, by persuasion, enticements and threats, endeavor to entice said new employees away from their employment, and defendants, and said unknown persons, threaten to continue said conduct until they have ruined the plaintiffs and all of said manufacturers, or force them to comply with the demands of said strikers, which plaintiffs and said other manufacturers cannot afford to do.” The complaint alleges that, by means of said wrongful and illegal conspiracy, the business of the plaintiffs, and of all others of said manufacturers, have been for several weeks, and still is, practically suspended, * * * by all of which the business of the plaintiffs is greatly and permanently injured, both for the present and the future. That the continuance of said illegal acts will work an irreparable injury to plaintiffs and \ all of said manufacturers, which injury is incapable of estimate in a legal action for damages, as the damages resulting from said injury will continue for a series of years.” * * * It is also alleged that most of the defendants are irresponsible. It is alleged that this action is brought “ for the benefit of the plaintiffs, and all other manufacturers of Binghamton similarly situated, who see fit to come in and contribute to the expense thereof.” The prayer of the complaint contains the following language: Plaintiffs ask judgment that the defendants and their agents, servants, attorneys, counselors,, and all persons acting with them, be perpetually enjoined and|f restrained from doing any of said illegal acts, and for a temporary-'; injunction, pending this action, restraining said acts, and each of them, and for such other judgment and relief as may be just.” Several answers were interposed by the defendants denying most of the allegations of the complaint and alleging that the plaintiffs and other manufacturers before the 1st of June, 1890, “illegally and wrongfully conspiring, conniving and confederating together, with themselves and with divers other persons whose names are to these defendants unknown, to oppress and injure these defendants and others like them engaged in employment as cigarmakers, and to depreciate the market-value of their labor, and to prevent them from lawfully organizing and from assembling in a peaceable and 4 orderly manner, and from co-operating with other persons employed in the calling, trade or handicraft of cigar making for the purpose of bettering their condition or of obtaining an advance in the rate of wages or compensation, or maintaining such rates theretofore established as the market-value thereof, and also from demanding an increase of wages, and from assembling, co-operating and using all lawful means to induce employers to pay such wages to all persons employed by such employers, * * *. determined and agreed to carry out and render effectual said illegal and wrongful conspiracy federation by means of” the acts and methods more particularly named; that they would not pay the employees “ anymore wages or any greater rate of wages for the same kind and class of work done than the rate and amount so definitely and arbitrarily fixed and agreed upon as aforesaid, and that the plaintiffs and their said co-conspirators and confederates would not employ the defendants or any other cigarmakers, except at and for a rate of wages arbitrarily and definitely fixed and agreed upon by the plaintiffs and their said co-conspiritors and confederates.” And further allegations were made in the answers alleging confederation and conspiracy of the plaintiffs and other manufacturers. The .answer also alleged “that the plaintiffs have an adequate remedy at llaw to recover damages for any of the matters and things alleged ^against the defendants or any of them in the complaint in this action to recover which said damages the identical plaintiffs, before the commencement of this action, had begun an action at law in this court against these identical defendants, which action is still pending.” In the prayer in the answer the defendants ask “ that said plaintiffs, and each and every of their co-conspirators and confederates, and each of their attorneys, agents and servants, be forever enjoined and restrained from anyway continuing or carrying out or doing any of the unlawful and wrongful acts and things in furtherance and pursuance of their combination, confederation and conspiracy set forth in the fourth count of this answer.”

I Upon the pleadings and affidavits tending to support the allega- [ tions thereof a preliminary injunction was granted. An application was made to dissolve the in junction, and, upon hearing the parties, the judge who granted the same refused to dissolve the injunction, but modified the injunction by an order made on the 9th of September, 1890. The issues between the parties were brought to trial on the 21th of June, 1891, at Special Term, and several matters of fact were found by the Special Term, and among them that the employees “ came together and organized and they appointed a committee of thirty which was called the strike committee.” And the Special Term also found “ that this strike committee had charge of the general management of the strike, and that under its direction each factory was picketed; that is, men and women were deputed to watch each factory as the employees came to and went from their work, and the said employees were accosted by these pickets and by the defendants and were urged and entreated to leave the plaintiffs’ employment in order that the plaintiffs might not be able to continue their business and thereby the purposes of the strike rendered effectual.” ■ It was also found “ that by such persuasion and entreaty and inducements many of the plaintiffs’ employees were induced to leave the plaintiffs’ employment, including some who had remained originally without entering upon the strike and some of the new employees who were working for the plaintiffs under contract for a fixed period of time, and by concession plaintiffs’ business was sufficiently damaged to authorize an injunction.” It was also found “that the defendants who were not among the striking employees were connected with the publication of the Binghamton Leader, a newspaper published daily in the city of Binghamton.” It was also found that “ both in the local columns and in the editorial columns, in the said paper, appeared matter which was, in approval and encouragement, both of the purpose of the strike and the methods used, of both of which the said defendants had knowledge.” It was also found that the purpose. of the strike was to obtain an advance in wages; that such purpose was sought to be accomplished by persuading and inducing as before found, those working for the plaintiffs to leave their employment and those engaged by the plaintiffs to work, from entering into said employment, with the intention of making such combination or strike so extensive as to include all laborers who were working or might work for the plaintiffs’ factory and thereby force the plaintiffs, in order to carry on their business, to pay the advanced wages demanded; ” also, by concession that the aforesaid acts, if illegal, authorize an injunction herein.” The Special Term directed a judgment for the defendants, which was entered in accordance-with the findings dismissing the plaintiffs’ complaint. Several special requests to find were made, and in response to the requests, among other tilings, the Special Term found “ that said persuasions and inducements were used and made in pursuance of a general plan between tlie strikers and that they would accomplish their purpose by reason of such persuasions and inducements.” Also, that by reason of said persuasions and inducements certain of the employees of the plaintiffs’ factory were induced to strike and leave the plaintiffs’ employment and certain other persons were induced not to enter the employment of the plaintiffs.” It was also found that “ some of the employees, who did not originally strike, but who were in the employ of the plaintiffs at the time of the strike, were induced by the inducements and persuasions hereinbefore set out to leave the employ of the plaintiffs, and also some of the employees who were thereafter employed to take the places of the men who went upon said strike were induced by the same persuasions and inducements to leave the plaintiffs, and also some persons were induced by said persuasions and inducements not to enter the employ of the plaintiffs.” It refused to find that the defendants “were acting in concert and combination with said strike committee in pursuance of a common design to prevent the plaintiffs and said other manufacturers from carrying on their said business by enticing away all of their employees and preventing them from getting other employees until they acceded to the demands of said strikers for an increase of wages,” except as it had found upon that subject in the formal findings. In response to one of the requests the Special Term found as follows: “ That it was conceded upon the trial, and such was the fact, that by the acts of defendants and those acting with them, as hereinbefore stated, the plaintiffs’ business was damaged to some considerable extent and sufficient to give a •court of equity jurisdiction to grant an injunction, provided said acts were illegal.”

The Special Term refused to find “ that the acts of defendants in combining to prevent the plaintiffs from carrying on their business as described in the findings of fact were illegal.” It also refused to find that “plaintiffs are entitled to an injunction restraining defendants from combining and acting in- pursuance of said combination to entice away plaintiffs’ employees.” It also refused to find “that plaintiffs are entitled to an injunction restraining defendants from combining and acting in pursuance of said combination to prevent the plaintiffs from obtaining employees to carry on their business ” It also refused to find “ that the plaintiffs are entitled to an injunction restraining defendants from picketing plaintiffs’ factory.”

There seems to have been no request made to find damages, or to award damages, to the plaintiffs in any specified amount. The effect of the decision for the defendants, and the judgment entered thereon, are to dissolve the injunction that was granted temporarily, although no formal language to that effect is found in the decision or the judgment. (Gardner v. Gardner, 87 N. Y., 14; Jackson v. Bunnell, 113 id., 220.) It may be said that reading the complaint in the light of the facts and the findings made, that the gravaman of the allegations therein is to set out, first, a conspiracy on the part of the defendants; and, secondly, an enticement of the servants or employees from the plaintiffs. In Place v. Minster (65 N. Y., 95) it was said: “ The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person or property of the person injured or defrauded.” When Dwight, J., used the language just quoted, he was dealing with an action at law brought for an alleged conspiracy to defraud the plaintiffs.

Actions brought for the purpose of recovering damages for enticing away from the services of the master a servant are treated as actions for a wrong. In Co wen’s Treatise (p. 194) it is said: “ Whenever a servant is enticed away from his master’s service, the master is entitled to this action for the loss which he sustains. If a servant be taken away from his service, he may also bring an action of trespass, alleging his special damages.” And it is added, in treating the subject, that “ the real gist of the action is the wrong.” In 1745 Lord Chief Justice Wills®, in delivering the opinion in Winsmore v. Greenbank (Willes Rep., 577), in an action for enticement, treated it as “ a special action on the case.”

Sir WilliaM BlaokstoNE, in treating of private wrongs in book 3, page 142, says : “ For every master has, by his contract, pui-chased, for a valuable consideration, the service of his domestics for a limited time; the inveigling or hiring his servants, which induces a breach of this contract, is, therefore, an injury to the master; and for that injury the law has given him a remedy by a special action on tbe case.” (See vol. 2 [Sliarwood ed.j, '§ 4.) In Caughey v. Smith (47 N. Y., 244) it was beld that to maintain an action for enticement from service, that it must have been “ that the moving cause of the desertion was the inducement held out by the defendant ; ” and in delivering the opinion in that case, Folgee, J., says, at page 256, viz.: “And it is to be borne in mind that it is an action of tort.”

Appellants contend that “ the enticing away of an employee, even where there is no combination or conspiracy, is illegal and actionable,” and call our attention to Caughey v. Smith (47 N. Y., 244); Stuart v. Simpson (1 Wend., 376); Woodward v. Washburn (3 Denio, 369), and Haight v. Badgeley (15 Barb., 499). Stuart v. Simpson (supra), was an action on the case at law for enticement and harboring apprentices.

Woodward v. Washburn (supra) was an action on the case for the loss of services of a hired man, and Jewett, J., said, in delivering the opinion : “ It is a principle of the common law, that where a person sustains a loss or damage, by the wrong of another, he may have an action upon the case to be remunerated in damages; ” and he refers to Hart v. Aldridge (Cowper, 54), as “ an action of trespass on the case for enticing away several of the plaintiff’s servants who used to work for him in the capacity of journeymen shoemakers,” in which case it was found by the jury that two of the persons enticed “were employed as journeymen shoemakers by the plaintiff, but for no determinate time, but only by the piece; and liad, at the time of the trespass, laid, each of them, a pair of shoes unfinished; that the defendant persuaded them to enter into his service, and to leave these shoes unfinished, which they accordingly did; ” and it was finally held in that case that an action at law would lie.”

Haight v. Badgeley (supra) was an action for trespass “ guare clausum fregit” for enticing away a servant of the plaintiff, and it was held in that case, viz.: “ In .this State, no absolute property can be acquired in the person or personal services of an adult, by an executory contract; nor can such a contract be enforced by any criminal proceeding. The rule giving an employer a right of action for enticing away his servant, has not been overruled here, it seems; ” and in the course of the opinion delivered by HAND, P. J., he observed: In this State a contract for the personal services of an adult, as a general thing, is a matter for courts of law; and for a violation of it, the remedy is in damages, and a specific performance will not be enforced.” (Citing Hamblin v. Dinneford, 2 Edw. Ch. R., 529; Sanquirico v. Benedetti, 1 Barb., 315; Corsetti v. De Rivafinoli, 4 Paige, 264.) And then he adds: “No absolute property can, in this State, be acquired in the person or personal services of an adult by an executory contract; ” and in speaking of the character of the action, he observed: “ The grava-man of the complaint is trespass domurn fregit, and the persuasion of the servant is matter of aggravation.” To support the contention of the appellants, numerous other cases are cited which were actions at law. In Johnston Harvester Company v. Meinhardt (9 Abb’s. N. C., 401; S. C., 60 How., 168), Macomber, J., in delivering an opinion adverse to granting an injunction “ against a confederation of persons whose object is to entice away workmen from their employer’s employ,” and in stating that the remedy is an action for damages, refers to several of the cases already mentioned, and many others, and then states that he is disinclined to.extend “ the doctrine of recovery for enticing away servants, where, both in fact and theory, the person enticed is a free agent to come and go as he will, responsible only, like other persons, for the violation of his contract or his duty.” That case was affirmed by this court (24 Hun, 489), and it was then held “ that the acts not controverted, to restrain which an injunction was asked for, did not constitute an invasion of any clear right of property vested in the plaintiff; that it does not appear that such acts, whether done or threatened to be done, resulted, or would have resulted, in irreparable injury to the plaintiff ; and that the discretion of the Sjiecial Term in refusing to continue the injunction was properly exercised.”

While the facts appearing in the evidence and in the pleadings and findings in this case differ somewhat from those found in Johnston Harvester Company v. Meinhardt (supra), yet so far as this case rests upon the right of maintaining an action in equity, it is quite similar to that case and it seems to furnish an authority for refusing to support the contention of the appellants, that an injunction, permanent in its character, should have been granted by the Special Term at the time this cause was tried, by reason of the matters relating to the enticement of the servants of the plaintiffs. The strike commenced in June and was over on the 5th of October, 189<.;, and this action was brought to trial on the 94th day of June, 1891. But it is contended by the appellants that there was a conspiracy or a combination on the part of the defendants to work an injury to the plaintiffs by “ enticing away plaintiffs’ employees.” In considering this question attention must be given to some modern statutory provisions relating to conspiracy. In section 170 of the Penal Code, it is provided as follows: “And the orderly and peaceable assembling or co-operation of persons employed in any calling, trade or handicraft for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate is not a conspiracy.” And section 171 of the Penal Code declares it to be a misdemeanor to “coerce or compel any person or persons, employee or employees, laborer or mechanic to enter into an agreement, either Avritten or verbal, from such person, persons, employee, laborer or ■mechanic, not to join or become a member of any labor organization as a condition of such person or persons securing employment, or continuing in the employment of any such person or persons, employer or employers, corporation or corporations.” In section 675 of the Penal Code it is provided, viz.: “A person who Avillfully and wrongfully commits any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this Code, is guilty of a misdemeanor, but nothing in this Code contained shall be so construed as to prevent any person from demanding an increase of wages, or from assembling and using all lawful means to induce employers to pay such wages to all persons employed by them as shall be a just and fair compensation for services rendered.” The language which we ha\'e given is taken from the section as amended in 1891. It may be observed the section authorizes persons to demand an increase of wages, or provides that it shall not be unlawful to do so, and also provides it shall not be a violation of law to assemble and use all lawful means to induce employers to pay such wages to all persons employed by them as shall be a just and fair compensation for services rendered; and the standard is laid down in the section to determine what shall be “ a just and fair compensation for services rendered ” or to be rendered. And": in section 120 of tbe Penal Code it is provided as follows:: ‘‘ The provisions of this Code are not to be deemed to affect any civil rights or remedies existing at the time when this Code takes. effect by virtue of the common law or of any provision of statute.”' It is contended by the appellants that these provisions of law do not: take away the legal remedies that existed prior thereto, and that,, therefore, they have a right to maintain an action for damages suffered by reason of any conspiracy or combination which produces injury to their property or their business interests. It is not needful to determine in this case precisely what is the scope and character of the rights of the plaintiffs to maintain an action at law for damages suffered by injuries resulting from a combination to their property or their business being carried on during the period of the existence of the strike. When this action was tried apparently the combinar tion was over and the threats to do injuries were over and the plaintiffs or their business were not in any manner in danger of suffering by reason of any combination then existing. If it be granted, that by reason of such combination or conspiracy, as is claimed to have existed in this case, that the plaintiffs had a right of action to recover damages at law, it does not follow that they were entitled at the time of the trial of this action to have a permanent injuntion awarded by the Special Term, nor does it follow that they were entitled to maintain this action on the equity side of the court to recover such damages as they had sustained. It is a familiar principle that a court of equity will not take jurisdiction where an adequate remedy at law exists, if such defense be insisted upon in the answer as was insisted upon in the answer served in this case. (Truscott v. King, 2 Seld., 164; Savage v. Allen, 54 N. Y., 458.)

In People v. Barondess (61 Hun, 515) a majority of the court seems to have been of the opinion, in considering the penal sections to which we have referred and others, that -the word “ property ” occurring in such legislative provisions “ would not include a man’s business.” We do not deem it necessary to express an assent to that doctrine for the purpose of determining the case now in hand. It. does not follow that if the combination and conspiracy in question were illegal or contrary to the provisions of the statute upon that subject, that an action in equity can be maintained, or that a court ■of equity has jurisdiction to give the relief sought in this case In ■considering the term “jurisdiction” in Bangs v. Duckinfield (18 N. Y., 595), JOHNSON, Ch. J., said that jurisdiction “related not to the naked question of power, but rather to the fact that such power had or had not been usually exercised. Thus the question presented to a court of equity by the objection that the complaining party had a full, adequate and complete remedy at the common law related to the jurisdiction of the court of equity, and is constantly spoken of in the cases in that way.” Similar comments are made in Anderson v. Garr (65 Hun, 181).

In McHenry v. Jewett (90 N. Y., 58) it was said that “ it is not sufficient to authorize the remedy by injunction; that a violation of a naked, legal right of property is threatened, there must be some special ground of jurisdiction, and, where an injunction is the final relief sought, facts which entitle the plaintiff to this remedy must be averred in the complaint.”

In Gilbert v. Mickle (4 Sandf. Ch. [357]), Chancellor Saotoed, in considering the cases in which equity would interfere, was called upon to determine whether an injunction should issue to restrain the placing of “ a placard ” paraded or posted in a public street, before the door of an auctioneer, cautioning strangers to beware of mock auctions, and he finally readied the conclusion “that the Court of Chancery will not interpose to restrain such placard by injunction, but will leave the party to his remedy at law.” And it was further held in that case that “ equity always interferes with reluctance for the protection of rights of property by injunction, when those rights are mingled with the administration of criminal jurisprudence.”

Our attention is called to Sherry v. Perkins (17 N. E. Rep., 307), in which case it appears there was a scheme by threats and intimidation to prevent persons in plaintiff’s employ from continuing in such employ, and, in pursuance of the scheme, the defendants “ caused a threatening banner to be carried in front of plaintiff’s shop, the effect of which was to deter persons from continuing to work for or engaging with plaintiff, and the latter’s business was thereby injured;” and in delivering the opinion in that case the court stated that the “banners were used more than three months before the filing of the plaintiff’s bill, and continued to be used at the time of the hearing,” and the court observed that the “ maintaining it was a continuous, unlawful act, injurious to the plaintiff’s business and property, and was a nuisance, such as the court of equity will grant relief against.” The findings in the case before us do not bring it within the exceptional circumstances of the case cited.

In the case of New York, Lake Erie and Western Railroad Company v. Wenger (cited in a note, 24 Abb. N. C., 267) it appeared that there was a combination “ to go upon the premises of a railroad company to obstruct its business, and to prevent, by force or threats, its employees from performing their duties,” and it seems to have been held an unlawful assembling. The case differs from the one before us. It may be said that Walter v. Cronin (107 Mass., 555) supports the plaintiffs’ right to recover in an action at law for damages caused by the enticement, but it does not support the right to maintain an action in equity based upon facts such as are stated in the findings in the case before us.

Appellants call our attention to Dunsbach v. Hollister (49 Hun, 352), which is a case where a dealer in molding sand had deposited upon his own lot, adjoining that' of the plaintiff, a large quantity of sand, placing no covering over it, and so left that the wind would blow it over onto the house and premises of the plaintiff to his annoyance and discomfort. In that case it was held that the injury was of such a character as to be the source of recurring j>ersonal annoyance, discomfort and inconvenience in addition to the damage to property, and that, therefore, a case was presented that would not be adequately compensated in damages, and that an injunction should issue. The case is quite distinguishable from the one before us.

In Hutchins v. Smith (63 Barb., 252), which was a case to restrain gas and dust issuing from lime-kilns, it was found that the annoyance and injury were continuous, and to such an extent as to amount to a nuisance, and, therefore, a perpetual injunction to restrain the continuance of the nuisance was allowed. That case differs from the one before us.

In New York Central and Hudson River Railroad Company v. City of Rochester (127 N. Y., 594) it was held that a municipal corporation might be restrained from discharging sewage directly upon private lands, and a court of equity would take jurisdiction and grant an injunction to restrain the continuance of sucb injuries wbicb might ensue from such wrongful acts. That case contains nothing supporting the right, of the plaintiffs to maintain an action in equity upon the facts found by the Special Term in the case before us.

Appellants call our attention to Adams v. Rivers (11 Barb., 890), which was an action of trespass at law, and it was held “ a person is a trespasser, who, instead of passing along on the sidewalk of a street, stops on it, in front of a man’s house, and remains there, using towards him abusive and insulting language.” The case tends to support the right to recover at-law for some of the acts specified in the findings before us, but contains nothing supporting the right to recover in an action in equity.

The case of the Tribune Association v. The Sun (7 Hun, 175) was one where the defendant was about to take possession of the plaintiff’s lot and to use the same in making repairs to its own property, and it was stated to be a case “ where irreparable injury may and probably will result from the threatened wrong,” (opinion of DaNiels, J., page 179), and, therefore, an injunction was allowed. And in Fox v Fitzsimons (29 Hun, 571), the defendant was excavating the plaintiff’s lot and erecting a building thereon whereby the foundations of the plaintiff’s house were damaged and the free access of light and air to his windows impeded and destroyed; an injunction was allowed as an exceptional case was presented. The general rule is that an injunction will not issue to restrain a trespass. (Murray v. Knapp, 62 Barb., 566; Howe v. The Rochester Iron Manufacturing Co., 66 id., 592; Murray v. Knapp, 42 How., 462; N. Y. and A. R. R. Co. v. N. Y., West Shore, etc., R. R. Co., 11 Abb. N. C., 386.) Nor to prevent an aj>prehended trespass. (Hurlburt v. Banks, 1 Abb. N. C., 166.) Nor where irreparable damage is not alleged and proved. (Brennan v. N. Y. C. and H. R. R. R. Co., 30 N. Y. St. Rep., 378; Mapes v. Charles, 8 N. Y. Supp., 665.)

The rule is also stated in Campbell v. Seaman (63 N. Y., 569), where an exception to the rule was found to exist, and, in the course of the opinion in that case, it was said that whether an injunction should issue or not rests in the sound discretion of the court ” to which the facts of a particular case are presented.

In Young v. Campbell (75 N. Y., 525) it appeared that a temporary injunction had been obtained, which was dissolved at Special Term and the order dissolving the same was affirmed and taken to the Court of Appeals for review and that court distinctly held, viz. : The fact that the object of an action may be defeated by refusing a temporary injunction is not of itself sufficient to deprive the court of all discretionary power in the matter.”

In Mayor, etc., of Hudson v. Thorne (I Paige, 261), Chancellor Waleath said: It is no part of the business of this court (Court of Chancery), to enforce the penal laws of the State or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance. And it is nowhere alleged in this bill that the manufacture of pressed hay within the compact parts of the city of Hudson, in a building more than thirty feet square, is, in itself, a public nuisance.” In the complaint before us no allegation is found that the acts of the defendants are a public nuisance.

In Brandreth v. Lance (8 Paige, 24) it was held: “ The Court of Chancery has not jurisdiction to restrain the publication of a libel, by injunction, upon a bill filed by the party whose character or business will be injured by the publication.”

In Crooke v. The Brooklyn, Flushing mid Coney Island Railway Company (8 Week. Dig., 252), in the General Term of the second department, where the plaintiff sought to restrain the defendants from crossing a proposed bridge, it was said: “ The remedy of an injunction is not an appropriate one to enforce the payment of compensation for an injury.”

In the course of the opinion delivered by Dahfobth, J., in Troy and Boston Railroad Company v. Boston, Hoosac Tunnel and Western Railway Company (86 N. Y., 127), reviewing many antecedent cases he says: “And although the form of actions and suits, and the distinction between actions at law and suits in equity has been abolished, a party to entitle himself to the equitable remedy by injunction must still make such a case as would, while the distinction existed, have made an equitable cause of action. This is well settled,” and he cites numerous authorities in support of the proposition. (See, also, Mapes v. Charles, 8 N. Y. Supp., 665.)

While section 603 of the Code of Civil Procedure provides for cases in which an injunction order may be granted, it also provides, viz.: “ The case provided for in this section is described in this act as a case where the right to an injunction depends upon the nature of the action.” And section 604 provides for its being made to appear by affidavit to obtain an injunction that the defendant is suffering to be done, or threatens or is about to do or suffer to be done “ An act, in violation of the plaintiff’s rights respecting the-subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.” "With this language before us it may be inquired, what is the subject of the action mentioned in the findings in this case which brings it within the section ? As before observed the strike began on the-17th day of June, 1890, and continued until the 5th day of October, 1890, when all of the acts mentioned in the complaint and in the-findings apparently ceased, and the trial of this action at the Special Term was on the 24th of June, 1891, and the changed situation and relations of the parties was made apparent by the evidence. From the foregoing views and authorities and the principles deduced therefrom there may well be hesitation and doubt about the propriety of this court overruling the discretion used by the Special Term in refusing to grant a permanent injunction in the case made before that court. To do so would require us to take a step in advance of any well considered case found in this State on the subject of equity jurisdiction and the use of an injunction by such a. court, and, in effect, require us to disregard the principle adopted by this court when it decided Johnston Harvester Company v. Meinhardt (supra).

The result is, therefore, reached that the conclusion of the Special Term should be allowed to remain.

MARTIN, J., concurred.

MbkwiN, J.:

I concur in affirmance on the ground that at the time of the trial the occasion for asking relief by injunction had passed and no claim was made1 for recovery of damages.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: YaN BeuNt, P. J.:

license: Public Domain

text:
    PETER BALEN, Respondent, v. EMMA L. JACQUELIN, Appellant, Impleaded with Others.

      Estate in remainder vested at the death of the testatdr — death of a remainderman during the continuance of the life estate — partition—pleading.
    Where a will gave the testator’s wife for her life the “ income, rents and profits” of all his real estate, and at and after the decease of his wife devised one-third of all his real estate to each of his two living daughters, and the remaining one-third to the children of his deceased daughter, “ to he held, owned and enjoyed by them, respectively, and by their respective heirs and assigns, forever: ”

      Held, that the testater intended that the fee should vest at his death.
    That the children of the deceased daughter, as well as the two living daughters, took an absolute remainder which could be transmitted by inheritance, and which would not be divested by death during the period of the precedent life estate.
    An allegation in a complaint for partition that the plaintiff and defendants “are seized and possessed of ” the land in suit, describing it, is a sufficient allegation .of possession on the part of the plaintiff.
    An allegation in such a complaint that the defendants have received all the rents, issues and profits from the land in suit, and have neglected and refused to the plaintiff his share, is not an allegation that the defendants claim under a title hostile to the plaintiff.
    Appeal by the defendant, Emma L. Jacquelin, from an intérlo-cutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New Tork on the 23d day of November, 1892, overruling a demurrer to the complaint in an action for partition.
    The plaintiff claimed title in the premises in suit as heir-at-law of his daughter, Mary E. Balen, who was a grandchild of Charles L. Stickney, deceased, being a child of Mr. Stickney’s deceased daughter, Mary A. Balen, and the question involved was whether the said Mary E. Balen took a vested remainder under her grandfather’s will, which, among others, contained the following provisions:

      Third. I also give, devise and bequeath to my said wife for and 'during the period of her natural life the net income, rents and profits of all my real estate, excepting so much and such parts •thereof as may be sold by my executors under the power and authority for that purpose hereinafter mentioned and expressed; my wife to pay out of such rents and profits to my father’s widow, Catharine B. Stickney, the sum of one hundred dollars semi-annually •during her lifetime.

      Tenth. At and after the decease of my said wife, Mary Elizabeth, I give, devise and bequeath to my two daughters Emma L. Jacquelin and'Sarah E. Toumans, and to the children of my deceased daughter Mary A. Balen, all the real estate to me belonging, excepting so .much and such parts thereof as may be sold by my executors and ¡trustees hereinafter named under the power and authority for that purpose hereinafter mentioned and expressed, and excepting the property known as No. 209 (two hundred and nine) Bowery and No. 3 (three) Bivington street, in the city of New York; that is to say, one-third part thereof to each of my daughters Emma and Sarah, and the remaining third part thereof to the children of my ■deceased daughter Mary, to be held, owned and enjoyed by them respectively and by their respective heirs and assigns forever.
    The ground of the demurrer was that the complaint does not state facts sufficient to constitute a cause of action.

      H. A. Forster, for the appellant.

      G. F. Bostwick, for the respondent.
   YaN BeuNt, P. J.:

This is an action to partition certain real estate, in which the plaintiff claims to be seized of one-ninth share, as tenant in common, by inheritance from his deceased daughter, Mary E. Balen; and the question involved in this action is whether the said Mary E. Balen, having died before the determination of a precedent life estate, could transmit, by inheritance, that portion of the estate of which, if she had been living at the termination of the life estate, she would have been entitled to possession. We might very well leave the determination of this question upon this appeal to the grounds stated in the opinion of the court below; but there is one circumstance which seems to indicate, so plainly, the intention of the testator, that, we think, we ought to call attention to the same. It is one of the prevailing principles in the construction of wills, that the intention of the testator is to govern, and, therefore, as no two wills are exactly alike, and the surroundings of testators are always different, the interpretation given to provisions in one will affords but little aid in the construction of the provisions of another will, except so far as certain meanings have been given to certain terms and phrases in particular connections.

By the third clause of the will the testator gave, devised and bequeathed to his wife, for and during the period of her natural life, “the income, rents and profits of all my real estate.” And by the tenth clause, at and after the decease of his wife, he gave, devised and bequeathed to his two daughters, naming them, and to the children of his deceased daughter, Mary A. Balen, all his real estate, one-third to each of his said two daughters, and the remaining third part thereof to the children of his deceased daughter, to be held, owned and enjoyed by them respectively, and by their respective heirs and assigns forever.

It is to be observed that by the terms of this will, only tne rent, issues and profits of the real estate were devised to the wife of the testator. He, therefore, evidently intended that the fee should be vested in some other person than his wife, even during her life, subject to her right to the rent, income and profits thereof. And in view of the subsequent provisions of the will giving the complete enjoyment of this real estate to the persons named in the tenth clause after the decease of his wife, he evidently intended that such fee should vest at his death in those persons to be held by them respectively, and by their respective heirs and assigns forever. There evidently was no intention, upon the part of the testator, to defer the complete vesting of the entire title of this real estate beyond his own death, and that he did not intend that the absolute title of any portion of this real estate should be held in abeyance during the lifetime of his wife. The appellants claim that the devise to the children of his deceased daughter was a devise to a class the extent of which class could only be determined by the death of his wife seems to be contrary to the whole scope of the will. It is evident that the testator intended by the devise in question to invest the children of his deceased daughter with precisely the same title that he vested in his surviving daughters; and it will not be claimed but what the daughters living at the death of the testator took an absolute remainder, which could be transmitted by conveyance or by inheritance and - which would upon death, during the period of the wife’s life, be transmitted to his daughters’ legal representatives. This being the'intention of the testator and there being no indication that he intended that the estate should descend differently, we can see no reason why the plaintiff, upon the death of his daughter, did not take the interest claimed by inheritance.

It is also claimed that the complaint in this action was defective, because there was no sufficient allegation of possession upon the part of the plaintiff. But we think that the allegations in the ninth clause of the complaint are amply sufficient to meet the requirements of the Code, in that it is alleged that the plaintiff and the defendants are seized and possessed of all those certain lots and pieces of land, etc. The allegation that the defendants have received all the rents, issues and profits from said real estate and have neglected and refused to the plaintiff his share is no allegation that they claim under a title hostile to the plaintiff.

We, think, therefore, that the judgment should be affirmed, with costs.

O’BeieN and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    CATHARINE H. MITTNACHT, Appellant, v. JAMES J. SLEVIN, Respondent.

      Party-wall agreement — right of one owner to increase the height of the wall.

    A mere recital in a party-wall agreement, made by tlie owners of adjoining premises, that one owner is about to erect a building of a certain number of stories will not of itself prevent such owner from erecting a building of a greater number of stories.
    A “ party-wall agreement ” carries with it the right to each owner to increase the height of the wall, provided such increase can be made without detriment to the strength of the wall or to the property of the adjacent owner; and when such an agreement has been entered into intentionally the rights thereby conferred cannot be taken away by construction or evidence as to intention.
    Appeal by tbe plaintiff, Catharine H. Mittnacht, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 2d day of August, 1892, on a decision rendered at the New York Special Term dismissing the complaint on the merits, with costs.

      John Larhin, for the appellant.

      JB. B. Kenyon, for the respondent.
   Yan Brunt, P. J.:

This action was commenced to restrain the defendant from building a certain party-wall six stories high.

It appeared upon the trial that the parties to the action were the owners of ad joining premises known as Nos. 23 and 25 Spring street. They executed a party-wall agreement, by which, after reciting the ownership of the premises known as 25 Spring street by the defendant, and the ownership of No. 23 Spring street by the plaintiff, and that the defendant was about to erect on his said lot of land a five-story building, it was agreed between the parties that the easterly wall of the building thus to be erected by the defendant should be a party-wall, and should stand half on the land of each of the parties thereto to the whole depth of the lots of said respective parties, and it was provided as follows :

First. That the defendant might, in the erection of his said building, build one-half of the easterly wall thereof on the land of the. plaintiff to the whole depth of the lot, the foundation wall being twenty inches in thickness below the curb, sixteen inches in thickness up to forty feet above, and twelve inches in thickness above that; and that, when the wall should be built and completed, the plaintiff should pay the defendant the sum of $500 in full for her share of the cost of the wall, and said wall should be and remain a party-wall so long as said building should stand, and the plaintiff should have the right to use the wall as a party-wall, on payment being made as aforesaid ; and that, in case of a partial destruction of said wall by fire or otherwise, the same should be rebuilt at the joint expense of each of the parties thereto.

The party-wall was subsequently built, and the plaintiff erected a five-story and the defendant a six-story building. And the question presented is, whether the plaintiff had a right to enjoin the construction of the additional story by the defendant upon his building, it being claimed upon the part of the plaintiff that he is restricted to a five-story building by the terms of the agreement.

We fail to find any such restriction contained in the agreement. It was entirely immaterial what the defendant contemplated at the time of entering into the agreement, in respect to the height of the building which he was about to erect, because the wall being a party-wall, he had the right to increase the height of the wall, provided such increase could be made without detriment to the strength of the wall, or to the property of the adjacent owner. (Brooks v. Curtis, 50 N. Y., 639.) And this has become the established rule in reference to the owners of party-walls in this State. Therefore, unless the agreement contained restrictive words prohibiting the use of the wall for a building of more than five stories in height, the defendant, if he had originally constructed a five-story building, would have the right to put an additional story upon it, unless he endangered the safety of the wall, which is not claimed; Therefore, the recital as to what was contemplated at the time of entering into this party-wall agreement, could not, in any wise, restrict the rights which had been conferred by the active portions of the agreement itself.

We think, therefore, that there was no ground for the interference of the court, and that the defendant had the right to increase the height of the wall as he did.

As to the question upon the construction of the agreement, and the evidence attempted to be introduced for the purpose of showing the intention of the parties, such evidence was entirely immaterial. The agreement is not, in any way, ambiguous; it does not need construction, and, as far as this question is concerned, it is entirely immaterial, as already observed, what was in the contemplation of the parties at the time of entering into the agreement as to the height of the building to be erected. They intended to enter into the party-wall agreement, which they did, and the rights thereby conferred cannot be taken away by construction, or evidence as to intention.

The judgment should be affirmed, with costs.

O’BeieN and Follett,. JJ., concurred.

Judgment affirmed, with costs.


author: YaN BRüNt, P. J.:

text:
    MARY A. ROBINSON (HENRY MOTTET, as Executor, etc.), Respondent, v. ROBERT GOVERS, Individually and as Executor, etc., and Others, Appellants.

      Action for dower — abatement by death of plaintiff — memoi’andum of court nota judgment.

    A memorandum made by a judge, not signed and merely determining bow an order confirming a referee’s report fixing the value of plaintiff’s dower right, after the rendition of a verdict declaring her entitled to dower, should be framed for entry, is not such a final judgment as will prevent an action to recover dower abating by the death of the plaintiff.
    Reargument of an appeal from an order continuing an actipn to recover dower in certain premises, whereof the plaintiff’s husband had died seized, after the death of the plaintiff, in the name.of the executor of her will.
    The action was tried at the New York Circuit in October, 1891, and resulted in a verdict declaring the plaintiff entitled to dower. The plaintiff thereupon moved for an interlocutory judgment awarding her dower, and for a reference to ascertain whether an actual admeas-urement could be had and, if not, for a sale of the premises, at the same time the defendants applied for and obtained leave to pay the plaintiff the gross sum to which she was entitled in lieu of dower, and an order of reference was made to ascertain the amount of such sum.
    On January 22, 1892, the referee’s report was filed fixing the value of the plaintiff’s dower right in the premises.
    On January 30, 1892, a motion to confirm the referee’s report was argued before the justice who had presided at the trial, and on February 15, 1892, this motion was decided in a memorandum, which is set forth in the following opinion.
    On February 18, 1892, at 2.30 p. m., an order was made and entered confirming the report, and directing certain payments to be made by the defendants to the plaintiff in satisfaction of her dower and in payment of costs, as directed by said memorandum; and at 12.10 p. m. on that day the plaintiff died.
    On March 28, 1892, letters testamentary were granted to Henry Mottet, the executor named in the plaintiff’s will. A motion was thereafter made on behalf of the plaintiff for leave to the executor to continue the action and to amend the order of February 18,1892, by providing that the payments therein directed to be made to the plaintiff be made to the executor; this motion was granted and an order was entered accordingly May 13, 1892, which order also embodied an order denying a motion theretofore made by the defendants to set aside the order of February 18, 1892, on the ground that the plaintiff had died before it was entered, and that the action had abated. The defendants appealed from this order of May thirteenth Another appeal was argued before the General Term in June, 1892, and a decision rendered in October following, reversing the order of May thirteenth, and granting the defendants’ motion to vacate the order of February eighteenth. (liobinson v. Govers, 65 Hun, 562.)
    The plaintiff thereupon, with the permission pf the General Term, applied to the justice, who had directed the entry of the order of February eighteenth, for a resettlement and amendment of that order, by inserting therein the said memorandum of decision, together with a statement that the decision was rendered on February 15,1892, which application was granted and the order resettled accordingly.
    The plaintiff thereupon applied to the General Term for a rear-gument of the appeal upon the ground that it did not appear from tbe printed papers originally submitted that the said decision had been rendered February 15, 1892. This application having been granted, the appeal came before the General Term on reargument.

      G. Nathan, for the appellant.

      A. G. Fox, for the respondent.
   YaN BRüNt, P. J.:

Upon the previous argument of this appeal the court held that the order continuing the action should be reversed upon the ground that, by the death of the plaintiff, the same abated. And it is not necessary to rediscuss the questions then considered and determined. But since said argument and decision a motion has been made to resettle the order confirming the referee’s report herein by inserting the following recital therein before the operative part of the order: “And a decision having been rendered herein by Mr. Justice Pat-teesoN on the 15th of February, 1892, in the words and figures following to wit: The motion to confirm the report of the referee is granted, with the modifications hereafter suggested. The plaintiff should he allowed the costs of the action and an extra allowance of $150; costs should not be awarded the defendants, but the guardian ad litem should be compensated, and fifty-five dollars is allowed him. These costs and allowances are not to be charged against the gross sum awarded to the plaintiff, but in the same manner as if the property were sold. The defendants desiring to pay this gross sum must first pay these costs and then deduct them from the whole value of the property as fixed by the referee, and the dower interest may then be calculated for the purposes of final judgment on the balance remaining after such deduction is made. That seems to be the rule in cases in which the property is sold and the proceeds brought into court (Schierloh v. Schierloh, 14 Hun, 572), and it may equitably be made applicable in a case of this kind.”

The question presented is, the plaintiff having died subsequent to the filing of this memorandum by the court, who heard the motion, and before its embodiment in an order, whether the situation has been in any respects changed from that which was presented by the record on the previous appeal.

"We think not. The memorandum in question was not the judgment of the court. It was simply an indication to the parties as to how the judgment to be entered upon the referee’s report should be framed in order that it might be duly entered. This is apparent, if any indication was needed, from the language of the memorandum itself. It is that the plaintiff should be allowed certain things, that costs' should be allowed to the defendant, that the guardian ad litem, should be compensated, that the costs and allowances should not be charged, etc., clearly showing that the court, by the filing of this memorandum, which does not purport even to have been signed by the justice, was merely giving an indication as to how the order upon the motion should be framed, and, when the suggestions of the court were properly embodied in an order, then it directed its entry, which was the fact,, because three days afterwards we find a formal order entered by direction of the court embodying the suggestions of the memorandum. This memorandum clearly was not a final judgment which prevented the action from abating by the death of the plaintiff.

The case of Knapp v. Roche (82 N. Y., 366) holds that the memorandum of a decision handed down by the General Term, although signed by one of the judges, was not a judgment, but it was a mere authority to enter a judgment; that a formal judgment must be prepared, entered in the judgment book and attested by the clerk’s signature and a copy thereof annexed to the appeal papers to constitute the judgment-roll in accordance with the provisions of the Code. So in the case at bar the memorandum in question was not an order; it did not pretend to be an order; it was a mere memorandum determining what should be the form of the order to be entered upon the motion in reference to the referee’s report.

We think, therefore, that the position of the case remains unchanged, and, for the reasons stated in the opinion previously given upon the original appeal, the order appealed from should be reversed with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’BRIEN and Follett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied; with ten dollars costs.


author: Yan Beunt, P. J.:

text:
    JAMES V. S. WOOLLEY, Appellant. v. MARIE FRIEDLANDER, Respondent.

      Contract for the sale of land and a house to he erected thereon — purchaser to pay increase in cost of house hy reason of alterations— taxes and interest on mortgage' during delay in passing title caused hy alterations.

    Where a contract for the sale of a lot of land, and a house to he erected thereon,, provided that the house was to he completed, payment made and title passed on a certain date:

      Held, that a provision therein that the. purchaser should pay any increase in the cost of the house caused hy alterations, did not include the interest which accrued on a mortgage or taxes previously assessed, hut which, hy delay of the tax officials became payable during an extension of the time for passing title caused hy making alterations..
    Appeal by tbe plaintiff, James Y. S. Woolley, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 13th day of October, 1892, in favor of the defendant, dismissing the complaint at the New York Circuit upon the pleadings and the opening of plaintiff’s counsel.

      I. T. Richards, for the appellant.

      B. N. Cardozo, for the respondent.
   Yan Beunt, P. J.:

The plaintiff in this action being the owner of a certain lot of land in the city of New York, entered into a contract with the defendant for the sale to her of said lot of land, with a building to be erected thereon, in accordance with certain plans and specifications. The house was to be completed and payment for it to be made and the deed delivered on September 1, 1887.

This contract contained the following clause: It is further agreed that the purchaser shall have the privilege of altering any of the trimmings or fixtures of said house, provided such alterations do not increase cost of said house, excepting where increase of cost shall be borne by purchaser.”

Certain alterations were suggested by the defendant in consequence of which it was impossible to finish the house by the first ■of September as provided by the contract, and the title was passed ■ on the twentieth of October. The plaintiff claimed that by reason of the delay caused by the alteration the taxes for the year 1887 on the property became due and the plaintiff was obliged to pay them under the contract, also Croton water rent, and also certain interest .had accrued upon a mortgage of $20,000, which interest had not ¡accrued on the first of September, when the time for the completion of the work had arrived. It is claimed that these, under the clause of the contract in question, were items of increase in the cost of the house.

It seems to us perfectly apparent-that no such items were in contemplation of the parties at the time of the entering into of this agreement. The increase of the cost of the house did not apply to taxes and the interest upon incumbrances which were assessed against the land and not against the house, because the house was not in existence at the time the assessment was fixed. And it is further apparent that as far as the taxes were concerned they were not in contemplation of the parties as liable to become liens upon the land after the first of September, because, under the law, if the public ■officials connected with the levying of the tax had performed their ■duties in the time prescribed by statute, such tax would have become u, lien on or before the first Monday of September, in the year in ■question; as the statute requires that on or before said day in each year the board of aldermen shall deliver the assessment-roll to the .receiver of taxes, together with their warrant, directing and requiring him to collect from the several persons named in such rolls the ¡sums set opposite their respective names.

The fact that, by accident, during this year the delivery of the ■•assessment-roll to the receiver of taxes was delayed by the board of ¡aldermen cannot increase the claim of the plaintiff under the terms ■of the agreement which contemplated no such contingency. •

And in view of the agreement itself, which contains no reference to incumbrances upon the property, it may very well be claimed ¡that ’the plaintiff had become liable, because of his ownership of the •property, to the payment of these taxes long before the first day of ¿September named in the agreement, under the principles laid down in Rundell v. Lakey (40 N. Y., 513), and approved In re Babcock (115 N. Y., 450).

We think that the items sought to be recovered in this action cannot, in any sense, be deemed an increase in the cost of the house; but, as already suggested, if they applied to anything, they applied to the land.

There seems to be no reason for disturbing the judgment, and the same should be affirmed, with costs.

O’Beien and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: YaN BbuNt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE STANDARD GAS-LIGHT COMPANY OF THE CITY OF NEW YORK, Appellant, v. THOMAS F. GILROY, as Commissioner of Public Works of the City of New York, Respondent.

      Vested right to lay gas pipes in streets not impaired by chapter 566 of the Laws of 1890 — consent of municipal authorities not requisite.

    The right acquired hy the Standard Gas-Light Company to lay its mains and conductors in all the streets of the city of New York, under chapter 248 of the Laws of 1886, in consideration of its furnishing gas at reduced prices, has not been impaired hy the repeal of that act by chapter 566 of the Laws of 1890 (chapter 40 of the general laws), but is within the saving clause (§ 161) of the latter act.
    The provisions of the general gas-light act, requiring the consent of the municipal authorities for the laying of gas mains and conductors in streets, do not apply to the vested right of the Standard Gas-Light Company to lay its pipes therein, and the commissioner of public works of the city of New York cannot refuse a permit to that company to open the streets of the city to extend its mains on the ground that the consent of the municipal authorities to the laying of such mains has not been obtained.
    Appeal by the relator, the Standard Gas-Light Company, from an order, entered in the office'of the clerk of the city and county of New York on the 14th day of December, 1892, overruling a demurrer to a return to an alternative writ of ma/ndamus, and dismissing the writ.

      Almon Goodwin, for the appellant.

      T. Oonnoly, for the respondent.
   YaN BbuNt, P. J.:

This is an appeal by the Standard Gas-Light Company, relator, from a final order, entered at Special Term, overruling a demurrer interposed by said relator to a return filed by the respondent to an alternative writ of mandamus.

The allegations of the alternative writ of mandamus, so far as they are material to the decision below and to the present appeal, are as follows:

That the respondent is commissioner of public works of this city, with the power of granting permits for opening public streets in the city of New York for the purpose of laying gas mains and conductors.

That the Standard Gas-Light Company, the relator, is a corporation, organized about the month of February, 1886, under the general gas-light act passed February 16,1848, and acts amendatory thereto, and is now engaged in the manufacture and distribution of gas to its customers.

That after the incorportion of the relator, there was passed chapter 248 of the Laws of 1886, entitled “An act to facilitate the supply of illuminating gas in the city of New York at a reasonable price,” by which, among other things, the Standard Gas-Light Company was authorized and empowered to lay conductors and mains for conducting gas in the streets, etc., of this city, and, as a consideration therefor, that the said gas company should file in the office of the comptroller of the city of New York a stipulation that the gas should have an illuminating power of twenty-five candles, and that its price should not.exceed one dollar and fifty cents per thousand feet; that thereafter a stipulation was duly filed by relator, and that relator is now furnishing large quantities of gas for the public lamps of the city of New York at the reduced price fixed by the act, being some twenty per cent less than the price paid by the city to other gas companies, except the Equitable Gas-Light Company.

Yarious allegations of the alternative writs show that the company has expended a large sum of money in the purchase of real estate, gas works, street mains, meters and other necessary appliances of which the cost, in all, up to March 31, 1892, was $8,699,710.39.

That on the 4th of June, 1892, requests were made to respondent for permits to open the streets to lay a twenty-inch main on the. north side of Thirteenth street, commencing at the termination of its present main on the west side of Seventh avenue, and running to the west side of Ninth avenue, and also for permits to enable 'the company to lay two ten-inch mains on Tenth avenue, commencing at its present main on the north side of Thirteenth street, and running to the north side of Eighth street, and for permit to open the necessary streets for laying a continuation of its twelve-inch main on the- north side of Fortieth street, from the west side of Sixth avenue to the west side of Ninth avenue, there to connect with the main already laid in that avenue, the laying of said new mains being necessary to complete the unfinished work, and to make connections between mains theretofore laid by the same company.

The alternative writ further alleges the refusal of respondent to grant the permit; that the fact of the refusal prevents any further extension of the business of the relator.

And the alternative writ further alleges that the rights, etc., granted to relator by chapter 248 of the Laws of 1886, have not been taken away or impaired by any act of the legislature of this State, but have been expressly reserved and confirmed to relator by chapter 566 of the Laws of 1890, and section 36 of chapter 687 of the Laws of 1892.

The alternative writ then contains the usual direction to respondent. To this alternative writ a return was duly filed, alleging, among other things, that, under the terms of chapter 37 of the Laws of 1848, the act under which relator was incorporated, all gas-light companies in the cities of this State could only lay their mains and conductors in streets and highways of said city, with the consent of the municipal authorities, and under such reasonable rules and regulations as said municipal authorities should prescribe, and not otherwise.

That relator has not obtained the consent of the rrmnicipal authorities of this city for the laying of mains and conductors mentioned in the alternative writ herein in the streets, for the opening of which requests were made to respondent, as alleged in the thirteenth paragraph of the alternative writ.

That chapter 248 of the Laws of 1886, which was the act giving to relator its special privileges, ■was repealed by chapter 566' of the Laws of 1890, which took effect May 1, 1891, and that by virtue of sueli repeal relator lost all the rights and privileges granted to it by chapter 248 of the Laws of 1886, and that the same ceased and determined on such day, except as the same had already been exercised by relator in the portions of the city of New York, in which streets and portions of streets had already been occupied by the mains and conductors of relator.

That the relator did not, on the 1st of May, 1891, nor at any time prior thereto, occupy, with its mains, etc., any portion of the street or streets in the alternative writ herein alleged, but that said streets were then and are now outside of the territory and portions of the city of New York occupied by the plant, mains, conductors, etc., of relator.

That respondent has not refused and does not now refuse permission to relator to open any portions of the streets for the work of connection, maintenance and repair, and occupied by the said mains or conductors of relator on the 1st day of May, 1891, but that respondent has refused and does still refuse to grant any permit to extend the conductors or mains of relator into any street or parts of streets not occupied by the conductors or mains of relator on said 1st day of May, 1891.

That the refusal of respondent to grant permits for further extensions is based on the repeal of chapter 248 of the Laws of 1886 as aforesaid, and upon the want of consent of the municipal authorities to relator to make further extensions.

Respondent, therefore, denies that the rights, privileges, etc., of relator have not been abridged or taken away, but alleges that all its rights and privileges, except as to territory occupied by it on the 1st day of May, 1891, ceased and determined on said date. To this return of respondents the relator interposed a demurrer upon the ground that the same was insufficient in law upon the face thereof.

Thereafter upon a hearing at Special Term, the demurrer interposed by the relator to the return of the respondent was overruled, and the alternative writ of mandamus dismissed.

The question presented, therefore, upon this appeal is: Does the relator require the consent of the municipal authorities of this city to lay its mains, conductors, etc. ? This question is to be determined by the interpretation which is to be given to chapter 566 of the Laws of 1890 as amended by chapter 611 of the Laws of 1892.

It is claimed upon the part of the respondent that all the rights and privileges which were conferred upon the appellant by chapter 248 of' the Laws of 1886 were repealed by the said acts of 1890 and 1892. But, by section 161 of the act of 1890 (chap. 566), which immediately follows the repealing clause contained in that act, it is provided that' the repeal of a law or any part of it specified in the annexed schedule shall not affeot or impatr any aot done, or right accruing,, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May first, eighteen hundred and ninety-two, under- or by virtue of any law so repealed, hut the same may he asserted, enforced, prosecuted or inflicted, as fully and to the same extent as-if su,ch law had not been repealed.” And it is urged, upon the part of the appellant, that the right to do the work which it was proposed to. do, had accrued prior to the passage of the act of 1890, and that,, therefore, it came within the saving clause of section 161.

It appears upon an examination of chapter 248 of the Laws of' 1886, that power and authority was given to the appellant to lay conductors and mains for conducting gas through and under all the-streets, avenues and squares and public places of said city, and that, as a consideration therefor, the company should file in the office of the comptroller of said city a stipulation or agreement that all the-gas supplied through such conductors and mains should have a certain illuminating power and that no greater price or charge for supplying the same should be asked or received by the company than at the rate of one dollar and fifty cents per thousand feet; and that all gas supplied by said company for any of the public buildings or offices of the corporation of said city, situated on the line or lines of the conductors and mains of said company, should be furnished at a rate not to exceed one dollar and twenty-five cents per thousand cubic feet; and that said company should supply gas to the public lamps, situated on such line or lines, when required by said city of New York, at a maximum rate not to «exceed twelve dollars and fifty cents per annum for each lamp.

These provisions of the statute were complied with by the appellant and it is now furnishing large quantities of gas for"the public lamps of the city, at the reduced price fixed by the act, being some twenty per cent less than the price paid by the city to other gas companies, except the Equitable Gas Company.

It was in consideration of this reduction in the price of gas that the right was conferred upon the Standard Gas-Light Company to lay conductors and mains through and under all the streets, avenues, squares and public places of said city. They, therefore, by the acts done, had acquired the right to lay these mains under the act of 1886. It was a matter of contract between the people and this gas company, and rights thus acquired it was the evident intention of section 161 of the act of 1890 to leave unmolested.

The claim that it “ is perfectly possible to harmonize the repealing clause and the saving clause by holding that the intention was that no act done, right accrued or liability incurred by the Standard Gas-Light Company prior to the repeal, should be affected thereby, but that since such repeal the company, in the transaction of its business, comes within the provisions of the General Gas-Lght Act, as embodied in the Transportation Corporations’ Law,” is certainly not saving to the appellant any right which it had secured by reason of «the special privileges conferred upon it by‘the act of 1886 in consideration of concessions which it made in respect to the furnishing of gas to the public at large and to the municipality. It would be a •curious anomaly in the law', if concessions made in view of rights conferred, could be insisted upon and a large portion of the rights taken away.

It seems to ns, therefore, in view of the character of the legislation by which the rights enjoyed by the appellant were conferred upon it and the express reservation of vested rights by section 161 •of chapter 566 of the Laws of 1890, that there was no intention, upon the part of the legislature, to interfere with the powers which had been conferred of a character such as those enjoyed by the appellant. The construction claimed by the respondent would .strip the appellant of a very large portion of the powers conferred upon it and which were the inducement for ' the stipulation in respect to the price of furbishing gas which the appellant entered into. Under these circumstances it does not seem to us that the provisions of the general act, in respect to the consent of the municipal authorities, were intended to apply to rights vested as those of the appellant were.

It is undoubtedly true that the commissioner of public works has under the provisions, even of the act of 1886, certain regulating and controlling powers over the opening of the streets and the conduct of this work, but we do not understand that the refusal to grant the permit asked for bj the appellant was based upon any such power, but simply because the appellant had no right to open any street without the consent of the municipal authorities, and that wdthout the consent of the municipal authorities of the city, other than the commissioner of public works, he has no authority to grant the permit asked for.

We being of the opinion that this additional limitation was not intended to apply to the rights which had accrued to the appellant, it follows that the writ of mandamus should have issued as prayed for by the appellant.

The order should be reversed, with costs, and the demurrer sustained, and the peremptory writ issue, unless the respondent desires to withdraw demurrer and traverse the alternative writ which it may do upon payment of costs.

O’BRIEN and Follett, JJ., concurred.

So ordered.