text:
    Rosell C. Collis, Respondent, v. Martin V. B. Bull and Others, Appellants.

      M'ror in the reception of evidence — when cured,.

    An error in receiving in evidence, under the objection of the defendant, tlie books of a corporation, is cured by the finding of the referee before whom the action was tried, that the balance of the account, for the purpose of showing which such books’ were introduced in evidence, was as testified to by the defendant.
    Appeal by the defendants, Martin V. B. Bull and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 3d day of March, 1893, upon the report of a referee directing judgment to be entered in favor of the plaintiff.
    It was found by the referee that on the 2d of June, 1891, the plaintiff; was the owner and in possession of a certain note and trust deed executed by Edward "Werner for $3,700, upon which at that time there was due seventy-four dollars of accumulated interest; that the note and trust deed were dated August 1, 1890, and bore interest at six per cent, payable semi-annually, and that the plaintiff held a proper assignment of the same executed in blank, so that title to the same could be transferred to such person as plaintiff might choose ; that on the 2d or 3d of June, 1891, the plaintiff delivered to the defendants the said note and trust deed and the said assignment, and such delivery was made to defendants as plaintiff’s agents, and for the purpose of immediate sale for plaintiff, and they were requested to pay over the avails thereof to the plaintiff when the said securities were sold; that thereafter, and prior to the sale thereof by defendants, the plaintiff demanded of the defendants the return to him of said securities, but the defendants neglected and refused to return the same to plaintiff; that on or about September 9, 1891, the defendants sold and transferred the same, and received the avails thereof, being then the sum of $3,835.66, and have retained and still do retain the same; that after the sale by defendants and before the bringing of this suit the plaintiff demanded of defendants the said avails, but the defendants have neglected and refused to pay the same, or any part thereof.. Judgment was ordered for $3,835.66, with interest from September 9, 1891. This suit was commenced December 28, 1891.

      Hale c& Bulkeley, for the appellants.

      Eclmtmcl J. Wager, for the respondent.
   Merwin, J.:

The recovery in this case is for the amount of a note and trust deed or mortgage executed by Edward Werner on August 1, 1890, for the sum of $3,700 to the Western Farm Mortgage Trust Company. This note and deed were executed in and according to the laws of the State of Colorado and constituted a valid security in the hands of the company for the amount thereof. This security, which is called in the papers the Werner mortgage, was, on or about April 1, 1891, duly sold and transferred by the trust company to one Goodwin. The assignment from the company in proper form was in blank. On the 2d of June, 1891, the plaintiff, as he claims, purchased this security of Goodwin and became the owner thereof, and at that date or soon thereafter placed it in the hands of the defendants for sale for his benefit, and that thereafter they, upon demand, refused to return it to plaintiff, but on or about the 9th of September, 1891, sold and transferred the same and received the full amount thereof and refused to pay the same or any part thereof to plaintiff.

The defendants admit that they received and sold the security and received the avails, but they claim that the plaintiff never became the owner of the security; that he, in the purchase from Goodwin, acted as the agent of the trust company, and that the defendants when they sold it also acted as agents for the same company and have accounted to it for the avails by giving it credit therefor in their account with it.

The referee has found that the plaintiff was the owner of the note and mortgage at the time they were placed by him in the hands of defendants. This finding, the defendants say, is against the weight of evidence.

The plaintiff testifies, and he is corroborated somewhat by the evidence of Mr. Goodwin, that on the purchase from Goodwin he used entirely his own means. There is evidence that the plaintiff undertook the purchase for the accommodation of the defendants, and finally completed it upon the assurance of the defendants that they had a customer ready to take it so that he would be immediately reimbursed for what he had to pay in order to obtain it. The customer of defendants failed to take the security and the defendants refused to return it to plaintiff or pay him for it. There is evidence that the plaintiff was willing to settle with the defendants upon the basis that the trust company would give him credit for the amount. This, however, it did not do. If the transaction between plaintiff and Goodwin was one that the company might, if it chose, ratify and take the benefit of, it did not apparently do so. It is found upon the request of the defendants that the security is not charged to plaintiff upon the books of the company. This would seem to indicate that the company did not regard itself as interested in the matter, but considered the transaction as entirely a matter between the plaintiff and defendants. An inference to this effect is warranted by the evidence.

"We are of the opinion that the evidence justifies the conclusion that, as between the plaintiff and the company, the plaintiff was the owner of the security.

The only other question of fact, important to be considered, is whether the referee erred in refusing to find that the defendants after receiving the Werner mortgage, and prior to September 5, 1891, made advances to the trust company upon the faith of this mortgage and in the belief that the company owned it.

It is admitted that on the fifth of September, and before the defendants in fact received the proceeds of the sale, they were distinctly notified by the plaintiff that he owned the mortgage. The plaintiff testifies that on or about the first of July he told one of the defendants that he owned the mortgage and demanded its return or pay for it. On the thirteenth of June the plaintiff wrote the defendants asking them to accept his draft on them for the amount of it. On the sixteenth of June they wrote the plaintiff declining to accept the draft on the ground that the mortgage was not sold. It is very clear that from the start the defendants knew' or had good reason to believe that the plaintiff 'claimed the entire proceeds of the mortgage, and that he insisted on this claim unless the company would in effect pay him. If so, the defendants are not in a position to say tbat they in good faitb made advances in ignorance of plaintiff’s rights. Whether the plaintiff ever in effect gave np this claim and agreed to look only to the company for reimbursement, or induced the defendants to believe that he had, or whether the defendants ever in good faith made any advances on such belief, were at least questions of fact. We are not persuaded that the action of the referee upon the requests on the subject is against the evidence. It is to be observed that in the answer no advances are claimed.

Our attention is called to a number of exceptions to the admission or rejection of evidence, but we find no material error. A letter from plaintiff to defendants, dated September 12, 1891, was received in evidence. This was in answer to a letter of defendants to plaintiff, dated September eleventh, and was a part of the correspondence between the parties in relation to the subject in controversy. The error, if any, in receiving evidence of what the books of the trust company showed as to the state of the account between the defendants and the company, was cured by the finding of the referee that the balance of the account was as testified to by the defendants. A letter from the company to defendants, dated September 21, 1891, was received in evidence. This was in answer to the report which the defendants made to the company of the sale and credit of the Werner mortgage. The defendants claimed as against plaintiff some rights by reason of the transaction between the defendants and the company as to such report and sale. The letter of the company was a part of such transaction. The letter of September 22,1891, was a continuation of the same matter and contains nothing material. The-letter of October 3, 1891, from the company to plaintiff, if not strictly competent, was harmless. It states the position of the company substantially as it was stated in the letter of the company to defendants of September twenty-first. The report of the plaintiff to the company of April 5, 1891, was properly received. An issue at that stage of the case had been raised as to whether the plaintiff had settled with the company in regard to a transaction about April first. It was proper to show the report made as a part of that transaction.

The letter of the company to defendants' of date July 6, 1891, offered by the defendants and excluded, was not communicated to the plaintiff. Nor, according to the evidence of the defendant Bull, did the plaintiff agree to leave to tbe company the question of reporting the Werner mortgage, which is the matter discussed in the letter. Besides, it cannot very well be said to be material in view of the fact that in a letter written by the company on July twenty-eighth, and put in evidence by defendants, the company say they have never fully understood the situation with reference to the Werner mortgage. The letter from the company to defendants, dated August 11, 1891, was offered only for the purpose of shoving that the company received the requests, of the defendants to have the Werner mortgage credited to plaintiff and assented to it. The letter of defendants to the company which contained such requests, if any, was in evidence, and showed what the request was. It was shown to have been sent to the company and answered. The answer which the defendants offered was never communicated to the plaintiff. Besides, it did not assent to the credit to plaintiff of the mortgage, and the uncontradicted evidence is that the plaintiff was never credited with it.

The question was asked the defendant Bull whether in case of transfer of securities from one agent to another in the course of the business of the company it .was the uniform custom for the agent receiving the security from another agent to report direct to the home office and not to the agent from whom he received it. This, upon objection of plaintiff, was excluded. The course of business, however, between the plaintiff and the defendants on the subject was fully gone into. The issue in the case was not how the business of the company was done, but whether the transaction in question" in reality ever was the business of the company. The custom, therefore, as to company affairs was not important. Besides, the plaintiff himself, in his testimony previously given, had stated that it was customary in case of transfers from one agent to another for the agent who made the sale to report directly to the company whenever the property belonged to the company. This gave the defendants all they could reasonably ask on the subject. The exclusion of the report in the form of an account rendered by defendants to the company was not important as the substance fully appeared in the case.

Upon an examination of the whole case we are satisfied that no error prejudicial to the defendants’ rights was committed in the rulings upon evidence. (McLean v. Manhattan R. Co., 117 N. Y. 219.)

The judgment should be affirmed.

HakdiN, P. J., and MaetiN, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    In the Matter of Proving the Last Will and Testament of Elizabeth W. Clark, Deceased. Frank A. Place, Petitioner and Appellant, v. Ezra Clark and Others, Respondents.

      Evidence of a subscribing witness to a will living out of the State — riohen taken— Oode of Civil Procedure, § 2620.
    Section 2620 oí the Code oí Civil Procedure, as amended by chapter 608 of the Laws of 1888, does not require the evidence of a subscribing witness to a will, absent from the State, to be taken before the probate thereof, unless it is demanded by a party to the proceedings.
    Appeal by the petitioner, Frank A. Place, from a decree of the Surrogate’s Court of Oswego county, entered in the office of the clerk of the Oswego -County Surrogate’s Court on the 2d day of November, 1893, refusing probate of an instrument alleged to be the last will and testament of Elizabeth "W. Clark, deceased.

      D. P. Morehouse, for the petitioner, appellant.

      G. PT. Bulger, for the respondents.
   Merwin, J.:

In this case it appea.red that one of the subscribing witnesses was absent from the State, but that her place of residence out of the State was known, and her evidence could be taken by commission. It was not so taken. Upon the evidence, in fact, given, it was found by the surrogate that the will was duly executed in the manner required by law, and that the testatrix at the time of executing it was in all respects competent to make a will, and not under any restraint. Probate was, however, refused, “ upon the sole ground that the court bas no power or jurisdiction to admit said will to probate without causing the testimony of said absent witness to be taken by commission out of the State, as required by sections 2619 and 2620, Code of Civil Procedure.”

The provisions of section 2620, as it stood prior to 1888, would probably justify the conclusiqn of the surrogate that it was necessary to obtain the evidence of the absent witness. That section, however, was amended by chapter 508 of the Laws of 1888, and as it now stands it does not require the evidence of the absent witness to be taken, unless it is asked for by one of the parties. In the present case it was not asked for by any of the parties, and there was, in fact, no opposition to the proof of the will. We think that the surrogate erred in refusing to admit the will to probate.

It follows that the decree should be reversed, and the proceedings be remitted to the Surrogate’s Court with directions to admit the will to probate. (Matter of Will of Martin, 98 N. Y. 193.)

HaediN, P. J., and MaetiN, J., concurred.

Decree reversed, with costs to appellant, payable out of the estate, and proceedings remitted to Surrogate’s Court with directions to admit the will to probate.


text:
    The People of the State of New York, Respondent, v. Milton W. Doxtater, Appellant.

      Title to land under the water of a lake, and exclusive right of fishing therein— ownership of fish therein —when the exclusive right of fishing is subordinate to the regulations of the Legislature — chapter 141 of the Laws of 1886.
    The ownership in fee of the land under the water of a 'lake, and of the exclusive right of fishing therein, does not necessarily carry with it the ownership of the fish in such lake. The property in the fish does not vest until they are brought so far into possession by the aid of nets or other means that they cam not escape.
    Where the waters of a lake connect directly with the water of a river emptying into Lake Ontario, in which the public has an interest, the exclusive right of fishing in such lake which the owners thereof have is subordinate to the regulations to be prescribed by the Legislature for the general good.
    The Legislature had power to pass chapter 141 of the Laws of 1886. Such act is constitutional, does not apply only to public waters, and the provisions thereof apply to “Perch lake” which directly connects at all seasons of the year with a river of considerable size that empties into Lake Ontario. The subject covered by such act is a single one and its title is sufficiently specific.
    Appeal by tlie defendant, Milton W. Doxtater, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie clerk of the county of Jefferson on tlie 29th day of May, 1893, upon tlie verdict of a jury for fifty dollars, rendered by direction of tlie court after a trial at the Jefferson County Circuit, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

      Lansing i& Lansing, for the appellant.

      Yirgil K. Kellogg, for the respondent.
   Merwin, J.:

By chapter 144 of the Laws of 1886, entitled “ An act to prevent taking fish from the waters of Lake Ontario adjacent to the shore of Jefferson county, or from the inland -waters of said county, by other means than angling,” it is provided that “No person shall at any time kill or take from the waters of Henderson bay or Lake Ontario, within one mile from the shore, between the most westerly point of Pillar Point and the boundary line between the counties of Jefferson and Oswego, or within one mile from the shore of any island in'Lake Ontario which is a part of Jefferson county, except Grenadier Island and Pox Island, or from the waters of any creek, lake or river, or inland waters in the county of Jefferson, any fish of any kind by any device or means whatever, otherwise than by hook and line or rod held in hand.” A penalty of fifty dollars was imposed for the violation of any of the provisions of the act.

In the complaint it is alleged that on or about-December 1, 1891, in violation of said act, tlie defendant, by means of a net, did kill and take from Perch lake, which is one of the inland waters in the county of Jefferson, six pickerel, six rock bass and six bullheads.” In the answer the killing and taking from Perch lake is not denied, but it is denied that Perch lake is one of the inland waters in the county of Jefferson within the meaning of the act, and it is alleged that Perch lake, and the land under it, and the waters and the fish in it, are the absolute property of George H. Sherman and others, under whose authority the defendant acted in taking the fish, and that they had the right to take the fish by nets or otherwise as they desired.

Perch lake is situated in the county of Jefferson, and is about two and a half miles long and fro,p. half a mile to a mile wide. Its outlet is Perch river. This is twenty to thirty feet wide and from three to six feet deej) and extends a distance of about eight miles to Black River bay which goes into or is part of Lake Ontario. The course of Perch river is very crooked and the descent is about a foot to the mile. Near the bay there are .falls from fifteen to twenty-five feet high, mainly perpendicular. There is evidence tending to show that fish cannot go up these falls, but there is nothing to prevent fish going down from Perch lake through Perch river over the falls into Lake Ontario. There are numerous landed proprietors along the line of Perch river. The inlet of Perch lake is Ilyde creek which is the outlet of Hyde lake some mile^ above. There is evidence tending to show that in the summer season, and especially in a dry time, Hyde creek, at its entrance into Perch lake, dries up or loses itself in the swamp, so that fish would not be able to pass up or down. » At other seasons of the year the water is sufficient for the passage of fish, and it was shown that fish to some extent 'were accustomed to inhabit Hyde creek and Hyde lake.

It is conceded by the plaintiff that those under whom the defendant claims hold the title in feo of the land under the waters of Perch lake and that they have the exclusive right of fishing in the lake. It does not follow from this that they are the owners of the fish in the lake. Their property in them does not vest until they are within their power and the possession so far established by the aid of nets or other means that they cannot escape. (2 Kent’s Com. 349; Pierson v. Post, 3 Caines, 175; Buster v. Newkirk, 20 Johns. 75.) The fish in Perch lake were not under the control of the owners of the land. They could at all seasons go at pleasure down Perch river and into Lake Ontario, and during most of the time could pass up Hyde creek. The case of Fleet v. Hegeman (14 Wend. 42), cited by the counsel for defendant, does not apply. There it was held that oysters, planted by an individual in a bed, clearly designated and marked out in a bay or arm of the sea, which is a common fishery to all the inhabitants of the town in which the bay is situated, are the property of him who planted them, and trespass lies for any interference with them by another. They had been reclaimed by the plaintiff and distinctly designated according to usage, and were substantially in his possession and under his control.

Had the Legislature a right to regulate the manner in which the owners of the land should catch the fish ? The argument on the part of the defendant is that the present owners have all the rights conveyed by the State in the original patent to Penet; that in that there was no reservation of any right to control the manner of fishing ; that, therefore, no such right in the State now exists, and its attempted exercise by the statute in question is in violation of that part of the Constitution which provides that no person shall be deprived of his property without due process of law.

To sustain tiffs view the case of The People v. Platt (17 Johns. 195) is cited. In that case it was held that a party, who held by patent from the State an absolute title, without restriction in the use or reservation, of both sides of the Saranac river for a distance of seven miles from Lake Champlain, had the right to erect and maintain at or near the mouth of the river a mill dam, although it operated to prevent salmon from going from the lake up the river, and that an act of the Legislature, passed after the patent, which required slopes to be made in mill dams of the character of defendant’s so that salmon might freely pass over the dam, did not affect defendant’s'rights and as to them was unconstitutional. It was also held that the public had no right of fishery in the river within the bounds of the patent, it not being a navigable river.

In Hooker v. Cummings (20 Johns. 91) it was held that the owner of the adjacent land had the exclusive right of fishing in fresh water rivers, although in fact navigable and subject in that respect to a public easement. In this case it is said by Chief Justice Spencer: “The Legislature have, confessedly, the right of regulating the taking 'of fish in private rivers, and do every year pass laws for that purpose, as to rivers not navigable in any sense, and which are unquestionably private property.” The opinion in the Platt case was delivered by the same judge, and it is very clear that the ruling in that case was considered to be consistent with the conceded rule stated in the later case.

A large number of acts on this subject which were in existence at the time of the adoption of the Revised Statutes, and in many of which the power here challenged was exercised, will be found in volume 3 of the Revised Statutes (1st .ed.), commencing at page 318. By section 15 of title 11, chapter 20, part 1 of Revised Statutes, power was given to the Courts of Common Pleas in the several counties of the State “ to regulate the fishing in any of the streams, ponds or lakes in their respective counties; and to make such order and rule to prevent the destruction of fish therein as they shall deem proper.” A similar power was given to boards of supervisors by subdivision 13 of section 4 of chapter 194 of the Laws of 1849. Numerous laws in the same line have been since passed. By chapter 721 of the Laws of 1871, entitled “An act to amend and consolidate the several acts relating to the preservation of moose, wild deer, birds and fish,” it was, among other things, provided that no one should have in his possession after the same was killed any quail within certain dates of the year under a penalty of twenty-five dollars. This was held to be legal and that the Legislature had full power to pass the act although the quail were killed at a time when by the act the killing was not prohibited, or were brought from another State where there was no such prohibition. (Phelps v. Racey, 60 N. Y. 10.) In that case it is said by Church, Ch. J., at page 14: The protection and preservation of game has been secured By law in all civilized countries, and may be justified on many grounds, one of which is for purposes of food. The measures best adapted to this end are for the Legislature to determine, and courts cannot review its discretion. If the regulations oj>erate, in any respect, unjustly or oppressively, the proper remedy must be applied by that body. Some of the provisions of the act in question might seem, to one unversed in the mysteries of the subject, to be unnecessarily stringent and severe, but we cannot say that those involved in this action are foreign to the objects sought to be attained, or outside of the wide discretion vested in the Legislature.”

The logic of that case would seem to sustain-the law in question. The waters of Perch lake co2inected directly with the waters of Perch river and Lake Ontario, in which other parties and the public had an interest which was entitled to protection. The exclusive right of fishing which the owners of the lake had was in subordination to the regulations to he prescribed .by the Legislature for the general good. (3 Kent’s Com. 418.) This was the rule at common law. (See chap. 5 of Lord Hale’s treatise De Jure Maris, 16 Am. Kep. 58.)

A similar question has been considered in other States. In Gentile v. The State (29 Ind. 409) a statute was under consideration which declared it to be unlawful to trap, net, shoot or sein fish, in any of the lakes, rivers or small'streams, within this State,” for the period of two years from the time the act took effect, and at all times thereafter within certain days of the year. It was claimed that the Legislature had no power to pass a law denying or abridging the right of the People of the State to fish in their own waters and upon their own soil at pleasure; that the landowners derive titles from the United States and their grants include all unnavigable streams of water passing over their lands, with the exclusive right to fish therein within their own boundaries, and that this right to fish may be exercised at all times at the will of the landowner, and is not subject to be controlled, restrained or abridged by the Legislature. This claim and argument were refuted by the court and the law declared to be constitutional. A like view is taken in many other Indiana cases. (See State v. Lewis, 33 N. E. Rep. 1024.)

In State v. Roberts (59 N. H. 484) a person was held liable for catching fish in the prohibited season from water within his own land, and it was said that “ the fact that the fish were in water surrounded by the defendant’s land, unless the water was so inclosed as to be absolutely within his control, and the free passage of the fish to aud from it was entirely and rightfully obstructed, gave him no more property in them than he would have obtained in a wild deer that came upon his land, or a wild bird that might have alighted upon it.” (See, also, State v. Roberts, 59 N. H. 256; Vinton v. Welch, 9 Pick. 87; Com. v. Look, 108 Mass. 456 ; 8 Am. & Eng. Ency. of Law, 34.)

In The People v. Bridges (142 Ill. 30) the defendant was prosecuted for the violation of an act that declared it to be unlawful for any person to catch or kill any fish with any seine “ in or upon any of the rivers, creeks, streams, ponds, lakes, sloughs, bayous or other watercourses wholly within or running through the State of Illinois,” witli some exceptions not important to be bere stated. The fishing bj defendant was in a small lake entirely on the land of one Miller, who authorized the defendant to fish. The lake was a short distance from the north fork of Sangamon river, which was not a stream or river used for navigation. During high water in spring and fall, the waters of the lake were connected with the waters of the river, this connection lasting at times for a period of several days or weeks. When there was no high water in the river, the lake was entirely shut in, and its waters did not mingle at all with the waters of the river. The fishing was in the month of July. It was held that the act was constitutional and valid, and that the defendant was liable. It was also held that the lake was within the statute, although the expression other watercourses ” was used in it.

It must be held, we think, that the Legislature had the power to pass the act in question, and that it does not infringe upon any constitutional rights of the defendant.

It is further urged by the defendant that the act only aj>plies to and affects the public waters of the State, and does not apply to a body of water, like Perch lake, which is entirely on land owned by private individuals. The act is in its terms certainly broad enough to cover Perch lake. It includes any creek, lake or river, or inland waters in the county of Jefferson.” There is no indication of any intention to exclude a body of water like Perch lake, which directly connects at all seasons of the year with a river of considerable size which empties into Lake Ontario. It is very clear, especially in view of the current legislation on the subject, that the object of the law wouljd not be attained by applying it simply to public waters. There is no such basis for an implied reservation as there was in People v. Platt (supra), upon which defendant relies.

The defendant further claims that the act in question, if construed to cover private as well as public waters, covers two subjects, and is, therefore, in violation of the provision of the Constitution which requires that no local bill shall embrace more than one subject, and that shall be expressed in the title. No distinction is made in the act between public and private waters. The subject is a single one and that is the prevention of fishing in certain waters by other means than angling. The title is sufficiently specific. (Neuendorff v. Duryea, 69 N. Y. 557; Astor v. Arcade R. Co., 113 id. 110.) This objection to tlie act is not, we think, well taken.

These considerations lead to an affirmance of the judgment.

Hardin, F. J., and Martin, J., concurred.

- Judgment affirmed, with costs.


text:
    Nicholas S. Mundy, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Damages for injury io real property — culvert traversing tlie overflow bed of a riverr — extraordinary flood — statute justifying an injury to private property — powers of a railroad corporation — allegation of a nuisance.

    In an action brought to recover damages for injuries to property alleged to have been sustained by a flood which, by reason of the defendant’s embankment being an obstruction to the course of a river, and on account of the culvert therein being insufficient to carry off tlie water, caused the plaintiff’s land to become flooded, where the evidence as to tlie cause of the flood is contradictory, a question of fact is presented to be determined by the jury.
    The party constructing a dam should construct it in such a manner as to resist such extraordinary floods as may be reasonably expected occasionally to occur, and it is a question for the jury to determine whether a flood of an extraordinary character was such that it should have been anticipated and provided against. The same principle applies as to the construction of a culvert'in an embankment traversing the overflow bed of a river.
    Statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury; and where the terms of a statute giving authority to a railroad corporation are not imperative but permissive, it does not confer license to commit an act which would otherwise be a nuisance, although what is contemplated by the statute cannot be done without so doing.
    The powers granted to a railroad corporation are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights, and under the same responsibility as though the acts done in execution of such powers were done by an individual.
    When the complaint in an action alleged the obstruction by a railroad of the natural course of the water of a river by a culvert, and the insufficiency of the culvert, whereby water was thrown upon the plaintiff’s property tc his injury, a nuisance is in substance alleged, and if it be shown that one in fact existed, there is no statutory authority to relieve the defendant from the consequences thereof.

      Appeal by tbe defendant, Tbe New York, Lake Erie and Western Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of Chemung on tbe 15th day of May, 1893, upon tbe verdict of a jury for $1,400 after a trial at the Chemung County Circuit, and also from an order made at the Chemung County Special Term and entered in tbe office of tbe clerk of tbe county of Chemung on tbe 5th day of May, 1893, denying tbe defendant’s motion for a new trial upon a case and exceptions.

      F. G. Sprague, and D. G. Robinson, for tbe appellant.

      Frederick Oolli/n, for tbe respondent.
   Merwin, J.:

This action is brought to recover damages sustained by tbe plaintiff by reason of a flood occurring on tbe 1st day of June, 1889. At that date, and for many years prior thereto, tbe plaintiff owned a farm situated on tbe northerly side of Chemung river in tbe town of Big Flats in tbe county of Chemung. This farm extended from tbe river northerly across tbe valley, a distance of about a mile. Through tbe farm and along tbe valley and some distance from the river, tbe railroad of tbe defendant passed in a direction easterly and westei’ly. Tbe track was laid upon an embankment which was above tbe surface of tbe ground, and extended substantially straight, westerly to East Corning station, a distance from plaintiff’s farm of about a mile and a half. Tbe general direction of the river in that locality was from tbe west easterly. At East Corning station it came from tbe southwest, and ran near to tbe railroad embankment. It there made a sharp curve to tbe east and south, and thence it ran easterly beyond plaintiff’s farm. Tbe railroad was originally constructed by tbe New York and Erie Railroad Company in 1849. In 1861 it passed into tbe bands of the Erie Railway Company, and in or about April, 1878, tbe defendant became tbe owner.

In the complaint it is alleged that tbe embankment which tbe defendant maintained upon its lands in tbe vicinity of tbe farm of plaintiff was an obstruction to the course of tbe waters flowing naturally in and from tbe Chemung river in times of high water or freshets; that tbe Chemung river is and always has been subject to freshets and to a rise in tbe -waters in tbe vicinity of plaintiff’s farm, and prior to tbe building of snob embankment sucb waters passed west and north of plaintiff’s farm; that some distance west of plaintiff’s farm tbe predecessors of defendant placed in tbe embankment a narrow culvert which was wholly insufficient for tbe passage of tbe waters of tbe river in times of floods or freshets, and that this was maintained by tbe defendant with notice that it was insufficient, and that by reason thereof the waters would be liable to pass along down on tbe southerly side of tbe embankment to tbe plaintiff’s farm and to bis injury; that in June, 1889, at the time of a rise and freshet in the waters of tbe river, tbe waters of tbe river overflowed its banks and came against tbe embankment, and then by reason of tbe embankment and tbe insufficiency of tbe culvert, were turned from their natural course and came down on tbe southerly side of tbe railroad to tbe plaintiff’s farm, injuring tbe farm and tbe personal property thereon to tbe extent of $1,400; that prior to this time the plaintiff notified tbe defendant that tbe embankment and culvert were a nuisance, and liable in time of floods to cause great injury.

Tbe defendant, in its answer, among other things, denied tbe insufficiency of tbe culvert, and alleged that tbe railroad was constructed and is maintained in a careful, skillful and proper manner.

From tbe evidence it appears that about a mile westerly of tbe plaintiff’s farm, tbe embankment of tbe railroad passed over a considerable depression in tbe natural surface of tbe ground. This extended several hundred feet, the height of tbe embankment above tbe surface ranging from ten to four or five feet. In tbe embankment over this depression there was a culvert seventy-four feet wide with a pier in tbe center. This depression started at tbe bank of tbe river near tbe station at tbe point where tbe river came up and curved to the east and south. It was at tbe river about forty rods wide and extended beyond tbe railroad embankment northeasterly. Tbe culvert was placed at right angles to tbe embankment so that tbe waters as they came down tbe depression or channel were required to turn northwardly in order to pass through. This depression was described by several witnesses as being tbe flood channel or watercourse with well-defined banks, which at times of ' floods would taire the overflow of the river at the curve and carry it northeasterly beyond the locality of the railroad embankment, and thence eastwardly until it reached Big Flats or Gardner’s creek, and thence passed to the river below the plaintiff’s farm. The overflow at times was said to constitute a good-sized river.

At the place on the river bank where this flood channel started, for the purpose apparently of stopping to some extent the overflow at that point, a dyke or embankment along the bank of the river for about fifty rods had been constructed in 1851 by the predecessor of defendant and another one in 1866. This in 1886 had become dilapidated, and at that time it was that the plaintiff notified the officers of the defendant that with the dyke in that condition the culvert in the railroad embankment would not in case of flood carry, off the water, but that it would be thrown by the embankment onto the lands on the south side of the track and pass on down to the farm of plaintiff. It had done so to some extent at a flood in 1865 and the defendant was so informed.

The flood on June 1, 1889, was an unusual one. There had been similar floods in 1865 and in 1833, but not so large. There is no question about the plaintiff’s property being in fact flooded and injured, and the question is whether the defendant is responsible for the injury.

The plaintiff at the trial claimed and gave evidence tending to show that the waters which came down upon and injured him came from the Chemung river at the curve where the dyke had been placed, and then passed down in the flood channel to the railroad embankment, where, by reason of the inadequacy of the culvert in position and size to afford passageway, they were turned eastwardly and along the south side of the railroad and passed down to plaintiff’s farm, and that if the passageway at the culvert had been adequate the waters would have passed off to the north and east and his injury been avoided. The defendant claimed and gave evidence tending to show that the waters which injured plaintiff did not come from the river at the dyke, and were not cast upon the plaintiff by means of the embankment or want of passageway at the culvert, but were waters that flowed over onto plaintiff from other portions of the river, and were waters that were set back by reason of the waters of the river being dammed up at a gorge about three miles below, and that tlie flood was so liigli that the plaintiff would have been overflowed just as much had there been no embankment at all over the flood channel at the culvert. Whether the claim of the plaintiff or that of the defendant was correct was upon the evidence a cpiestion of fact and in effect was found in favor of the plaintiff. The evidence warranted the finding.

The defendant, however, claims that upon the undisputed evidence, the flood was so extraordinary that it should be said as matter of law that the defendant was not liable.

In The Mayor, etc., v. Bailey (2 Den. 433, 441) it was said by the chancellor that a party constructing a dam should construct it in such a manner as to resist such extraordinary floods as might have been reasonably expected occasionally to occur. This rule was approved in Gray v. Harris (101 Mass. 492), and it was there held that it was a question for the jury whether a flood of an extraordinary character was such that it should have been anticipated and provided against. A like view is taken as applicable to a case like the present one in The Ohio & Miss. R. Co. v. Ramey (139 Ill. 9); Same Co. v. Thillman (143 id. 127); Railway Company v. Pomeroy (67 Tex. 498); Borchardt v. The Warsau Boom Co. (54 Wis. 107). In Hartshorn v. Chaddock (135 N. Y. 116, 120) a recovery was sustained for damages from a flood occurring at the same date as in the present case, although the defendant claimed it was so extraordinary and unusual as to be deemed an act of God, it appearing that though the freshet was unusual with respect to the volume of water, yet that similar ones, but of less power, have occurred in the past and are liable to occur in the future.

The flood of 1889 was higher than ever before, but similar ones had occurred in 1833 and in 1865, and numerous others not so large. It was shown that the river for many years prior to 1889 had been subject to sudden variations and heavy rises, and that there had been a steady increase in the floods, and that they rose quicker in later years than formerly.

We think that it should not be held that the flood was so extraordinary that the defendant was relieved from all liability.

It is further claimed by the defendant that it was authorized by law to construct its road upon its own land and is not liable under the rule laid down in Moyer v. N. Y. C. & H. R. R. R. Co. (88 N. Y. 351). In that case damages bad been awarded to the plaintiff as baying been caused by the raising of the bed of defendant’s road. It was said that there was no proof that that cause contributed in any way to the damage; that the defendant was authorized by law to construct its road upon its own land, and if it constructed it in a skillful and proper manner it could not be made responsible to persons receiving incidental or consequential damages; that there was no allegation or proof that it was unskillfully or improperly done, but it was found that the embankment was built in a workmanlike and skillful manner, and the case of Bellinger v. R. R. Co. (23 N. Y. 47) was referred to as sustaining the position that the defendant was not liable for consequential damages to any persons caused by the necessary and proper elevation of its roadbed, not in a channel of a stream, but on its own land. In the Bellinger case, which related to the same railroad as the Moyer case, it was said that the defendant was liable only on the basis of negligence. The Bellinger case was considered in the case of Cogswell v. N. Y. N. H. & H. R. R. Co. (103 N. Y. 10), and it is there said that the ruling in the Bellinger case was based on the fact that the company was authorized by statute to construct its road across the creek at the point where it was located, and that it, therefore, was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the statute authority. The Cogswell case was an action for damages for a nuisance in the maintenance of an engine house, and it was held to be no defense that it was necessary for defendant to have its engine house located where it was or that in the management thereof it exercised all practicable care. The rule was laid down that the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury; that where the terms of a statute giving authority to a railroad corporation are not imperative, but permissive, this does not confer license to commit nuisance, although what is contemplated by the statute cannot be done without. In Morton v. Mayor, etc. (140 N. Y. 207), a similar view is taken. In Booth v. R., W. & O. T. R. R. Co. (140 N. Y. 272) it is said to be now tlie settled doctrine in tbis State tliat tlie powers granted to railroad corporations are to be construed as privileges conferred, but upon tlie understanding tliat they shall be exercised in strict conformity to private rights, and under the same responsibility as though the acts done in execution of such powers were done by an individual.

In the present case no statute authority is shown to relieve the defendant from the consequences of a nuisance, if oné in fact existed, or to require the plaintiff to base his action on negligence simply. In the absence of such authority the ordinary rule of liability would apply. (See Angell on Watercourses [6th ed.], § 331a; Campbell v. Seaman, 63 N. Y. 577; People v. N. Y. C. & H. R. R. R. Co., 74 id. 302; Brown v. Cayuga & Sus. R. R. Co., 12 id. 486.) The complaint alleges an obstruction by defendant of the natural course of the water and the insufficiency of the culvert, by means of which the water was thrown upon plaintiff’s property to his injury. A nuisance is, in substance, alleged, and the evidence warranted the finding that one existed. In the light of the later cases we fail to see how the Moyer case helps the defendant. It is suggested by the defendant’s counsel that the court at the trial turned the action substantially into one of negligence. The rulings of the court, however, on this subject were not objected to by the defendant, and there appears no good reason for defendant to complain in that regard.

It is further claimed that the court erred in submitting to the jury the question whether the damage would not have occurred if the flood had not been of extraordinary character.

There were some expressions in the main charge to that effect, but it is doubtful whether there is any exception sufficiently definite to raise the- question. Besides, the charge in that respect was subsequently modified. At the close of the charge, and after the disposition of some requests, the counsel for defendant excepted “ to that portion of the instruction of the court which states that if the flood was extraordinary and caused the injury, the jury might still find for the defendant, notwithstanding the flood was of an extraordinary character.” To this the court replied, addressing the jury: “ If you find that the defendant was negligent, and that such negligence caused the injury, and then find that the injury would have happened by such waters as miglit reasonably be expected, tlien the fact that the flood was extraordinary will not defeat the plaintiff’s right of action.” To this the defendant excepted. The defendant’s counsel then said : “ The court stated to the jury that if this had been an ordinary flood, and caused the injury, the defendant might be liable, if they could predicate negligence upon it; and we except to that portion of the charge, the point we except to being that the flood being extraordinary they hare not the right to consider it as an ordinary one for the purpose of imposing liability upon the defendant.” To this the court replied that what he meant by that was, that if this flood was one which, in the judgment of the jury, the defendant in the exercise of reasonable care should have anticipated, then, if the injury was caused by the negligence of the defendant, it was liable. No exception to this was taken. The court had previously stated very distinctly what, in its judgment, was the measure of the duty upon the defendant. At the close of the plaintiff’s evidence, and after denying the motion for nonsuit, the court held that the defendant has no other duty than to provide a sufficient waterway to take away the water that might reasonably be expected. This the defendant did not except to, and it has no good reason to complain of the rule. The same rule was repeated in the charge, and the jury were told that if in this respect the defendant failed to perform its duty, and such failure caused the injury, the fact that the flood was extraordinary would not relieve the defendant. In this there was no error prejudicial to defendant’s rights. It would at most be the case of an injury arising without fault of plaintiff from two causes, for one of which the defendant was responsible, and, therefore, liable for the injury. (Phillips v. N. Y. C. & H. R. R. R., 127 N. Y. 657.) The evidence warranted the jury in finding that the injury was wholly or partly the result of the negligence of defendant, and, therefore, the rule laid down in Grant v. Penn. & N. Y. C. & R. Co. (133 N. Y. 657), and kindred cases cited by defendant’s counsel, that a verdict must be based on something more than speculation, does not apply. In some cases it has been held that an apportionment of damages would be made. (Washburn v. Gilman, 64 Maine, 163; Chicago & N. W. Railway Co. v. Hoag, 90 Ill. 339; Nitro Phosphate & O. C. M. Co. v. London & St. K. D. Co., L. R. [9 Ch. Div.] 503.) No point, however, as to this was made at the trial, and it is not necessary here to consider it.

Our attention is called to a number of exceptions to rulings upon evidence. We, however, find no error prejudicial to the rights of the defendant. No point is made here on the subject of notice to the company. It would seem that notice to the division superintendent of the company who had charge of the road in the locality in question should be deemed to be notice to the company. (Brayton v. N. Y., L. E. & W. R. R. Co., 54 N. Y. St. Repr. 763; Quincy Coal Co. v. Hood, 77 Ill. 68; Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige, 137.)

The foregoing considerations lead to an affirmance of the judgment.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


text:
    Jonas S. Van Duzer and Another, Respondents, v. The Elmira, Cortland and Northern Railroad Company, Appellant.

      Premises on which there is a nuisance — responsibility of the grantee and of his tenant — obstruction of a stream■ — notice of a defective bridge — when a question for the jury — extraordinary flood.

    A grantee of premises upon which there is a nuisance at the time the title passes to him is not responsible therefor until he has had notice or knowledge of the existence thereof, and the notice required to put the grantee in fault may be proved like any other fact; it may sometimes be inferred from mere occupancy.
    When the owner of premises knows or, by the exercise of reasonable care, can ascertain that he has upon his premises a nuisance dangerous to the public, or to an adjoining owner, it is his duty to abate it before leasing the property, and if he does not do so, he is liaole in damages to one subsequently injured thereby.
    The tenants of such premises are not liable unless they had notice of the existence of the nuisance, or time enough has elapsed in which knowledge of its existence could be obtained by the exercise of reasonable diligence.
    The facts and circumstances considered under which it is proper to submit to a jury, for its determination, the question whether a railroad company had or was chargeable -with notice of the defective character of a bridge along the line of its road, at the time of the occurrence of a flood, whereby damage was sustained by an adjoining.owner.

      As a general rule it is a question for the jury to determine whether a flood of an extraordinary character was such that it should have been anticipated and provided against.
    Appeal by the defendant, The Elmira, Cortland and Northern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 18th day of May, 1892, upon the verdict of a jury for $1,500, after a trial at the Chemung County Circuit, and also from an order made at the Tioga County Special Term, and entered in said clerk’s office on the 16th day of June, 1893, denying the defendant’s motion for a new trial, made upon a case and exceptions.

      Frederick Collin, for' the appellant.

      Gabriel L. Smith, for the respondents.
   Merwin, J.:

This action is brought to recover damages for injuries to plaintiffs5 farm and property thereon, by reason of floods occurring in October, 1885, and June 1 and 15, 1889. It is alleged that the defendant constructed or maintained a bridge across Newtown creek and an embankment across plaintiffs’ farm in so negligent and unskillful a manner that the waters were turned from their natural course and thrown upon plaintiffs’ property, causing the injuries complained of.

The plaintiffs, at the dates referred to, were the owners of a farm situated a short distance northeasterly from the village of Horse-heads. Through the central portion of the farm the Newtown creek passed in a southerly direction. The railroad of the defendant, as it came from the village of Horseheads, crossed the farm in a northeasterly direction upon an embankment about seven feet above the natural surface of the ground. A portion of the roadbed was a bridge over Newtown creek, and this was a short distance northerly from the south line of the farm. The eastern portion of the farm, over a part of which the railroad passed, was low ground. In the embankment beyond the creek there was no passageway for water except a cattle pass. The plaintiffs claimed that before the road was built the overflow from the creek in times of high water was accustomed to pass easterly across and beyond the farm doing them no injury, but that since the building of the road the embankment operated to obstruct and gather the water, force it down to the bridge, and that there; upon the occasions complained of, by reason of the insufficiency of the passageway at the bridge, the water was dammed up and forced over the western bank of the creek and onto plaintiffs’ property to their injury.

The railroad was originally constructed in 1872 by the IJtica, Ithaca and Elmira Railroad Company. The defendant became the owner on the 10th of March, 1884-, and has since then operated the road. No question is made here as to the manner or extent of the injuries, but it is claimed (1) that the court erred in submitting to the jury the question whether the defendant had notice or was chargeable with notice or knowledge of the defective character of the bridge at the time of the flood in October, 1885, and (2) that the court on the motion for a nonsuit should have held as matter of law that the floods of June, 1889, were of such an extraordinary character that the defendant was not liable.

(1) After the time the defendant became the owner of the property, and before October, 1S85, there had been no flood that demonstrated the defective character of the bridge. Nor was there at the trial any proof of express notice to the defendant. It was, therefore, claimed by the defendant that there was no liability on it for the damages of 1885. The court charged that the defendant was not liable unless from the situation itself it was bound to take notice that the bridge was defective. Whether the defendant was so bound was left to the jury to determine as a question of fact.

In Conhocton Stone Road v. B., N, Y. & E. R. R. Co. (51 N. Y. 573) it was held that a grantee of premises upon which there is a nuisance at the time the title passes is not responsible therefor until he has had notice or knowledge of the existence thereof, but that it is not necessary to prove a request to abate. In Ahern v. Steele (115 N. Y. 203) a like principle is stated, and it is there in substance said (pp. 213 et seq.) that the notice required to put the party- in fault may be proved like any other fact; that it may sometimes be inferred from mere occupancy, depending upon the circumstances of the case. An obstruction may be such that any one, whether professional or not, would see at once that it was improper and lacked safeguards necessary to be made and which might effectually prevent injury. (Bellinger v. N. Y. Cent. R. R., 23 N. Y. 51.) In Timlin v. S. O. Co. et al. (126 N. Y. 514) it appeared that the Standard Oil Company on May 1, 1885, leased to certain parties premises upon which was a nuisance not created by the company. The action was against the company, -its tenants and others for damages occurring in September, 1885, in consequence of the nuisance. The court at the trial charged that as to the company the plaintiff could not recover unless the jury were satisfied from the evidence that the company knew, or ought to have known or had notice that the wall in question was in a dangerous condition before May 1, 1885. On the appeal, this was said to be a correct statement of the law, and the doctrine was laid down that when the owner of premises knows, or, by the exercise of reasonable care, can ascertain, that they have upon them a nuisance dangerous to the public or an adjoining owner, it is his duty to abate it before leasing the property, and if he does not he is liable to respond in damages to any one subsequently injured. As to the tenants, it was held that they were not liable unless they had notice of the existence of the nuisance, or time enough had elapsed in which knowledge of its existence would be obtained by the exercise of reasonable diligence.

In the present case the defendant became owner and went into possession in March, 1884, and the flood occurred in October, 1885. The bridge crossed the stream diagonally, at an angle of about forty-five degrees, and the embankment extended across the flats in a straight line for about 1,500 feet. The angle of the bridge, with the current of the creek, was such that any water coming down along the embankment would naturally' be thrown across the stream and strike upon the western bank, which, in fact, gave way in 1885. The bridge was about fifty-nine feet long and rested at each end upon an abutment and in the center there was a pier. Between the pier and each abutment was a bent placed there by the defendant, as the evidence tends to show. The capacity of the waterway at the bridge without the obstruction of the center pier and bents was, as the evidence tends to show, about equal to that between the banks of the creek. The creek was liable to overflow every year from ordinary freshets, and it was subject to sudden rise and fall. Upon any overflow the embankment would be likely to gather the water and send it down with considerable force to the bridge. The effect there of the angle could readily be inferred. The western bank of the stream at that point had been partially torn away by a previous flood.

"Within the ruling in the Timlin case, the question of notice was properly given to the jury. The test is quite similar to the rule in actions against municipal corporations for injuries from obstructions in streets not placed there by themselves. (Pettengill v. City of Yonkers, 116 N. Y. 558.) In such cases, what constitutes a reasonable time which must elapse before the corporation is chargeable with notice, is a question for the jury. (Rehberg v. Mayor, etc., 91 N. Y. 143.) Notice may be inferred from the situation and the method of construction. (Sawyer v. Newburyport R. R., 151 Mass. 430.)

(2) There is evidence that the flood of June 1, 1889, was unusual and extraordinary. And still there is also-evidence that there were floods in 1865, 1818 and in 1885 .which in that locality were equal to it or nearly so. A similar question is considered in the case of Mundy v. N. Y, L. E. W. R. R. Co., decided by this court at this term, in regard to a flood at the same date in a neighboring locality. The conclusion is there reached that it should not be held as matter of law that, the flood was so extraordinary that the defendant was relieved from all liability. The cases there cited fully sustain the proposition that, as a general rule, it is a question for the jury whether a flood of an extraordinary character was such that it should have been anticipated and provided against. That rule is applicable to this case.

It follows that the motion for a nonsuit as to the flood of June 1, 1889, upon the ground that the flood was extraordinary was properly denied. The facts as to the flood of June 15, 1889, do not call for any different ruling.

No other question is raised. It follows that the judgment should be affirmed.

HaediN, P. J., and MaetiN, J., concurred.

Judgment and order affirmed, with costs.

      Rep. ante, page 479.


author: Martin, J.: Merwin, J.

text:
    Caroline R. Garczynski, Respondent, v. Dorr Russell, Individually, and as Executor of and Trustee under the Last Will and Testament of Lucy G. Russell, Deceased, and Others, Appellants.

      When a referee has no power to direct an interloawtoi'y judgment-- when he should take and determine an account between the parties.

    A referee, to whom all the issues in a ease are referred hy consent, has no authority to determine only a portion of the questions referred to him and to direct an interlocutory judgment, and that the court appoint another referee to complete the hearing-. (Merwin, J., dissenting.)
    A portion of the relief demanded in a complaint was that an accounting should he made hy the representatives of the estate of a decedent, and upon the stipu-lution of the parties that the case he referred to a referee to hear and determine an order was entered, directing “ that the cause he and the same is hereby referred” to the referee named as “sole referee to hear and determine all the issues therein.”
    The referee made a report upon which an interlocutory judgment was entered, containing a finding that the plaintiff was entitled to the accounting demanded, and authorizing her upon proper notice to move for the appointment of a referee to take the same. There was no reason why the referee to whom the action was referred should not have taken such account.

      Held, that under such an order the referee should have heard and determined all the issues made hy the pleadings, and if, under the proof before him, the plaintiff was entitled to an accounting he should have taken and stated the account. (Merwin, J., dissenting);
    That it was the duty of the Special Term to set aside the report and send the case hack to the same referee so that a final judgment might he entered. (Merwin, J., dissenting.)
    Without questioning the power of the court in a proper case to settle an interlocutory judgment upon the report of a referee, and to appoint another referee to take an accounting provided for hy such judgment, yet, when all the facts which relate to the accounting exist at the time of the trial, so that the whole case can he disposed of as well then as before another referee, it is the duty of the referee to complete the trial, and state the account between the parties in his report, so that final judgment may he entered thereon. (Merwin, J., dissenting.)
    Appeal by tbe defendants, Dorr Russell, as executor, etc., of Lucy G. Russell, deceased, and others, from an order of tbe 'Supreme Court, made at the Broome County Special Term on tbe Utli day of January, 1893, and entered in tbe office of tbe clerk of tlie county of Otsego on tbe 27th day of January, 1893, settling the form of judgment to be entered in the action upon the report of the referee.

      Johnson c& Lcmnb and E. M. Earris, for the appellants.

      George M. Weaver and’A. M. Bea/rdsley, for the respondent.
   Martin, J.:

A portion of the relief demanded in the plaintiff’s complaint wag that an accounting should be had by the estate of Lucy G. Russell, and the interlocutory judgment entered in pursuance thereof contained the following provision: “Fourth. That the plaintiff is entitled to have a fair and full accounting of the estate of the said Lucy G. Russell, and particularly of the said railroad stocks, securities and other property transferred to the said Lucy G. Russell by the said Dorr Russell, and of the proceeds and avails thereof, and of all moneys and property received by her, directly or indirectly, from the said Dorr Russell, and of the rents, issues and profits' thereof and of .the said real estate. And the said defendants are, and each of them is, hereby ordered and required to discover and answer as to the same upon their several oaths. The plaintiff is hereby authorized, upon proper notice to the attorneys for the defendants, to move for the appointment of a referee to take such account, such appointment to be made by order to be entered at the foot of this decree. If it shall appear on said accounting that the said Lucy G. Russell paid anything from her own personal estate for the said railroad stocks and securities, then that an account be taken of the moneys so paid, and also of the moneys, property and profits received by her,' or by any other person for her use, or by the defendants, or either of them, and the balance, if any, remaining unpaid and due to her or her estate. That upon such accounting the defendants and the estate of the said Lucy G. Russell be charged with any and all moneys and property paid by said Dorr Russell, directly or indirectly, upon the said Edward Clark mortgage since the conveyance of the mortgaged property to the said Lucy G. Russell, and with the said railroad stocks, securities and other property transferred to her by the said Dorr Russell.”

Timé the matters which were referred to a referee to hear and determine were only partially tried, or at least but partially determined. Tbe more important questions involved in the case were: (1) As to wbat interest tbe estate of Mrs. Russell bad in tbe real estate mentioned in tbe complaint by reason of having paid tbe Clark mortgage or otherwise; (2) bow much she in fact paid towards tbe railroad stocks and other property which stood in her name. Tbe referee’s report, and tbe judgment entered in pursuance of it, direct that these important matters shall be referred to another referee to bear and determine, after tbe entry of an interlocutory judgment, which is, in many respects, inconsistent with such a reference.

Tbe learned referee to whom this action was referred, instead of taking tbe accounting and determining tbe amount of tbe property, if any, which came into tbe possession of tbe estate of Lucy G. Russell, for which it was liable to account to tbe plaintiffs, under tbe facts as found by him, held as a conclusion of law that tbe plaintiff was entitled to have a fair and full accounting as stated in tbe •demand of tbe complaint relating to that subject. Tbe order appointing tbe referee was entered upon tbe stipulation of tbe parties, made in open court, that tbe case be referred to tbe referee named to bear and determine, and the order entered in pursuance thereof was “ that tbe cause be and tbe same is hereby referred ” to tbe referee named “ as sole referee to bear and determine all tbe issues therein.”

Under this order tbe referee should have beard and determined all tbe issues made by tbe pleadings, and if, under tbe proof before him, the plaintiff was entitled to an accounting, be should have taken and stated tbe account. It was not tbe intention of tire parties, or of tbe court, that only a portion of tbe questions involved in tbe •case should be determined by tbe referee, and that those remaining should be determined by another and different referee to be subsequently appointed. It is obvious that the court and both parties intended that such a determination of tbe case should be made by tbe referee as would entitle tbe party succeeding to a final judgment in the action.

¥e know of no authority to justify a referee in determining only a portion of tbe questions referred to him, and then to direct an interlocutory judgment, and that tbe court appoint another referee to complete tbe bearing, where tbe whole case is referred to him by tlie consent of the parties. In this case no reason is apparent why the referee could not have taken the accounting demanded in the complaint as well as another referee to be subsequently appointed. The subject of the accounting related not to matters which might arise in the future, so that a supplemental hearing and report might be necessary, but entirely to transactions which were past, and as to which he might well have taken an accounting. It was the duty of the referee on the trial to take the proof of the respective parties, take an accounting of the matters referred to, settle and determine the account upon the trial before him, and thus complete the hearing and determination of the case.. His report was not only informal, but incomplete. "We think it was proper for the Special Term to set aside the report and send the case back to the same referee, so that a final judgment might be entered, as was plainly contemplated by the court and parties when the reference was ordered. (Maicas v. Leony, 113 N. Y. 619; 22 N. Y. St. Repr. 149.)

The orderly method of trying this case, as well as the rights of the defendants under their stipulation and the order appointing the referee, required that the whole case should be fully tried and determined by him. Therefore, the Special Term, instead of settling the judgment upon the report as it stood, and providing for another reference not contemplated by the' defendants, should have sent the case back to the referee to complete the trial thereof. If it be said that no such motion was made, yet the notice of motion was for a settlement of the judgment and for such other relief as the court might grant. Under this notice we think the court should have, at least, refused to settle any judgment until the reference was fully completed, so that a final judgment might be entered. Good faith to the defendants required this.

"Without questioning the power of the court in a proper case to settle an interlocutory judgment upon the report of a referee, and to appoint another referee to take an accounting provided for by such a judgment (Mundorff v. Mundorff, 1 Hun, 41; Seymour v. Spring Forest Cemetery Assn., 19 N. Y. Supp. 100), we think that where,' as in this case, all the facts which relate to the accounting exist at the time of the trial, so that the whole case can be disposed of as well, and with less expense to the parties, than before another referee, it is the duty of the referee to complete the trial and state the account between the parties in his report so that a final judgment may be entered thereon. It was said by Daniels, J., in Mundorff v. Mundorff: “ Ordinarily, where the whole issue is referred, it is no doubt the duty of the referee to take, state and adjust the accounts of the parties on the basis on which, by his decision, he may settle their rights; for, as a portion of the issues, that is included within the reference provided for.”

¥e are of the opinion that the proper and orderly disposition of this case requires a reversal of the order of the Special Term settling the form of the judgment herein, and that the parties have leave to apply to the Special Term for an order setting aside the report of, the referee and sending the same back to him to complete the trial thereof, so that a final judgment may be entered upon his report. Such a disposition of the case will, we think, better serve the ends of justice and the interests of all parties, be more in keeping with the intention of the parties when the case was referred, and present the questions on appeal, if a subsequent appeal shall be taken, in a manner to be better understood and" more correctly decided than to leave it in its present incomplete, inconsistent and somewhat confused condition.

HaediN, P. J., concurred.

Merwin, J.

(dissenting):

Upon this appeal the only questions, as it seems to me, are whether the plaintiff was entitled to have the form of the judgment settled at-Special Term, and, if so, whether the form as settled corresponded substantially with the directions in the report.

A referee, in a proper case, has the right to grant an interlocutory judgment, and such judgment can be reviewed upon a motion for a new trial (§ 1001 of Code), or, as the Code now stands, by appeal from the judgment. Whether in the present case an interlocutory judgment was properly granted is a question not before us on this appeal, but is one which might arise on a direct proceeding- to review the decision and judgment. There exist in this case no such imperfections as existed in the case of Maicas v. Leony (113 N. Y. 619), and by reason of which the Court of Appeals said that the Supreme Court in its discretion had power on motion to set the report aside.

No question is made here that the Special Term did not have power to settle the decree. The plaintiff bad, I think, a right to have it done. If the order as made does not settle it so as to conform to the directions in the report it should be modified, but not set aside absolutely.

Order of Special Term settling the form of the judgment to be entered on the report of the referee and judgment entered thereon set aside, with ten dollars costs and disbursements, with leave to either party to apply .to the Special Term for an order sending the case back to the referee to complete the hearing and determination thereof.


author: Martin, J.: Merwin, J.:

text:
    Caroline R. Garczynski, Appellant, v. Dorr Russell and Another, Respondents.

      Judgment creditor’s lien — execution issued under section 1252 of the Code of Civil ■ Procedure■ — -what interest may he sold — not controlled hy section 1369 — statement of the interest to he sold.

    A judgment creditor by virtue of bis judgment acquires no lien upon land belonging to the judgment debtor, except sucli as is authorized by statute.
    The lien acquired by the docketing of a money judgment expires in ten years.
    The only interest of a judgment debtor in property which can be sold upon an execution, issued in pursuance of the provisions of section 1252 of the Code of Civil Procedure, is the right and title of the judgment debtor thereto at the time of recording and indexing the notice. And it follows that the provisions of section 1369 of the Code of Civil Procedure do not control as to the form of an execution issued under section 1252 thereof.
    An execution issued under section 1252 of the Code of Civil Procedure must correctly state the interest which the party issuing the execution is entitled to have sold, and if it and the proceedings taken thereunder fail to so state they are properly set aside.
    Caroline It. Garczynski recovered a judgment against Dorr Eussell on September 17, ÍÜ81, prior to which time Eussell was the owner of certain real estate, the title to which, by reason of the giving of certain mortgages, the foreclosure thereof and the sale thereunder, had passed to and was held by his wife.
    In 1891 Garczynski commenced an action to set aside the transfers and proceedings which vested the title to such real estate in Bussell’s wife, in which action an interlocutory judgment was entered, which, among other things, set aside such transfers as against Garczynski, and authorized her to proceed upon her execution on such judgment, or to issue another execution thereon in the usual form, and to advertise and sell such real estate thereunder in the manner and order prescribed by law, and to apply the proceeds to the payment of her judgment with interest. Garczynski issued an execution upon her judgment on April 14, 1893, which was filed and recorded with the notice prescribed by section 1252 of the Code of Civil Procedure.
    A motion was then made to set aside the execution, and all proceedings taken thereunder, on the ground that the execution was irregularly issued, was irregular in form, that' the notice of sale was irregular and unauthorized by law in that the lien of the judgment on which execution was issued had ceased by lapse of time before the issuing of the execution, except as the plaintiff acquired a new lien by levy and filing with the clerk a notice under section 1252 of the Code of Civil Procedure, which could only bind or become a charge on the title levied upon, from the -time the notice was filed and recorded, whereas, the execution issued and notice of sale given assumed the right to sell the property as of September 17, 1881.
    The motion was granted on the ground that the execution issued was unauthorized, because it did not correctly state the time when the lien of such levy attached, and did not direct a sale of the interest which Russell had at that time, but stated the lien as having attached September 17, 1881, and directed the sheriff to sell any property belonging to the judgment debtor on that day or at any time thereafter.
    Garczynski was not at any time stayed by an injunction, or any other order, or by the operation of an appeal, or by express provisions of law, or otherwise, from enforcing her judgment.

      Held, that the order setting aside the execution and the pi’oceedings thereunder was proper and should be affirmed. (Merwin, J., dissenting.)
    Appeal by the plaintiff, Caroline R. Garczynski, from an' order of the Supreme Court, made at the Schoharie County Special Term and entered in the office of the clerk of the county of Otsego on the 8th day of June, 1893, setting aside an execution issued by the plaintiff upon a judgment recovered by her against the defendant, and entered in the office of the clerk of the county- of Otsego on the lfth day of September, 1881.

      George M. Weaver and A. M. Beardsley, for the appellant.

      Jolmson & Lamb and JS. M. ITm^ris, for the respondents.
   Martin, J.:

On the 17 th day of September, 1881, the plaintiff recovered a judgment against the defendant Dorr Russell and another for the sum of $5,YJ2.45. On March If, 1884, Jeremiah Wintringham, as receiver of the Pawners’ Bank, obtained a judgment against the same defendants for about $78,000.

Previous to the entry of these judgments, Dorr Russell was the owner of a farm near Cooperstown. By reason of the giving of certain mortgages thereon, the foreclosure thereof and sale thereunder, the title to such farm passed to and was held by Lucy G. Russell, who was the wife of Dorr Russell. In 1891 the plaintiff commenced an action to set aside the transfers and proceedings which vested the title to such real estate in her. The action was tried and resulted in the entry of an interlocutory judgment, which, among other things, set aside such transfers as against the plaintiff, and authorized her “ to proceed upon her execution on said judgment, or to'issue another execution thereon in the usual form as she may be advised, to the sheriff of Otsego county, and to advertise and sell thereon in the manner and order prescribed by law the said real estate, and to apply the proceeds to the payment of the plaintiff’s said judgment, with the interest thereon.”

The plaintiff subsequently issued an execution and the farm was advertised to be sold March 30, 1893. On March twenty-first the defendants made a motion to set aside the execution on the ground that the notice provided for by section 1252 of the Code had not been filed by the sheriff. The motion was heard April 4, 1893, and granted on the ground that no notice had been filed or recorded, as required by that section, but without prejudice to issuing another execution in the action.

On April eighth the assignee of the Wintringham judgment issued an execution thereon and advertised the farm for sale. On the fourteenth of April the plaintiff issued a second execution upon her judgment, which was filed and recorded with the notice prescribed in section 1252 of the Code of Civil Procedure. A motion was then made by the defendants at the Schoharie Special Term on May twenty-seventh to set aside the plaintiff’s second execution and all proceedings under it, on the ground that the execution was irregularly issued, was irregular in form, that the notice of sale was irregular and unauthorized by law, or the order of the Broome Special Term made April 4, 1893, in that the lien of the judgment on which the execution was issued had ceased by lapse of time before the issuing of the execution, except as the plaintiff acquired a new lien by a levy and filing with the clerk a- notice under section 1252 of the Code of Civil Procedure, which could only bind or become a charge upon the title thus levied upon from the time the notice was filed and recorded, whereas the execution issued and notice of sale given assumed the right to sell the property as of September 17, 1881, when the plaintiff or the sheriff had no right to sell the estate which the defendant had at that time. Also, on the ground that the identical property was being advertised for sale-by the sheriff, upon another execution issued against the defendant Russell, prior to the issuing of the execution in this action, upon a. judgment prior in time to the levy of the plaintiff’s execution.

The papers upon which this motion was heard show these facts,, and also that the plaintiff was not at any time stayed by an injunction, or any other order, or by the operation of an appeal, or by express provisions of law, or otherwise, from enforcing such judgment ; that the execution issued required the sheriff to satisfy the judgment out of the real property in his county belonging to the judgment debtors, or either of them, on the day such judgment was docketed in his county (September 17, 1881), or at any time thereafter.

The motion was granted on the ground that the execution issued was unauthorized because it did not correctly state the time when the lien of such levy attached, and did not direct a sale of the interest which the defendant had at that time, but, on the contrary,, stated the lien as having attached September 17,1881, and directed the sheriff to sell any property belonging to the judgment debtor on that day, or at any time thereafter.

The question presented on this appeal is, whether the plaintiff was justified in issuing an execution which directed the sheriff to-sell the interest which the judgment debtor had in real estate in that county on the 17th of September, 1881, or at any time thereafter, or whether the execution should have directed the sale of only such interest as the judgment debtor had in real property therein at the time when the execution was issued and the notice filed and recorded as provided by section 1252 of the Code.

The plaintiff, by virtue of her judgment, acquired no lien upon the lands belonging to the judgment debtor, except such as was authorized by statute. At common law a judgment was not a lien upon real estate. The statutes of this State- relating to the docketing- of judgments, the effect thereof as liens upon real property, the suspending and discharging sucli liens and the satisfaction and assignment of judgments as they existed when the plaintiff’s judgment was rendered, are contained in article 3 of title 1 of chapter 11 of the Code of Civil Procedure. The first six sections of that article relate to the docketing of judgments. The next section (1251), so far as applicable to the question before us, declares that: “A judgment hereafter rendered which is docketed in a county clerk’s office, as prescribed in this article, binds and is a charge upon, for ten years after the filing of the judgment roll, and no longer, the real property * * * in that county, which the judgment debtor lias at the time of so docketing it, or which he acquires at any time afterwards, and within the ten years.” Hence, the lien acquired by the docketing,of a money judgment expires in ten years. (Wing v. De La Rionda, 34 N. Y. St. Repr. 261, 273.)

When the last execution in this case was issued more than ten years had elapsed since the docketing of the judgment and the filing of the judgment roll, so that the judgment had ceased to be a lien upon the real property of the judgment debtor.

But the appellant contends that she had a right to issue the execution under the provisions of section 1252 of the Code. That section provides: When ten years after filing the judgment roll have expired, real property * * * which the judgment debtor * * * then has, in any county, may be levied upon by virtue of an execution against property, issued to the sheriff of that county, * * * by filing with the clerk * * * a notice, subscribed by the sheriff, describing the judgment, the execution and property levied upon. * * * The notice must be recorded and indexed by the clerk, as a notice of the pendency of an action. * * * The judgment binds and becomes a charge upon the right and title thus levied upon of the judgment debtor * * * only from the time of recording and indexing the notice, and until the execution is set aside or returned.” The reading of this section renders it clear that the only interest of the judgment debtor which can be sold upon an execution issued in pursuance of it, is the right and title of the judgment debtor at the time of recording and indexing the notice. That being the only interest or title of the defendant which could be sold on execution, it seems quite clear that the plaintiff had no authority to issue an execution to sell the title and interest possessed' by the judgment debtor before tbat time, and, bence, that the execution and the proceedings of the sheriff, by which he advertised to sell the interest which the plaintiff had in the property more than ten years before the time of the sale, were irregular and improper. We think that an execution issued under section 1252 should correctly state the interest which the party issuing the execution is entitled to have sold, and that as the execution in this case and the proceedings under it failed to do so, they were properly set aside. (Hansee v. Fiero, 56 Hun, 463; Floyd v. Clark, 16 Daly, 528.)

We find nothing in sections 1366, 1368 and 1369 of the Code of Civil Procedure which requires an execution issued under the provisions of section 1252 to be in the form of that issued in this case, or that requires it to be incorrect and contrary to the provisions of the latter section. Section 1369 provides that an execution against property must, “ except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment out of the personal property of the judgment debtor, and if suf-cient personal property cannot be found, out of the real property belonging to him at the time when the judgment was docketed in the clerk’s office of the county, or at any time thereafter.” Thus we see that cases where provision is otherwise made by law are excepted from the provisions of that section, and when we refer to section 1252, we find that where an execution is issued and levied upon real property under its provisions, the judgment binds the title thus levied upon only from the time of recording and indexing the notice, and consequently the only interest or title which can be sold under such an execution is that of the judgment debtor at the time of recording and indexing the notice. That being the only interest which can be sold where the judgment has ceased to be a lien upon the property, we think it follows that the provisions of section 1369 do not control as to the form of the execution to be issued in such a case, but that the execution and proceedings under it should be made to conform to the provisions of section 1252, and accurately and correctly describe the interest of the judgment debtor that was levied upon and advertised for sale. Any other course of procedure would lead to confusion as to the rights of the purchasers, other judgment debtors or lienors, would jeopardize the lights of the persons interested in tlie land, provoke unnecessary litigation and render the title to the property sold doubtful and uncertain.

We find no authority, statutory or otherwise, which requires us to hold a doctrine which would be followed by such unfortunate consequences. We think the order should be affirmed.

HabdiN, P. J., concurred.

Merwin, J.:

It seems to me that the execution should not have been set aside by the Special Term. At most it should have been limited to the lien acquired upon filing the notice under section 1252. The plaintiff ought to be permitted to retain the benefit of that lien.

Order affirmed, with ten dollars costs and disbursements.