text:
    Ann Curvin, Respondent, v. Rochester Railway Company, Appellant.

      Oomtruction of a grant to operate a railroad on a street in front of the licensors land,— incorrect monumenting of a street by a city surveyor — ineffectual except by way of estoppel.

    An owner of premises on a highway signed the following instrument: “ For value received, I hereby grant to the Rochester Railway Company the right to construct, maintain and operate a double-track railroad upon Plymouth avenue, from the bridge over the abandoned Genesee Valley canal to the southerly end of Plymouth avenue, such railroad to consist of a single track upon each side of the roadway, and to be operated by electricity as motive power.”

      Held, that such instrument gave no right to the railroad company to lay and operate a railroad beyond the limits of .the street therein referred to :
    That such instrument must have such practical operation as the case permitted of, and if there could not be two tracks in front of the premises of a person signing such instrument, the railroad company must be content with one, and if that one could not be laid outside of the traveled track of the highway it must be laid on the traveled track thereof, or the company must forego the privilege of laying any track at all over such portion of the road;
    That said grant was not a grant of land, nor of an easement in lands, outside the limits of Plymouth avenue ; it was the grant of an easement in said street in addition to that involved in its use as a highway, or the consent by the signers thereof to impose an additional burden upon the land constituting the street, to that already existing in favor of the public.
    ■Where the surveyor of a city in locating a street planted his monument at a point where he thought it would be well to have the boundary thereof, without the sanction of record, monument or tradition, no effect can be claimed for such location, except by the aid of estoppel. at the Monroe Special Term, restraining the defendant from maintaining and operating its railway and cars over certain premises.

      Appeal by tlie defendant, Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 24th da_y of April, 1893, upon the decision of the court, rendered after a trial

      Theo. Bacon, for the appellant.

      T. JD. Wilkm,, for the respondent.
   Dwight, P. J.:

All the rights of the parties which are at issue in this action depend upon the effect to be given, as against the- plaintiff, to an instrument in writing, executed in July, 1890, under their hands and seals, by a large number of property owners on both sides of Plymouth avenue, among whom was the plaintiff, of which the following is a copy:

“ Por value received, I hereby grant to the Rochester Railway Company the right to construct, maintain and operate a double-track railroad upon Plymouth avenue, from the bridge over the abandoned Genesee Yalley canal to the southerly end of Plymouth avenue, such railroad to consist of a single track upon each side of the roadway, and to be operated by electricity as motive power.”

All the other facts making up the narrative which follows are of importance, only, as descriptive of the situation in which the parties and the premises stood at the time the instrument was executed by the plaintiff.

Her premises, consisting of about three-quarters of an acre of land, are included in the southwesterly angle of what were formerly two highways in the town of Gates, one of which, known as the River road, ran along the west bank of the Genesee river, in a direction nearly north and south, and the other, beginning at the west line of the first, ran therefrom in a direction nearly west, the two inclosing the angle above mentioned. Both were duly laid out and recorded in the town clerk’s office as roads four rods in width. Several years before 1890, the limits of Rochester being extended in a southerly direction, both of these highways were adopted as streets of the city — the River road as an extension of Plymouth avenue, and the other highway under the name of Brooks avenue; but this was done without any proceedings on the part of the city to acquire the right to appropriate any land of the plaintiff used for that purpose, or the payment to her of any compensation for such use.

Opposite the premises of the plaintiff the river makes a "bend to the eastward, and the effect of its current — strong and rapid in seasons of high water- — had been gradually to encroach upon its left, or west, bank until it had worn away the'entire width of the River road, as originally laid out, and pushed the track of the highway, as used by the public, more and more on to the premises of the plaintiff, until, before the year 1890, it had come to be wholly on those premises throughout their entire frontage on the River road.

Sometime before 1890 the State built a retaining wall, covering the whole of that frontage, along the west bank of the1 river, which put a stop to the encroachments of the stream. This wall fixed permanently the extreme eastern boundary of the land available for use as a highway, and at that time the western edge of the traveled track in actual use was within about twenty feet of the buildings on the plaintiff’s lot.

Some time before 1890, the city surveyor undertook to establish ” the lines of the two streets, Plymouth and Brooks avenues, at the corner of the plaintiff’s premises, and he indicated what he chose to regard as the intersection of the west line of the former with the south line of the latter by a stone monument planted in the ground four feet outside of each line as so located by him. All this was done without the consent and, so far as appears, without the knowledge of the plaintiff, and no change in the use as a highway of either of the streets followed such location, but the west line of the traveled track of Plymouth avenue continued to be, as before, twenty feet easterly from the plaintiff’s buildings. No sidewalk was ever laid out on the Plymouth avenue side of the lot.

In the year 1890 a movement was made by the defendant to extend one of the lines of its electric railroad through the southerly part of Plymouth avenue, and the consents of a sufficient number of the property owners on that street were obtained for that purpose in the form of grants as given above, and this was the purpose of the instrument signed by the plaintiff.

It is very apparent that this instrument was not to be taken literally in respect to the plaintiff and her premises. There could be no double-track railroad on Plymouth avenue along her premises with a single track on each side of the roadway. There was barely room on the street west of the retaining wall, as occupied by the public, for tbe meeting and passage of teams. It is evident that the form was devised for use in obtaining the consents of property-owners where there were such on both sides of the street and where the street was of something like the regular width.

One other fact or series of facts is found by the trial judge which, though of later date than the execution of the grant, seems to be regarded by the defendant as of importance as bearing upon the construction to be given to that instrument as executed by the plaintiff. It appears that in September, 1891, the plaintiff joined with other property owners on Plymouth avenue in a petition to the common council for an improvement of that portion of the street which included the plaintiff’s frontage, by the laying of an asphalt pavement on its roadway. An ordinance was accordingly passed for the improvement of that portion of the street described by the construction of an asphalt pavement therein, with a line of Medina stone curb on each side thereof. * * * Width of main roadway between curb lines to be generally twenty-five feet; ” and the pavement was laid accordingly. When the curb line was first located on the west side of the roadway, it was placed on a line nearly four feet further to the west than the westerly line of the roadway as it had been used by the public; but, upon the objection of the plaintiff, that location was changed and the curb was finally set substantially on the westerly limit of the public use.

The defendant laid its track and set its trolley poles west of the curb as finally located, and wholly outside of what had ever been used by the public as a street, thus occupying substantially the whole of the small remainder of the plaintiff’s land which the action of the river and the user of the public had left to her on the east side of her buildings. This is the continuous trespass of which the plaintiff complains in this action and which the judgment appealed from restrains.

We are unable to see that the facts embodied in the foregoing narrative constitute a defense to the action, or indicate any' error in the conclusions of law found by the court, at Special Term, substantially as follows:

That the action of the city authorities in assuming to locate a west boundary of Plymouth avenue did not have the effect of a practical location and did not affect the rights of the plaintiff; that the land lying between tlie west curb of the roadway ■ and the plaintiff’s buildings is no part of the highway nor of the street known as Plymouth avenue ; that the poles and track of the defendant are on the premises of the plaintiff, and that she is entitled to the judgment of the court restraining their use in that place, and requiring their removal therefrom.

■ The defendant relies upon the grant executed by the plaintiff. But there is no room to contend that this grant gave any right to lay and operate a railroad outside the limits of the street. The language is, “ upon Plymouth avenue * * * upon each side of the roadway.” So that it really became the only question for the court, “ where was the westerly limit of Plymouth avenue at this time ? ” Originally it was east of where the retaining wall is now, and as the street was washed and worn away it was moved, by the necessary use of the public, further and further to the westward, but was never moved beyond the limit of the actual use. (Walker v. Caywood, 31 N. Y. 51-63; Wakeman v. Wilbur, 21 N. Y. St. Repr. 556.) Here the finding is, and the evidence shows, that the actual use by the public never extended beyond a line twenty feet from the buildings. Indeed, the evidence shows that this space, of twenty feet in width, was occupied by a bank, with a rise of about two feet from the edge of the roadway to the buildings, and that the defendant cut away and leveled down this bank to make room for its tracks. Clearly this space had not become a part of the street by user.

Equally unfounded is the contention that it had become so by practical location, namely, by the action of the city surveyor or other city authorities in assuming to locate the boundaries of the two streets at their intersection. So far as appears this action was wholly arbitrary and gratuitous. The surveyor seems to have planted his monument at a point where he thought it would be well to have it, without the sanction either of record, monument or tradition. Of course no effect is to be claimed for such a location except by the aid of an estoppel, and there is no evidence whatever in this case upon which to base the claim of an estoppel. It is not even made to appear that the plaintiff knew that the stone was planted, and if she did she was not taken into the counsels of the city surveyor, nor informed of the purpose or significance of the act.

Neither is there any room in this case for the argument ex necessitate. As we have said, it is plain that the form of this grant was not devised for this particular case; it was never intended to lay two tracks, one on each side of the roadway, in this part of Plymouth avenue. It is evident that a general form, made use of in procuring the consents of property owners on both sides of the street, where it was of ordinary width, was also used in the case of the plaintiff, and it must have in her case such practical operation as the case permits. If there cannot be two tracks at this point the defendant must be content with one, and if that one cannot be laid outside the traveled track of the highway, it must be laid on the traveled track, or the defendant must forego the advantage of laying a track at all over this portion of the road. The grant received from the plaintiff was not a grant of lands nor of an easement in lands outside the limits of Plymouth avenue. It was in her case as in that of all the other property owners, the grant of an easement in the street additional to that involved in its use as a highway ; in other words, their consent to impose an additional burden upon the land constituting the street.

We think the judgment was entirely correct and must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    James Farley, Respondent, v. Abraham Picard, Appellant.

      Dangerous dog— liability of its Iceeper.

    When an employee of a person keeping a dangerous dog continues to work for his employer, with knowledge of the character of the dog and the place where he is kept, he takes the risk of being bitten, and his employer is not liable for the damages he may sustain by reason of his being bitten by such dog.
    . Appeal by the defendant, Abraham Picard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of February, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 6tli day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      O. 0. Dcovy, for the appellant.

      Okas. Van VoorMs, for the respondent.
   Dwight, P. J.:

The action was to recover damages for an injury from the bite of a dog.

The defendant kept a sale stable in Rochester. The plaintiff and a man by the name of Harry Prescott worked for him in the stable. About a week before the plaintiff came there to work a man brought a large mastiff dog to Harry Prescott to- sell for him, and the defendant permitted Harry to keep the dog at the stable for that purpose. After the plaintiff came he helped Harry to take-care of the dog; he slept in the barn with him nights and used to-chain him up after Harry went away. He must have become quite as familiar with the character and habits of the dog as the defendant was. He knew by report, as the defendant did, that the dog had once bitten a man by the name of Thompson, and this was all either of them knew and about all that anybody knew against the dog’s character. The dog was kept at all times, when not let out for exercise, chained in a stall next the front door of the stable, and 'he was so chained securely in that stall when he bit the plaintiff. The plaintiff had then been at work there and associated with the dog day and night for nearly three months.

The partitions between the stalls were low next the barn floor,, and on them the men were accustomed to throw robes and blankets-when they came in wet. One day in the latter part of December,, the plaintiff had occasion to take a blanket from the partition next where the dog lay chained, and to do so he stepped into the next stall. Two other blankets lay on top of the one he -wanted, and he.says that, to get it, he reached over the partition into the stall where.the dog was, and was bitten on the wrist. It is not easy to understand why he should have reached over into the other stall to get a-, blanket which lay across the partition, but it was only by some-such means that he could have received the injury of which he complains ; because the dog, being securely chained within the stall, could not come to him to bite ; he must go to the dog to be bitten.

This is the whole story as gathered from the undisputed evidence, and we think it discloses a case in which the motion for a nonsuit should have been granted on one or more of the grounds stated, viz.: (1) That there was no evidence of negligence on the part of the defendant; (2) that the case showed contributory negligence on the part of the plaintiff, and (3) that whatever danger there was to the plaintiff from the dog was one of the risks of the employment in which he was engaged; was as well known to himself as to the defendant, and was, therefore, assumed by himself.

In the first place, we find no evidence whatever of negligence on the part of the defendant in respect to the care of the dog. There was, it must be said, very little evidence against the dog’s character, and of that little still less was shown to have come to the knowledge of the defendant; but even if he had known that the dog was a dangerous one, what more could he have done than to see to it that he was kept securely chained in a stall ? This was complete protection to everybody, unless they entered the stall by accident or in ignorance that the dog was there, or in ignorance of his character. Neither of these was the case of the plaintiff. He knew that the dog was there, and he knew quite as much — probably much more — of the character and disposition of the dog, than the defendant did. If the defendant knew anything of the dog which required special care on his part for the safety of others, the same knowledge, possessed by the plaintiff, required special care on his part for his own safety. If with such knowledge he continued in the employ of the defendant with the dog in the barn, he took the risk upon himself. If he had no knowledge which imposed a risk upon him, then neither did the defendant have knowledge which imposed a liability upon him.

"We think it very clear, upon the facts disclosed by this record, that the motion for a nonsuit should have been granted upon one or other or all of the grounds stated.

The judgment and order appealed from should be reversed and a new trial granted.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from reversed and new trial granted, costs to abide the event.


author: Haight, J.:

text:
    In the Matter of the Lands of Frank S. Lesseritz, Sold for Taxes by the County Treasurer of Monroe County. William W. Chapin, Appellant, v. Paul Stahlbrodt and Others, Defendants, Impleaded with Eugene H. Satterlee, Respondent.

      Order to show cause granted under § 16, chap. 107 of 1884 — when not in compliance with the statute — it should be made by the County Court and not by the county judge.

    Where an order to show cause, granted under the provisions of section 16 of chapter 107 of the Laws of 1884, requiring the owner of certain premises and other persons interested therein to show cause why the petitioner should not be let into possession of the premises by virtue of his purchase of the same at a tax sale, is returnable before the expiration of three months from the time it was issued and served, it does not comply with the statute and the proceedings are properly dismissed.
    The order to show cause provided for by section 16 of chapter 107 of the Laws of 1884 snould be made by the County Court and not by the county judge.
    - Appeal by tlie petitioner, William W. Chapin, from an order of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 2d day of October, 1893, dismissing the petitioner’s proceedings instituted under chapter 107 of the Laws of 1881.

      H. H. Woodward, for the appellant.

      Eugene EL. Satterlee, respondent, in person.
   Haight, J.:

On the 22d day of June, 1893, the appellant presented a petition to the County Court of Monroe county, addressed to the county judge, in which he shows that in the month of August, 1890, the lands described in the petition were sold by the treasurer of that county for unpaid taxes assessed in the year 1889 to the petitioner, who paid the consideration therefor, together with the costs and expenses of such sale, as provided for by the statute; that a certificate of such sale was made'by the treasurer in due form and delivered to the petitioner, and that on the 22d day of August, 1892, the treasurer duly delivered to the petitioner a deed ¿for the premises under bis band and seal duly acknowledged, reciting that said land bad not been redeemed witbin the time required by the statute.

The petition further shows that on the 27th day of September, 1892, the petitioner caused to be served a printed notice in the form required by statute, on F. S. Lesseritz, to whom the real estate was assessed, and on Mary Shrank, the person who was then occupying the premises, and concludes with the prayer that an order be made pursuant to section 16 of chapter 107 of the Laws of 1884, requiring the owner and other persons interested in the premises to show cause why the petitioner should not have possession of and title to the premises, and such other and further relief as he may be entitled to; thereupon an order of the County Court was issued, reciting the facts set forth in the petition, and ordering that the parties named therein, among whom was the respondent, Eugene H. Satterlee, show cause before the county judge of Monroe county, or the special county judge thereof, within three months from the service thereof, to wit, on the 8th day of September, 1893, at eleven o’clock A. m., in the County Court aforesaid, why said petitioner should not have possession of and title to said property, and why said owner and all persons having any lien upon or interest in said lands should not be foreclosed and forever barred and cut off from any and all right, title or interest in said lands and property pursuant to the provisions of said act, and why an order to that effect should not be made by the court.

This order was served upon the respondent on the day on which it was issued, and on the return day thereof the County Court made an order dismissing the proceedings, from which this appeal was taken.

Section 16 of the act in question provides as follows :

§ 16. Within one year after the expiration of the three months mentioned in the notice to be served pursuant to sections thirteen and fourteen of this act, the grantee, his heirs or assigns, shall make application to the County Court of Monroe county for an order requiring the parties interested to show cause why he should not have possession of and title to such property ; and if such property be incumbered by mortgage which is recorded, or by a judgment which is a lien thereon, or by any other recorded lien, the court shall cause a written or printed copy of said order to show cause to be served on tile person who,' according to the records in Monroe county clerk’s office, is the owner of such property and of such mortgage, judgment or other recorded lien, stating in substance the sale and conveyance, the person to whom conveyed, the amount of the consideration money mentioned in the conveyance, together with thirty-five per centum on said amount, and the amount paid for the deed, and for serving all orders required by this section, and that unless such consideration money, together with the thirty-five per centum and the expense of procuring the deed, and the expense of serving said orders to show cause, is paid into the treasury of said county by a person having an interest in or lien upon said lands, together with the costs allowed by the court for this proceeding, which amount shall be specified in said order, within three months from the service thereof, the court will declare the title vested in the grantee. Said order to show cause shall in every case be served upon the person who, according to the records of the Monroe county clerk’s office, is the owner of said property.”

As we have seen, the order was made returnable on the 8th day of September, 1893, before the expiration of three months from the time the same was issued and served. This, we think, was not a compliance with the provisions of the statute. On reference to the above provisions it will be seen that an application may be made to the County Court for an order requiring the parties interested to show cause why the petitioner should not have possession of and title to the property, but no time is specified in that section in which the order should be made returnable. It does provide that in case the property be incumbered by a mortgage, or by judgment, or by any recorded lien, written or printed notice of the order to show cause must be served upon the person holding such mortgage, judgment or lien, stating in substance the sale and conveyance to the petitioner, the amount of consideration money mentioned in the conveyance, together with thirty-five per centum on such amount, and the amount paid for a deed and for serving the orders required by the act, etc., and that unless such money is paid into the treasury of the county by a ¡person having an interest in or lien upon such land within three months from the service of the order the court will declare the title vested in the grantee. The three months mentioned in this provision refer to the time within which the persons interested in the premises shall pay the amount of the consideration money with the per centum, costs and expenses provided for by the statute. It is, therefore, apparent that the order cannot be made returnable within the three months from the time it was issued and served. This is made more clear by the express provisions of section 17, which provides that “ at any time after the expiration of the three months last aforesaid, unless the premises are redeemed according to the terms and conditions of said order, the county judge or special county judge may, by a final order, declare the absolute title in fee to the said premises vested in the grantee, and that all persons having any lien upon or interest in said premises shall be from the date thereof forever barred and cut off from any and all right, title or interest in said property.” The order should, not, therefore, have been made returnable until after the expiration of three months given to the persons named in the order to redeem.

Some confusion appears to exist in reference to whether the order should be made by the County Court, or by the county judge or special county judge. "W"e think it should be made by the County Court. The petition is required to be presented to the County Court. The order to show cause is made by the County Court, and it should be made returnable in the County Court. True, section 17 provides that the order may be made by the county judge or special county judge, but in construing this section with that which precedes it, we think it was intended that either the county judge or the special county judge may preside in the County Court in which the order was made returnable.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. L, Lewis and Bradley, JL, concurred.

Order of Monroe County Court appealed from affirmed, with ten dollars costs and disbursements.


text:
    Catharine Higgins, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Duty of a railroad company in constructing a bridge —liability fort' the washing away of real estate caused by its faulty construction — measure of damages.

    It is the duty of a railroad company in constructing a bridge over a stream of water to provide such bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as may occur, although infrequently.
    In an action brought to recover damages to real estate caused by the washing ^way of soil therefrom, the proper measure of damages is the difference in value of the premises in question before and after the injury.

      Semble, that, in such an action, it is proper to show that the plaintiff’s claim for damages is extravagant, by showing that a substantial restoration could be effected at a trifling cost by filling in the place from which the earth has been washed away.
    Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cierk of the county of Steuben on the 1st day of August, 1893, upon the verdict of a jury rendered after a trial at the Steuben Circuit, and also from an order entered in said clerk’s office on the 13th day of July, 1893, denying the defendant’s motion for a new trial made on the pleadings and a case containing exceptions.

      James H. Stevens, for the appellant.

      Leslie W. Wellington, for the respondent.
   Haight, J.:

This action was brought to recover damages which the plaintiff is alleged to have sustained to her house and premises by the action of water during the floods of June 1 and August 1, 1889, through the negligence of the defendant. The defendant’s railroad crosses Munkey run, a creek in the city of Corning, by means of an iron bridge resting upon stone abutments. The size of the throat of the bridge is nineteen and three-fourths feet wide and from two feet three inches to three and twenty-seven-one-hundredths feet deep. The area furnished for the flow of water, according to the testimony ■of one of tlie engineers, was sixty-five and eight-one-hundredths -.square feet. The plaintiff’s house is situated on the south side of the defendant’s railroad and upon the east side of the creek. Between the house and the railroad track is one of the streets of the city, with a bridge over the creek. The creek is upon the land of the plaintiff, and her barn is located at the rear of her lot and constructed over the creek, resting upon stone walls on either side of the stream.' The creek descends from a mountain, running north across several streets and empties into the Chemung river. From the barn to the defendant’s bridge the descent is eight feet.

On the occasion of the June flood, gravel, stones and floodwood were carried down the stream, lodging under defendant’s bridge, nearly filling the throat thereof, and, as is claimed, extending back through the channel of the stream to the barn, so as to cause the water flowing in the channel of the creek to depart therefrom above the barn and around the end thereof through the plaintiff’s lot, cutting a channel therein several feet in depth. The water also filled the cellar underneath her house, destroying some personal property therein and doing other damage. The bridge over the highway was washed away and carried against the bridge of the railroad company, ■and that bridge was raised up upon one side so that the ties upon which the rails were laid stood on ends.

It is claimed that the defendant was guilty of negligence in the construction of its bridge, in not leaving proper space for the flow of the water. It was the duty of the defendant to provide a bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as experience would lead the people residing in that vicinity to believe might sometimes occur, although infrequently. (Bogart v. D., L. & W. R. R. Co., 72 Hun, 412; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Ward v. Atl. & Pac. Tel. Co., 71 id. 81-84.)

The- trial court properly and fairly charged upon this branch of the case and submitted the question of fact to the jurors for their determination.

A serious question of fact is presented as to whether the defendant should be chargeable with the damages resulting from the June flood. It was on the occasion of the noted Johnstown disaster, and the evidence tends to show that the flood was greater in magnitude than had ever been known to exist in that locality.

There is also a question as to whether, in case of liability, the defendant should be charged with the damages resulting from the cutting of a channel through plaintiff’s yard, it being claimed that the water was turned from the channel of the stream above the barn by reason of the clogging of the channel under the barn, and that this could not well have been occasioned by .any fault in the construction of the bridge, which was located lower down the stream; but, after a careful reading of the evidence, we have concluded that •it was of such a character as to justify the trial court in submitting these questions to the jury.

As to the August flood, occurring on emancipation day, the situation is different. Whilst heavy it is not contended that it was of such a magnitude as not to be within the experience of the people. The witness Tong, in substance, tells us that it was dammed up under the railroad bridge with gravel and stone; that the damming was within a foot of the top of the piles and that the water coming from the creek spread over the land east and west; that it ran across the lawn on the corner of the plaintiff’s premises next to the creek and took off some of the land and a part of the sidewalk, and that some of the trees in front of the house were washed out. That on that occasion the men were at work upon the track; that there was a stick of timber, about eighteen inches through, which they had chained across the creek, and that railroad planks and pieces of logs were placed at the end of the stick so as to throw the water off, and that it turned the water across the plaintiff’s premises. If this evidence is true, it tends to show that much of the damage suffered by the plaintiff on this occasion occurred through the means adopted • by the' defendant’s servants in protecting the bridge; and, if so, there can be no doubt as to the right of the plaintiff to recover. This question was also submitted to the jury. The damages shown to have been sustained by the June flood were much greater than the amount of the verdict awarded,, and, judging therefrom, it is probable that the award was made for the damages suffered in consequence of the August flood.

The court charged that the rule of damages to the real estate was the depreciation in value occasioned by the flood. An exception was taken to this charge. During the trial the defendant asked the witness Tourney if he knew what it was worth to cart in dirt for filling. This was objected to, sustained and an exception taken. The defendant’s counsel also offered to show what it would be worth to fill in the ditch with stone, gravel and earth, and put it in the condition it was left in. This was objected to as not a proper measure of damages, and the objection was sustained and exception taken. The offer is quite informal. We presume that it was the intention of the defendant’s counsel to refer to the channel that had been cut through the plaintiff’s premises, and it, perhaps, was his purpose to show what it would cost to fill that channel and put it in the condition it was in before the flood. We do not think either exception requires a reversal of the judgment. It does not appear what the character of the soil was that was washed away, or what it would cost to procure like soil for the purpose of filling, and neither the question nor the offer covers this element of damage. And this we regard as important when the soil has been washed away, for in such a case it is impossible to restore the same soil.

We are aware that in the case of Hartshorn v. Chaddock (135 N. Y. 116-122) the judge delivering the opinion says: “ The rule seems to be that when the reasonable cost of repairing the injury, or, in this case, the cost of restoring the land to its former condition, is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages; on the other hand, when the cost of restoring is more than such diminution, the latter is generally the true measure of damages.”

This rule, as it appears to be understood by the appellant’s counsel, would establish a double rule of damages, and upon a trial evidence may be given with reference to each, and then the jury adopt that which is the most favorable to the defendant. In such cases a difference'in ojfinion may often occur as to which would be the most favorable, with the result that part of the jurors may base their verdict upon one measure of damages and the rest upon the other. We have not so understood the rule where the damages are permanent and the restoration impossible. If a man has upon his lands a sand bank and a load of sand is taken therefrom, it being an article of merchandise, his damages doubtless would be the value of the sand taken. If a forest tree was cut therefrom, which had a market value either for lumber or wood, he may be compensated in damages by the awarding to him the value thereof, but if he should have grown fruit trees standing upon his premises, and they should be cut therefrom, the trees would possess no value of consequence after severed from the freehold, and they could not be replaced or repaired, so that the injury would be permanent, and the damages would be the difference in the value of the premises before and after its removal. (Dwight v. E., C. & N. R. R. Co., 132 N. Y. 199.)

As we have seen, soil washed away cannot be restored. Other soil may be substituted in its place and the premises partially restored. In such case, it appears to us, the proper measure of damages is the difference in the value before and after the injury. It doubtless would be competent on cross-examination or on the defense to show that the plaintiff’s claim for damages was extravagant, by showing that a substantial restoration could be effected at a trifling cost by filling the place from which earth had been washed away. Rut this would not operate to change the measures of damages. It would only tend to show that the damages were not as great as claimed.

But, as we have seen, neither the question nor the offer referred to was sufficiently comprehensive to cover this question. We have examined the other exceptions presented by the case, but find none that require a new trial.

The judgment and order appealed from should, therefore, be affirmed.

Dwight, P. J., Lewis and Beadley, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    The National Life Association of Hartford, Connecticut, Respondent, v. Harriet E. Sturtevant, Appellant; Jennie C. Minor and Others, Respondents.

      Life insurance — proofs of death — prima facie evidence only.

    Thé proofs of death, furnished to an insurer by the beneficiaries of the assured, are prima facie evidence, so far as the persons making the same are concerned, of the facts stated therein ; they are not, however, conclusive evidence, and if a mistake has been made in such proofs it is proper that the same should be corrected or explained by parol testimony given upon the trial of an action brought to determine the liability of the insurer, and the rights of the beneficiaries of the assured under the policy of insurance.
    Appeal by the defendant Harriet E. Sturtevant from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 4th day of August, 1893, upon the report of a referee.

      Wile cfi Goff, for the appellant.

      W. A. Sutherlcund, for the plaintiff, respondent.

      S. Greenfield, for the defendants Jennie 0. and John Minor, respondents.
   Haight, J.:

This action was brought by the plaintiff for the purpose of obtaining the direction of the court as to the distribution among the defendants of the funds in its hands.

It appears that the Mutual Relief Society of Rochester, N. Y., was a domestic corporation organized under the statute of the State and did business as a mutual benefit association ; that on the 15th day of June, 1892, it became embarrassed, and under an arrangement with the plaintiff transferred its assets and business to the plaintiff, who agreed to receive payments of assessments then outstanding which had been issued by the Mutual Relief Society, and distribute the same to the parties entitled thereto.

It further appears that on the 1st day of June, 1892, the Mutual Relief Society had issued its assessment upon its members for the payment of six death claims, among which was one on account of the death of Mary J. Carpenter and another on account of the death of A. G-. Sturtevant, upon which assessment there was received the sum of $8,636.08. That, thereafter, an additional assessment was made, upon which there was received the sum of $755, which sums were not sufficient to pay the claims in full.

It further appears that before the commencement of this action, the defendant Harriet E. Sturtevant, who is the beneficiary named in the certificate issued to A. GL Sturtevant, served a notice upon the plaintiff to the effect that she contested the right of the beneficiaries under the certificate issued to Mary J. Carpenter, to receive any of the avails of the assessment or of the funds in the hands of the plaintiff, and demanded that her pro rata share thereof be paid over to her. On the other hand, the defendants Jennie C. Minor and J ohn Minor demanded that the amount derived from the assessment on acoow^ of the claim of Mary J. Carpenter be paid over to them, they being the beneficiaries named in her certificate.

It further appears that Mary J. Carpenter applied for membership in the Mutual Relief Society on the 30th day of July, 1880, and in her application therefor stated that she was born November 17, 1820 ; that she died on the 21st day of September, 1891, and that in the proofs of death furnished her birth is stated to have occurred on the 17th day of November, 1818; that under the by-laws of the society persons who had passed their sixtieth birthday were ineligible to membership, from which it is claimed that Mary J. Carpenter, in stating in her application that she was born on the 17th day of November, 1820, thus making herself at that time but fifty-nine years of age, practiced a fraud upon the association which rendered void the certificate issued to her.

Upon the trial it appeared that the respondents Jennie C. and John Minor, in making their proofs of death, left blank the date of birth of Mary J. Carpenter; that some days after the same had been signed and sworn to by them the date was filled in without their authority or consent by one Putnam, who had charge of the paper.

¥e think this evidence was competent. It may be that the proofs of death became prima facie evidence, so far as the Minors were concerned, of the facts stated therein, but we do not understand that they were conclusive evidence. If a mistake had been made it was proper that it should be corrected or explained, and this they did in their testimony given on the trial. (Wood on Insurance, § 427; McMaster v. Ins. Co. of North America, 55 N. Y. 222.)

We are thus brought to a consideration of the paper offered as the family register. It appears from the testimony that one James Simpson, who was a son of Mrs. Carpenter, had in his possession a paper with an old-fashioned engraving on it with lines and blank space for names, dates of birth, marriage and death; that it had upon it a number of names, among which was that of Mary Jane Hill, which was the maiden name of Mrs. Carpenter, and in the column headed date of birth was entered, opposite her name, November 17, 1818. This paper was not produced upon the trial, but it appears that it was found among the papers of Simpson and his mother, and that it had been among their papers for a good many years ; that it was not known who wrote the paper ; that it was not in her handwriting, but it all appeared to be written in the same handwriting, at one time and in- the same ink. Was this paper evidence as to her date of birth ? 1 Greenleaf on Evidence •(§ 105), in speaking upon the subject of the proof of facts of birth, marriages and death, says: “ Inscriptions on tombstones and other funeral monuments, engravings on rings, inscriptions on family portraits, charts or pedigree, and the like, are also admissible as original evidence of the same facts. Those which are proved to have been made by or under the direction of the deceased are ■admitted as his declarations. But if they have been publicly exhibited and were well known to the family, the publicity of them supplies the defect of proof in not showing that they .were declarations of deceased members of the family, and they are admitted on the ground of tacit and common assent.”

It will be observed that the paper does not purport to contain original entries; for, if the events were entered thereon at the time of their occurrence, they, of necessity, would have been entered at different times with different pens and ink. The fact that the paper .appears to have been written in the same handwriting, at one time and in the same ink, would indicate that at most it was but a copy. It does not appear that Mrs. Carpenter ever publicly exhibited this paper as containing her family record, or that it was made by her or a deceased relative of hers. It does not distinctly appear that it was a paper belonging to her. The only evidence upon that subject appears in the testimony of Simpson, in which he states that it was found “among her papers and mine.”

For these reasons, we are of the opinion that it does not come within the rule making it admissible as evidence, and without this, the appellant has failed to produce any evidence impeaching the statements made by Mrs. Carpenter in her application for membership.

This view renders it unnecessary to consider the other questions discussed, or the question whether the appellant would be entitled to share in the fund derived from the assessment, upon the claim of Mrs. Carpenter, if it had been obtained through a fraud practiced by her upon the members of the association.

The judgment appealed from should be affirmed, with costs against the appellant.

Dwight, P. J., and Lewis, J., concurred; Bradley, J., not sitting.

Judgment appealed from affirmed, with costs against the appellant.


author: Haight, J. :

text:
    Ann Lee, as Administratrix, etc., of John Lee, Deceased, Appellant, v. John Van Voorhis and Others, Respondents.

      Attoimey and client — action under Gode Civ. Proc. §§ 1902, 1903 — settlement of such action pending an appeal — attorney’s lien on the amount received in settlement thereof.

    An attorney dealing with his client must show that his contract for services is fair and reasonable.
    The executor or administrator of a deceased person, in bringing an action under the provisions of sections 1902 and 1903 of the Code of Civil Procedure, is empowered to engage the services of an attorney, and, as incident thereto, to agree upon the compensation to be given therefor, with the qualification that the amount so agreed upon shall be fair and reasonable.
    While no liability may be created against an estate by a contract made by the executor or administrator thereof for services to be rendered, yet where a prosecution is carried on for and on behalf of the estate, and a liability is created by the executor or administrator thereof individually, if the contract is fair and reasonable, such executor or administrator is entitled to be reimbursed out of the estate.

      When, upon the trial of an action brought by the administratrix of a decedent to recover damages sustained by his death, a verdict was rendered for the plaintiff and subsequently affirmed on appeal to the General Term, and the plaintiff in such action made an agreement with the defendant therein, settling such action, a lien is created in favor of the attorney for the plaintiff in such action for the amount of his compensation upon the amount paid in settlement of the action.
    Appeal by the plaintiff, Ann Lee, as administratrix, etc., of John Lee, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 11th day of July, 1893, upon the decision of the court rendered after a trial at the Monroe Special Term and upon the verdict of a jury on the issues submitted to it.

      Joseph W. Taylor, for the appellant.

      J. áb Q. Van Voorhis, for the respondents.
   Haight, J. :

This action was brought to procure a judgment declaring a contract between the plaintiff and the defendants null and void.

It appears that on the 21st day of December, 1887, John Lee died in consequence of injuries received’ through the negligence of the Yacuum Oil Company; that he left him surviving the plaintiff, his widow, and six minor children; that thereafter letters of administration were issued to the plaintiff solely for the purpose of enabling her to bring and maintain an action against the Yacuum Oil Company for damages; that she employed the defendants, who are attorneys at law, to prosecute such action, agreeing with them that they should defray the expenses of bringing and prosecuting the action, and as compensation that they should have one-third of the recovery over and above taxable costs and disbursements, and in case of their failure to recover any damages they were to receive nothing for their services.

Thereafter, and on the 13th day of June, 1888, the action was tried and resulted in a verdict for the plaintiff for $5,000, on which a judgment was entered December 31, 1888, for $5,801.38, being the amount of the damages, costs and extra allowance made. An appeal was then taken to the General Term of the Supreme Court, where the judgment was affirmed and a judgment entered for ninety-one dollars and fifty-six cents costs of tlie appeal. An appeal was then taken to the Court of Apjoeals, and pending such appeal the plaintiff, without the knowlege and consent of her attorneys, settled the judgments recovered by her with the Vacuum Oil Company for $4,500, $1,000 of which was paid to her in cash and the remaining $3,500 were deposited with the Rochester Trust and Safe Deposit Company under an agreement that the same should be paid over to her upon the delivery to the Vacuum Oil Company of a release by her attorneys of all claims by them hy reason of the judgments so recovered by her.

The issues formed by the pleadings in this action were, by an order of the court, submitted to a jury and a verdict rendered thereon. The findings in this action were based upon the verdict and such additional testimony as was deemed material. The trial court has found, as facts, that when the plaintiff signed the agreement with the defendants she was fully informed as to its contents and meaning; that she executed the same freely and without undue influence exerted over her by the defendants or either of them, and that, under the circumstances of the case, the agreement was not unfair and unreasonable, and as conclusions of law that she had the authority to enter into the agreement in question; that it is valid and created a lien in favor of the defendants upon the recovery, etc. Exceptions were taken only to the conclusions of law.

Did the plaintiff have the authority to make the agreement in question? Is it valid, and did it create a lien in favor of the defendants upon the recovery ? It appears to us that these questions should be answered in the affirmative. An attorney, dealing with his client, should show that his contracts for services are fair and reasonable. This the defendants have done.

Section 1902 of the Code provides that an executor or administrator of a decedent, who has left him or her surviving a husband, wife or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused,” etc.

Section 1903 provides that “ the damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife and next of kin, and, when they are collected, they must be distributed by the plaintiff as if they were unbequeathed assets, left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action and his commissions upon the residue, which must be allowed by the surrogate, upon notice, given in such a manner and to such persons as the surrogate deems proper.”

It thus appeal’s that the right to bring and maintain the action is-given by the express provisions of the Code. In order to bring an action it was necessary for her to have the services of an attorney. She must, therefore, be deemed empowered to engage such services, and, as an incident thereto, to agree upon the compensation that should be given therefor, with the qualification that the amount so agreed upon is fair and reasonable. (Matter of Application of Hynes, 105 N. Y. 560-563; Taylor v. Bemiss, 110 U. S. 42.)

We are aware that it has been held that contracts made by executors and administrators for services to be rendered are deemed to be the individual contract of such executors and administrators, and that they do not create a liability against the estate. (See Austin v. Munro, 47 N. Y. 360.)

Whilst no liability may be created against the estate, yet, where the prosecution is for and on behalf of the estate, a liability by the executor or administrator individually is created, and, if the contract is fair and reasonable, such executor or administrator may be reimbursed out of the estate.

In the case under consideration the action was not prosecuted for and on behalf of the estate, but was prosecuted for and on behalf of the widow and minor children. The recovery was for their benefit, and the plaintiff, as administratrix, represented them in the action, and the employment of counsel by her to prosecute the action was the discharge of one of tire duties that devolved upon her, and, under the provisions of the Code referred to, as such administratrix, she is expressly authorized to deduct from the recovery the expenses of the action. This, we understand, includes all of the necessary and proper expenses incurred by her, including the services of her attorneys.

Section 66 of the Code provides that the compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim the attorney who appeal’s for a party has a lien upon his client’s canse of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof, in whosoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment.”

Here we have an express provision of the statute authorizing the fixing of the compensation of attorneys by agreement. We also have express provisions giving the attorney a lien upon his client’s cause of action to the amount of the compensation so agreed upon.

It is contended that this provision did not operate to give the defendants a lien on 'the recovery, for the reason that the same did not belong to the plaintiff. But we cannot assent to this interpretation of the provision. It would, in many cases, operate to deprive the attorney of any compensation whatever, for he has no claim against the estate and the administrator may be insolvent.

As we understand, the provisions of section 66 give the attorney a lien, and section 1903 provides that the amount of his claim shall be deducted from the recovery by the administrator. This we understand to be in accord with the suggestion of the court in the case of Lee v. The Vacuum Oil Co. (126 N. Y. 579). (See, also, Matter of Application of Knapp, 85 id. 284.)

■ The $325 paid to the plaintiff by her attorneys should be regarded as an advancement to her of that amount, and was properly * allowed.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Lewis and Beadley, JJ., concurred.

Judgment appealed from affirmed, with costs.


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    John Doorley, Respondent, v. Ellen L. McConnell, Appellant.

      Action of ejectment — title to veal estate — when not divested by the violation of a condition by a former owner.

    The complaint in an action of ejectment alleged that there had heen a forfeiture of the estate of the party having the record title to the premises therein described, hy reason of the breach by her grantors of covenants in the deed of such premises in respect to selling intoxicating liquors thereon. The action of ejectment was commenced four years after the alleged breach of the covenants, and there was no allegation in the complaint that the defendant knew of such alleged breach.

      JELeld, that the complaint did not state facts sufficient to constitute a cause of action.
    Where a purchaser for value of real estate obtains a good record title thereto, she cannot be divested thereof, by reason of misconduct on the part of her grantors, four years before, of which she had no knowledge at the time of her purchase.
    Appeal by the defendant, Ellen L. McConnell, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 20th day of February, 1894, upon the decision of the court rendei’ed after a trial at the Erie Special Term, and also from an order entered in said clerk’s office on the 3d day of January, 1894, overruling the defendant’s demurrer to the complaint.

      James L. Weelcs, for the appellant.

      Walter L. Sessions, for the respondent.
   Haight, J.:

This action is in ejectment to recover possession of real estate.

The demurrer is interposed upon the grounds that there is a defect of parties plaintiff, and that the complaint does not state facts sufficient to constitute a cause of action. The complaint, in substance, alleges that on the 1st day of April, in the year 1876, Henri Hall, Warren Packard and Mary E. Packard, his wife, and the plaintiff, John Doorley, were owners in fee and -tenants in common (except that the interest of the said Mary E. was an inchoate right of dower only) in the premises in question. On that day they conveyed the same to Warren Packard by a deed with covenants of warranty and of quiet and peaceable possession and containing the following: And the said Packard, party of the second part, for himself, his heirs and assigns, does hereby covenant to and with the said Hall, Warren Packard and Doorlev, their heirs, executors and administrators, that neither the said Warren Packard, party of the second part, nor his heirs or assigns, shall or will, at any time hereafter, erect any building within ten feet of the front of said lot or lots, and will not erect or permit on any part of said lot or lots any barn or outhouse, except a summer house or other ornamental building or privy, nor keep for sale, nor permit to be sold or kept for sale upon said premises any intoxicating liquor of any kind or description whatever, under the penalty of a forfeiture of the lots above conveyed to the said first party, their heirs or assigns, upon proof of such selling or keeping for sale any intoxicating liquors as aforesaid.”

The complaint further alleges that the premises so conveyed to Packard were by him, through several mesne deeds, conveyed to King I). Fleek and Ermina Fleek, his wife ; that the deeds by which such conveyances were made were all recorded in the clerk’s office.

The complaint further alleges that during the time that Fleek and wife were the owners and in possession of the premises they erected thereon a hotel for the accommodation of the public within ten feet of the street in front thereof, and also built a hotel barn on the lot, in which they kept horses and carriages for the accommodation of their guests and patrons, and also constructed other shanties and buildings thereon in violation of the condition in the deed, and did therein, under a license issued by the board of excise of the town, sell and cause to be sold and kept for sale, and offer for sale in said hotel building to persons, various kinds of intoxicating liquors dui’ing the year 1889.

It is further alleged that thereafter, and on the 11th day of September, 1890, King D. Fleek made a general assignment for the benefit of creditors to George W. Boomer, who duly qualified as such assignee and entered into possession of the said premises, and, on the 30th day of April, 1891, thereafter, did sell and convey the same by deed, in which Fleek and wife joined, for a consideration duly paid, to the plaintiff.

The summons issued herein is dated July 13, 1893. It thus appears that this action was commenced four years after the alleged selling and keeping for sale of intoxicating liquors upon tlie premises, and after the premises bad been conveyed to the defendant. There is no allegation in the complaint that she knew of such sale or of there being a forfeiture by reason thereof. In this respect it appears to us that the complaint does not state facts sufficient to constitute a cause of action.

Packard, as the party of the second part, covenants that he, his heirs or assigns, shall or will not at any time erect any building within ten feet of the front of the lot, etc. This provision of the deed is described as a covenant, and, as we understand, it is separate and distinct from that which follows.

The deed then provides that the grantee shall not keep for sale nor permit to be sold upon the premises any intoxicating liquor, under the penalty of the forfeiture of the lots, etc., “ upon proof of such selling or keeping for sale of any intoxicating liquors as aforesaid.”

It will be observed that the forfeiture herein provided for has reference to the selling or keeping for sale of intoxicating liquors upon the premises, and that it has no application to the covenant pertaining to the buildings upon the lot, so that whilst there may be a breach of the covenant as to the buildings, such breach does not create a forfeiture of the estate, and that such forfeiture can be maintained only upon proof of the selling and keeping for sale of intoxicating liquors. Can it be now invoked ? As we have seen, the plaintiff rested upon his rights during the time that Eleek and wife owned and occupied the premises. He waited four years and until after the defendant had purchased and paid for the premises. Her possession is that of an innocent purchaser for value, and it appears to us that she obtained a good title of which she cannot now be divested because of the misconduct of one of her former grantors. She found the premises in their peaceable possession. The records of the clerk’s office showed them to be the owners in fee. She is not charged with having knowledge of any forfeiture, and if she had, she might reasonably have supposed that it had been waived byThe persons entitled to insist upon it, from the facts disclosed in the case. It is true she was apprised by the records of the condition incorporated in the deed to Packard, and if she now violates it she may forfeit her estate. (Plumb v. Tubbs, 41 N. Y. 442.)

These views render it unnecessary to consider the question as to whether there is a defect as to parties plaintiff.

The interlocutory judgment should be reversed, with costs, but with leave to the plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

Dwight, P. J., Lewis and Bradlet, JJ., concurred.

Interlocutory judgment reversed, with costs, but with leave to the plaintiff to amend complaint within twenty days upon payment of the costs of the demurrer and of this appeal.


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    Allen M. Burrell, Respondent, v. George Hollands, as Sheriff of Steuben County, Appellant.

      What constitutes a delivery of an execution to a sheriff.

    The delivery oí an execution to the deputy sheriff in person is in contemplation of law a delivery thereof to the sheriff, hut leaving the same in some undescribed place in the meat market of one of the sheriff’s deputies is not a delivery thereof to the sheriff.
    Appeal by the defendant, George Hollands, as sheriff of Steuben county, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 29th day of December, 1893, upon the decision of the court affirming the judgment of a justice of the peace of the county of Steuben.

      F. H. Robinson, for the appellant.

      A. M. Bv^rell, in person, respondent.
   Haight, J.:

This action was brought to recover money alleged to have been collected by the defendant upon the plaintiff’s execution.

It appears that the plaintiff and one Leroy Riddell had each obtained a judgment against one Harvey G. Lason ; that each procured an execution to be issued upon his judgment and delivered the same to the sheriff of the county, who, by virtue thereof, levied upon and sold personal property of Lason and made thereon thirty dollars and twenty cents. Both plaintiff and Riddell claimed the money, and the only question to be determined in this case is as to which execution was first delivered to the sheriff.

Riddell testified that he got his execution on the night of December 28, 1892, and went to Deputy Sheriff 'Williams’ office ; that he was not at home, and that the next morning he again went to his office, between nine and ten o’clock in the forenoon, and gave him the execution.

Deputy Sheriff Williams, in his testimony, corroborates Riddell and states that he received his execution not later than ten o’clock in the forenoon of the 29th of December, 1892. This evidence is not disputed.

The plaintiff introduced his execution in evidence, from which it appears that it was dated December 28, 1892, and indorsed thereon as received December 29, 1892, one p. M., by the sheriff per Williams, his deputy, and returned wholly unsatisfied February 24, 1893. He, however, testifies that Deputy Sheriff Williams is a butcher and keeps a meat market at the village of Canisteó, and that on the 28th of December, 1892, at about twelve o’clock noon, he went to Williams’ j>lace of business and inquired for him, and was informed by a man who worked in the market that Williams was not there; that thereupon he left the execution there at his place.”

It does not appear whether he delivered it to the man who was _ working for Williams in the meat market, or whether he left it upon the table, desk, or in what particular place it was deposited. Williams testified that the execution was delivered to him December twenty-ninth, between eleven and twelve o’clock, by the plaintiff, and after the Riddell execution.

The sheriff to whom an execution is directed and delivered, must, upon receipt thereof, indorse thereupon a memorandum of the day, hour and minute when he received it. (Code Civ. Proc. § 13G3.)

Upon the plaintiff’s execution we find such an indorsement. It is, however, that it was received at one o’clock on December twenty-ninth. His deputy says that he received it between eleven and twelve o’clock of that day, but states that this was after the Riddell execution had been delivered to him. It thus becomes important to determine whether there was an earlier delivery of the execution to the sheriff. This-depends upon the testimony of the plaintiff as to what he did the day before. As we have seen, he took the execution, went to the meat market of Deputy Williams, found he was not there, and then left the execution “ there at liis place.” Was this a delivery to the sheriff ? If so, how could the sheriff perform his .statutory duty of indorsing thereon the day, hour and minute that it was delivered to him ?

The sheriff of the county is required to keep an office in some proper place in the city or village in which the county courts of the -county are held, of which he shall file a notice in the office of the county clerk, and he shall keep the same open, except Sundays and other holidays declared by law, from eight o’clock in the morning until nine o’clock in the evening, and every notice or other paper required to be served upon any sheriff may be served by leaving the same at the office designated by him in such notice, during the days and hours which he is required to keep such office open. (Laws 1892, chap. 686, § 184.)

Canisteo was the county seat or the place where the office of the sheriff was established. The place where the execution was left was but a meat market or store kept by one of the sheriff’s deputies. A delivery of an execution to the deputy in person, doubtless, would have been, in contemplation of law, a delivery to the sheriff. He then could make the indorsement required by the statute. But the leaving of it in some undescribed place in the meat market of one of his deputies is not a delivery to the sheriff. We are, therefore, of the opinion that it appears from the undisputed evidence in the case 'that the Riddell execution was first delivered to the sheriff, and" that the verdict is against the evidence.'

The judgment of the County Court and that of the justice should be reversed, with costs in this and the courts below.

Dwight, P. J., Lewis and Bisad ley, JJ., concurred.

Judgment of the County Court of Steuben county and that of the justice reversed, with costs in this and the courts below.


author: Lewis, J.:

text:
    The People of the State of New York ex rel. John O’Brien, Appellant, v. Melvin J. Woodworth, Sheriff of the County of Wyoming, Respondent.

      Habeas corpus — sentence of a prisoner to legal imprisonment and an illegal fine — an application, pending the term, of imprisonment, is premature.

    An application for a writ of habeas corpus was made by a prisoner, who, at the-time of making the same, was in the custody of the sheriff by virtue of a final judgment of a court which had the power to impose a sentence of imprisonment for a misdemeanor for a term of six months, and which had sentenced such applicant to imprisonment for sixty days, and to pay a fine of $100, and to-stand committed to jail until the payment of such fine, not exceeding 100-days. Neither at the time the application was made for the writ nor upon the return day thereof had the prisoner served the sixty days’ sentence.

      Held, that as the sixty days’ imprisonment was lawful, until that part of the-sentence had been served the prisoner was not in a position to raise the question, as' to the illegality of the $100 penalty.

      Semble, that had the court not had authority to impose a fine larger than fifty dollars the prisoner would, on an application made at the end of the sixty days, be entitled to his liberty, as he could not be deprived of his option of either paying the fine or serving the term of imprisonment.
    Appeal by tbe relator, John O’Brien, from an order of the-Supreme Court, made at Chambers on the 15th day of March, 1894, denying the relator’s motion for his discharge and remanding him to-the custody of the sheriff of the county of Wyoming.

      Charles D. Newton, for the appellant.

      George W. JBotsford, for the respondent.
   Lewis, J.:

The relator was indicted at the Court of Oyer and Terminer of' Wyoming county on the 8th day of December, 1893, for violation of the Excise Law. By an order duly made the case was sent to the-Wyoming Court of Sessions. On the 8th day of January, 1894, the relator pleaded guilty to the indictment, and on the fifteenth of the same month he was sentenced by said court to be imprisoned in. the county jail for a period of sixty days and to pay a fine of $100, and stand committed to the Wyoming county jail until said fine was-paid, not exceeding 100 days. On the 26th day of February, 1894,. the relator procured a writ of habeas corpus, returnable before one of the justices of the Supreme Court on the 5th day of March, 1894. After hearing the parties the application to discharge the relator was denied, and he was remanded to the custody of the sheriff of the county of Wyoming, and from that order the relator appeals to this court.

It is the contention of the relator that in sentencing him the Court of General Sessions exceeded its jurisdiction in so far as it imposed the money penalty, and that the judgment was, therefore, erroneous and void. Our attention is called to section 56 of the Code of Criminal Procedure, which provides that subject to the power of removal provided for in this chapter, Courts of Special Sessions * * * have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties as follows:

Subdivision 32. When a complaint is made to, or a warrant is issued by, a committing magistrate for a violation of the laws relating to excise and the regulation of taverns, inns and hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks.”

Section 117 of the same Code provides: “ Judgment on conviction. When the defendant pleads guilty or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may require; but the fine cannot exceed $50, nor the imprisonment six months.” The latter section is included in the title relating to proceedings in Courts of Special Sessions. Had the defendant been tried in a Court of Special Sessions, concededly that court would not have had jurisdiction to impose a money penalty exceeding fifty dollars ; but whether section 717 has any application to a case tried in a Court of General Sessions may well be doubted. It does not necessarily follow, we think, because the jurisdiction of a Court of Special Sessions is limited to the punishment mentioned, that the Court of General Sessions had not jurisdiction to impose the penalty for misdemeanors provided by section 15 of the Penal Code, to wit, imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. The defendant pleaded guilty of a misdemeanor.

But from tlie view we have taken of this appeal it is not necessary tbat we should decide the question. At the time the relator applied for the writ he was in the custody of the sheriff by virtue of a final judgment of a competent court, which concededly had the power to impose a sentence of imprisonment for a misdemeanor for the term of six months. The relator was sentenced to imprisonment for sixty days and to pay a fine of $100. He had not, at the time he applied for the writ, nor on the return day thereof, served the sixty days’ sentence. The sentence, in that regard, was lawful, and until he had paid that part of the sentence he was not in a position to raise the question as to the legality of the $100 penalty. Had his application been made after the expiration of the sixty days he would then have been in a situation to raise the question as to the legality of the balance of the sentence, and if it had been held that the court exceeded its authority in including in the sentence the fine of $100, he would have heett entitled to his liberty, for to hold otherwise would deprive him of the option of paying the fifty dollars, had that been the money penalty, and thereby escaping further imprisonment, but that rule has no application to the sixty days part of the sentence, for that being within the power of the court to impose, he was in any event obliged to serve that much of the sentence.

The order appealed from should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Order appealed from affirmed.


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    William Engelhardt, as Administrator, etc., of Albert Engelhardt, Deceased, Plaintiff, v. The Delaware, Lackawanna and Western Railroad Company, Defendant.

      Locomotive engineer — defective vision and drinking habits — when the employer is not liable for injuries caused by the engineer's negligence.

    The fact that the engineer on a locomotive was near-sighted, and that he had been twice intoxicated prior to a certain accident, does not make his employer liable for injuries sustained by a co-employee, resulting from negligence on the part of the engineer, where neither his near-sightedness nor drinking habits in any way contributed to the accident whereby the injuries in question were sustained, in the absence pi proof that the drinking habits of such engineer had rendered him either mentally or physically incompetent to discharge his duties when sober.
    Motion by tbe plaintiff, William Engelhardt, as administrator, etc., of Albert Engelhardt, deceased, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon a nonsuit directed by the court after a trial before the court and a jury at the Erie Circuit.

      George W. Cothran, for the motion.

      John G. Milbv/rn, opposed.
   Lewis, J.:

This action was brought to recover damages for the negligent killing of plaintiff’s son while in the employ of the defendant as a fireman on a locomotive engine, through the alleged incompetency of the engineer in charge of the engine.

The case was tried at the Erie Circuit, and at the close of plaintiff’s case the court granted, a nonsuit upon the ground that the plaintiff had failed to establish a cause of action.

The accident occurred upon the line of the defendant’s road at the village of Groveland, N. Y., on the evening of the 10th day of February, 1891. . The deceased was a fireman in the employ of the-defendant, and he was, at the time he received his injuries, upon, one of the defendant’s locomotives, which was, at the time, in charge of an engineer by the name of Schrieber.

A freight train of cars had been drawn into Groveland from the-east by this engine on the evening of the accident.

The train was manned by a conductor, engineer, fireman and three brakemen. It was run off from the main track upon one of the side tracks for the purpose of allowing the regular express passenger train going easterly the use of the main track. After leaving the main track, tbe freight engine was. uncoupled from the train and was run upon another side or switch track at a place from fifteen to twenty rods distant from the main track. The conductor directed the engineer to remain there with his engine until the passenger' train mentioned had passed. Instead of doing as directed, the-engineer ran the engine along the switch track towards the main track, and so near to it that the express train, running at the rate of thirty-eight miles an hour, came into collision with the freight engine; both engines were wrecked and the deceased and one of the brakemen, who were upon the freight engine at the time, were killed. The engineer was not killed.

It is the contention of the plaintiff that the accident was the •result of the incompetency of the engineer, Schrieber; that his incompetency consisted of defective vision and habitual intoxication.

The evidence upon which the plaintiff relied to establish the •defect in the engineer’s eyesight came from the witness, Thomas Lauer. His testimony upon that subject is as follows: “ I know that Schrieber was near-sighted; I was on the engine with him; some days he could see a little farther than others, but he couldn’t see a .great distance; I should judge he couldn’t see over 350 feet, very .seldom. It was not from intoxication. The man lost the sight of his eyes when he was a lake fireman or lake engineer, before he came to work for the defendant at all. His eyesight was in' the same shape when he was running on an engine on the Lake Shore ; when I went to work for the defendant, in 1883 or 1884, he was then in the defendant’s employ as a yard engineer.”

The witness upon his cross-examination testified that the way he knew that Schrieber could not see farther than 350 feet was by giving him signals on the track. There was no evidence that within the distance named, 350 feet, his vision was not perfectly good.

It was not shown that he had any difficulty in seeing well enough •to discharge his duties as engineer.

It was necessary for him to see but a very few feet to determine how near he was to the main track at the time of the collision. He was undoubtedly guilty of negligence in running his engine so near the main track. The deceased and one of the brakemen were on the engine when it was run down to the place of the collision, and they do not seem to have discovered the proximity of the engine to the main track. It cannot, with any propriety, be claimed that the accident resulted from any defect in the engineer’s eyesight. The plaintiff gave evidence tending to show that Schrieber was in the habit of drinking beer, whiskey and other liquors, and that on two occasions he was intoxicated.

The latter occasion occurred some two or three weeks j>rior to the accident. One of tlie defendant’s officials called Mm to account for it, and threatened to dismiss - Mm from the company’s employ if it was repeated. The witness who testified to seeing him intoxicated on the occasion mentioned had lived near him five or six years, saw him almost daily during a part of the time, and never saw him under the influence of liquor except this once.

There was an absence of any evidence that he drank any liquor on the day of the accident. The evidence failed to show.that Ms drinking habits had rendered him either mentally or physically incompetent to discharge the duties of an engineer when he was sober.

The head brakeman of the train was with Schrieber during the entire day of the accident, and testified that he did not drink that day, and that he was sober on the evening in question. The plaintiff, we think, failed to make a case entitling him to recover. His motion for a new trial should be denied, and judgment directed for the defendant upon the verdict.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Plaintiff’s motion for a new trial denied and judgment ordered for the defendant on the nonsuit.


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    Uriah Cleveland, Appellant, v. Joseph Wilder, Respondent.

      Question of title to real estate in an action by a landlord against his tenant for waste — costs, when properly allowed to the defendant — question of treble damages, when raised too late.

    In an action brought by a landlord against bis tenant to recover damages for waste, tbe complaint contained tbe allegation that tbe plaintiff was the owner in fee simple of tbe premises in question, leased to the defendant. Tbe answer contained a general denial of each and every allegation of tbe complaint. There was no allegation in the answer that tbe defendant was in. possession of such premises, under any other title than that of the plaintiff, nor was there any affirmative allegation in the answer putting in issue the plaintiff’s title. A verdict was rendered for the plaintiff for a sum less than fifty dollars, and costs were taxed in favor of the defendant.

      Held, that upon the trial the plaintiff was not required under the pleadings to prove his title;
    That the plaintiff could not, by reason of the insertion in his complaint of an entirely unnecessary and superfluous allegation, which he knew the defendant would not be at liberty to put in issue against him, successfully maintain that the title to real estate came in question, and so entitle himself to costs, and that the costs were properly taxed in favor of the defendant.
    In an action for waste where treble damages were not claimed in the complaint, and judgment was entered for single damages only, and the plaintiff did not ask to have it set aside on the ground that he had not been awarded treble damages, it is too late to raise that question on an appeal.
    Appeal by the plaintiff, Uriah Cleveland, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Wyoming on the 13th day of March, 1891, denying the plaintiff’s motion to vacate the judgment entered in favor of the defendant, to disallow the defendant’s bill of costs, as taxed, and to tax costs for the plaintiff.

      If. E. (& E. M. Bartlett, for the appellant.

      Johnson da Charles, for the respondent.
   Lewis, J.:

It was alleged in the complaint that the plaintiff was on the 11th day of April, 1890, the owner in fee simple of a farm in the county of Wyoming, and that on said day he and the defendant entered into an instrument in writing, under their hands and seals, being a lease of said farm by the plaintiff to the defendant. The lease is set out in full in the complaint. It provides that, in consideration of the rents, covenants and agreements mentioned and reserved therein, the plaintiff leased the farm to the defendant for the term of one year from the 1st day of April, 1890,Tor the annual rent of $100, with the privilege to the tenant of a renewal ■ thereof for one year ujion the same terms and conditions. The lease contained, among others, the following conditions : “And the said party of the second part (the defendant) * * * will feed out one-third of all the hay made on said premises, and two-tliirds of all the straw raised upon said farm * * * repair the fences ” on the farm. The tenant covenanted not to plow more than two acres of the meadow land, and to leave the premises at the termination of the lease in as good condition as they were at the date of the lease, ordinary wear and damages by the elements excepted. The woodland was reserved to the landlord except the right to the tenant to pasture the same.

The complaint further alleged that the defendant went into possession of the premises; and that in violation of the provisions and covenants of said lease he plowed some fifteen or twenty acres of meadow land on the farm, and cut down timber growing thereon and converted it to his own use, and took from the buildings, doors, windows, boards, and committed great waste on the farm; that he carried off all hay and straw raised thereon, and did not feed any of it out on the farm, and removed therefrom a large quantity of manure, the property of the plaintiff, of the value of $100, and converted the same to his own use. Judgment was demanded against the defendant for the sum of $600. The defendant, by his answer, denied each and every allegation in the complaint, and alleged that the timber cut by him was with the knowledge and consent of the plaintiff, and that he had paid therefor in full, and set up a counterclaim.

The issues came on for trial, and the plaintiff recovered a verdict against the defendant for twenty-one dollars and ninety-seven cents. The defendant was allowed costs of the action by the taxing officer. The plaintiff’s damages of twenty-one dollars and ninety-seven cents were deducted from the amount of the defendant’s costs, and a judgment was entered in defendant’s favor against the plaintiff for eighty-five dollars and ninety cents. The plaintiff applied to the justice presiding at the trial for the certificate provided for by section 3248, of the Code, that the title to real property came in question upon the trial. His application was refused, for reasons stated in a memorandum printed in the case, as follows ’. That “ upon the trial two questions only were litigated: First, whether the defendant was in possession of plaintiff’s farm under the lease of April 11, 1890, or under an agreement alleged to have been made subsequently, by which said lease was modified in important particulars; and second, whether the timber cut by the defendant and the manure removed by him was so cut and moved in' pursuance of a license from or consent of the plaintiff to so cut said timber and remove said manure. The fact that the plaintiff was the owner of the farm and, therefore, the owner of the timber and manure, and that the defendant was in possession of the farm as plaintiff’s tenant and liable in. this action for any damage sustained by the plaintiff by reason of the cutting of such timber and the removal of such manure, unless protected by his license under the agreement alleged to have been made with the plaintiff, was not in dispute. It is, therefore, clear that the title to real ’estate did not come in question on the trial and the plaintiff’s application must be denied.” The plaintiff thereupon made a motion for an order that the judgment entered in favor of the defendant be vacated and the taxation of costs set aside and that the plaintiff be allowed costs against the defendant. The motion was denied, and from the order denying the motion this appeal was taken.

It is plaintiff’s contention that the title to real property was put in issue by the pleadings, and that he was, therefore, entitled to costs under the provisions of section 3228 of the Code of Civil Procedure. He bases this contention on the allegation in the complaint that the plaintiff was the owner in fee simple of the premises leased, and the general denial in the answer of each and every allegation in the complaint. This allegation in the complaint was entirely unnecessary and superfluous. The defendant, having taken a lease of the plaintiff, was estopped from questioning plaintiff’s title. There was no allegation in the answer that he was in possession under any other title than that of the plaintiff. There was no affirmative allegation in the answer putting in issue the plaintiff’s title. No such issue was, or could be, litigated under the pleadings. The plaintiff could not, by the insertion in his complaint of such an entirely unnecessary and superfluous allegation — an allegation that he knew the defendant would not be at liberty to put in issue — entitle himself to costs. In Bailey v. Daigler (50 Hun, 541) it is stated by Bradley, J., that a mere general denial by an answer of the allegations of the complaint does not raise a claim of title to real property, upon the pleadings, within the meaning of the statute, ' where it does not appear by the complaint that such title will necessarily arise upon the trial. He refers to Rathbone v. McConnell (21 N. Y. 466) as sustaining that doctrine.

The plaintiff suggests, and apparently for the first time in his submitted brief, that the cause of action was for waste, and that, therefore, under the statute he was entitled to treble damages, making the amount of the recovery to which he was entitled more than fifty dollars. No claim for treble damages is made in the complaint, and he made no such claim before the taxing officer, nor in his moving papers at Special Term. Tlie judgment was entered for single damages only, and tlie plaintiff did not ask to have it set aside for tlie reason that lie had not been awarded treble damages. It is too late, we think, to raise tlie question upon appeal. We do not think the cause of action stated in the complaint was for waste, and, if not, that is a complete answer to the plaintiff’s contention.

The order appealed from should be affirmed, witb ten dollars costs and disbursements of tbe appeal.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.