text:
    Emily Talbot, Appellant, v. New York and Harlem Railroad Company and Another, Respondents.

      Liability of the city of New York in constructing bridges across railroad tracks— ,, delegation of such right — chapter 702 of 1872.
    'The city of New York had the right, under the provisions of chapter 702 of the Laws of 1872, to substitute an over or undercrossing for the' dangerous grade railroad crossing which had theretofore existed on Forty-eightn street and Fourth avenue, and in making such change it incurred no liability to a property owner on such street, none of whose lands were taken when the grade crossing was constructed, the grade of the street in front of her lot remaining unchanged, and the street not being entirely closed by the bridge so as to prevent persons and carriages from passing along the same, and entering on the tracks of the railroad.
    Where the city provides an overcrossing it has the right to close the grade ■ crossing.
    Whatever a city has the right to do in respect to constructing bridges over railroad tracks, substituting the same for grade crossings, it has the right to authorize the railroad corporation owning such tracks to do; and the railroad corporation doing the same is under no greater liability for carrying out the plans of the board of engineers of the city than the city would be had it undertaken the work.
    Appeal by the plaintiff, Emily Talbot, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of December, 1893, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits, without costs.

      Aug. S. Hutchins, for the appellant.

      Henry II. Anderson, for tlie respondents.
   Follett, J.:

This action was brought to restrain the defendants from maintaining a bridge in Forty-eighth street, spanning their tracks and Fourth avenue, and also from maintaining the approaches and walls appurtenant to said bridge. Forty-eighth street is one of the public streets of the city of New York, laid out in 1837, pursuant to chapter 86 of the Revised Laws of 1813, and the acts amendatory thereof and supplemental thereto. An assessment was levied upon the premises now owned by the plaintiff to aid in defraying the expenses of opening this street. The street is sixty feet wide between house lines, ten feet on each side being used for walks and about forty feet in the center for a carriageway. The fee of this street is in the city. The plaintiff is, and since March 1,18G9, has been, the owner of No. 25 East Forty-eighth street, which is on the north side of the street, and is sixteen feet eight inches wide and one hundred feet ñve inches deep. This lot is bounded on the south by the north line of Forty-eighth street, and the plaintiff has no title to or interest in the bed of the street, nor any private rights therein except such as are incident to the ownership of a lot abutting on a 'public street in the city of New York. This lot is 250 feet west of Fourth avenue and 633 feet east of Fifth avenue. The defendants have since aoout 1875 owned all the land lying between the plaintiff’s lot and Fourth avenue. ' In 1870 the plaintiff erected on her lot a four-story brick house with a brown stone front, which she has ever since occupied as a dwelling. For many years prior to 1869 the tracks of the New York and Harlem Railroad Company had extended north from Forty-second street through and on the surface of Fourth avenue to the Harlem river.

May 11, 1872, chapter 702 of the Laws of that "year was passed, which is entitled: “ An act to improve and regulate the use of the Fourth avenue in the city of New York.” This statute provides :

“ Section 1. The New York and Harlem Railroad Company is hereby authorized and required to regulate the grade of their railroad in the Fourth avenue of the city of New York, and to construct such viaducts, foot and road bridges over the same, and such excavations and tunnels under the same, with openings for proper ventilation, for the purpose of rendering the same safe and convenient to any persons crossing the same, and the railroad trains and passengers traveling thereon, in the following manner, namely: At Forty-fifth and Forty-eighth streets, to construct tunnels under the said streets and the Fourth avenue for sidewalks and carriageways underneath the railroad at least thirty-four feet wide, or bridges over the railroad of at least that width, for the same purpose * * * between Forty-fifth and Forty-ninth streets, including said streets, iron railings or brick walls shall be erected in said streets, outside the-railroad tracks, so as to prevent crossing at a level with said railroad tracks.”

By the 6th section of this law a board of engineers was created,, charged with the duty of directing and superintending the construction of the improvement. The section provided that the board should consist of Allan Campbell and Alfred W. Graven, or their successors, and the chief -engineer of the board of public works of the city of New York for the time being, and the engineer of the New York and Harlem Railroad Company.

By the 7th section of the act it was provided that the railroad company and the city of New York should each pay one-half of the expenses of the proposed improvement.

On the 30th of June, 1872, the board of engineers appointed by the act directed the construction of an iron bridge over the tracks of the railroad at Forty-eighth street instead of a tunnel under the tracks, and prescribed the plans and specifications of the bridge to be erected, including the approaches thereto. During the years 1872 and 1873 this bridge was constructed, pursuant to their plan, was afterwards inspected by the board of engineers and found to have been built in accordance with their specifications, and one-half of the expense was paid by the railroad and one-half by the city. The approach of the westerly end of the bridge begins in the street on a line with the east line of the plaintiff’s lot, and ascends upon a grade fixed by the board of engineers until it meets the bridge spanning the avenue. This bridge is thirty-four feet wide and is on the south side of the street, leaving a space about twenty-six feet wide on the north side of Forty-eighth street, which is unoccupied by it. For the purpose of preventing teams and persons from passing over this unoccupied, part of the street on to the tracks of the railroad a brick wall, about eight feet high, was extended from the southeast corner of plaintiff’s house to the bridge proper. The grade of the street in front of the house was not changed, but the wall above mentioned prevents carriages from being driven exactly in front of the plaintiff’s door, and also prevents the plaintiff from using that portion of Forty-eighth street lying east of the wall and west of defendants’ tracks.

April 1, 1873, the New York Central Railroad Company leased the road of the New York and Harlem Railroad Company, since which time it has operated the same as lessee. The railroads make no use of this bridge, which is part of Forty-eighth street, and is wholly within the control of the city of New York. The court found that the bridge does not injuriously affect the easements of light, air or access appurtenant to plaintiff’s premises, except as it slightly interferes with the approach of a carriage to the front óf the house. It is found that the brick wall, extending from the southeast comer of plaintiff’s house to the side of the bridge, casts a shadow in the early morning on the front basement room of the plaintiff’s house, but that later in the day the reflection from the wall increases rather than diminishes the light in the basement.

The undisputed evidence shows that since the bridge and its approaches were constructed they have been used as part of Forty-eighth street, and that the city paid for paving the approaches and lighted and controlled the entire structure, the defendants making no use of it and exercising no control over it. The city had the right, under the statute referred to, to substitute an over or under-crossing for the dangerous grade crossing which existed at this place in 1872, and for many years prior thereto, and incurred no liability to this plaintiff in making the change. None of her land was taken nor was the grade of the street in front of her lot changed. As before stated, the bridge does not entirely close Forty-eighth street so as to prevent persons and carriages from passing along the north side of the west approach and entering on the tracks of the railroad. The city, having provided an overerossing, had the right to close the grade crossing, which it did by the wall extending from the southeast corner of the plaintiff’s lot to the north side of the west approach. The learned counsel for the plaintiff does not question the right of the city to close the grade crossing by a proper barrier, but he insists that it should have been built 250 feet east of the plaintiff’s lot and on the west side of Fourth avenue, thus leaving a narrow oul de sao 250 feet long bounded on the south by the west approach of the bridge, on the east by a wall and on the north by the north line of Forty-eighth street. The defendants own all of the land north of this proposed oul do sao and between plaintiff’s lot and Fourth avenue, and they consented that this part of the street should be closed, and as against the plaintiff the city had the right to close it at the point where the wall was built. A oul de sao of the kind described would have served no useful purpose, would have been difficult to guard, misleading to travelers and a useless-source of expense and danger to the city.

Under the act the city had authority to substitute an over or under-crossing for the existing grade crossing, which necessarily carried with it the right of closing the grade crossing as it. had previously existed, and in doing this the city was not required to place the barrier on the west side of Fourth avenue, but might place it at such a place in the street as would best subserve the public interests, without liability for damages, so long as the property of abutting owners-was not taken or encroached on.

Whatever the city had a right to do in respect to constructing this bridge and its approaches it could authorize these defendants to do, and they are under no greater liability for carrying out the plans of • the board of engineers than the city, had it undertaken the work. (Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Uline v. N. Y. C. & H. R. R. R. Co., 101 id. 98, 108; Conklin v. N. Y., Ont. & Western R. Co., 102 id. 107, 112; Bucholz v. N. Y., L. E. & W. R. R. Co., 66 Hun, 377.)

The case at bar is quite different from Reining v. N. Y., L. & W. R. Co. (128 N. Y. 157, affirming 35 N. Y. St. Repr. 731). Reining’s premises were on the north side of Water street and on the west side of Commercial street at the northwest corner, formed by the intersection of those streets. The defendant built, -in Water street, an embankment twenty-four feet wide and about five feet high, supported ■ on both sides by perpendicular stone walls, and on this embankment laid and operated two railroad tracks. Between Reining’s lot and the north wall of the embankment there was a space of about eight or nine feet in width, which formed the only-means of approaching the premises. This use of the street was wholly for the benefit of the railroad, and not at all for the benefit of the street or of citizens living near or on it. It was held that the use of the street was so exclusive as to be unreasonable, and that the plaintiff was entitled to damages.

In the case at bar the change was not wholly for the benefit of the railroad, but was believed to be and clearly was for the benefit of the public as well. The defendants make no use whatever of Eorty-eightk street, except to cross it. It is urged that because it appears that the defendants have occupied to some extent the narrow strip of land east of the wall and north of the bridge formerly within the bounds of the street, the plaintiff is entitled to have such use restrained. This action was not brought or tried on that theory. The use of this strip seems to have been by the assent or acquiescence of the city, and such use is not set out in the complaint as a cause of action, and the evidence that any injury to the plaintiff’s lot was caused by it is so slight that it is' entirely insufficient to justify an injunction restraining the use.

It is very clear that the defendants do not own the bridge, its approaches or the wall, and have no right to remove them, and that a judgment against these defendants commanding them to remove the structure complained of would be unavailing.

Without considering the effect of the Statute of Limitations or the other questions involved, we think the evidence failed to establish a cause of action and that the judgment should be affirmed, ■with costs.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.

I


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    In the Matter of the Application for the Probate of the Last Will and Testament of Kate L. Laudy, Deceased.

      Probate of a will — evidence of its due execution — signature of the testatrix directly after the attestation clause — decision of questions of fact by the General Term. ,

    Upon an application for the probate of an instrument alleged to be the last will and testament of a decedent, the proponent did not call any witness familiar with the handwriting of the deceased to testify as to her handwriting, nor did the subscribing witnesses say that they saw her write it; on the other hand, no attempt was made to show that it was not her signature.
    One of the attesting witnesses testified that, in response to the request of the testatrix that he should become a subscribing witness to the will, he suggested an objection to signing a paper without understanding it; the testatrix then simply unfolded the paper, showing him that it was her will, and saying that she did not think he ought to be afraid to sign it after she had signed it, at which time her signature was there or there was some signature above the place where he signed.

      Held, that, there being but one signature above that of the witness, which purported to be that of the testatrix, the evidence was abundant to require a finding that the signature was that of the testatrix, and that the testimony contained a declaration of the testatrix that she had signed the instrument.
    A testator by signing his name to his will after the attestation clause makes it a part of his will, and if nothing intervenes between the attestation clause and the signature, the subscription is at the end of the will within the meaning of the statute.
    The General Term of the Supreme Court has the same power to decide questions of fact upon an appeal from a decree of a Surrogate’s Court refusing to admit a will to probate, as the surrogate had when the proceeding was before him.
    Appeal by the Woman’s Hospital in the State of New York and another, legatees named in the last will and testament of Kate L. Landy, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York Surrogate’s Court on the 24th day of November, 1893, adjudging that the said instrument was not attested and executed in the manner prescribed by law for the attestation and execution of last wills and testaments.

      Parsons, Shepard & Ogden, for Peter Cooper Union, appellant.

      P. H. Vernon, for Woman’s Hospital, appellant.

      Daniel G. Pollins, for the contestant, respondent.
   Parker, J.:

The learned surrogate, at the close of the examination, of the attesting witnesses to the instrument propounded by the executor as the last will and testament of Kate L. Laudy, held that certain of the substantial formalities, which the statute requires to be observed in order to entitle an instrument to probate, were omitted, and as a necessary sequence of such determination probate was denied.

The statute requires that a last will and testament shall be executed and attested in the following manner:

“1. It shall be subscribed by the testator at the end of the will.

“ 2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.

3. The testator, at the time of making such subscription or at the time of acknowledging the same, shall declare the instrument so-subscribed to bo his last will and testament.

“ 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator.” (2 R. S. 63, § 40; 3 id. [7th ed.] 2285.)

That the will was duly published and properly attested was not questioned, and there remains for consideration whether the other two requisites of a valid execution were complied with :

1. Did the testatrix subscribe the instrument at the end of the will?

2. Did she make such subscription in the presence of each of the attesting witnesses, or make due acknowledgment thereof to each of them ?

The will appears to have been drafted some little time prior to the date of its attempted execution, which did not take place under the direction of a person familiar with the execution of such instruments. It is not surprising, therefore, that the full importance of the attestation clause, which had properly been made a part of the instrument by the scrivener, was not appreciated, and that the testatrix, instead of signing the instrument before the attestation clause and opposite the seal, signed it next after such clause. So much of the instrument as is necessary to present the manner in which it was executed reads as follows:

“ In witness whereof I have hereunto set my hand and affixed my seal the-day of June, in the year of our Lord one thousand eight hundred and ninety.

- [L.S.]

“ The foregoing instrument was at the date thereof signed, sealed, published and declared by the said testatrix in our presence as and for her last will and testament, and thereupon we, at her request and in her presence and in the presence of each other, subscribe our names as witnesses hereto.

“KATE L. LAUDY.

“WILLIAM EL PORTER, M. D.

“CORNELIA N. EDWARDS.”

On our way to this point we have remarked that the testatrix signed the instrument after the attestation clause instead of before it.

It should be said that the respondent does not admit that the evidence justifies such an assertion, but it seems to us quite clearly otherwise. It is true that the proponent did not call any witnesses familiar with the handwriting of the deceased to testify that it was her signature, nor did the subscribing witnesses say that they saw her write it, while on the other hand no attempt was made to show that it was not her signature.

That it was seems not to have been questioned, contestant’s point being, as shown by the cross-examination of the attesting witnesses, that she did not sign it in the presence of the subscribing witnesses, or make such acknowledgment as would satisfy the demands of the statute. But while no one familiar with her handwriting, or a person qualified to express an opinion of the genuineness of handwriting, after examination of established signatures, was called upon to say whether it was her signature, the evidence was abundant not only to justify, but to -require a finding that the signature was hers.

In addition to the position of the signature of testatrix on the paper, between the last line of the attestation clause and the signature of Dr. Porter, concluding as it did with a flourish of the pen which _ xtended down to and upon the line where Dr. Porter wrote his name, we have the testimony of the doctor whom Mrs. Laudy invited to become a subscribing witness to the will. He said, that in response to her request, he suggested an objection to signing a paper without understanding it, “ and as I remember it she simply unfolded it .and showed me it was her will, and remarked that I ought not to be afraid to sign it after she had signed it, and as I remember it, her signature was there, or there was a signature above where I signed.” This testimony contains not only the declaration of the testatrix that she had signed it, but also an assertion of the witness that there was a signature above his, and an examination of the paper discloses that there was but one signature above that of the witness, and that was Mrs. Laudy’s. The record contains other evidence tending to show that the signature to the will was that of the testatrix, but as it will have to be referred to when we come to the question whether the testatrix acknowledged her subscription to the will to each ’ of the attesting witnesses, we refrain from its further consideration here. Whether the signing by the testatrix was at the end of the will, as required by statute, is no longer an ojsen question. It was before the court of last resort in Younger v. Duffie (94 N. Y. 535), where it was held that the testator by signing his name after the attestation clause makes it a part of the will, and if nothing intervenes between it and the signature, the subscription is at the end of the will within the meaning of the statute.

The evidence did not warrant a finding that the testatrix subscribed at the end of the will in the presence of the attesting wit. nesses, but the statute is in the alternative and provides that when not so subscribed it “ shall be acknowledged by him to have been so made to each of the attesting witnesses.” This latter provision of the statute is fully complied with by an exhibition of the instrument bearing the testator’s signature properly subscribed, accompanied by a declaration to the witnesses that it is his last will and testament, and supplemented with a request that the witnesses attest the same. (Matter of Philips, 98 N. Y. 267.)

We have then to inquire whether the evidence requires a finding that the testatrix properly acknowledged the execution of the will. In doing this we shall have in mind that, by an express provision of the statute, this court has the same power to decide the questions of fact which the surrogate had. (Code Civ. Proc. § 2586.) We are not, therefore, hampered by the rules which ordinarily obtain in reviewing findings of fact of a trial court.

If the conclusion at which we shall arrive, with the aid of a more careful argument than the surrogate was favored with, shall differ from his determination, we have but to give expression to it by finding the. fact to be as we think the evidence requires. The authorities cited by the appellants, holding that wills should be admitted to probate even where the attesting witnesses are unable to recall any of the events attending the execution of the will, because of the recitals in the attestation clause, have no application here. It affirmatively and indisputably appears that the attesting witnesses to Mrs. Laudy’s will did not read, or hear read, the attestation clause. Neither does section 2620 of the Code of Civil Procedure aid us, except in so far as it indicates the legislative policy to be not to permit a testator’s intended disposition of his property to be thwarted by the absence, incompetency, dishonesty or death of the subscribing witnesses when other proof which it points out shall be attainable. That section provides : If all the subscribing witnesses to a written will are, or if a subscribing witness whose testimony is required is dead, or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify, or if such a subscribing witness is absent from the State, or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will, the will may, nevertheless, be established upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.” No attempt was made beyond the 1 examination of the subscribing witnesses to make such proof as the section quoted suggests.

The subscribing witnesses were Dr. Porter, the attending physician, and Mrs. Edwards, the nurse then in charge of testratrix. Dr. Porter testified as follows : “ I am a physician, forty years of age, .and reside at 1614 Broadway. I knew Mrs. Kate L. Laudy in her lifetime. The signature of William H. Porter, M. D., on the paper now shown me, marked with the filemark of this court and filed for probate on September 12, 1893, is my signature. The circumstances under which that signature was made are as follows: It was while I was attending Mrs. Laudy, and she asked me one day to sign the paper, and I rather objected to do it, as I didn’t know what I was going to sign my name to, and, as I remember it, she simply unfolded it and showed me it was her will, and remarked that I ought not be afraid to sign it after she had signed it, and, as I remember it, her signature was there, or there was a signature above where I signed, but I didn’t stop to look into the matter véry closely one way or the other. I just had a glance at it, and I signed my name to it. Mrs. Laudy and this lady, Mrs. Edwards, were present, and myself, at the time I signed this paper. I think there was no other person in the room. I don’t remember that there was anything else said or done beyond what I have stated. I had made my regular professional visit and had seen Mrs. Laudy, and as I was about to go out she asked me if I would sign her will. Those were the words she used, and I said I didn’t know just what I was signing, and she opened it only at the bottom. I presume that the paper now shown me is the paper, because that is my signature. As I remember it, Mrs. Laudy just laid the paper down in this way on the table, and that exposes that part of the paper, and there was no signature to be seen as it laid in this way on the table. No writing on it at all that I could see, except under the margin, and I rather objected to signing a document I didn’t know anything at all about. I didn’t know at all what I was signing or might be signing, and then she carelessly opened it, and she said, ‘ It is my will; ’ she had signed it, and that I oughtn’t to have any objection to signing it if she didn’t, and my impression is that her signature was there before I signed it, and that is as I recollect the matter. I had objected to signing it, and she said after her name was in front of mine she thought I ought not [to] object to signing it, and then I simply signed it and put on my hat and walked out. I didn’t look to see whether her name was there or not, and nothing further was said one way or the other about it.” •

It is readily apparent from, the testimony thus quoted that had the other witness fully corroborated Dr. Porter there would have been no room for doubting even that the statutory requirements, had been fully met.

But some portion pf Mrs. Edwards’ testimony seems calculated to. give the impression that, so far as she had any recollection, it was that Mrs. Laudy did not show her the signature. She said: When I signed my name the paper was folded, as near as I can recollect, so that 1 didn’t see anything but just so much of the paper where Dr. Porter signed his name and where I signed it immediately under where the paper terminated — the writing of the paper — ■ and so I saw no contents of the paper further than just the lines where Dr. Porter and.I wrote our names. Now I see immediately preceding the name of Dr. Porter the name of ‘ Kate L. Laudy.’ ” “ Q. Was that signature visible to you at the time you signed your name to the paper ? A. Not that I recollect; I could not tell you. That is a question that I could not answer. I didn’t notice it.”

She does not say that she did not see the signature, but her testimony, considered in its entirety, amounts to an assertion that she has no present recollection of seeing the signature — a situation in which subscribing witnesses to wills often find themselves.

But the evidence, considered as a whole, satisfies us that notwithstanding her present recollection she did see the signature before signing he*’ name as a witness. At Mrs. Laudy’s request she took the will from the secretary and brought it together with the ink and pen to her. Prom that moment until her signature was subscribed as a witness it is apparent she was in a position to hear and see all that took place. Dr. Porter testified that she was standing near by all the time, and “ in such a position that she might have heard it, and naturally would have heard it.”

Mrs. Edwards expressed the opinion that she heard all that took place, as will appear from the following question and answer: “ Q. Did you hear the conversation at the time this paper was signed between Dr. Porter and Mrs. Laudy? A. Well, I think I did, all that pertained to this matter; it was something like that; Mrs. Laudy asked the doctor if he would sign this paper, which was her last will and testament, and he in a sort of laughing, joking sort of way made the remark, ‘Well, he didn’t know whether it was anything di^rimental; ’ he didn’t want to sign any papers unless he knew what was in them, ‘ and she said it was her last will and testament, and she just raised her hand from the table, about like that, and that is all that I recollect hearing that pertained to this matter at all.”

When, in response to the inquiry whether she had heard Dr. Porter’s description of what took place, she said “ it was something like that,” she portrayed her mental condition and made it plain that her testimony should not be regarded as accurately describing anything that took place. It forces the conviction that this woman had no mental grasp whatever of the events about which she was testifying.

It seemed to her that “ it was something like that ” testified to by Dr. Porter. She did not attempt to challenge anything stated by him, and probably could not. But when she undertook to repeat what took place her feeble memory caused her to fall far short of the real facts, and this failure to recall and repeat the occurrences as described by Dr. Porter has been treated as a denial of them.

Again, it is undisputed that at the time Dr. Porter signed the paper it was sufficiently unfolded so that he could see testatrix’s signature. “ Her signature was there, or there was a signature above where I signed, but I didn’t stop to look into the matter very closely one way or the other. I just had a glance at it and I signed my name to it.” Then Mrs. Edwards takes up the story of that occasion ; she says: “ He (Dr. Porter) signed his name. She then turned to me and she says, 1 Susan, will you sign now ? ’ and so then I signed my name underneath Dr. Porter’s name.” Now, there is no evidence that the testatrix or any one else altered the position of the paper between the time when Dr. Porter saw the testatrix’s signature as he signed his name and when, immediately after, Mrs. Edwards signed hers. The presumption is that its position remained the same, and that is also the inference from the evidence. If so, the testatrix’s signature was as plainly visible to Mrs. Edwards when she signed, if she had looked at it, as it had been to Dr. Porter when he signed it the moment before.

We think the testimony of the subscribing witnesses, considered in connection with the circumstances attending the execution of the will, requires the finding that the testatrix complied with the demands of the statute, that in the event of failure on the part of a testatrix to subscribe the will in the presence of each of the attesting witnesses, it shall be acknowledged to each of the attesting witnesses by her to have been so subscribed.

It follows that the decree appealed from should be reversed and the Surrogate’s Court directed to admit the will to probate. (Matter of Hunt, 110 N. Y. 278.) Costs of appeal to be paid out of estate.

Yan Brunt, P„ J., and Follett, J., concurred.

Decree reversed, Surrogate’s Court directed to admit will to probate, costs of appellants to be paid out of the estate.


author: Van Brunt, P. J.:

text:
    In the Matter of Opening One Hundred and Seventy-third Street, Between Tenth Avenue and Kingsbridge Road, in the City of New York.

      Condemnation proceedings — fee of land in a street — when the owner thereof is entitled to substantial damages.

    Where the fee of land already subject to the right of passage thereover by owners of adjacent lots is taken from the owner by legislative authority, such owner is entitled, not rngrely to nominal damages, but to such substantial damages as may be ascertained by measuring the effect upon the value of his remaining property of the' loss of the fee of the street, and this rule is based upon the fact that the ownership of the fee of the land in a street vests in the owner certain rights, of which he is deprived by the taking of the fee of the land for street purposes.
    Appeal by The Mayor, Aldermen and Commonalty of the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 10th day of October, 1893, confirming the report of commissioners of estimate and assessment.

      Gwrroll Berry, for the appellant.

      Geo. J. Munger, for the landowners, respondents.
   Van Brunt, P. J.:

This proceeding was duly commenced by the city authorities for the purpose of acquiring title to certain premises required for the opening of One Hundred and Seventy-third street, from Tenth avenue to the Kingsbridge road, in the twelfth ward of the city of New York, such street being one of those laid out upon the official plan of said city.

'The title of the various parties to the land in question was derived, either directly or through certain mesne conveyances, from Philo T. Ruggles, referee in the partition suit between W. I. Chase and others, plaintiffs, and Nelson Chase and others, defendants, the property partitioned being known as the Jumel tract, extending generally from One Hundred and Fifty-ninth street to One Hundred and Seventy-fourth street, and between Edgecomb avenue and Kingsbridge road. The judgment or decree in partition was- filed on the 6th. of June, 1881, whereby it was adjudged that the premises were so circumstanced that an actual partition could not be made without great prejudice to the owners thereof, and a referee was appointed for the purpose of selling the same. The referee by the judgment was directed to procure to be made such surveys and diagrams of all the lands and premises as he might think necessary for the purpose of said sale, and also might lay down and designate upon said maps or diagrams, roads, streets, avenues or places to be used for streets. And it was further provided that the title of. the purchasers of such parts of such land as should be laid down upon the said maps or diagrams fronting upon such roads, streets, avenues or places, should extend to the center line of such roads, streets, avenues or places, subject- only to the easement and right of way of all the purchasers of any part of said land and premises; and such roads, avenues or places should not be considered as dedicated thereby to public use.

In pursuance of the authority conferred by this decree, the refferee filed in the office of the register of the city and county of New York a map, entitled: “Map of property belonging to the Jumel estate in the city of New York, north of One Hundred and Fifty-ninth street.” All the conveyances made by the referee were with reference to this map, and conveyed the land by certain numbers, and bounded the property conveyed by the streets and avenues shown upon said map, among which are One Hundred and Seventy third street, Tenth avenue and Edgecomb road, the property running thence along the side of the street or avenue upon which the property is bounded. The deeds further contained the provision that such lands are conveyed together with such part of any street, avenue or road, or place laid down on said map, as lies in front of or adjoining the premises conveyed, and between the same and the center of every such street, avenue, road or place, subject only to the easement and right of way of all the purchasers of any part of the said land and premises, and such roads, avenues or places were not to be considered as thereby dedicated to public use.

The official map of the city laying out the streets and avenues north of One Hundred and Fifty-fifth street, among which are One Hundred and Seventy-third street, Audubon avenue and Tenth avenue, was filed on the 25th of May, 1869, and the streets and avenues on tbe Jumel map corresponded with tbe city map, tbe lines coincident with tbe lines of the corresponding street or avenue on the city map.

Subsequently these proceedings were taken for the purpose of acquiring title to the land situated within the limits of One Hundred and Seventy-third street, as above stated. Thereafter such proceedings were had that commissioners of estimate and assessment were appointed, who, in December, 1889j made their report, by which it appears that they had made nominal awards only to the adjoining owners for the lands embraced within the limits of the street. When this report was presented to the court, confirmation was opposed by the adjacent lot owners; and it was held that there had been no dedication of the land embraced within the street to public use by the conveyances from the referee in the Jumel action, and the matter was referred back to the commissioners for reconsideration. Upon such reconsideration, the commissioners made up a new abstract of estimate and assessment, making the same awards and assessments as in their first report. This second report was presented to the court, and its confirmation was objected to and refused by the court, upon the ground that there was sufficient evidence to warrant and require a substantial award to the objectors in accordance with the previous instructions of the court, and new commissioners were appointed by the court. The new commissioners subsequently filed their abstract and made their report, by which they awarded to the abutting owners substantial amounts for the lands situate within the limits of the street. A motion having been made for confirmation, this report was objected to by the appellants; but, notwithstanding such objections, the report was confirmed, and from the order thereupon entered this appeal is taken.

The single question presented on this appeal is whether the abutting or adjoining landowners were entitled to substantial awards for the lands taken. It is urged upon the part of the city that, as each purchaser of land at this partition sale intended to and did devote the land to use as a street, at least as between himself and those who purchased other lands bounded upon this street, each acquired an easement in the strip of land for use as a highway in order to have access to and from the lots purchased, which they were entitled to have kept opened as a street for their benefit; and that thereafter the owner held the title incumbered by the easement for the benefit of the grantees of the lots which had been sold, and it was subject to that easement when this application was made; and that the rights which the several grantees of lots on both sides of this strip of land thus acquired impressed upon it all the characteristics of a public street, though it may not have been completely dedicated by the owners to that purpose or accepted by the city authorities as a highway; and that the servitude thus impressed upon the land could not be extinguished except by the concurrence and by the united act of every person who owned a lot bounded by the street; and that, therefore, the commissioners could only award to the owner the value of the public easements proposed to be taken, deducting therefrom the value of the private easement which already incumbered the property, which would leave nothing but a nominal value in the owner. It is claimed that this principle is enunciated in The Matter of Adams (141 N. Y. 297), and it is urged that it is decisive of the question before this court.

It may be that the principles enunciated in The Matter of Adams seem to be somewhat in hostility to those which prevailed in the disposition of the appeal in The Matter of the Eleventh Avenue (81 N. Y. 446); but the latter adjudication must necessarily control. ~We> think, however, that the facts in The Matter of Adams differ so materially from those in the case at bar that that case has no application. It is not necessary to discuss the question of dedication, because it is apparent that under the circumstances disclosed in this case there was no such dedication as gave the public absolute rights, independent of and distinguishable from those of the owners of the lots fronting upon the street in question. It is conceded in the case cited that there was no dedication; and the facts in the case at balare no stronger in their tendency to establish such dedication. In the case of Adams the owners of the fee of the street were not the owners of the land abutting upon the street; but the grantors of such land abutting upon the street had reserved to themselves the title to the land covered by the street; and it was held that they, having nothing but this mere title, which was subject to a perpetual easement, had sustained no damage when the land was taken for the purposes of a public street.

It was also held in the case of The Village of Olean v. Steyner (135 N. Y. 341) tliat when an easement for a highway is taken where a private easement previously existed, nominal damages merely should be awarded, because the easement taken is simply the equivalent of the private easement displaced; the change alters the control but does not increase the burden. In that case the distinction is pointed out between cases arising in cities, where, under the statute, the fee is taken, and in villages, where only an easement for a highway is required.

In the ease of The City of Buffalo v. Pratt (131 N. Y. 293) it was distinctly held that where the ownership of the fee of land in the street is taken from the adjoining owner by legislative authority the owner is entitled not merely to nominal damages, but to such substantial damages as may be ascertained by measuring the effect upon the value of his remaining property of the loss of the fee of the street. And this rule was based upon the fact that the ownership of the fee of the land in the street by an adjoining owner vests in him certain rights of which he is deprived by the taking of the fee of the land, even for street uses. This principle seems to cover the case at bar.

It is claimed, however, by the appellants that it does not, in that by the proceeding in the case cited there is vested in the city an absolute fee, whereas, in the proceedings taken in the city of New York for acquirement of property for street purposes, there is vested in the city simply a qualified fee, the city taking it for street purposes only. An examination, however, of the section of the charter which is referred to in the opinion in the case cited, indicates that the fee taken in the two proceedings is substantially the same; in the one there being an express declaration in the statute authorizing the condemnation, that the property shall be held for street uses, and in the other the authority to take is only for public streets, etc., and hence impressed with the same implied trust as is expressly impressed upon the land taken in the city of New York.

We do not think, therefore, that the question is open for discussion in view of the principles laid down in the case of The City of Buffalo v. Pratt.

The order should be-affirmed, with costs.

Follett, J., concurred.

Order affirmed, with costs.


author: Dwight, P. J.:

text:
    Otto Kudik, Appellant, v. Lehigh Valley Railroad Company, Respondent.

      Negligence — improper coupling and braking of cars — 'rules for the protection of employees — injuries sustained by reason of a defective trestle — proof necessary to a recovery.

    The necessary coupling and braking of cars upon a steam railroad are mere details of work which must he intrusted to the servants of the railroad company, and an error or omission in the performance thereof does not establish negligence on the part of the master.
    The charge of negligence on the part of a railroad corporation, in that it did not make and promulgate proper rules for the protection of its employees, is avoided by proof of a rule and practice, actually in force, which render any other rule apparently unnecessary.
    In an action brought to recover damages for personal injuries sustained by reason of the alleged negligence of a railroad corporation in the construction and repairing of its trestle, three things are required to be shown by the plaintiff in order to entitle him to recovery, namely, that the trestle was improperly constructed or out of repair, that the defect existing therein caused or contributed ' to the accident complained of, and that the defect was one which, in the exer-. cise of reasonable care on the part of the defendant, could have been remedied.
    Appeal by the plaintiff, Otto Kudik, from a judgment of the Supreme Court in favor of the defendant, entered in tlie office of the clerk of the county of Erie on the 18tli day of April, 1898, upon tbe dismissal of the complaint directed by the court after a trial at tlie Erie Circuit, and also from an order entered in said clerk’s office on tbe 15th day of June, 1898, denying the plaintiff’s motion for a new trial made upon tbe minutes.

      Philip Laing, for the appellant.

      Ma/ri'm Oarey, for the respondent.
   Dwight, P. J.:

The action was to recover damages for a bodily injury sustained by the plaintiff while employed by the defendant as a laborer, in unloading cars of coal on its coal trestle, in the city of Buffalo. The injury was the crushing of the plaintiff’s leg by the wheels of a car, which unexpectedly followed the movement of the car in front of it, which latter the plaintiff was assisting to set in motion by pushing behind.

The first and leading specification in the complaint of negligence on the part of the defendant, causing or contributing to the accident in question, is as follows : That said defendant allowed one of the train of cars to stand alone upon said trestle, uncoupled and without being braked, and that on account of such neglect in not coupling said car to the other cars upon the said trestle said car came down upon said plaintiff and inflicted the injuries hereinbefore set forth.”

It is very plain, we suppose, that this specification states no cause of action against the defendant, but would of itself have been bad on demurrer. The necessary coupling and braking of cars are so manifestly mere details of work which must be intrusted to servants that negligence of the master cannot be predicated upon error or omission in their performance. And this, we think, is substantially all there is of the case before us. It was, as alleged in the specification quoted, precisely because the second of the two cars mentioned was not held by a brake as it should have been that it followed the other and injured the plaintiff.

The narrative of the occurrence is as follows: The loaded cars were, as was customary, taken up the trestle in pairs beyond the the coal pockets, where they were to be discharged, and from the place where they stood one car at a time was moved down by its own weight to the particular pocket which was to receive its load. It was not customary to couple each pair of cars to the other pairs, and to have done so would not have been useful in holding them in their place on the trestle. That part of the trestle where the cars stood and where the pockets opened was slightly inclined, so as to facilitate' the movement of the single cars down to the pockets, but not so much inclined but that the cars might be held securely in place by their brakes while standing either at the pockets or above them. The evidence is undisputed that the two cars in question were pushed up the trestle together in the usual manner; that the brakes were set on the lowermost of the two and a brakeman or car handler was in his place on the other car for the purpose of setting the brakes on it. If he’did not set them it was his error; if he did they were loosened by some person or means unknown; for it is conceded that the movement forward of that car would have been impossible if its brakes had been set when the other car was moved away from it. The two cars were uncoupled to enable the first one to be moved, and its brakes were loosened. It did not move at once, and the plaintiff was directed by his foreman to take hold at the hind end and push it. He did so, and the car started, but as it moved away from the car behind it the latter followed and caught the plaintiff’s leg with the result complained of.

There are in the complaint two other specifications of negligence on the part of the defendant. They are to the effect: (1) That the defendant neglected to make and promulgate proper rules for braking and coupling its cars while on the trestle; (2) that the trestle itself was not properly and safely constructed and was out of repair. In regard to the first of these charges, it is to be said that no particular additional rule on the subject mentioned was shown to be either useful or. practicable, while the evidence was undisputed that the rule which was in force .and was perfectly understood by all concerned, viz., which required the brakes to be securely set upon all cars standing on the trestle, was entirely adequate to accomplish the purpose, so far as a rule could do so, and that if it had been observed in this case the accident .could not have occurred. The plaintiff himself testified that if the brake had been set the car could not have moved. The charge of negligence for not making rules is avoided by the proof of a rule and practice actually in force which rendered any other rule apparently unnecessary. (Morgwn v. Hudson River Ore & Iron Co., 133 N. Y. 668; Berrigan v. N. Y., L. E & W. R. R. Co., 131 id. 584.) In respect to the third specification, viz., of negligence in the construction and repair of the trestle,” the allegation is undoubtedly sufficient; the failure is in the proof. ■ In this respect three things were required to be shown: First, that the trestle was improperly constructed or out of repair; second, that tlie defect so existing caused, or contributed to cause, the accident complained of; and, third, that the defect was one which, in the exercise of reasonable care on the part of the defendant, could have been remedied. We doubt if a case was made under either of these requirements which warranted a submission of the question to the jury. There was, it is true, some evidence that the grade of the track was not absolutely uniform, and the fact that the first of the two cars required something more than the ordinary effort to move it, may have been accounted for by the fact that the track upon which one or the other of its trucks stood was somewhat depressed, but there was no evidence that the defect extended to the track under the second car, or that there was anything in its condition which caused that car to move when it ought to have stood still. Indeed, the whole of this branch of the case is answered, as we think, by the fact that the trestle was purposely constructed with a slope to enable the loaded cars to be moved to the pockets without the application of power, and that it was well understood by all engaged in the work that the brakes alone were relied upon to hold the loaded cars at rest on the trestle as well as to control their motion and to stop them when moved to the pockets. ■

In this case the evidence is undisputed that the accident was rendered possible by loosened brakes on the second car. There is no complaint that the brakes were not in proper order,_ and it is the testimony of the plaintiff himself that if they had been set the car could not have moved. How they came to be loosened is not shown ; but whatever the negligence involved, it was that of a fellow-servant and not of the defendant.

The case on the question of the defendant’s negligence is so clear that we do not deem it necessary to consider the countercharge of •contributory negligence of the plaintiff, and we find no other question which requires discussion.

The judgment and order appealed from should be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    Moses B. Watkins and Another, Appellants, v. W. Frank Jones, Respondent.

      Equitable relief between pa/rties in pan'i delietu — a grantor in a fraudulent corneyanee, when in delietu but not inpa/ri delietu with the grantee — when relief will be granted.

    The rule that equity will not interpose in favor of either of two parties who are in pa/ri delietu in a scheme to defraud another, but will leave them in the position, relative to each other, in which they have placed themselves by their own acts, is in the interest of good morals and public policy, and will, ordinarily, be enforced even though one of the parties to the fraudulent scheme is thereby enabled to profit by his own bad faith toward the other.
    Semble, that when a grantee occupies a position of trust and confidence in his relation to a grantor, and avails himself of it to persuade the latter to make a fraudulent conveyance, the grantor, though in delietu, is not in pari delietu, with the grantee.

      Semble, that it is not only when a party obtaining the benefit of a fraudulent transfer stands in the relation of guardian, trustee or attorney at law of the other party to the transaction that relief will be granted as between the parties.
    Appeal by tbe plaintiffs, Moses 33. Watkins and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the lYth day of February, 1894, upon the dismissal of the complaint directed by the court at the Monroe Circuit before the introduction of evidence.

      II. L. Bermett, for the appellants.

      J. A. Barhite, for the respondent.
   Dwight, P. J.:

The action was to set aside a bond and mortgage for $5,000 and upwards, executed by the plaintiffs to the defendant, on the ground of want of consideration, and of fraud, artifice and undue influence on the part of the mortgagee.

At the trial the complaint was dismissed on the facts alleged therein as not being sufficient to constitute a cause of action; and the very proper practice was adopted by the trial judge of finding as facts all those alleged in the complaint, and as a conclusion of law that the defendant was entitled to judgment thereupon.

The following is a brief narrative of the facts thus adjudged to be the.facts in this case:

. The plaintiffs, at the time of the execution of the bond and mortgage, were aged people living on a farm of sixty-five acres in the-town of Webster in Monroe county, which was owned by the plaintiff Moses subject to a mortgage of $2,500, and in which the plaintiff Catherine had an inchoate right of dower. The income from the farm was barely sufficient to pay the interest on the mortgage and to furnish a support to the plaintiffs, and they had little or no other property. In November, 1892, a woman of bad character, for the purpose of extorting money from the plaintiff Moses, commenced an action against him in this court, in which she falsely charged him with a criminal assault upon her with intent to violate her person, and claimed damages in the sum of $10,000. The plaintiff Moses appeared and answered in the action, denying all the allegations of the complaint, and on the trial of the issues joined, a verdict was rendered in his favor and he had judgment thereon dismissing the complaint on the merits.

Pending that action, the defendant herein, who was the husband of the plaintiff’s only child, and was living in the same house with them, and upon whom they relied as their business adviser and friend, designing and contriving to cheat them out of their farm, falsely and fraudulently represented to them that the woman above mentioned would probably succeed in her action, and would get the farm unless it was covered by a mortgage or otherwise placed beyond the reach of the judgment to be recovered by her; and he urged them to execute a bond and mortgage to him, promising that when the woman’s action was got rid of and her claim defeated or released, he would either surrender up and discharge the bond and mortgage, or assign them to the plaintiff Catherine, as they should direct. The plaintiffs being old and feeble and unaccustomed to litigation, and being greatly alarmed by the defendant’s representations, and having entire confidence in his judgment and integrity, . and in the sincerity of his motives towards them, and relying upon his promise in respect to the final disposition of the bond and mortgage to be given to him, did, on the 13th day of February, 1893, execute, acknowledge and deliver to the defendant a bond, with a mortgage on the farm above mentioned as collateral thereto, conditioned for the payment of the sum of $5,277.15, as follows: $-200 in six months and the balance in five years, with semi-annual interest, with the further condition that should default be made hr the payment of interest, taxes or insurance, as therein provided, the whole sum should thereupon become due, at the election of the defendant; and the defendant received the bond and mortgage and caused the latter be recorded in the clerk’s office of Monroe county.

The bond and mortgage were wholly without consideration and were given and accepted on the express understanding that they were not to be enforced, but were to be surrendered or assigned as before stated.

After the termination of the action against the plaintiff Moses, as above stated, the defendant refused, on the request of the plaintiffs, to surrender up and discharge the said bond and mortgage, but declared his purpose to enforce those securities against the plaintiffs and their farm.

W o are of the opinion that, upon these facts, the plaintiffs were entitled to the relief sought by them in this action, and that it was error to dismiss their complaint. ■

The rule that equity will not interpose in favor of either of two parties who are in pari deliotu in a scheme to defraud another, but will leave them in the position, relative to each other, in which they have placed themselves by their own acts, is in the interest of good morals and public policy, and will, ordinarily, be enforce^ even though one of the parties to the fraudulent scheme is thereby enabled to profit by his own bad faith towards the other. But this is plainly not such a case. On the facts here found the plaintiffs were not parties to a scheme to defraud anybody. The woman who prosecuted the action against Moses B. Watkins was not his creditor, and had no claim against him or his property. She was an adventuress, engaged in a wicked attempt to charge him, by perjury, with liability in damages for an offense of which he was innocent, and thus, by an abuse of the processes of the law, to rob him of the property upon which he depended for the support of himself and his wife in their old age. • And it is to be observed that this statement of facts does not depend for its verity upon the result of the action referred to, which had not been reached when the bond and mortgage were executed, but that such are the actual facts found by the court in this case, irrespective of the verdict and the judgment in the other action. It is demonstrated, therefore, for the purposes of this appeal, that no fraud was perpetrated or intended by the plaintiffs here upon the plaintiff in that action, and, if not upon her, then not upon any one, and the case is thereby taken out of the operation of the rule which denies relief to a plaintiff who is found to have been in com to perpetrate a fraud upon third parties. plicity with the defendant in an attempt

In this view of the case, which seems to us unavoidable under the findings, we are relieved from a discussion of the question whether the plaintiffs were in pari deliotu, with the defendant. That was the question the negative answer to which determined the issue in favor of the plaintiffs in the cases of Freelove v. Cole (41 Barb. 318 ; affd., 41 N. Y. 619) and Ford v. Harrington, (16 id. 285). In those cases the question was pertinent, becaus'e in each of them' it was found that the conveyance set aside was given and received with intent to hinder, delay or defraud the creditors of the grantor, but that the grantee occupied such a position of trust and confidence in his relation with the grantor, and so availed himself of it, to pursuade the latter to make the conveyance, that, though i/n deliotu, the grantor was not in pari deliotu, with the grantee.

But if. the question of pari deliotu, were in the case before us we > think the result would be the same as in the cases cited. In this case the defendant, though not an attorney at law, was the trusted adviser of the plaintiffs in their matters of business; he was their near relative and lived under the same roof; he assumed to possess a knowledge superior to theirs of the danger of their situation, and was able to operate upon their fears because they relied upon his superior judgment. Tie made the suggestion of a mortgage and persuaded them to give it with entire confidence that he would keep his faith with them. If this liad been a scheme to defraud creditors it would be impossible to hold the plaintiffs in pwri deliotu with the defendant.

The case of Renfrew v. McDonald (11 Hun, 254), which is specially relied upon by counsel for the defendant, is radically distinguished from this in the respect first considered. In the language of the opinion the case there presented was “ a bald case of a conveyance of the property in question with an express intent to hinder, delay and defraud the creditors of the plaintiff.” And, in the light of later authorities, w*e are not disposed to concur in the apparent doctrine of that case, to the effect that relief will be granted as between the parties only when the party obtaining the benefit of the fraudulent transfer stands in the relation of guardian, trustee or attorney at law of the other party to the transaction. (See Freelove v. Cole, supra ; Fisher v. Bishop, 108 N. Y. 25 ; Kerr on Fraud & Mistake, 877.)

) The gross and palpable character of the wrong devised by the defendant against the plaintiffs is unquestioned for the purposes of this’ review, and there is nothing, we believe, in the case which deprives the court of the power to rebuke and correct that wrong. ' The judgment should be reversed and a new trial granted, with costs to abide the final award of costs.

Lewis, Haight and Bradley, JJ., concurred.

Judgment appealed from reversed and new trial granted, costs to abide the final award of costs.


text:
    Joseph Michaels and Others, Appellants, v. Robert Hain and Another, Respondents.

      Exemption from service of civil process — extends to suitors cmd witnesses only.

    The rule or privilege, which exempts from the service of ordinary civil process certain persons when in attendance upon certain legal proceedings, extends to witnesses and to suitors, and will not he extended heyond the real parties in interest (whether nominal or not) to the action or proceedings attended upon.
    .Appeal'by the plaintiffs, Joseph Michaels and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 8th day of December, 1893, setting aside the service of the summons upon the defendant Daniel J. Myers and all proceedings thereunder, and the judgment entered on the 21th day of October, 1893, in favor of the plaintiffs.

      D. Hays, for the appellants.

      Oeo. A. Benton, for the respondents.
   Dwight, P. J.:

The sole question on this appeal is of tlie privilege of the defendant Myers' from the service of process at the time the summons in this action was served upon him.

He was a resident of the State of Ohio, and came within this State to attend the taking of depositions, by commission, in an action pending in'the State of Ohio, to which he was not a party, but in the event of which he claimed to have an interest. His connection with the case grew out of facts substantially as follows: His brother, George W. Myers, who was engaged in the retail clothing business in Circleville, Ohio, had given him a chattel mortgage on his stock of goods to secure an alleged indebtedness and contingent liability to him, and later executed a general assignment to one Curtain. Thereupon, unpreferred and unsecured creditors brought replevin in the courts of Ohio, against the assignee, for portions of the stock of goods. It was in one of these actions that a commission was issued out of an Ohio court to take the testimony of witnesses at Rochester, in this State. The commission seems to have been what is denominated, under our practice, an open commission, and Curtain, the assignee, came to Rochester to attend the taking of the testimony. According to the affidavits of Curtain and of Daniel Myers, the latter accompanied him in order to be present at the examination “ in his own interest, * * * and, also, at the request of affiant, who believed that his knowledge of his brother’s business would be valuable in the cross-examination of witnesses.” It was while the defendant Myers was at Rochester on the business thus described that he was served with the summons and complaint in this action, which was brought on an account of long standing for goods sold and delivered by the plaintiffs to the defendants as co-partners. Jurisdiction being thus apparently acquired of the defendants, and no appearance being made in their behalf, judgment was in due time entered against them by default. That judgment was vacated and the service of the summons was set aside by the order from which this appeal is taken. We. think the order was erroneously made and that the motion should have been denied.

The rule of privilege here invoked, viz., that which exémpts from service of ordinary civil process certain persons when in attendance upon certain legal proceedings, was until recently, in this State, confined to persons so attending as witnesses alone. (See Tribune Association v. Sleeman, 8 N. Y. St. Repr. 343, and the authorities there cited.) The case of Matthews v. Tufts (87 N. Y. 568) is believed to be the first reported case in this State in which the privilege was extended to suitors, especially as among the authorities cited in that case no precedent in this State is referred to. This statement is not intended to derrogate from the force of the rule as now recognized and applied, but only to suggest hesitation in further extension of the privilege. IJp to this time we think it has not been extended beyond the real parties in interest (whether nominal or not) to the action or proceeding attended upon, and we are unable to see how the defendant Myers comes within that definition. He was a chattel mortgagee prior to the general assignment, and there is nothing in the moving affidavits to show or suggest that his rights as such could be affected-by the judgment in an action by third persons against the assignee. He seems to have been altogether a volunteer in his attendance at Rochester. It may have suited his purposes to obtain early information of the case which the vendors of the goods upon which he claimed a lien could make out against his mortgagor, and his knowledge of the latter’s business may have enabled him to render valuable service to the assignee in his cross-examination of the witnesses produced, but he was in no sense a. party to the action, either nominal or real, nor bound by the judgment to he rendered therein. To grant to him, under these circumstances, the privilege of exemption from service of civil process would, we think, be an ’unwarrantable extension of the rule which was, in this State, so lately confined to witnesses whose attendance was compelled by the mandate of the court.

The order appealed from should ho reversed and the motion denied, hut without prejudice to a motion by the defendants to open the default and for leave to come in and defend the action.

Lewis, Haight and Bradley, JJ., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but without prejudice to a motion by the defendants to open tlie default and for leave to answer.


text:
    Frederick R. Justum, Appellant, v. The Bricklayers, Plasterers and Stonemasons’ Union of the City of Rochester and Others, Respondents.

      Motion for a bill of particulars — that an answer has been served is not necessarily an objection to the granting thereof — when it will be granted.

    The fact that an answer was served in an action before a motion for a bill of particulars was made by the defendant, is not -necessarily an objection to the granting of the motion, although such answer contains a denial of the allegation in the complaint of which a bill of particulars is sought, as the defendants may be able to answer without particular specification of the charges made against them, but be wholly unable to prepare for trial without such particulars.
    In an action brought to recover damages for an alleged wrong done to the plaintiff by the defendants, alleged in the complaint to have had the effect of causing contractors and employers in his trade to refuse to emplpy him, thus rendering him unable to obtain employment and depriving him of the means of earning a livelihood, a bill of particulars specifying the names and addresses of the contractors and employers who had been influenced to refuse the plaintiff employment is properly directed to be furnished to the defendants.
    Appeal by tlie plaintiff, Frederick R. Justum, from an order of the Supreme Court, made at tlie Monroe Special Term and entered in tlie office of the cleric of tlie county of Monroe on tbe 3d day of August, 1892, granting tlie defendants’ motion for a bill of particulars.

      A. G. Warner, for tlie appellant.

      D. G. Feely, for tlie respondents.
   Dwight, P. J.:

Tlie plaintiff claims damages for a wrong done him ■ by the defendants, which had the effect to cause contractors and employers in his trade and calling to refuse to employ him, and thus rendered him unable to obtain employment, and deprived him of his means of earning a livelihood.

The order appealed from requires the plaintiff, by a bill of particulars, to specify the names and addresses of the contractors and employers who have thus been influenced to refuse him employment.

The requirement seems to be very reasonable and one to which no objection can be made on the merits. It is no answer to it to say that the defendants have already answered in the action and denied all the allegations of which the particulars are sought. Of course, if the defendants are innocent of any wrong of the character charged against them, they know their innocence and can assert it; but they cannot, for that reason, know what particular acts of wrong or items of damage the plaintiff will attempt to prove, and of these particulars they have a right to be informed. They are not, necessarily, Seeking to discover what the plaintiff’s evidence is to be, but what matters the plaintiff will attempt to prove. The case seems to be strictly within the doctrine of Post-Express Printing Co. v. Adams (28 N. Y. St. Repr. 891); Childs v. Tuttle (17 id. 943) and Williams v. Folsom (37 id. 635), in which bills of particulars were allowed in cases very similar to the present.

The only objection which seems to call for discussion is that on the ground of laches. The fact that the motion was deferred until after answer served, is not, necessarily, an objection. The defendants may, and if their answer is true must, have had knowledge of their entire innocence of the charge made against them, and thus have been able to answer by a general denial, when, without particular specifications of the charge, .they may have been wholly unable to prepare for trial. The question for a defendant, in such case, is not what is the truth of -the case, but what is the untruth which the defendant will attempt to establish? The delay in making the motion is, in a measure, certainty, accounted for by the pendency of negotiations for an adjustment of differences between the parties. That is a good reason, as far as it goes, for a suspension of hostilities ; and, for the rest, the suggestion of the learned judge at the Special Term is probably a sufficient answer, viz., that, so far as appears, the plaintiff can as easily furnish the particulars asked for now as he could have done at any earlier stage of the action.

We think the order is right and should be affirmed.

Lewis, Haight and Beadket, J"L, concurred.

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


text:
    Elizabeth G. Faulkner, as Administratrix, etc., of Lester B. Faulkner, Deceased, Respondent, v. Ellen McNeil and Another, Appellants.

      Foreclosure of a bond and mortgage — evidence sufficient to show usury.

    In an action brought to foreclose a mortgage, in order to establish the defense of usury, a clear preponderance of evidence is required of a corrupt agreement to give and to receive a greater compensation than at the rate of six per cént per annum for the forbearance secured by the bond.
    If it appears, either on the face of the security, or by evidence aliunde, that compensation for such forbearance at a greater than the legal rate was taken or reserved it is presumed to have been done in pursuance of a corrupt agreement, but the fact that such compensation was taken or reserved as such, under whatever the disguise or pretense, must be established by affirmative evidence.
    Appeal by the defendants, Ellen McNeil and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 27th day of June, 1893, upon the report of a referee.

      J. H. Goyne, for the appellants.

      B. G. Foss, for the respondent.
   Dwight, P. J.:

The action is on a bond of the defendants, to the plaintiff’s intestate, conditioned for the payment of the sum of $339.62 and interest in two years from the 2d day of April, 1887, of which day it bore date, and it was acknowledged and delivered on the ninth day of the same month.

The answer of the defendants admits, by not denying, the execution and delivery of the bond, but proposes two defenses to the action.: First. That the bond was given in exchange for a check of Ellen McNeil on the First National Bank of Dansville for $325, which the defendants had given to the intestate nine months before in payment for a pair of horses, and — on information and belief — that the intestate had received payment qf the check from the bank, and afterwards repossessed himself of it without its being canceled ; also, that the intestate was a director of the bank, and — on information and belief — that the bank was insolvent and the intestate knew it to be so, and that with intent to cheat and defraud the defendants he persuaded them to take back the check and retain the money and give him the bond instead, and that, shortly afterwards, and while the money still remained on deposit in the bank, the bank stopped payment and the money was lost to the defendants.

Second. The defense of usury, viz., that the surrender of the check for $325, being the only consideration for the bond, the sum of fourteen dollars and sixty-two cents was corruptly and usuriously included in the latter in addition to the lawful interest reserved thereby for the loan and forbearance of the sum above named. ■

We think the evidence was insufficient to establish either of these defenses. It seems a little doubtful what the first defense is, whether want of consideration for the bond by reason of the fact that the check had been paid by the bank, or fraud in procuring the money to be left with the bank when in failing circumstances. The two theories are plainly inconsistent with each other, and both are negatived by the findings of the referee.

The evidence tending to show that the check had been paid to the intestate was not of a very satisfactory character, and the referee was quite justified in refusing to hold the fact established as against the improbability that the check should afterwards be in the hands of the payee uncanceled, and that the fact should not have been disclosed to the defendants by the state of their bank account. The other and contradictory theory proposed as part of the same defense is answered by evidence that at the time the check was returned the defendants’ account at the bank was actually overdrawn, and that the bank did not close its doors until more than four months after that time.

The narrative of the transaction, derived from evidence which is not very satisfactory — the mouths of all the parties being closed — is briefly as follows: About the 1st of July, 1886, the defendants bought a pair of horses from the intestate and gave him the check of Mrs. McNeil therefor for $325. On the first of April following the intestate returned the check to McNeil in front of his place of business, and told him he would come the next day and get the mortgage. The bond in suit with the mortgage, whicli accompanied it as collateral thereto purport to have been executed the next day, April second, and were acknowledged and delivered April ninth, and the mortgage was duly recorded April seventeenth. This, it would seem, must have been the mortgage referred to by the intestate, which he would come for the next day, and the remark would seem to indicate that the giving and taking of a bond and mortgage in lieu of the check, had been the subject of previous negotiations between the parties.

The defense of usury, we think, equally fails of being established. To establish it required a clear preponderance of evidence of a corrupt agreement to give and to receive a greater compensation than at the rate of six per centum per annum for the forbearance secured by the bond. It is true that if it appeared, either on the face of the security or by evidence alitmde, that compensation for such forbearance at a greater than the legal rate was taken or reserved, it would be presumed to have been done in pursuance of a corrupt agreement; but the fact that such compensation was taken or reserved as such, under whatever the disguise or pretense, must be established by affirmative evidence. In this case there is nothing to suggest such an arrangement except the fact that the face of the • check was $325 and the sum named in the condition of the bond was $339.60, the difference being precisely equal to the interest on the former sum for nine months. But this affords no proof of an usurious agreement except upon the assumption that the sole consideration of the bond was the surrender of the check at its face value, without the allowance of interest thereon, and that the addition of an amount equal to the interest on the check was a device to cover usury. We do not think that this assumption is supported by evidence sufficient to establish the allegation of an usurious agreement.

The fact, already adverted to, that at the time of the surrender qjf the check Mrs. McNeil’s account was overdrawn, and that it had been so for several days, is established by the books of the bank, and is controverted only by the evidence of McNeil, who testifies, broadly, that he knows that Mrs. McNeil’s account was always good for the amount of the check from the time it was given to the time it was surrendered. How he was able to say so he does not explain. He does not claim to have had a pass book, or to have seen the books of the bank ; nor that he alone drew checks upon that account. The assertion seems too broad without some statement of facts to justify it. On the other hand, the president and general manager of the bank, who, though a brother of the intestate, was called by the defendants and testified in their behalf, was unable to say that the account was good at any time after the day the check was given until the date of its surrender, and the only books of the bank which could be produced showed that for the last ten days before' the check was given up the account was overdrawn. The books of the bank covering all the time preceding the 22d day of March, 1887, were missing. The conclusion seems justified that they had been purloined, and either hidden or destroyed by some person interested in suppressing evidence of the condition of the bank upon the date mentioned. But the defendant’s account from the 22d of March, 1887, newly opened in books which did not share the fate of the older ones, was proved, and showed a balance, on the day mentioned, of five dollars and eighty cents on the debit side. How long.this condition had existed, or how long, at least, the account was not good for the amount of the check, is not shown; but we think that, upon the whole case as it stands, it may fairly be inferred that the delay to collect the check was due to the fact that the account was not good for it, and that that fact was so understood by the parties at the time the bond was given, and that interest was added to the face value of the check to compensate the intestate, not for the forbearance of the money for the two years to come, but for the use of the money which he had lost for the nine months past. If such was the case, or if it was so understood between the parties at the time the bond was given, even though the fact were otherwise, there was no corrupt agreement, and, consequently, no usury in the transaction. '

' The view which we suggest is supported by circumstances, anc| is not excluded by any such preponderance of proof as is required to warrant the conclusion of a corrupt and usurious agreement.

~We are of opinion that the referee was justified in disallowing both the defenses interposed by the answer in this case, and we find no exception which points to error in the rulings on the trial.

The judgment should be affirmed.

Lewis and Hai&ht, JJ., concurred ; Bradley, J., not sitting.

Judgment appealed from affirmed.


author: Haight, J.:

text:
    The People of the State of New York, Respondent, v. George R. Van Alstyne, Appellant.

      Seduction under the promise of marriage — conditional promise — when a question for the jury— corroboration by proof of the birth of a child.

    Upon the trial of a prisoner indicted for seduction under a promise of marriage, the complainant testified that while driving with the prisoner in a carriage “ he wanted I should do as 'he wanted me to and I objected. He put his lines around the whip and put his arms around me and tried to make me, but I told him I wouldn’t, and so we drove on further, to where we turn to come home, and he kept teasing me all the way along, 'and he said if I would he would marry me. I Said, ‘ I didn’t want any boy to have to marry me in that -way,’ and he said ‘he would,’ and finally he turned around and wanted me to again, and said ‘ he wouldn’t have turned around if he thought I wasn’t going to let him.’ He told me ‘if he got me in the family way he would marry me.’ I told him ‘ I didn’t want to have any -boy to be obliged to marry me.’ He said ‘ he didn’t want to be obliged to, but would.’ And he wanted me to get out of the wagon and I wouldn’t; and finally I yielded to him; he had connection with me.” She further testified “that she yielded on the strength of and in faith and reliance upon the statement that he would marry her.” There was sufficient corroborating evidence to carry the question of fact to the jury.

      Held, that the promise of marriage was a promise to marry in case the complainant submitted to the wishes of the prisoner and was not a conditional promise of marriage only in case he got her in the family way;
    That it could not be held as a matter of law that the subsequent conditional promise of marriage qualified the promise that preceded it, and the question as to whether it did or not was properly submitted to the jury for its determination.
    Semble, that, upon the trial of a prisoner for seduction under the promise of marriage, the statement of the complainant that her child was born on June 25, 1892, she having testified that the seduction took place September 16, 1891, is properly received in evidence and is some corroboration of the testimony of the complainant in regard to her seduction.
    Appeal by the defendant, George R. Van Alstyne, from a judgment of the Court of Sessions, held in and for the county of Monroe on the 22d day of March, 1893, convicting him of seduction under the promise of marriage and sentencing him therefor, and also from an order entered in the office of the clerk of the county of Monroe on the 22d day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      H. B. Hallock, for the appellant.

      Howard H. Widener, Assistant District Attorney, for the respondent.
   Haight, J.:

The defendant was indicted for having, on the 16th day of September, 1891, under and by means of a promise of marriage made to Jennie M. Campbell, seduced and had sexual intercourse with her, she being then an unmarried female of previous chaste character. Upon the trial the sexual intercourse was admitted by the •defendant. All of the other questions involved were sharply controverted.

We have carefully examined the testimony, and reached the conclusion that the verdict is supported by the evidence.

At the trial, after the evidence was closed, the counsel for the •defendant moved for his discharge upon the grounds that the evidence showed that there was no promise of marriage necessary to ■constitute the offense under the Code, and that the facts did not show a seduction within the statute. This was denied, and an exception was taken. The court then charged the jury: “ There must be a promise of marriage, not simply a premise that defendant would marry complainant in case she became pregnant. That would be a mere conditional promise, conditional upon the happening of an event which might never occur. It must have been an unconditional promise of marriage, made as an inducement to this act of sexual intercourse, and relied upon by the complainant in giving herself up to the defendant.” The defendant’s counsel then asked the court to charge, as a matter of law, that under the evidence no •case of seduction under promise of marriage under the Penal Code has been made out. This was refused and an exception was taken.

The question is thus presented as to whether there was evidence ■of a promise of marriage sufficient to sustain the verdict. Upon this point the complainant testified that on the evening of the 16th day ■of September, 1891, she was returning from a social at IVIr. Lonsberry’s with the defendant in a carriage, and that on their way home “ he wanted I should do as he wanted me to, and I objected. He put his lines around the whip and put his arms around me and tried to make me, but I told him I wouldn’t, and so he drove on further, to where we turn to come home, and he kept teasing me all the way •along, and he said if I would he would rntwry me. I said, ‘ I didn’t want any boy to have to marry me in that way,’ and he said ‘ he ■would,’ and finally he turned around and wanted me to again, and said ‘he wouldn’t have turned around if he thought I wasn’t going to let liiin.’ He told me if he got me in the family way he would marry me.’ I told him ‘ I didn’t want to have any boy to be obliged to marry me.’ He said he -didn’t want to be obliged to, but would.'1 And he wanted me to get out of the wagon and I wouldn’t; and finally I yielded to him; he had connection with me.” She further testified that she yielded on the strength of and in faith and reliance upon the statement that he would marry her.” There was sufficient corroborating testimony to carry this question of fact to the jury.

It is contended, however, that the promise here testified to was not a promise to marry in case she submitted to his wishes, but that it was only a conditional promise that he would marry her in ease he got her in a family way. It' is true such an expression appears in her evidence, but it will be observed that he first promised to marry her if she would let him do as he wished. He thus held out that inducement to her, and then allayed her fears by telling her that if she got in a family way he would marry her, and in answer to her statement that she didn’t want to have any boy obliged to marry her, he stated that he didn’t want to be obliged to, but he would. Thus indicating that the marriage would be voluntary on his part.

The appellant argues that the subsequent conditional promise of marriage qualified the promise that precedes it, but we do not think that the court could so hold or charge as a matter of law, and that the trial court very properly submitted the question to the jury. The charge upon this branch of the case was as favorable to the defendant as he was entitled to.

It is contended on behalf of the People that even though the promise was conditioned upon her pregnancy, still it would be within the provision of the Code, under the authority of The People v. Hustis (32 Hun, 58). It was so held by a majority of the court in that case, but we have doubts in reference to the correctness of the conclusion there reached. Our attention has been called to no case in the Court of Appeals where the question has been determined. In Armstrong v. The People (10 N. Y. 38) the question was specially reserved, the court stating that it did not intimate an opinion either way upon the question. Hnder the view taken by us, its determination here is unnecessary.

An exception was taken to the admission of the testimony of the complainant as to the date her child was born. She said it was born on the 25th day of June, 1892. She states that the seduction took place on the 16th day of September, 1891. The time intervening exceeds out a few days the usual period of gestation, and is within the time frequently occupied in such cases. It is, therefore, some' corroboration of her testimony. (Armstrong v. People, 70 N. Y. 38.) In this respect the case of The People v. Kearney (110 N. Y. 188) is distinguishable. But if this were not so, it appears to us the evidence did no harm, for it had been shown without objection that she had become pregnant, and from the defendant’s own showing, that bastardy proceedings had been instituted.

The judgment, conviction and order should be affirmed, and the case remitted to the Court of Sessions of Monroe county to proceed thereon.

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

Judgment, conviction and order of the Court of Sessions of Monroe county appealed from affirmed and proceedings remitted to that court to proceed thereon.