text:
    LEOPOLD ADLER, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Absolute injunction requiring defendants to take down portion of elevated railway station projecting into side street—Strict construction of statutes authorizing elevated railway structure in certain streets—When projection of two feet beyond house line into side street not too trifling to justify injunctive relief.

    In an action to secure relief by way of injunction and incidental rental damages against the defendants’ elevated railway in First avenue in the city of New York, it was shown that plaintiff was the owner of premises situated on the southeast corner of First avenue and Eighth street; that the station and platform of the defendants’ elevated railway at First avenue and Eighth street was immediately in front of said premises, and that said station and the columns supporting it projected about two feet beyond the easterly house line of First avenue into Eighth street. The trial court directed the entry of a judgment enjoining the further maintenance and operation of defendants’ railway and station in front of said premises, awarding a certain sum as damages for past trespasses and providing that the injunction should not be operative as to the structure and portion of the station in First avenue in case defendants, within a time specified, paid to plaintiff the sum of $5,000, adjudged to be the value of easements taken, but directing defendants within a certain time to take down and remove such portion of said station as projected into Eighth street beyond the easterly house line of First avenue.

      Held, that the defendants can exercise only such power as the Legislature has given them ; that when the route is designated the defendants must keep the whole and every part of their structure, of whatsoever nature the same may be, within the confines of the line. The onus was upon the defendants to show some grant which permitted them to diverge from the line of their route into Eighth street and erect a station projecting two feet beyond the easterly line of First avenue. No such permission was shown, and that portion of the structure must, therefore, be assumed to have been built and maintained without the semblance of right (not as a temporary privilege but permanent erection) and the court below properly directed its removal.
    In the construction of grants of franchises such grants are generally construed most favorably to the public and most strongly against the. grantee ; nothing as a rule passes except what is expressed in unequivocal language. It follows, from the application of this rule, that as Eighth street was not included in the route designated by the rapid transit commissioners, and was not essential to the enjoyment of the franchise, it is, therefore, to be regarded as excluded.
    The maxim Be minimis non curat lex is never applied to the positive and wrongful invasion of another’s property. The degree is wholly immaterial. Two feet of land in a thickly populated portion of a city is not so trifling as to deny the injured party the legal remedies necessary or proper for asserting the right of property thereto or to redress any trespass thereon.

      Held, that the evidence satisfactorily sustains the findings of the court below both as to past damages and the value of the easements taken by the railway and station in First avenue.
    Before Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal by the defendants from a judgment entered at equity term, awarding the plaintiff $1,250 damages, and restraining the defendants from the further operation of their road, in front of the plaintiff’s premises, No. 132 First avenue, unless within a time fixed by the decree they pay to the plaintiff the sum of $5,000 adjudged to be the value of the easements taken, and directing the removal of such portion of their station as extends into Eighth street.
    The facts are sufficiently stated in the head note.

      Davies & Rapallo, attorneys, and Julien T. Davies, and Brainard Tolles of counsel, for appellants, argued :—
    I. The amounts fixed by the trial judge as past damages and as the value of plaintiff’s easements are excessive and unjust and altogether unsupported by legal evidence. There are decisions of this court, which show that it is quite possible for the award to be so high that there is a total failure of evidence to support it. Sperb v. Metropolitan El. Ry. Co., 60 N. Y. Super.

      Ct. ; Cunningham v. Manhattan Ry. Co., 37 N. Y. St. Rep., 366 ; Siefke v. Metropolitan El. Ry. Co., 39 Ib., 365. In the case last cited, the record weighed nearly two pounds and contained several thousand folios of testimony, yet it was held insufficient to sustain the judgment. It is not in the abundance of words, therefore, that a legal basis can be found for taking money from one citizen by judicial process and giving it to another. Such basis can be found only in fact, which by some fair process of reasoning, and not by misrepresentation or distortion or error of law, can be deemed to show actual damage. The question to be determined is whether the net effect upon this property of the existence and operation of the railroad has resulted in actual damage to this plaintiff. Plaintiff’s interest in this, property relates solely to the income produced by it. If the income would be less with the railroad and station removed, then there is no legal basis for this judgment. Somers v. Metropolitan Elevated R. Co., 59 N. Y. Super. Ct., 585 ; Bohm v. Metropolitan Elevated Ry. Co., Ib.; Newman v. Metropolitan Elevated Ry. Co., 118 N. Y., 618; Roberts v. N. Y. Elevated R. Co., 128 Ib.; Matter of Brooklyn El. R. Co., 55 Hun, 165; Doyle v. Metropolitan El. Ry. Co., 15 Daly, 473; Gray v. Manhattan Ry. Co., 35 N. Y. St. Rep., 32; Brush v. Metropolitan El. Ry. Co., 26 Abb. N. C., 73; Welsh v. N. Y. El. R. Co., 35 N. Y. St. Rep., 35 ; Purdy v. Metropolitan El. R. Co., 36 Ib., 43.
    II. The trial judge erred in requiring defendants to shave off the easterly wall of their Eighth street station so as to bring it within the lines of First avenue. The easterly wall of defendants’ station projects about two feet beyond the easterly line of First avenue. The trial judge awarded an unconditional injunction requiring defendants to remove this portion of the station. To this provision defendants excepted. This portion of the judgment we contend to be erroneous for seven different reasons: (1) Because the defendants had the same right to maintain this portion of the station that they had to maintain the rest of the station. (2) Because the maxim de minimis non curat lex applies. (3) Because plaintiff showed no special damage. (4) Because no cause of action based on lack of legislative authority was pleaded. (5) Because of the great public inconvenience that would be caused. (6) Because the injunction was sought in bad faith for the purpose of harassing defendants and not to protect plaintiff’s own rights. (7) Because the plaintiff’s laches and acquiescence was a bar to obtaining an absolute injunction. The court, after enumerating the various statutes and proceedings from which defendants’ right to build and maintain their railroad was derived, has found as follows: “ Defendants were'also authorized and required by said statutes, and by the proceedings of said commissioners, duly had thereunder, to erect stations at convenient points along their route, and for that purpose were invested with a reasonable discretion in the choice of the location of said stations.” The legality of investing defendants with such discretion was adjudged by the Court of Appeals in Matter of Kings Co. El. R. Co., 112 N. Y., 47 ; See also Stirn v. Metropolitan El. Ry. Co., 21 N. Y. St. Rep., 41. The principles which should guide the exercise of that discretion are laid down in the case first cited at page 59 : “ Of course it was not necessary to direct that stations should be built, for without them no capital would construct the road, nor to say that, in the main and as a general rule, they should be built at the cross-streets for the interest of the company and of the public would concur in that.” And in Ryan v. Manhattan Ry. Co., 121 N. Y., 126, the same idea was still further expressed as follows (p. 131): “ The locality of the stations is determined by the public convenience. The fundamental law to which the elevated railroads owe them existence required them to be sufficient and suitable to accommodate public travel. They must not be too far apart or too few in number, and must, ordinarily, be placed at street-crossings. There only do they gain sufficient room and light and convenience of access.” What is the use of placing stations at street-crossings in order to gain room, if the law erects an invisible and impassable barrier across the intersecting streets which prevents the use of any portion of such streets either for stairways, stations or approaches ? It must be remembered that the law which is to be interpreted and which the Court of Appeals had in mind in rendering the decisions to which we have referred, was a general law governing the establishment of stations along the whole route, not alone on wide avenues but also on very narrow streets. The railways authorized by the rapid transit commission were intended to be constructed on three different classes of streets. The first were streets less than 36 feet in width, the second those between 36 feet and 55 feet, the third, those over 55 feet in width. On all these streets stations were likely to become necessary. The 46th requirement is: “ Each station shall have ample space, under cover, to accommodate the passengers.” How could this requirement be complied with in narrow downtown streets, unless the„railroad companies were authorized to make use of such portions of the cross-streets as were reasonably necessary for that, purpose ? The rapid transit commissioners well knew, when they framed these requirements, how the problem had been solved in the case of the then existing stations on the west side. Take the case of the important station at Greenwich and Rector streets. Greenwich street, at this point, is about fifty feet wide. How could a station capable of accommodating the public be provided without extending into the cross-streets ? And is the station, therefore, illegal ? Precisely the contrary was held by this court with reference to that very station in the case of Glover v. Manhattan R. Co., 51 N. Y., Super. Ct., 1. In that case Judge Ingraham, instead of granting an absolute injunction against the portion of the station which was in Rector street, granted an injunction with opportunity to condemn. This was an adjudication that that portion of the station was lawful, so far as the public authority to maintain it was concerned. No ground exists for an absolute injunction in this case which did not equally exist in the Glover case. It may be justly claimed that where a duty is imposed by statute upon a railroad company, the company is impliedly vested with such powers not expressly withheld nor foreign to the general scope and purpose of its creation, as are reasonably necessary to the performance of the duties imposed upon it by the statute. N. Y. C. & H. R. R. Co. v. Kip, 46 N. Y., 546. While statutes granting powers to corporations should be construed strictly, they should not be so literally construed as to defeat the objects for which they are enacted. Where the question is one affecting solely the public right, and the point in dispute is whether the public consent has been given to the substitution of one public use for another public use of a street, there is no particular occasion for applying the rule of strict construction. It is be remembered that the question attempted to be raised by plaintiff as to the authority to maintain the portion of the station which extends into Eighth street is raised by him in virtue of his right as a member of the public, and not in virtue of his right as an owner of private property. That he has no standing to raise the question in the latter capacity appears from the follow-consideration : Under § 17 of the Rapid Transit Act, defendants have undoubted authority to condemn plaintiff’s entire property, lot and buildings, and easements and all, for station purposes. So that, merely by virtue of the ownership of that property, he can hardly claim to dispute their right to acquire, upon making due compensation, such an infinitesimally small fraction of his easement, as is taken by the rear wall of this station. Plaintiff, then, so far as this portion of the judgment is concerned, has no standing in court, except as a representative of the public right. The statutes involved are to be construed precisely as they would be construed in an action brought by the attorney-general on behalf of the people. Would there be in such an action any reason for subjecting these statutes to so strict a construction as is here claimed ? It is apparent that there is here no such opposition of interest between the public and the corporation as calls for an application of the rule of strict construction. The interests of the public and of the abutting owners and of the corporation are identical, and all point to one course. That is to build the stations at the intersection of the cross-streets, and as nearly square in form as possible. This is the form which is safest and most convenient for the public, and which affords the maximum amount of area under cover with the minimum obstruction of light and air and the minimum cost of construction. A long, narrow station may obstruct ten times as much light and air, and cost twice as much to build as a square station projecting a few feet into the cross-street. There is, therefore, nothing in the circumstances to justify an application of the rule of strict construction. Such a rule is appropriate to the construction of a grant of lands, where the grantor must lose what the grantee gets. It is appropriate to the construction of a grant of the power of eminent domain, because the grantee takes in derogation of the common law. But where the interests of all parties are in harmony, where there is no particular mischief to be guarded against, and where the question relates merely to the substitution of one public use for another, the construction to be given the statute should be fair and reasonable and in aid of the general purpose of the enactment. The plaintiff’s argument rests solely upon the fact that the commissioners designated a route for the railway, and that Eighth street was not included in the route. It is not denied that the rapid transit commissioners had power to permit the location of the stations in the side streets. It is not denied that they vested the defendants with a general discretionary power as to the location of the stations. It is not contended that that power has been unreasonably or unwisely exercised. But the claim is, that because Eighth street was not included in the route designated by the commissioners, therefore, the portion of the station which projects into it is necessarily illegal. No one would suppose from the language of the commissioners’ requirement that in fixing the route of the railway, they intend to place any limitation on the location of stations. The route, on its face, does not purport to do more than to define the course of the tracks upon which trains were to move. The authority to erect stations was a thing altogether apart from and supplemental to the designation of the route. The interests of all parties demanded that the company should be left free to place its stations at-corners where experience showed that they were convenient for the public use and beneficial to the adjoining property, rather than in places designated by the commission, where, perhaps, they might prove to be unwelcome to the abutting owners and of little use to the public. It was therefore necessary, in order that the company might enjoy this liberty, harmful to no one and beneficial to all, that the authority to locate stations should be general and unlimited, subject only to the requirement that no more space should be occupied than was reasonably necessary. In granting such general authority it was impossible to anticipate at what particular cross-streets the stations would be placed, or to what extent, if at all, the accommodation of the public would require such cross-streets to be made use of. The number of passengers using this particular station has increased 250 per cent, since it was opened, and if the same rate of increase were to continue indefinitely in the future it might, at some time, become necessary to enlarge the station instead of curtailino- its dimensions. The mere failure of the commissioners to include Eighth street in the route has therefore no bearing or significance whatever. The question was one which in its nature had to be disposed of generally and not specifically. The provisions of the rapid transit act in respect to stations have been the subject of a uniform interpretation by the public and municipal authorities for a long' period of years. This is manifest from the finding: “ Thirty-fifth: Said railroad and station were constructed, and have since been maintained and operated with the consent and by the authority of the mayor, aldermen and commonalty of the city of New York.” When it is remembered that the city of New York has the legal title and custody of Eighth street, this finding will be seen to have an important bearing as showing the actual interpretation which this statute has received from those charged with its execution. This interpretation has extended not only to this particular station but to many others throughout the city. The application to most of these stations of the strict rule contended for by the present plaintiff would result not only in great public inconvenience, but also in a far greater interference than at present with the light and air of abutting owners, since if the stations are to be driven out of the cross-streets it will become necessary to lengthen them on the ends so as to afford that degree of accommodation to the public which the law requires. It should be borne in mind that this well-settled interpretation of the rapid transit act is not confined to the railway companies or to the public and municipal authorities. It has been shared by the courts and by the abutting property owners almost universally. Judicial notice may be taken of the fact that very many judgments have been rendered by this court and other courts in this city, in reliance upon which the elevated railway companies have paid large sums of money for the right to maintain their various stations, including those portions which extend into side streets. It is true that the present plaintiff was no party to these judgments, yet they show a well-settled judicial construction of the act in question which ought to he of .great weight in determining a matter of public right. Upon a matter oí private right plaintiff might perhaps claim that precedent should he disregarded. But when he appears, under suspicious circumstances, as a voluntary and unaccredited champion of the public right, the long-continued and well-marked acquiescence of the public itself in a particular construction of the statute, which is obviously for the public benefit, ought not to be left out of account. An interpretation of a public statute which is not only contemporaneous hut long-continued and well-settled; which has been acquiesced in and fostered not only by the executive but by the judicial officers of the State; in reliance upon which large sums of money have been expended and important interests have grown up ; which is beneficial to all parties concerned, and is reasonably necessary to effect the general purpose of the act; which is opposed neither to any express enactment nor to any consideration of public policy, nor to any principle of justice or equity; and which is sanctioned by long custom, many precedents, and by the express language of the Court of Appeals ■—such an interpretation, we say, ought not to be lightly set aside to gratify private greed ora professional grudge. Power v. Village of Athens, 99 N. Y., 592; People v. Lacombe, 99 Ib., 43; People v. Dayton, 55 Ib., 367; Easton v. Pickersgill, 55 Ib., 310 ; Smith v. People, 47 Ib., 330; People v. Commrs. of Taxes, 6 Hun, 109; Fort v. Burch, 6 Barb., 73 ; DuBois v. Brown, 1 Den., 317 ; Hall v. Supervisors, 66 How. Pr., 330 ; VanLoon v. Lyon, 4 Daly, 149; Brown v. U. S., 113 U. S., 568; In re Warfield, 22 Cal., 51; Morgan v. Crawshay, L. R., 5 H. L., 320. Assuming that the portion of the station in question is without authority of law, and that plaintiff is entitled to represent the public in attacking it, we submit that the evidence shows that the interference with the public right in Eighth street is too slight and trivial to be made the basis of an injunction. Obviously plaintiff stands in no better position to attack the portion of the station in question, on the ground of illegality, than the attorney-general would occupy in a suit brought for that special purpose on behalf of the people. Plaintiff’s demand cannot borrow vitality from the associated claim for compensation for taking his private property. If compensation for private property is sought the injunction should be alternative in form. If the public right is to be vindicated by an absolute injunction then substantial injury from the particular portion of the station sought to he enjoined must be shown. In this case the projection beyond the easterly line of the street is almost imperceptible, and was not in fact perceived by the plaintiff until a year after he bought the property. It does not and cannot interfere with any public use of the street in the slightest degree. Neither is it shown to interfere to any appreciably extent with the light or air of abutting property. There is plenty of evidence in the case of interference with light and air by the structure in First avenue, but there is none which applies to this small portion of the station which projects into Eighth street. The court has not found that any such interference results from that part of the station. It is not in front of any window, and so cannot cut off any light or air directly ; while as far as concerns light and air coming obliquely into the Eighth street windows from the west, they would be cut off in any event by the portion of the station which is in First avenue and which is concededly legal. So that here is a perfectly harmless structure, for maintaining which neither the public nor the abutting owner could recover more than nominal damages. Against such structure an injunction should in no event issue. McLaury v. Hart, 121 N. Y., 636, 643; Genet v. D. &. H. Canal Co., 34 N. Y. St. Rep., 247, 254; Purdy v. Manhattan R. Co., 36 Ib., 43; Jerome v. Ross, 7 Johns. Ch., 315; Drake v. H. R. R. R. Co., 7 Barb., 508; People v. Met. Tel. Co., 31 Hun, 596. The case last cited is an exact parallel to the action at bar. The action was to restrain the completion of a telephone line in Twenty-first street, to remove the poles already erected and for damages. The action was tried by a jury who gave a verdict for six cents damages. Upon that verdict the court adjudged the poles a nuisance and ordered their removal. The facts show that plaintiff sustained no special injury from the two feet of station which projects beyond the easterly line of First avenue. There is no allegation of special injury from this source in the complaint and no finding of it in the decision. Such a finding was essential to give plaintiff any standing in court, to raise the question of public right. There is a long line of authorities, well-known to the court, which hold that in order to maintain an action for an injunction- against a public vnuisance it is necessary in any event that the complainant should have been specially injured. A few typical cases are Fort Plain Ridge Co. v. Smith, 30 N. Y., 44; Doolittle v. Supervisors, 18 Ib., 155; Lansing v. Smith, 8 Cow., 146 ; Dougherty v. Bunting, 1 Sandf., 1. Within the' principle of these cases, plaintiff cannot sustain this portion of the judgment on the ground of a public nuisance. He has not merely failed to show a special injury, but he has failed to show any injury whatever from the portion of the structure in question. The evidence showed that the particular station in question was used by about ten thousand passengers daily. To shave off the rear wall of this station would require a complete remodeling of the station, inside and outside. Such changes would require a virtual closing of the station for a short period, and would impose discomfort and inconvenience upon passengers for a much longer period. The result of the operation would be to permanently diminish the space provided for the accommodation of a rapidly increasing passenger traffic. Such a change would be of absolutely no advantage to the public at large. And even to the plaintiff it could make no perceptible difference. His light and air would be no greater in amount nor better in quality; his facilities for access would not be increased. An injunction can be rightfully demanded only for the purpose of protecting some legal or equitable right of the plaintiff. When it appears that it is not sought for that purpose but for some ulterior end, the injunction will be refused. Kimball v. Hewitt, 17 N. Y. St. Rep., 743. The slightest consideration of the circumstances of the case at bar will render it morally certain that this injunction has been obtained not for the purpose of protecting the plaintiff’s rights but for the purpose of harassing and injuring the defendants. The great hardship to the latter from this judgment, the absence of all legitimate advantage to the plaintiff and the existence of another disputed question between the same parties with respect to the damage done by the structure in First avenue, all combine to render it extremely probable that this demand for an absolute injunction has been made not for any legitimate purpose but only to be used as a weapon wherewith to terrify defendants into the payment of large sums of money as compensation for damages which have never been sustained and which cannot be proved.
    III. The learned trial judge erred in refusing to find that there were any benefits to plaintiff’s premises from defendants’ railroad. The defendants have the same right to have benefits considered in respect to the amount of damage as they have in respect to the exist

      ence of damage. The method pointed out by the Court of Appeals for raising the question, is by proposing just such requests to find as were proposed in this case. It may be regarded as certain that the Court of Appeals will never tolerate a rule which absolutely prevents the raising of this question ; and to say that these exceptions are to be disregarded is substantially to lay ,down that rule.

      E. B. & C. P. Cowles, attorneys, and Charles P. Cowles, and Justus A. B. Cowles of counsel, for respondent, argued:—
    I. The right to abate a nuisance or to restrain its maintenance, is not lost by reason of the purchase of the property injuriously affected subsequent to the creation of the thing which constitutes the nuisance.
    II. The Acts under which the Metropolitan Elevated Railway Company was incorporated and the proceedings had thereunder, do not empower that company to occupy any portion of Eighth street with its railway station or depot structure. Mattlage v. N. Y. El. R. R. Co., 67 How. Pr., 232; Matter of Metropolitan El. Ry. Co. (in re Jones), N. Y. Law Journal, January 26, 1891; see page 1024, middle of column 2. Mr. Adler’s property was one of the parcels included in the condemnation proceedings entitled Matter of Metropolitan El. R. Co. (in re Jones). This same question was raised in these proceedings before Judge O’Brien, and was argued at length; the petition was dismissed as to Mr. Adler, expressly upon this ground. Should the court desire to examine this question anew, we respectfully submit the following : Chapter 885, Laws 1872, the original Act incorporating the Gilbert Elevated Railway Company, provides, in section 3, that the route of the railway and necessary sidings, stations, etc., should be ascertained, designated and established by a board of commissioners, who should designate and establish the same, etc. Several Acts were passed amending this one, but in no particular material to the present question (see Chapter 837, Laws 1873 ; Chapter 275, Laws 1874). Subsequently, in 1875, the rapid transit act was passed (Chapter 606, Laws 1875). Under this act commissioners were appointed, who located the route of the petitioner, designating and establishing the same, and also the sidings, stations, etc., as far and as particularly as the same ever have been designated. The route designated by the rapid transit commissioners, so far as is applicable to this case, is as follows : “ Thence along Division street-to Allen street; thence along Allen street and First avenue to Twenty-third street.” Inasmuch as the commissioners appointed under the rapid transit act fixed and established the route, etc., of the Gilbert Elevated Railway, afterwards called the Metropolitan Elevated Railway, it necessarily follows that the limitations contained in the rapid transit act applied to and limited the authority of the commissioners in designating such routes. Clearly they could not act beyond the scope of their authority as conferred by the legislature, and since the Metropolitan Elevated Railway Company bases its right to maintain its railway on the action of the rapid transit commissioners and their permission as designated in the route established, the corporation can carry its railway into no other street or any portion of a street not expressly included in the route designated by the rapid transit commissioners. Such was the express provision of the act under which the commissioners were appointed. “But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction.” Chapter 606, Laws 1875, § 26, sub. 5. This provision expressly limits the authority of the commissioners. The reference to the route applies of course to the whole structure, sidings, switches, stations, etc., as well as to the main track. We do not question the right of the Metropolitan Elevated Railway Company to build and maintain stations along its route ; the legislature has given it this authority and in any event it would follow as a necessary implication, but we do insist that the defendant can exercise only such power as the legislature has given it, and that, when an express provision is made confining the corporation to a route designated and established by commissioners appointed expressly for this purpose, such provision is to be construed strictly as ag'ainst the corporation : that when the route is designated, this provision means that the corporation must keep the whole and every part of its structure, of whatever nature the same may be, clearly within the confines, of such designated route. Stations, sidings and switches may be built on the line of the route, but they cannot be built off such route. When the commissioners designated the route as “ thence along Allen street and First avenue to Twenty-third street,” such designation referred in no way to Eighth street; it would be a violent supposition to imply authority to go into Eighth street from a grant of authority to occupy First avenue. This designation of route is just as much a part of the rapid transit act itself as if embodied in it and therefore, in determining the rights of the corporation thereunder, it should receive the same construction as if it were made expressly a grant of corporate power. It is an elementary rule in the construction of grants of franchises, that such grants are to be construed most favorably to the public and most strongly against the grantor; that nothing shall pass by such grants except what is expressed in unequivocal language, and that whatever is not unequivocally granted is deemed to be withheld, nothing passing by implication. Langdon v. Mayor, 93 N. Y., 129, 147 ; Syracuse W. Co. v. City of Syracuse, 116 Ib., 167, 178. Applying this rule of construction, it must follow that inasmuch as Eighth street is not included in the route designated by the rapid transit commissioners, it must be construed to be excluded, with the same effect as if the designation of the commissioners expressly forbade the use and occupation of Eighth street by the railway or any part1 of the railway structure. It makes no difference how small a portion of the street is occupied, the principle is the same. If the petitioner has no authority to occupy Eighth street it has no authority to occupy any portion of the street, however small it may be. This question of legislative authority is not to he measured by the quantum of the wrong. Either the defendant has a right to occupy Eighth street or else it has no right to do so, and whether it occupies one foot or one hundred feet makes no difference, when the question to he determined is as to its legislative authority to acquire this property. The question presented is whether the defendant has power to do what it seeks to do. Whether the legislature granted it the franchise, privilege or right to acquire property in Eighth street. To do this the corporation must be able to show a legislative warrant on which to base its corporate action. Matter of Niagara F. and W. Ry. Co., 108 N. Y., 375, 383. Until this can be done the defendants must be compelled to remove that part of the railway, railway structure, station or depot station which extends into Eighth street.
    III. The fee value of the easements taken by the defendants and the past damages as determined by the court áre both very reasonable and are less than the evidence warranted.
    IV. No errors were committed on the trial, and there are no exceptions to the rulings upon the admission or the exclusion of evidence which warrant a reversal of the judgment.
   By the Court.—McAdam, J.

The evidence satisfactorily sustains the findings of the court below both as to past damages and value of the easements. The only question requiring special mention arises on the part of the judgment which requires the defendants to remove that portion of their structure or station which projects into Eighth street.

The plaintiff does not dispute the right of the Metro-, politan Elevated Railway Company to build and maintain stations along its established route. The legislature has given it this authority, and in any event it would seem to follow by necessary implication. But he insists that the defendant can exercise only such power as the legislature has given it; that when the route is designated, this means that the corporation must keep the whole and every part of its structure, of whatever nature the same may be, within the confines of the line, and that although stations, sidings and switches may be constructed on the roadway, they cannot be built off such route. The plaintiff is correct in his contention. The railway company has no right whatever to appropriate public streets or highways to its use without legislative sanction, and even then is bound to make compensation to the abutting owners for any injury done to their property by reason of any interference which its structure may cause to their easements of light, air or access, or any depreciation in fee or' rental value resulting from the operation of its road. The onus was, therefore, upon the railway company to show some grant which permitted it to diverge from the line of its route into Eighth street, and erect a station projecting two feet beyond the easterly line of First avenue. No such permission was shown, and that portion of the structure must, therefore, be assumed to have been built and maintained without the semblance of right (not as a temporary privilege but permanent erection), and the court below properly directed its removal. This accords with the decision of Judge O’Brien in dismissing condemnation proceedings affecting the same property. N. Y. Supreme Ct., N. Y. Law J., January 26, 1891, p. 1024. In the construction of grants of franchises, such grants are generally construed most favorably to the public and most strongly against the grantee; nothing as a rule passes except what is expressed in unequivocal language. Langdon v. The Mayor, etc., 93 N. Y., 129, 147; Syracuse W. Co. v. City of Syracuse, 116 Ib., 167, 178. Applying this rule, it follows that as Eighth street is not included in the route designated by the rapid transit commissioners, and was not essential to the enjoyment of the franchise, it is to be regarded as excluded. There is room for no other implication. The defendants urge that the interference with the public right in Eighth street is too trivial to be made the basis of a judgment for removal, on the principal of De minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another’s property. The degree is wholly immaterial. Seneca R. Co. v. A. & R. R. R. Co., 5 Hill, 175. Two feet of land in a thickly populated portion of a city is not so trifling as to deny the injured party the legal remedies necessary or proper for asserting the right of property thereto or to redress any trespass thereon. We find no error, and the judgment appealed from must be affirmed, with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—McAdam, J.

license: Public Domain

text:
    PETER STASTNEY, Respondent v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Negligence, action to recover damages caused thereby.

    The plaintiff was a passenger on one of defendant’s cars going up-town. At a point on First avenue, between 65th and 66th streets, the track was blocked by a broken-down van or truck, and'the passengers, including the plaintiff, at the request of the conductor, engaged in the work of moving the car from the track and around the obstruction, that it might continue its journey. While thus engaged another car of defendant’s, coming down the avenue, met with the same obstruction, and its conductor and driver proceeded to jump the car around on the east side of the track, and the same side upon which the plaintiff was engaged with the conductor, and thereby the plaintiff was caught between the cars and injured. If the car going down had been jumped to the west, as it should have been, the accident would have been avoided.

      Held, that the plaintiff was lawfully on the street at the time, by request of the conductor of the up-town car, and had no warning of the danger, and cannot be said to have contributed to the collision or to the bringing on of the injury to himself, and it was for the jury to determine the question of negligence of the defendant in the premises. The motion of defendant’s counsel to dismiss the complaint was properly denied, and the verdict of the jury was sustained by the evidence.
    Before Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal from judgment entered on verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      Merrill & Rogers, attorneys, and Payson Merrill of counsel, for appellant.

      Louis J. Grant, attorney and of counsel, for respondent.
   By the Court.—McAdam, J.

Plaintiff was, on February 27, 1890, a passenger in one of the cars going up-town. When the car reached a point on First avenue between 65th and 66th streets, it found the track blocked by a broken-down furniture van or truck. The passengers were requested by the conductor to get out and assist in getting the car off the track, so as to get around the truck that the car might continue its journey. The passengers, among them the plaintiff, obeyed the request, and while thus assisting, a car coming down the avenue, finding itself blocked by the same obstacle, “ jumped ” the track, but instead of “ jumping ” to the West, which would be the proper thing for it to do, it “ jumped ” to the East, and caught the plaintiff between the cars, doing him the injuries of which he complains. If the down-town car had “jumped” the track to the West as it should have done, the danger would have been avoided, but “ jumping ” toward the East naturally brought it in collision with the up-town car, and in this manner the damage was done. The plaintiff was lawfully upon the street at the time, by the invitation of the defendant’s conductor in charge of the up-town car. He had no warning of the danger, and cannot be said to have contributed to the collision or to the bringing the injury upon himself.

The learned trial.judge submitted the question of negligence to the jury, and they found for the plaintiff, on evidence which sustains their verdict, which was moderate in amount. The defendant’s counsel moved to dismiss the complaint on the ground that the testimony and circumstances detailed neither proved negligence on the part of the defendant nor freedom from fault on the part of the plaintiff. The motion was properly denied, as the evidence and the inferences to be drawn from it were matters about which minds might differ, and it was for the jury to determine the question of fact involved.

No error was committed during the trial, and the judgment and order denying the motion for a new trial must be affirmed, with costs.

Freedman, J., concurred.


author: Per Curiam.

text:
    THE MILLSTONE GRANITE COMPANY, Respondent v. JAMES F. DOLAN, Appellant.

      Contract for the delivery of granite according to plans and specifications ; and also for furnishing extra granite, beyond the contract and not called for in specifications.

    The only question in dispute between the parties arises from a construction of the written contract, and a supplement thereto written at its foot, wherein defendant promised to pay extra for all stone work “ that may > not he called for in plans and specifications left at plaintiff’s February 15, 1889.” The court held that the plaintiff fulfilled the contract according to specifications, etc., and also furnished other granite work at request of defendant, for which he was entitled to payment under the supplemental agreement.
    The facts and points in the case appear fully in the opinion of the court.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal by defendant from a judgment entered upon the report of a referee.

      Earley & Prendergast, attorneys and of counsel, for appellant, argued:—
    I. The referee erred in admitting evidence of conversations between the parties occurring before the written contract, all of which was incompetent, and all admitted under objection and exception of defendant. It was upon the evidence thus improperly admitted that the referee based his finding in plaintiff’s favor that those exhibits were the specification of the granite plaintiff was to furnish, and this evidence thus materially prejudiced the defendant. It was error to admit it, because against the well settled rule of law that all prior and contemporaneous parol negotiations become merged in a written contract when, made, the latter being entire and covering the undertaking of both parties in respect to the whole subject matter. A writing when once made in this way, must not be contradicted or varied or suffered to be affected by parol. And particularly so when the instrument is under seal. Wilson v. Deen, 74 N. Y., 531; Eighmie v. Taylor, 98 Ib., 288 ; Marsh v. McNair, 99 Ib., 174; Snowden v. Guion, 101 Ib., 458; Englehorn v. Reitlinger, 122 Ib., 76.
    II. The referee’s decision is against the evidence and the weight of evidence. Notwithstanding that John P. Leo’s plans and specifications were those mentioned in the written contract, and that the referee finds that same were the plans and specifications figured at Millstone on February 15, and left at plaintiff’s office on that day, the referee deprives the same of all binding force and permits plaintiff an extra recovery for granite required by such plans and specifications. In so doing, he goes against the plain letter of the contract. The only evidence needed in the case outside of the writing was evi- . dence to identify what plans and specifications were figured on, and what left at Millstone on February 15, 1889. When those were shown to be the plans and specifications of Mr. Leo, plaintiff could not go outside of same and show an understanding that other papers or specifications were to apply. To permit plaintiff to attempt to show this was wrong, but the evidence as given does not prove or establish the plaintiff’s contention. It appears that defendant, having made contract for the stone work of the armory, and being solicited by plaintiff’s superintendent to take an estimate for the cut stone or granite from plaintiff came up to Millstone Point on February 15,1889, and gave to plaintiff’s officers plans and printed specifications to figure and make estimate upon. Superintendent Davis then took such plans, and together with Ladd, plaintiff’s draughtsman, spent several hours from one p. M. till evening figuring, taking sizes for granite shown thereby, and calculating the number of feet of granite required, and the cost to plaintiff of the cutting, and used four sheets of paper in making pencil memoranda of sizes, number of feet and expense to plaintiff of cutting. Davis and Johnson then went in another room and out of Dolan’s hearing, and made some calculations, and then Johnson says: “I came into the other room and told him or gave him that writing which you have here after some conversation.” The writing so given to Dolan is Defendant’s Exhibit 1. It is addressed to Dolan, dated February 15,1889, and signed by Millstone Granite Co., Chas. S. Johnson, Treas., and by it the company agrees to cut, furnish and deliver all the granite work complete for the 22d Eegt. Armory, according to plans and specifications made by Mr. J. P. Leo, architect, for $12,050. Dolan took that writing and returned to New York, leaving the plans and specifications he had brought, and which ever after remained with the company until produced by it on this trial. A few days after, Dolan being again at plaintiff’s office, the contract set forth in the complaint was signed in duplicate, and duplicates exchanged, which contract was, as will be noticed, in precisely the same terms as the writing or estimate, given to Dolan by plaintiff previously, providing for plaintiff to furnish all the granite according to Leo’s plans and specifications, the ones figured on at the company’s office on February 15, for $12,050. Thereupon the plaintiff’s granite was furnished in 18 different shipments, covering a period extending from February 15, 1889, to January 14,1890. When the job was over the aggregate of the bills of shipments at the charges made by plaintiff upon the bills, made a little over $16,000. And then, notwithstanding plaintiff had agreed to furnish all the granite for $12,050, it took the bills for some of the last shipments, making a total of $4,238.78, and made a claim that same was. extra, because, as it claimed, the stones charged for thereon were not mentioned upon the four pencil sheets used in making memoranda before the contract was made. Defendant refusing to pay any more than the contract price, plaintiff sued for the sum so claimed as extra, and the referee sustained their claim upon a finding; that the specifications and plans mentioned in the contract referred to the stones listed on the four pencil sheets, and had been accepted by defendant as showing the granite to be furnished under the contract. This finding, it is submitted, is against the weight of evidence. There is no evidence anywhere in the case of any request of the defendant for any extra stones, and the plaintiff’s right to recover is grounded solely on the claim that it furnished more stones than enumerated on the four pencil sheets, and for the surplus should be paid extra. While defendant’s claim is that as plaintiff furnished no more stone than was called for by the plans and specifications made by Mr. Leo, with which he had agreed to comply, plaintiff has not earned any more than the contract price, subject to the deductions for certain stone which plaintiff left out, and which defendant had to furnish himself. It will be perceived that the case turns on the question, what were the plans and specifications referred to in the contract, plaintiff agreeing therein to furnish all the- granite required by same. Upon this question we renew the contention we made under the first point, that the negotiations and transactions occurring prior to the contract cannot be considered or be permitted in any way to govern the rights of the parties, and that evidence of the same was improperly admitted.

      Cannon & Atwater, attorneys, and Frank Bergen and Henry G. Atwater of counsel, for respondent, argued:—
    I. There is no statement in the case as made and settled that all the evidence given upon the trial is contained within it, and in the absence of such a certificate the general term will not review the case upon the facts. This rule is so well settled and has been so often enforced by this court, that no extended argument on it is needed, but a few of the recent authorities are given : Davis Sewing Machine Co. v. Best, 50 Hun, 76; Wellington v. C. C. & I. C. Co., 52 Ib., 408; Murphy v. Board of Education, 53 Ib., 171; Brayton v. Sherman, 28 St. Rep., 854; Porter v. Smith, 107 N. Y., 531; Halpin v. Phenix Ins. Co., 118 Ib., 165; Aldridge v. Aldridge, 120 Ib., 614; Goodrich v. Gillies, 42 St. R., 321.
    II. None of the exceptions taken on the trial call for a reversal of the judgment. It may be well to point out one or two other facts before proceeding to consider the exceptions on which the defendant relies. (1.) One of the sheets of the drawings for the armory which Dolan took with him to Millstone Point showed a tower of considerable dimensions, and when he was pointing out to the employes of the company what parts of the building were to be granite on which he wished the company to estimate, he stated that they need not figure on anything above a point just below the tower. All of the extra material charged for in the bill of particulars, was used in constructing the tower, and of course was not included in the primary contract. (2.) The principal part of the building was to be of brick, the water table, trimming’, etc., to be of blue stone and granite. The parts of the plans taken by Dolan to the company’s office on February 15 did not indicate what parts of the building were to be of granite, so that persons, although skilled in the business of estimating, could ascertain from them, even approximately, what parts were to be of granite; nor did the printed specifications supply the information. The four pencil sheets show that 12,725.-21 cubic feet of granite were required by the primary contract. (Plaintiff’s exhibits “ F,” “ G,” “ H,” and “ I ”.) Under the supplemental contract 2,420.8 cubic feet were furnished, making in all 15,140.01 cubic feet actually put into the building. To he strictly accurate it should be s^iid that 1,500 cubic feet were omitted from the sally port in actual construction by agreement, although shown on the plans, and a few feet were also omitted from the tower by consent because of a reduction in the size of the stone shown on the plans. Now it appears in the case that parties of long experience in making estimates could find no such quantity of granite to be required by the plans and specifications. Peter Nolan, a man of thirty years’ experience, made an estimate on the plans on December 21, 1888, for the purpose of obtaining a contract for the work, and could only find that 11,958.9 cubic feet were required. He says he included in his estimate all the granite to be furnished under the plans and specifications the best he could understand them. He says he found the plans and specifications indistinct and obscure. Mr. Dutton and Mr. LePoidevin also found the plans to be indefinite, and Ladd and Johnson testified to the same effect. The issue in the case is so largely a question of fact, which has been finally settled by the referee, that there seems little, if anything, open for discussion here. The defendant’s theory of the case, as indicated by the record, is based on assumptions that are plainly untenable. He insists that the contract of February 15,1889, referred to all the plans for the building and to the printed-specifications. The fact is, however, that only a part of the plans were taken to Millstone Point on February 15, and the printed specifications were not seen on that day by the officer of the company who made the proposition and afterwards signed the contract. Besides, the plans themselves were so indefinite that the quantity of granite required could not be estimated from them within four thousand feet of the real quantity needed, and the specifications referred to in the contract were the four pencil sheets, not the printed document. Again, it will be remembered, that when Dolan presented a draft of a contract to the company for execution a few days subsequent to February 15, 1889, containing a clause requiring the company to furnish “ all the granite work,” the company’s representative required him to strike out those words, and insert words which required the company to furnish granite “ per specifications and plans as figured on at the office of the Millstone Granite Company at Millstone Point,” on February 15,1889, for the avowed and well understood purpose of limiting the quantity to that indicated on the four pencil sheets.
   Per Curiam.

The action is for the price of granite, worked, sold, and delivered by plaintiff to defendant. A construction of the written contract, will decide the dispute between the parties. By that, the plaintiff agreed that they would work for the Twenty-second Regiment Armory building, on trucks, agreeably to the drawings and specifications made by John P. Leo, architect, and signed by the said parties, and. hereto annexed, in a good, substantial and workmanlike manner to the satisfaction and under the direction of the said John P. Leo, and also shall and will find and provide such good, proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient for the completing and finishing, all the granite work per specification and plan, figured on at the office of the company at Millstone Point at this date, of said building mentioned in the specification, for the sum of $12,050.

The appellant contends that for the price named the plaintiff was to furnish all the granite work 'disclosed by the drawings and specifications of John P. Leo, architect. This is not correct, for, by the contract, work upon the granite is to be done in accordance with such plans and specifications, but the granite work to be furnished was such as was described in specification and plan, figured on at the office of the company. In fact there had been such specification and plan figured on at the office, and they were not the same as the drawing and specifications of Leo, being but a part of the latter. The figuring was upon four sheets of paper.

The evidence in the case sustains this construction of the contract, and shows its reasonableness. There was in the contract made a reference to extra work. When the granite had been partly delivered, the defendant agreed in writing “to pay for all extra stone work that has not been called for in plans and specification left at your office, February 15, 1889, at time of making contract, etc.”

The plaintiff fulfilled the contract to furnish granite according to the specification figured, and also furnished other granite work at request of defendant. The defendant contested plaintiff’s right to recover this extra granite, on the ground that the granite work was called for by the plans and specifications of John P. Leo. We have construed the contract otherwise. The plaintiff was entitled to recover upon the balance due under the contract and for the extra work. .

Judgment affirmed, with costs.


text:
    CHARLES H. SMITH, Plaintiff v. MATILDA F. LOCKWOOD, et al., Executrix, Etc., Defendants.

      Action for the breach of a written agreement by the testator of defendants.

    The agreement provided for the payment of one hundred and fifty shares of capital stock of the Staten Island Water Supply Company, when the water works that the defendants’ testator were building under contract were turned over and accepted by said company. Before the water works had been accepted, and before the completion of the contract in regard to them, defendants’ testator assigned his contract to another party and procured a release from the company.

      Held, that on the face of the contract, and from extrinsic circumstances, it appears that the acceptance was referred to only as a date or time of payment of the capital stock. It also appears that the testator was solely responsible for the acceptance never taking place. He could not by his own act dissolve the obligation of the contract, and his executors are liable upon it.
    The facts and points in the case appear in the opinion of the court and the arguments of counsel.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Defendants’ exceptions at the trial of the action to the denial of his motion that the complaint be dismissed, and also his motion that a verdict be directed in his favor, were ordered to be heard in the first instance at general term, as also his exceptions to the verdict of the jury, under the direction of the court, for $10,000.

      L. L. Van Allen, for defendants, appellants, argued:—
    August 28, 1879, the Staten Island Water Supply Co. and John Lockwood & Co. executed an agreement for the construction of water works on Staten Island. That agreement was somewhat modified by a supplemental contract, October 5, 1880. November 7, 1881, Lockwood & Co. notified the Staten Island Water Supply Co. that they had transferred their contracts to one E. Patten. The day following, the company, at a meeting of the board of its directors, passed a resolution ratifying the transfer, and releasing Lockwood & Co. Plaintiff was a director of the company, was present at that meeting, and voted for the resolution. April 30, 1880, plaintiff and Lockwood & Co. executed an agreement, a copy of which is annexed to the complaint, in which the latter agree to transfer to the former, upon certain conditions contained therein, three hundred shares of the stock of the company. One hundred and fifty shares thereof were transferred October 22, 1881. The agreement provides for the transfer of the balance, as follows: “ And the remaining one hundred and fifty shares, when the works are turned over to and accepted by said company.” That has not been done, and the amended complaint admits it. {First.) The complaint should have been dismissed. The contract between the parties hereto is definite and certain. The works have not been turned over and accepted by the company. That was a condition precedent, and until its accomplishment, the one hundred and fifty shares were not to be paid. The amended complaint admits that the further performance of the agreement between Lockwood and the company was on the 8th day of November, 1881, “ duly waived.” That was the date on which the resolution was passed, confirming the transfer from Lockwood to Patten. {Second.) The element of estoppel is enforceable in this case. The essentials constituting it—“ declaration made or act done by the party against whom the estoppel is claimed.” “ That the party claiming the estoppel relied upon such declaration or act,” and “ That the party claiming the estoppel would be injured if the other party were permitted to retract his declaration, or undo his act,” are clearly applicable. Real Estate Trust Co. v. Balach, 45 Sup’r, 528. In Pickard v. Sears, 6 Ad. and Ell., 475, Lord Denham, says : “ The rule of law is clear that when one by his words or conduct causes another to believe in the existence of a certain state of things, and induces him to act on that belief, the former is concluded from averring a different state of things.” It is not essential that the party sought to be estopped should design to mislead. If his act was voluntary and calculated to mislead and actually has misled another acting in good faith, that is enough. Trustees, etc., of Brookhaven v. Smith, 118 N. Y., 634.

      George L. Cheney, for plaintiff, respondent, argued :
    . I. The excuse for non-payment is a default by the obligor himself. The excuse pleaded by Lockwood for not transferring these 150 shares to the plaintiff is, that the works have not been turned over to the company. But when we examine the case, we find it was Lockwood himself who agreed with the company to turn over these works, but who failed to do it, and then, by putting the contract out of his hands, put the performance of thi# obligation out of his own power. The law, however, does not suffer obligations to be evaded in that way.
    II. Lockwood could not profit by his own default. Lockwood was under obligation to complete the water works, but failed to do so. Then he secured an extension of time to perform that obligation, and again failed. Then he transferred that contract, in the face of a notice from the plaintiff, and secured a release from the company, and thus obtained a final settlement from the company without turning over the works. By this voluntary non-performance of the act which was to mark the time for paying the plaintiff, Lockwood estopped himself from insisting on its performance. Lee v. Decker, 3 Abb. Ct. of App., 53; Gallagher v. Nichols, 60 N. Y., 438, 448; Risley v. Smith, 64 Ib., 576 ; Home Bank v. Drumgoole, 109 Ib., 63.
    III. The plaintiff is not estopped. The defendant Lockwood urged upon the trial, that the company’s action in releasing him and accepting Patten was a defence here; because the plaintiff was a stockholder and director in the company, and was present at the board meeting and raised no objection when the company took that action. This theory, however, is untenable for obvious reasons. In the first place, Lockwood knew exactly what the real facts were, and Was therefore not misled by the company’s action or the plaintiff’s silence. He was present himself at the board meeting as a director, and knew that the plaintiff was present there in the same capacity ; and he has himself testified that the plaintiff at that meeting said nothing, and did not even vote in favor of the resolution. Lockwood knew that the action then taken was the action of the company alone; and he knew that the plaintiff had already given him full notice that the private contract with the plaintiff must be performed, irrespective of any such disposition as was there made of the contract with the company. And the actual transfer to Patten had been made before the meeting. In the second place, the disposition then made of the company’s contract did not involve the abandonment of the plaintiff’s contract. The two obligations were distinct. The liability of Lockwood to the plaintiff on the contract in suit, was no part of his liability to the company on the contract released. His obligation to pay the plaintiff for the past services was not even incident to his obligation to perform for the company the contract to build its works. So the destruction of the latter obligation would not operate to destroy the former. The only point in the private contract which could be affected by the abandonment of the contract to build the works, was the provision fixing the date for paying the final installment; and the nature of the effect on that point, as laid down in the cases above cited, is to strengthen the private contract and accelerate the date for payment. In the third place, the plaintiff did not assent, either in fact or by implication, to any modification or postponement of Lockwood’s obligation to pay him the stock. The plaintiff had, on the contrary, expressly refused to assent to any impairment of his right to such payment. He gave Lockwood complete notice that the obligation to transfer the stock would be strictly enforced. The plaintiff’s silent presence at the board meeting, in the capacity of a director, did not operate as an adoption of the company’s action for his own, in the capacity of an individual. He and Lockwood met there as fellow-directors on the company’s business, not as a debtor and a creditor adjusting their private relations ; and Lockwood knew it. Their private affairs could not be intruded in fact, much less by implication, at such a meeting. The plaintiff’s silence as to his private interests, at the board meeting, his not raising those interests there in opposition to the company’s action, was the silence of a director, imposed upon him by the duties of his trust office, and not the independent conduct of a free individual acting in his own behalf. No inferences upon which to base an estoppel could be drawn from such reticence, even if the plaintiff had not given Lockwood the preliminary notice already referred to. Moreover, and quite apart from the director’s duty not to obtrude his personal interests in opposition to the board’s action, the knowledge Lockwood had of the plaintiff’s private rights would deprive the plaintiff’s silence of any effect upon those rights. Failure to object to a proposed wrong never estops the injured party, if his rights were already known to the person invoking the estoppel. Martin v. Angell, 7 Barb., 407; Hutchins v. Hebbard, 34 N. Y., 24; Viele v. Judson, 82 Ib., 32; N. Y. Rubber Co. v. Rothery, 107 Ib., 310.
   Per Curiam.

The testator in his life-time made, with the plaintiff, an agreement whereby he promised to pay and transfer to the plaintiff three hundred shares of the capital stock of the Staten Island Water Supply Company, the payment and transfer to be one hundred and fifty shares upon payment to him by said company of one-half of the stock to be paid to him, pursuant to the contract with the company, and the remaining one hundred and fifty shares when the works are turned over and accepted by said company.

The action concerned only the last installment of one hundred and fifty shares. The defence was that the works had never been turned over and accepted by the company. The reply to this is satisfactory. Before the works had been accepted by the company the testator, in his life-time, before the completion of his contract, assigned it to a third party with the approval of the company, that at the same time released Lockwood, defendant’s testator.

On the face of the contract, and from extrinsic circumstances, it appears that the acceptance was referred to only as a date or time of payment. The testator was responsible solely, so far as appears, for the acceptance never taking place. He could not by his own act, dissolve the obligation of the contract, and his executors remain liable upon it.

The plaintiff was present at the meeting of the directors who released Lockwood from the contract. But he did not vote for or promote in any way the assent of the company to Lockwood’s assignment of the contract or his release. Nothing shows any assent on his part to the course taken by Lockwood.

Defendant’s exception overruled and judgment ordered for plaintiff on verdict, with costs.


text:
    PROSPER MONNET, et al., Appellants v. HENRY MERZ, Respondent.

      Principal and agent, action for an accounting between them.

    An agent cannot be allowed, for an amount paid by him, to compromise an action in which his principal and his principal’s goods were affected, unless the agent establishes by evidence that he was specially authorized to compromise the same, or the nature of his agency clearly authorized him to so compromise such action and pay said amount.1
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal by plaintiff from a judgment entered on the report of a referee.
    The facts and points in the case appear fully in the opinion of the court. In the trial of the case the referee declined to allow to the defendant the whole of the claim but allowed him one-half, and defendant appealed from such ruling, and the general term sustained the referee (57 N. Y. Super. Ct., 576), and the Court of Appeals modified the judgment by striking out the allowance of one-half made by the referee, Monnet v. Merz, 127 2V. Y., 151. The plaintiff now appeals from the judgment entered upon the report of the referee allowing defendant one-half of said amount.

      Arnoux, Ritch & Woodford, attorneys, and William H. Arnoux of counsel, for appellants, argued :—
    The allowance of the amount appealed from was erroneous and should be reversed. This was so decided by this court. The language of the decision is this: “ The defendants had the burden of showing that they were authorized to compromise said action ; that is, that they were specially authorized by the plaintiffs in this action to compromise, and that they were authorized from the nature of their agency. They have failed to prove either one of these facts. The referee refused to find that the goods described in the invoices that were made for the entry of the goods had been undervalued, and his finding is warranted by the evidence. If there was no undervaluation there was no reason why the action should be compromised, and the defendants in compromising the action acted at their own peril.” When the case reached the Court of Appeals, - Beowe, J., carefully examined the authorities cited in our original brief and approved the same. This logically and inevitably led to the conclusion that the court was right and the referee wrong. Monnet v. Merz, 127 N. Y., 151, 156.

      A. P. & W. Man, attorneys, and William Man of counsel, for respondent, argued:—
    The findings of the fact of the referee are ample to support his allowance to defendants of one-half the compromise sum paid to the government. Plaintiffs, not defendants, made up the invoices; defendants did not know the cost of the goods, made by a secret process; the invoices were made by plaintiffs and furnished to defendants for the express purpose of being used by defendants to “ enter ” the goods for payment of duties. Defendants used said invoices in good faith in entering the goods. The government suit was brought on the ground that plaintiff’s invoices were fraudulent, and plaintiffs thereupon authorized the employment of counsel on their behalf. That plaintiffs requested defendants to settle and compromise said government suit at any sum that should be found necessary, of which plaintiffs agreed tó pay half. That negotiation was made by defendants through plaintiff’s attorneys for settlement, which settlement at $>10,000 defendants paid. The money, $10,000, for the compromise, was deposited with the government (with the proposition for settlement) by the defendants October 9, 1882, and the settlement was made and the money accepted by the government March 2, 1883. The defendants notified plaintiffs by letter of November 11,1882, and again by letter of February 20, 1883, of the proposition to settle and the deposit of the money; both of these letters were received by plaintiffs. The defendants never repudiated or refused to be bound by this action, except so far as their telegram of February 8, 1883, may be construed as a revocation (of their agreement to pay half) and this telegram was : “We refuse Custom House compromise of seventy thousand francs.” Our compromise offer was 50,000 (not 70,000) francs, as plaintiffs knew by our letter of November ll, 1882, received by plaintiffs as early as November 28, over two months before this telegram. The telegram, therefore, did not refer to our $10,000 offer made in October preceding. The referee, therefore, holds that the plaintiffs having offered to pay half of any sum required to settle with the government, which offer they never revoked or withdrew, and we having settled for $10,000, we are entitled to be allowed one half that sum as against any claim of plaintiffs. It is true that the referee finds that on February 9,1883, the plaintiffs, by telegram, revoked any authority to compromise ; but he has also found that the only such telegram was the one there stated, which most certainly does not purport in any way to revoke the authority to settle and compromise on joint account. If two findings conflict, we, as the respondents, are entitled to the benefit of any presumption, as we are seeking to uphold the judgment, and presumptions will not be indulged in to upset it. The referee’s findings, therefore, amply support his allowance to the defendants of one half the $10,003 paid to compromise with the government. Every presumption is to be indulged in favor of the judgment. Standard Oil Co. v. Triumph Ins. Co., 64 N. Y., 85. It is incumbent on the party seeking the reversal to show affirmatively that an error was committed to his prejudice. Tracey v. Altmeyer, 46 N. Y., 598, 604; Appleby v. Erie Co. Savings Bk., 62 Ib., 12, 18. It is not enough to show that error may have been committed. Smith v. Newland, 9 Hun, 553, 554; Philip v. Gallant, 62 N. Y., 256, 265.
   Per Curiam.

The action is virtually for an accounting between the plaintiff, a foreign consignor, and the defendant, his consignee in this country. This appeal involves the correctness of a ruling which charged the appellant with the sum of $6,126.09. That charge arose from the following facts. The plaintiff consigned certain goods to the defendant. After they had arrived in the country, the United States began a suit against the defendant to recover $75,000, under sections 2839-2864, U. 8. Rev. 8tat., and section 16, Act of June 22, 1874. On February 9,1883, the United States accepted from the defendants an offer of compromise of $10,002.12 and discontinued the action. The respondent claims the amount paid in compromise should be charged to plaintiff. The claim is not valid for the reasons stated in Monnet v. Merz, 127 N. Y., 151, unless it appears by the evidence on this appeal that the plaintiff authorized or took part in the compromise. The evidence does not show any authority from the plaintiff to compromise on joint account. A proposition to that effect made by the plaintiff to the defendant was refused by the latter. The offer did not thereafter continue. Nothing can be implied on this subject unfavorably to the plaintiff from his omitting to answer concerning the suit, for as to that he had no obligation. The telegram “We refuse Custom House compromise of 70,000 francs,” as there was but one compromise in a suit claiming 75,000 francs, clearly referred to the compromise for $10,000. The defendant failed to establish that the plaintiff authorized or, was a party to the compromise.

The referee charged the plaintiff with one half of the amount of the compromise. This was not valid, and the from the judgment so far as that is affected by the charge that has been examined. The judgment, therefore, should be reversed. as to such matter, and a new trial ordered, with costs to abide the event, and the order of reference vacated. only