text:
    In the Matter of the Proposed VILLAGE OF HARRISVILLE v. JOSEPH LAWRENCE and Others, Appellants.

      Section held, under chapter 291 of the Laws of 1870, to determine as to the incorporation of a proposed milage — ■chapter 262 of the Laws of 1890 is not applicable thereto — -costs — order of county judge appealable under section 1357 of the Code of Civil Procedure.

    The provision of section 11, title 1 of chapter 291 of the Laws of 1870, providing that the county judge, on rendering a decision adverse to the prayer of the petition of appeal from an election on the question of incorporating a proposed village, shall direct, hy order, such portions as he may deem just of the sum required by the act to be deposited on such appeal to be paid to the persons in such order named, and the balance to the person who deposited the same, authorizes the county judge to provide in such order for paying the expenses or costs of the appeal out of the sum deposited.
    By force of section 1357 of the Code of Civil Procedure, an appeal lies to the General Term of the Supreme Court, from an order of a county judge, made on an appeal under section 11, title 1 of chapter 291 of the Laws of 1S70.

      Semble, that on an appeal to the county judge, under section 11, title 1 of chapter 291 of the Laws of 1870, after an election on the question of incorporating a proposed village, the principal question to be determined by him is whether or not the election was valid.

      Semble, that the provisions of chapter 262 of the Laws of 1890, entitled “An act to promote the independence of voters at public elections, enforce tile secrecy of the ballot and provide for the printing and distribution of bailots at public expense/' do not apply to an election on the question of incorporating a proposed village held under chapter 291 of the Laws of 1870; and that the provisions of chapter 291 of the Laws of 1870, in reference to elections on the question of incorporating proposed villages, were not repealed or altered by chapter 262 of the Laws of 1890.
    Appeal by Joseph Lawrence and others, petitioners, from an •order made by the county judge of Lewis county, and entered iu the clerk’s office of said county on the 4th day of April, 1892, which order contains the following language: “ I find and decide that such prior proceedings and such election for the incorporation of said village of Harrisville were. and are valid and legal, and that said village was duly incorporated, and it is ordered that the appeal herein be and the same is hereby dismissed.”
    Also an. appeal from an order made by the same judge on the 13th day of April, 1892, and entered in said clerk’s office on the 13th day of April, 1892, which contains the following provision:

      “ I order and direct that ont of the moneys deposited with said county clerk he pay Fred C. Scliraub fifty dollars, as attorney for respondents in said matter, to Elmer P. Lake the sum of seven- dollars for witness fees and expenses, and to Milton Carter fifteen dollars for services rendered in assistance of the respondent’s attorney in the defense of said appeal, and that he pay the balance of said money to wit, twenty-eight dollars, to W. B. Van Allen, the attorney of appellants depositing the same.”

      W. B. Vcm Allen, for the petitioners, appellants.

      Fred O, Schratib, for the respondent.
   Hardin, P. J.:

Proceedings were instituted under chapter 291 of the Laws of 1870 for the incorporation of the village of Harrisville. Subsequent to the preliminary proceedings provided for in the early sections of that statute, a petition was filed in virtue of section 11, title 1 of the statute; that section provides that any elector qualified to vote at such election may‘appeal to the county judge, of the county in which the territory is situated “ by petition specifying the irregularities in and objections to such election.” That section provides for a deposit with the county clerk of the county of the sum of $100 “ to meet the expenses of the appeal.” It also provides that a day for the hearing of the same shall be appointed by the judge, A day was appointed to wit, the fifteenth of March, and the parties interested in the proceedings stipulated to adjourn the hearing until the sixteenth, and on that day they appeared before the judge and a hearing was had. The section provides that “ such judge shall have power by subpoena to compel the attendance of witnesses before him on such a day or on adjourned days.” Acting under this provision the parties on either side to the contest produced witnesses before the county judge who were sworn and gave evidence, upon which the judge acted, in connection with the papers relating to the formal matters connected with the proceeding. It may be observed that this provision in the section seems to be for the purpose of enabling the county judge in disposing of any questions arising in regard to the election; to take evidence and ascertain all the facts essential to a just conclusion in the premises. The section further provides: “His decision as to the legality or illegality of such election shall be rendered within thirty days from the day of presenting the petition of appeal to him.” It may be observed that in the early part of the section it is provided that the petition shall specify objections to “ sncli election,” and in the latter part of the section the words, “ Iiis decision as to the legality or illegality of such election” seem to provide principally for the review of the election. In a later section it is provided that “ if the county judge shall decide such election to be legal, he shall file an order,” etc. In the thirteenth section of title 1 it is provided that “ if the county judge shall decide such election to have been illegal, he shall forthwith, on rendering his decision, make an order and file the same in the county clerk’s office in the county in which such territory shall be, directing another election to be held to determine the question of the incorporation of such territory.” It seems, therefore, that the principal question to be determined by the county judge, in the proceeding now here for review, was whether or not the election held was valid, was legal or was illegal. It seems that the supervisor and town clerk, pursuant to section 8 of the statute, constituted the board of inspectors for the election; they presided at the election, received the ballots upon which ballots those favoring the incorporation wrote the word “ Yes,” and those opposed to the incorporation wrote the word “No,” in accordance with the provisions found in section 9. A certificate was made out of the holding of the election, and of the canvass of the ballots which showed the whole number of ballots with the word “ Yes” thereon, and with the word “No” thereon, together with a copy of the notice of the holding of such election, and an affidavit of posting and publishing the same, and the certificate was signed by the inspectors and verified by their affidavit, and was filed in the county clerk’s office in the county of Lewis, in accordance with the provisions of section 10 of the statute. By the papers produced before the county judge, and by the evidence produced before him, it clearly appeared that a majority of the persons voting at such election, in pursuance of the statute, were in favor of the incorporation ; and the papers and evidence warranted the judge in concluding, as he did, that the election was held in accordance with the provisions of the statute upon that subject.

However, it is insisted, in behalf of the appellants, that the election was not held in accordance with the provisions of chapter 262 of the Laws of 1890. The first section of that statute provides that, “All ballots cast in elections for public office within this State, shall be printed and distributed at public expense.” The second section provides that any convention or primary meeting “ held for the purpose of making nominations to public office * * * may nominate candidates, for public office to be filled by election within the State.” In the-case in hand, no election for public office was to be, or was held in the town of Diana, or in the territory proposed to be incorporated.. The acts just referred to, as well as the other sections, do not seem to apply to the case in hand. In section 45 of the act of 1890, it is provided that “ all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.” Inasmuch as the act of 1890' relates to public officers to be elected, rather than a question of’ whether a certain project or proceeding shall be approved, we are' inclined to the opinion that the provisions of the act of 1870 were not repealed or altered by the Laws of 1890. We are of the opinion that the county judge was warranted, by the papers and the evidence produced before him, to find and decide as he did that the election was legal.

(2.) Having reached the conclusion that the election was legal, we think the provision in section 11 of title 1 authorized him to provide for paying the expenses or costs of the appeal out of the $100 deposited with the county clerk. The section provides as follows: “ If such decision be adverse to the prayer of such petition, he shall, within ten days from rendering such decision, by order, signed by him, direct such portions as he may deem just of the one hundred dollars deposited with the county clerk to be paid by such clerk to the persons in such order named, and the balance to the person or persons who deposited the same.” The order was made within ten days from the order in which he decided that the election was legal.

(3.) We are of the opinion that section 1357 of the Code of Civil Procedure provides for an appeal from the order made by the county judge, as that section authorized an appeal from an order “ affecting a substantial right, made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a, special statutory provision.” The county judge of Lewis county was a “ judge of a court of record liaving original jurisdiction; ” and the special proceedings were brought before him “ pursuant to a special statutory provision.” The question was raised in the Matter of the Proposed Village of Elba (30 Hun, 548), although it was, not directly passed upon by this court when that decision was made.

(4.) Several other questions are raised and discussed in the brief of the learned counsel for the appellants, and are quite satisfactorily disposed of by the opinion of the learned county judge.

We think the orders appealed from should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Order of April 4, 1892, affirmed, with costs as upon an appeal from a judgment. Order of the 13th of April, 1892, affirmed.


source: Caselaw Access Project

author: Pee Cueiam:

license: Public Domain

text:
    In the Matter of the Application of the ST. LAWRENCE AND ADIRONDACK RAILROAD COMPANY to Acquire Real Estate of JULIA L. DeCAMP, Impleaded with Others.

      Eminent domain — continuance in possession, of the company exercising the right, on its making a deposit— Code, of Civil Procedure, sec. 3379.
    Where, in a proceeding by a railroad company to condemn real property, the court states in its order allowing the company to continue in possession, under section 3379 of the Code of Civil Procedure, that it appeared to its satisfaction " that the plaintiff is in possession of the premises sought to be condemned,” it is to be assumed, on appeal from such order, that the court reached the conclusion that the company was in possession under a color of claim, or had acquired possession in good faith, where the papers before the court contained allegations tending to show such a possession; and that the court was not of opinion that the possession of the company originated in a trespass known to have been such, or that it was taken without color of authority.

      Matter of St. Lawrence and Adirondack Railroad Company (133 N. Y., 270) distinguished.

      Semble, that section 3379 of the Code of Civil Procedure, which provides that in
    ■ any stage of a proceeding for the condemnation of real property, the court may authorize the plaintiff, if in possession, to continue in possession, and may stay all actions or proceedings against him on account thereof, on his giving security or depositing such sum as the court may direct, is constitutional.

      Appeal by the defendant, Julia L. De Camp, from an order made at the Oneida Special Term on the 13th day of February, 1892, and •entered in the Herkimer county clerk’s office on the 27th day of February, 1892, which provided that, upon depositing with the clerk of Herkimer county the sum of $5,000, subject in all respects to the order of the court, “to be held as security for the payment of the compensation which may be finally awarded to the defendants as owners or parties interested in said lands, and the costs of this proceeding; that the plaintiff, the said St. Lawrence and Adirondack Railroad Company, be authorized and allowed to continue in' possession of the lands described in the petition herein and so sought to be condemned.” Among the papers recited in the order and read upon the motion is “the answer of the defendant, Julia L. De Camp, verified herein on the 10th day of February, 1892.”
    The order recites that, it “ appearing to the satisfaction of the , court that the plaintiff is in possession of the premises hereby sought to be condemned, it is hereby ordered and directed,” etc.
    On November 21, 1891, the St. Lawrence and Adirondack Railroad Company filed a map locating a route of its road; the road, as located, crossed township No. 7, in the town of Wilmurt, in the county of Herkimer, over lands described in the petition. December 12, 1891, plaintiff’s petition was prepared, in which it was stated, among other things, that the lands described and sought to be condemned were necessary for public use, viz., for railroad purposes. And the petition also averred “that it is now in possession of the said described lands which are sought to be condemned in this proceeding, as will more fully appear in the annexed affidavit of Charles E. Snyder, verified on the 12th day of December, 1891, and to which your petitioner hereby refers and makes the same a part of this his petition.” “ That your petitioner is now in possession of the same under a defective title thereto, viz., under the title of the Adirondack Timber and Mineral Company^ who have an undivided interest in the lands hereby sought to be condemned, and that the defendants above named are the other persons having undivided interests in the said described property and liens thereon.” In the affidavit so referred to of Snyder, after setting out the sources of title, it is alleged “ that the plaintiff in this proceeding has acquired from the said Adirondack Timber and Mineral Company, all its right, title and interest of the said Adirondack Timber and Mineral Company in and to the lands sought to be condemned in this proceeding, and is now in possession of the same under the title of the said Adirondack Timber and Mineral Company.” And the affidavit further states “ that the plaintiff has settled with the Adirondack Timber and Mineral Company for all its interest, right and title in and to the land sought to be condemned in this proceeding, and that with the consent of the said Adirondack Timber and Mineral Company has, under title of the said Adirondack Timber and Mineral Company, gone into possession of the lands which are so sought to be condemned in this proceeding, and is now in possession thereof with its servants, agents and contractor^, and is busily engaged in the construction of its said railroad. And deponent further says that the plaintiff has for a long time been in possession of the said described premises, which are sought to be condemned in this proceeding, with the full knowledge of the agent of the defendants in charge of their interests in the said township the said Walter De Camp, and with the said knowledge and acquiescence of the defendant’s agent, has cut timber from the proposed right of way of plaintiff’s railroad over said township to a large extent.” Other affidavits were read in behalf of the plaintiff in support of the. allegations of. the petition.
    Mrs. De Camp’s answer which was verified February 10, 1892,. contains denials of most of the allegations of the petition, and sets up that “ she is the owner and sole owner of the lands described by metes and bounds in the petition herein.” And in opposition to the motion her affidavit, sworn to February eleventh, the affidavit of Scudder Todd, sworn to February tenth, and the affidavit of W. S. De Camp, sworn to February 18, 1892, were read, which contain denials of allegations of the petition and averments tending to support the allegations of the answer.

      O. D. Adams, for the appellant.

      Gharles E. Snyder, for the respondent.
   Pee Cueiam:

The discretion and power of the Speciaal Tei’m were exercised after considering the affidavits and allegations found in the papers. Upon those affidavits and papers the Special Term found as is stated in its order, that it appeared to its satisfaction “ that the plaintiff is in possession of the premises sought to be condemned.” It may be fairly assumed that the Special Term reached the conclusion that the company was in possession under a color of claim or had acquired possession in good faith, and that the Special Term was not of the opinion that the possession which the company asserted originated in a trespass known to have been such, or that it was taken without ■color of authority. The case made before the Special Term, therefore, differs from the one appearing upon the papers in the case reported in 133 New York, 270, between the same parties. (Code ■of Civil Pro., § 3379) Under this section the court apparently ■exercised its discretion and allowed the plaintiff to continue in possession,” upon depositing the sum of $5,000. It was assumed by this court in its decision made in February, 1892, ■of the case between these parties, reported 333 New York, 270, that section 3379 was constitutional. We see no reason why we should not adhere to that conclusion. We understand the Court of Appeals simply to have decided that where a railroad company has unlawfully entered upon land under no claim or pretense of right, in defiance of the will of the owner, under no mistake or misapprehension and without color of authority,” that section 3379 does not .apply to such a case. If the findings of the Special Term in the ■case now before us are upheld, as upon an examination of the papers before the Special Term, we are inclined to think they should be, the decision so made by the Court of Appeals is not applicable to the case in hand.

In Cherokee Nation v. Kansas Railway Company (135 U. S., in the opinion, at page 659), it was said : “ The Constitution declares that private property shall not be taken ‘for public use without just compensation.’ It does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed; ” and in that case a deposit had been made in court to pay a compensation to the owner, and it was held to be an adequate provision for the owner.

In McClain v. People (9 Col., 190; S. C., 11 Pac. Rep., 85), it was held that a statute authorizing the court to permit a petitioner in condemnation proceedings to have temporary possession is not unconstitutional

In Bloodgood v. Mohawk and Hudson Railroad Company (18 Wend., 9) it was held: “ It is enough that such provision be made; it is not necessary that the damages or compensation should be actually ascertained and paid previous to the appropriation of the property.”

In Smith v. Helmer (7 Barb., 426), Allen, J., in speaking for the General Term of the fifth district, said: “ It is sufficient for this case that, by the settled construction of the Constitution, which prohibits private property to be taken for public use without just compensation, actual compensation need not precede the appropriation, and that the law authorizing the reconstruction and alteration of the road in question provides for compensation, but does not make it a condition precedent to the entry upon, and appropriation of, premises for the purposes of the road.”

According to the order brought l^fore us, authorizing a deposit in court of the sum of $5,000, a deposit was made "“subject, in all respects, to the order of the court to be held as security for the payment of the compensation which may be finally awarded to the defendants as owners or parties interested in said lands, and the costs of this proceeding.” • It appeared to us, upon the argument, that condemnation proceedings are now pending, and that the road of the petitioner is substantially completed across the premises in question, and that commissioners have been appointed to assess the damages sustained by the defendants. And from the views already expressed, it may be assumed that the rights and interests of the defendants are sufficiently guarded and protected by the order appealed from.

We think it should remain and be affirmed, with ten dollars costs and disbursements.

Present — Hardin, P. J., Martin and Merwin, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Merwin, J.:

text:
    JENETTE NELSON, Respondent, v. ROSWELL E. BROWN, Appellant, Impleaded with Another.

      Judgment in foreclosure — when not conclusive in favor of a claim of a paramount dower right — a definite devise in lieu ofdowel' is not destroy edby a subsequent crnbig~ ■ uous expression — claim, of dower in real estate devised to the doweress.

    A judgment in a mortgage foreclosure suit covering pi-emises in which a widow, claiming dower by title paramount to the mortgage, although made a party defendant, did not appear, and in which there was no issue upon the subject of her dower, will not, although, in terms, in favor of her dower right, have the effect of an adjudieation in her favor in an action brought by her to recover dower in the premises.
    A testator, by his will, provided as follows: “I hereby devise ana ^equeath unto my beloved wife, Jenette Nelson, the use, income, profits, rents and profits of all my real estate during her natural life, to be enjoyed, accepted and received by her in lieu of dower, and in addition to what interest she would have as doweress if this devise was not so made to her.”

      Held, that there being nothing in the will itself, or in the surrounding circumstances, to disclose an intent to the contrary on the part of the testator, the expression, “ and in addition to what interest she would have as doweress if this devise was not so made to her,” should be construed as a statement of the nature • or extent of the preceding express devise “ in lieu of dower,” and not as destroying the effect of such absolute devise; that the intent of the whole clause was to give the wife the usé for life of all the testator’s real estate in lieu of dower, and not in addition to dower; and that having accepted the devise she could not recover dower.
    An express and positive devise cannot be controlled by subsequent ambiguous words.
    Appeal by the defendant, Roswell E. Brown, from a judgment of the Supreme Court, entered in the office of the clerk of Herkimer county on April 4, 1892, with notice of an intention to bring up for review on such appeal the interlocutory judgment, entered in said county on the 12th of October, 1891, upon the decision of the court at the Herkimer Special Term September, 1891.
    The action was brought by the plaintiff, as the widow of John Nelson, to recover dower in 273 acres of land in Herkimer county, of which John Nelson died seized. The defense is that Nelson left a will, in which he made a provision for his wife in lieu of dower, which she 'has accepted. It was decided at Special Term that the plaintiff was entitled to recover, and commissioners for •admeasurement were appointed. Upon their report final judgment was entered.

      /S. W. Petrie, for the appellant.

      O. J. Palmer for the respondent.
   Merwin, J.:

John Nelson died on the 22d of March, 1889, leaving a will, which is dated December 16, 18Y5, and three codicils thereto attached, which are dated February 1, 1881, May 28,1881, October 31,1881. The will and codicils were duty proved on July 1, 1889. By the first clause of the will the testator appointed his wife and his son George executors and directed them to pay all his debts. The second clause was as follows : “ I hereby devise and bequeath unto my beloved wife, Jenette Nelson, the use, income, profits, rents and profits of all my real estate during her natural life, to be enjoyed, accepted and received by her in lieu of dower and in addition to what interest she would have as doweress if this devise was not so made to her.” By the third clause his son George wras given the fee of a farm of 326 acres, u to be taken, held and received by him after the death of his mother, and the termination of her life estate therein as before given and devised.” By the fourth clause the testator devised a farm of about two hundred and seventy-five acres, called the Churchill farm, to a trustee in trust for his son Walter and his children, the trustee to have possession at the death of the testator’s wife. lie then gave pecuniary legacies to the amount of $10,000, to be paid from the personal property, if sufficient, and any deficiency to be a charge upon the lands given in fee t& George Nelson, and if the personal was more than enough to pay the debts and legacies, the balance the testator gave to liis wife. By the last clause he gave to his wife a life estate in the house and lot owned by him in Little. Falls, and at her death devised the same to his grandchildren. By the first codicil he devised to his son George the half of the Devendorf farm he had that day purchased, charging it with the payment of certain sums for the benefit of his grandchildren. The second codicil related to the stock on the Churchill farm. By the third codicil he made provision for the payment from his personal property of the balance. of the purchase-money of the half of the Devendorf farm.

On the 5th of January, 1884, John Nelson executed and delivered to Jacob A. Churchill a mortgage on the Churchill farm in the sum of $10,000, payable within five years. The plaintiff did not sign this mortgage. It was recorded on January 11, 1884, and on the 23d of February, 1889, was duly assigned to Letitia Howard, who, in March, 1890, commenced in the Supreme Court an action for its foreclosure. The parties defendant in that action were Churchill, who had guaranteed the mortgage, the present plaintiff and the trustee, and those interested in the trust under the will of John Nelson. In the complaint no reference was made to the rights •of Mrs. Nelson, except the general allegation that the defendants, other than Churchill, “ have or claim to have some interest in, or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the •said mortgage.” Judgment was demanded, in the usual form, in foreclosure. Mrs. Nelson was served with the summons- and complaint, but did not appear or answer. The other defendants, except Churchill, appeared and answered, denying the execution of the mortgage, and alleging that John Nelson was, at the time, of unsound mind, and that there was no consideration for the mortgage. The issues so joined were brought to trial at Special Term December, 1890, and were decided in favor of the plaintiff therein, .and the usual judgment of foreclosure was ordered. One of the findings of fact in the decision was, “ that under and by virtue of the last will and testament of said John Nelson, deceased, the defendant Jenette Nelson is entitled to a life estate in the mortgaged premises, in addition to her dower therein, as widow of said John Nelson, deceased.” One of the conclusions of law was that “the plaintiff is entitled to the usual decree of foreclosure and sale against .all the defendants, subject to the dower of the defendant Jenette N elson.” The judgment that was entered provided that the premises be sold “subject to the dower therein of the defendant Jenette Nelson.” Hpon this judgment a sale was made on theYthof March, 1891, by the referee named therein, and the premises were bid off by Letitia Howard for $10,350. In his report of sale the referee states that he sold the mortgaged premises, but nothing is stated as to whether or not he sold subject to the dower of Mrs. Nelson, nor is there anything stated on that subject in the deed given by the referee to the purchaser. In terms, the deed conveys “ all the right, title and interest of John Nelson, as the same vested in him on the 11th day of January, 1884.” The report of sale was duly confirmed on' 14th of March, 1891. On the 20th of April, 1891, Letitia Howard, by quit-claim deed, conveyed the premises, and all her right, title and interest therein to the appellant,-Roswell E. Brown. In this deed no reference is made to the foreclosure deed, or to the dower right of Mrs. Nelson.

Nelson, at his death, was the owner of the real estate referred to in the will and the first codicil, and there was no incumbrance on any of the lands except the mortgage above referred to. At his death the plaintiff took possession of all the property left her by the will, and has since then had the use of all the real estate, except that, upon the 20th of April, 1891, the defendant Brown took possession of the Churchill farm under the deed to him from Letitia Howard. The present action to recover dower in that farm was commenced on 22d of June, 1891.

The questions upon this appeal are (1) whether the defendant Brown is estopped, by the provision in the foreclosure judgment, from denying the right of the plaintiff to recover dower, and if not then (2) whether the provision in the will is in lieu of dower.

First. In the foreclosure action the widow did not appear.' There was no issue upon the subject of her dower. A judgment against her in such a case would not bar her paramount right if she had one. (Ocumpaugh v. Wing, 12 Week. Dig., 566; Lewis v. Smith, 5 Seld., 502; Merchants' Banh v. Thomson, 55 N. Y., 7; Payn v. Grant, 23 Hun, 134.) In the Merchants’ Bank case it is said : “ A person claiming dower by title paramount to the mortgage, cannot be brought into court in such a suit to contest the validity of dower. The position is the same as if she had not been made a. party to the foreclosure action.”

If the judgment, had it been against the plaintiff, would not have barred her right, she cannot claim it to be a bar in her favor. The operation of estoppels must be mutual. (Freeman on Judgments, § 159; 1 Greenl. Ev., § 524; Brower v. Bowers, 1 Abb. Ct. App. Dec., 219; Van Camp v. Fowler, 41 N. Y. St. Rep., 80, 83; affirmed 133 N. Y., 600.)

How the finding on the subject came to be made in the foreclosure action does not appear. Aside from the provision in the findings and judgment, there is nothing in the case that estops the appellant from denying plaintiff’s claim. The will is set out by plaintiff in her complaint. The foreclosure proceedings are also therein referred to as indicating the position of the defendant Brown, but there is no allegation or claim of any estoppel. As the case stands, we think that none is shown to exist available to the plaintiff in this action.

Second. Hid the testator intend to give his wife the use for life of all his real estate in lieu of dower, or in addition to dower ? This is to be determined from the will itself and such surrounding circumstances as may be properly taken into account. He was apparently then the owner of two farms and a house and lot. He was seventy years old, and was married to plaintiff in 1829. By the clause in question there is a very definite devise in lieu of dower, but the expression is added, “ and in addition to what interest she would have as dowress if this devise was not so made to her.” Does this destroy the effect of the absolute expression just preceding ? The last expression carries the idea that as the devise is made in the form it is the widow gets nothing as dowress, but that she will, in fact, get a greater interest than her dower would be. In this view the latter expression may be deemed a statement of the nature or extent of the gift, and in that way a meaning be given to it not inconsistent with the words “ in lieu of dower.”

The contention of the plaintiff would require us to disregard entirely the expression “ to be enjoyed, accepted and received by her in lien of dower.” This should not be done unless the intent of the testator very clearly appears to-that effect. An express and positive devise cannot be controlled by subsequent ambiguous words. (2 Wins. Exrs. [6th Am. ed.], 1168, note m, Bule 12.) A devise of a life estate in the whole in addition to dower is unusual in its character, and there is nothing in the present case to indicate that the testator had any reason to make a devise in that form, or that would make such a devise probable.

In the cases apparently relied on by, the plaintiff, there were no express words stating the devise to be in lieu of dower. In this case it seems to me that it cannot be said that there is any intention to abrogate the force of tlie express provision, and that the subsequent words at most were intended only as descriptive of what had already been given.

It follows that the plaintiff cannot recover dower, as it is conceded that she accepted the provision and devise made for her by the will.

Martin, J., concurred; Hardin, P. J., not acting.

Judgment reversed, and a new trial ordered, with costs to abide the event.


text:
    ANSON E. YORK and WALLACE W. STARKWEATHER, Respondents, v. WILLIAM W. CONDE and JOHN C. STREETER, Appellants.

      Assignment of a claim against the United States— U. S. Bev. Stat., sea. 3477.— money to he received on the completion of a government contract —priority among assignments — marshaling of securities — evidence of offer of compi'omise.

    Section 3477 oí the United States Revised Statutes, prohibiting the transfer or assignment of a claim, or any part thereof, upon the United States, does not apply to an assignment by a contractor with the United States of a specified amount of the moneys to be paid him) on the completion of his contract, to a person to whom he is indebted for materials furnished to and used by him in the execution of his contract, so as to prevent such assignee from recovering the sum so assigned from a third party who, with knowledge of such assignment, and without any agreement with the contractor prior to such assignment, had received from the contractor the draft given to him by the disbursing officer of the government on the completion of his contract, and had applied a portion of the proceeds thereof to the payment of a claim of his own against the contractor, and had paid over the balance to the contractor.
    Decisions of the United States Supreme Court on the effect and application of section 3477 of the United States Revised Statutes, examined and commented on.
    On the trial of an action by the assignee, under said assignment, against said third party to recover the proceeds of the draft given to the contractor by the government on the completion of his contract, it appeared that the defendant had received mortgage security for his claim against the contractor, but had not realized thereon at the time the draft was paid.
    The trial judge charged the jury that the equitable doctrine applied as against the defendant; that a party having a lien upon two funds must, upon the application of a party having a lien upon one of them, exhaust his remedy on the other security first.

      Meld, that this was erroneous.

      That such instruction tended to lead the jury away from the true question for decision, which was whether the defendant had an agreement with the contractor, as to the disposition of the moneys to be received from the government, prior to the assignment to the plaintiff, and that the right of the plaintiff in respect to such mortgage security could not be determined in that action.

      Held, also, that it was improper to refuse to charge that if the jury found that there was an equitable lien or assignment in favor of the defendants prior to the assignment to the plaintiff, to the extent of the whole amount of the draft received by the contractor, and the draft came rightfully to the hands of the defendants, it was immaterial to plaintiff what use it was put to.
    An exception to evidence of an offer of compromise is well taken where such evidence is immaterial, and, the case being a close one, such evidence may have had an improper effect on the jury.
    Appeal by the defendants,’William W. Condeand John O. Streeter, from a judgment of tlie Supreme Court, entered in the Jefferson county clerk’s office December 24,1891, upon a verdict rendered at the Jefferson Circuit in favor of the plaintiffs for $2,737.50; also an appeal by the defendant, William W. Conde, from an order denying a motion made on the minutes for a new trial.

      Brown & Adams, for the appellant, Conde.

      Watson M. Rogers, for the appellant, Streeter.

      Henry Purcell, for the respondents.
   Merwin, J.:

In the fall of 1889 the firm of Witherby & Gaffney entered into a contract with the United States government for the construction of certain buildings at Madison barracks, at Sacketts Harbor; and thereafter they purchased of the plaintiffs materials for use in the erection of said buildings to such an extent that on the 27th of March, 1890, they were indebted to the plaintiffs thereon in the sum of $3,000. At that date they executed and delivered to plaintiffs an instrument in writing which, after reciting the indebtedness, and that there would be due and payable to them from the government considerable sums of money before and on the completion of the work, proceeded as follows: “ Now, therefore, of the moneys due and to become due us from the said government we do hereby, for value received, assign and transfer to said York & Starkweather the sum of three thousand dollars, and do hereby authorize, empower, request and direct Lieut. J. E. Macklin, R. Q. M., Eleventh Infantry, U. S. A., through whom payments are made for such construction, to pay to said York & Starkweather on our account for such construction the full sum of three thousand dollars as follows: First, $500 from the next estimate and payment diie or to become due us, and the sum of $2,500 on the completion of said work by us, and when the balance of our contract with the government becomes due and payable to us.”

On the 12th of May, 1890, "Witherby & Gaffney completed the work, and on the fourteenth of May the agent of the government delivered to them a draft for $4,428, that being the balance due. This was payable to their order, and they, upon the same day, indorsed and delivered it to the defendants, who, upon the following day, obtained the money thereon. The plaintiffs have received upon their debt $500.. The balance of $2,500 and interest they seek to recover in this action. They claim that they were the owners of the proceeds of the draft to the extent of such balance, and that defendants, when they received the draft, had notice of their claim. The defendants concede that they had notice of plaintiffs’ claim, but they insist that the instrument under which plaintiffs make then-claim is void under section 3477 of the .Revised Statutes of the United States; and also that, prior to its date, there was a verbal agreement between the defendants and Witherby & Gaffney, by which the latter, in consideration that the defendants would indorse their papér and enable them to raise money to carry on the work, agreed that such paper should be paid from the moneys to become due on the contract, and that they would turn over to defendants the check or draft which they should receive upon the final settlement, so that the defendants might be fully paid for what they indorsed for them or furnished them. Whether there was such an agreement was a question of fact for the jury to determine under the ruling of this court upon a former appeal. (See 61 Hun, 26.)

Upon the trial under review, it appeared that at the time the defendants received thé draft they were liable, as indorsers for Witherby & Gaffney, to the amount of $4,900, of which $4,200 existed prior to March 27, 1890. Witherby & Gaffney were also indebted to the defendant Conde, individually, in the sum of $450, of which $205 was incurred after March 27,1890, and they were also indebted to the defendant Streeter, individually, $350, and there is evidence that none of this accrued after March 27, 1890. These individual accounts were for moneys or supplies furnished to Witherby & Gaffney in connection with the work. It also appears that the defendants, in disposing of the proceeds of the draft, applied $3,200 in payment of notes, $250 on the individual account of Conde, $350 on the individual account of Streeter, and the balance of $628 they returned to Witherby & Gaffney. The court held that the United States Statute did not apply, and charged that the plaintiffs were entitled, as matter of law, to recover the sum of $1,183, being the items of $628 and $350 above named, and also $205 of the item of $250. As to the balance of the plaintiffs’ claim^ its recovery, as the court charged, depended on whether the jury found an oral agreement, as claimed by defendants, prior to plaintiffs’ agreement. The verdict was for plaintiffs for the full amount, thus negativing the existence of any prior oral agreement with defendants.

By section 3477 of the United States Revised Statutes, it is provided that all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertaiment of the amount due, and the issuing of a warrant for the payment thereof.” The defendants, in support of their contention that this statute applies here and strikes down the instrument upon which plaintiffs base their rights, rely mainly on the case of Spofford v. Kirk (97 U. S., 484). In that case, Kirk employed Hosmer to prosecute for him a claim against the United States for supplies furnished to the army during the late war, and for damages sustained by reason of the military occupation of his property. Before the allowance of the claim, he drew, in favor of Wharton, an order on Hosmer for a certain amount payable out of any moneys coming into his hands on account of the claim. Hosmer accepted the order, and Spofford became its holder in good faith. An award was afterwards made to Kirk, and a warrant issued in his favor. The latter then refused to recognize the validity of the order, or indorse the warrant in the hands of Iiosmer. Spofford «then filed a bill against Kirk and JELosmer to enforce compliance with the order. It was held that the accepted order was void, and gave the holder no interest in the claim against the United States, and no lien upon the fund arising oizt of the claim, although, in the absence of the statute, there would be an equitable assignment pro tanto. It was said that such an order was not only invalid when set up against the government, but also as between the parties.

It is, however,- claimed by the plaintiffs that subsequent adjudications in the same court have materially modified the rule laid down in the Spofford case. In Goodman v. Niblack (102 U. S., 556), it was held that the statute did not apply to a transfer by means of a general assignment for the benefit of creditors. It also seems to have been held that in case the government recognized the validity of such an agreement, the parties to it, or those claiming under them, would be precluded from setting up that the contract was not assignable. And it was said of the Spofford case, that it was a case of the transfer or assignment of a part of a disputed claim then in controversy, and it was clearly within all the mischiefs designed to be remedied by the statute, and that a consideration of those mis chiefs, as well as a careful examination of the statute, “ leave no doubt that its sole purpose was to protect the government, and not the parties to the assignment.” In Hobbs v. MeLean, (117 U. S., 567) one Peck, having put in a bid for a contract which he expected to, and did afterwards receive, made an agreement with other parties 'by which, in consideration of moneys to be advanced and services performed by them, he agreed to divide with them a fund he expected to receive from the government on the contract. This agreement was held not to be affected by the statute, and was enforced against the fund in the hands of the assignee of the contractor, and it was said that the purpose of the statute “ was not to dictate to the contractor what he should do with the money received on his contract after the contract had been performed.” In Freedman's Saving Company v. Shepherd (127 U. S., 494) it was held that the statute did not apply to the assignment of a lease and the rents to become due thereunder from the government, and the government having recognized the assignment and paid the rent to the assignee, it was held that the other parties could not complain, and that the provisions made in the assignment for the application of the rents should be carried out.

In the light of these cases, the ruling of the court below on this subject should not I think be disturbed. In the course of the trial it appeared that on the 26th of March, 1890, the defendants received from the wife of Gaffney as collateral security for their indorsements a mortgage upon two houses owned by her; that afteiwards. tlíey foreclosed the mortgage and bid in the property, and had since-then realized from the sale of one of the houses $800 which they had applied on the balance remaining of the $4,900 indorsements; that they still held the other house which was incumbered by a mortgage of $700, and was worth $1,500 to $1,600. The court in its charge having referred to the equitable doctrine that a party having a lien upon two funds will, upon the application of a party having a lien upon one of them, be compelled to exhaust his remedy on the other security in the first instance, the defendants’ counsel asked the court to charge that that doctrine had nothing to do with this case. To this the court replied: "Well, I can’t say that. It is broad enough to engraft upon every case in order to do justice between the parties where the question arises.” The defendants duly excepted. This exception was, I think, a good one. The jury were permitted to infer that the right of the defendants to receive the proceeds of the draft at the time they did receive them was diminished or affected by the fact that the defendants then held other security which had not since then been fully exhausted, or that defendants had no right to the proceeds of the draft until such exhaustion. This would naturally lead the jury away from the true question for them to decide which was, whether the agreement with the defendants was prior to that with the plaintiffs. If it was it was not affected or diminished by the fact that -when the draft was received the defendants had other security. The rights of the plaintiffs in respect to such security cannot be determined in this action. Nothing had been realized therefrom at the time the draft was paid.

The court charged that the plaintiffs in any event could recover the sum of- $628, which the defendants, after they received the proceeds of the draft, paid back to Gaffney, and declined to charge that if the jury found that there was a prior equitable lien or assignment in favor of defendants to the extent of the whole $4,400 in the check or draft, and it came rightfully to the hands of defendants, it was immaterial to plaintiffs what use it was put to. This should have been charged, for if the defendants had a lien to the full amount they were entitled to receive the whole, and that would necessarily exclude the right' of plaintiffs to recover any part of it in this action. Whether the defendants, after they gave back a portion of the fund, could still hold for the same amount other security which they may have had, is a question that does not here arise. Upon that question the plaintiffs have a full remedy elsewhere.

The court also charged that the plaintiffs were in any event entitled to recover $205 of the amount allowed upon the individual debt to Conde. The full amount of his debt was $450. Of this $205 was incurred after the date of the agreement with plaintiffs. The $250 was applied generally upon the account. There was evidence tending to show that the agreement between defendants and Witherby & Gaffney covered the individual account of Conde as well as the indorsements. If so, I fail to see how, as matter of law, it should be said that plaintiffs could recover the $205. Exception was duly taken to the charge and refusal to charge above referred to.

The plaintiff York, being upon the stand as a witness in his own behalf, was allowed to testify what he told the defendant Conde that he would take rather than have any suit about it, in other words, his offer of compromise. Objection and exception were duly taken.' This was immaterial, and in a close case might have an improper effect upon a jury.

It follows that there should be a new trial.

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

Judgment and order reversed upon the exceptions and new trial ■ordered, with costs to abide the event.


author: Barnard, P. J.:

text:
    JAMES McCALDIN, Plaintiff, v. WILLIAM A. PARKE and Another, Defendants.

      Dock owner — liability of, under an agreement that the water should, he of a certain depth — neglect to ascertain its depth — injury to a vessel coming to the dock how-on.

    A dock owner chartered a vessel and ordered it to discharge its cargo at his dock, at which he agreed there should he a certain depth of water. The water was, in fact, of that depth along the dock, and in the approaches thereto alongside for a space greater than the width of the vessel, hut a ledge of rock, unknown to the parties, existed under water, less than the length of the vessel, from the dock, and the vessel, on coming to the dock how-on, and swinging around alongside, struck the rock with her stem and was injured.
    In an action hy the owner of the vessel against the dock owner to recover the damages resulting from the injury:

      Beld, that the dock owner should have measured the depth of water at the point of the accident, and have informed the owner of the vessel thereof.
    That the dock owner was hound, under his agreement, to give the agreed depth of water at the point of the accident.
    That how-on was a legitimate manner of approach to the dock, so that the how being fastened to the dock the stern would he carried alongside hy the tide.
    That the failure of the dock owner to ascertain the depth of water for the distance from the dock of the length of the vessel, in reference to which his agreement was made, was negligence, although it would ordinarily not he within the scope of his care and duty to remove the ledge of rock.

      Exceptions of the plaintiff James JVIcCaldin directed to be heard at the General Term, in the first instance, by an order made at the King’s County Circuit on the 21st day of April, 1892, the plaintiff’s complaint having been dismissed.
    The action was brought to recover damages for an injury to the steamer Caroline Miller, owned by plaintiff, received by grounding on certain rocks in the East river in approaching the defendant’s wharf or dock at Hunter’s point.
    The complaint alleged that the said accident was occasioned through the negligence of the defendants, in that they failed to keep the approaches to, their said wharf and the bottom in a proper and safe condition, with a sufficient depth of water for the said steamer to land at said wharf, and failed to notify the plaintiff of the condition of said approaches and bottom, and that there was no negligence or want of care on the part of the plaintiff or his agents.

      William W. Goodrich, for the plaintiff.
    Parsons, Shepard c& Ogden, for the defendants.
   Barnard, P. J.:

The plaintiff was the owner of the steamer “ Caroline Miller.”' The defendants chartered the vessel to carry lumber for them from Port Boyal, South Carolina, to New York. The defendants agreed that there should be sixteen feet of water at the wharf. On the 12th of April, 1887, the vessel arrived with a cargo of lumber at the port of New York, and was ordered by the defendants to discharge the same at their yard in Hunter Point. The plaintiff had made with the vessel two preceding trips and delivered at the same place the cargo without accident. On this occasion the vessel was loaded so as to draw a little over fifteen feet -water. The tide was about half ebb, and in running into the dock the vessel struck on a ledge of rocks at the bottom of the East river some seventy feet outside of and in front of the defendants’ bulk-head. The depth of water was sufficient to float the vessel at the dock, and there was sufficient depth of water to approach the same if the vessel had approached the dock either from the north or south inside of the rocks. On the occasion in question the vessel ran in bow-on with an ebb tide, and the stern of the steamer was carried by the tide, so that she struck on the rocks and was injured. The vessel was 190 feet long. The rocks at low tide’are twelve or thirteen feet below the surface, and, as the tide falls about five feet, at the time of the collision there was not water enough to float the vessel. The complaint avers that the defendants knew of the danger of the approach, and agreed that the water was sufficient for the plaintiff’s vessel at all turns of the tide. There was no proof given of the knowledge of the defendants of the existence of the rocks, but the defendants both testified that they had never heard of the ledge of rocks before this accident. The proof did not show that an accident had ever happened before at this point, and did show that vessels of even larger draft had landed at defendants’ dock safely. The question presented is, whether it was the defendants duty to measure the depth of water at this point and inform the plaintiff of the result. The plaintiff establishes by numerous authorities that an owner of a dock is liable for neglect to keep the dock in repair and the approaches thereto in suitable order for the business of those who are invited to deliver freight on the dock. The principle settled by the cases is, that the owner must suffer the cause of the accident to exist by neglect; that, if he knew of a hidden danger, lie must give notice of it; or he, in the exercise of ordinary care and diligence, should have known of the obstruction and removed it. (O'Rourke v. Peck, 24 Blatchf., 473; Nickerson v. Tirrell, 127 Mass., 236.)

There was no proof upon the trial that the defendants knew of the existence of the ledge of rocks in question. The defendants both affirmatively testified that they neither knew or had ever heard of it. Just before the accident the defendants caused the river bottom in front of the dock to be dredged out so as to be some fifteen feet at “ mean low water.” This dredging did not go beyond forty feet from the dock. The question is simplified to this: "Were the defendants, who engaged for sixteen feet of water, bound to give sixteen feet of water at the point of the accident ? Ve think they were. An approach must mean that portion of the frontage of the dock which a vessel must pass through to reach the same even bow-on. That is a legitimate way of approach, so that the bow being fastened to the dock the stem of the steamer would be carried by the tide alongside of the dock. It was negligent in the defendants to engage for a depth of water which should not take in the length of tlie vessel, for which a depth of sixteen feet was to be given. In the absence of this undertaking there" was no proof of negligence. The ledge of rocks at the bottom of the East river, some sixty feet from the dock, would ordinarily be without the scope of the defendants care and duty to remove. "When they undertook that a vessel of 190 feet in length and sixteen feet draft could unload at the dock, it was their duty to know that the undertaking was based upon the fact represented, and the omission to know this was negligence. The case should have gone to the jury under the evidence.

The exceptions should, therefore, be sustained and a new trial granted, with costs to abide event.

Dykman and Pratt, JJ., concurred.

Exceptions sustained and new trial granted, costs to abide event.


author: Barnard, P. J. :

text:
    THEODORE F. FREUND, Plaintiff, v. CHARLES C. OSTRANDER, Defendant.

      Title by adverse possession — a purchaser bound to accept it — Godeof Civil Procedure, secs. 368, 369.
    A good title by adverse possession is made out by force of sections 368 and 3C9 of the Code of Civil Procedure, as against a prior outstanding title in a grantee who. has died leaving no infant heirs, by one who, having entered into possession under a written instrument purporting to be a conveyance of the premises, has. been in actual continuous possession thereof for more than twenty years under such instrument under one claim of title, and while in possession has erected and maintained buildings and otherwise improved the land under claim of title.
    Such adverse possession comes within the exception stated in section 368 of the Code of Civil Procedure, to the rule therein laid down, that mere possession is presumed to be under the legal title, and that occupation by another is deemed to have been in subordination to the legal title, “ unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action ”
    A title thus acquired by adverse possession must be accepted by a purchaser under a contract which provides that “the party of the second part shall not refuse to take title to said premises by reason of the party of the first part having, or claiming to have, title by adverse possession, unless that the party of the first part does not hold a good title by adverse possession.”

      Submission of a controversy on an agreed statement of facts, the question presented by which was whether the defendant should be compelled to accept a deed of certain premises in the county of Suffolk, under a contract between the parties dated March 7, 1892, whereby the plaintiff agreed to sell, and the defendant to purchase, the premises in question for the stipulated price of $6,000, $100 of which was paid at the time as a deposit, the deed to be delivered on April 6,1892.
    It appears from the agreed statement of facts, in addition to the facts stated in the opinion, that on the 6th day of April, 1892, as provided in the afore-mentioned contract, the plaintiff attended at the time and place provided for the delivery of the deed mentioned in the contract, and thereupon tendered an executed deed containing the usual full covenants, conveying and assuring to the defendant the • title to said premises in fee simple, and demanded the balance of the purchase-money due. That thereupon the defendant refused to pay the balance of said purchase-money, or to receive said deed’ on the grounds that the plaintiff held no title to said premises either by adverse possession or otherwise. ■
    The plaintiff demanded judgment, that defendant specifically perform said agreement and accept the deed tendered by the plaintiff, and .pay to the plaintiff the balance of said purchase-money, with interest from April 6, 1892, besides the costs of this action.
    Defendant demanded judgment that the court adjudge that the plaintiff has not a good title to the premises hereinbefore described by adverse possession, or otherwise; that the defendant be relieved from accepting the deed tendered by the plaintiff; that the plaintiff repay to the defendant the $100, his said deposit, and interest from March 7, 1892, and that the plaintiff pay to the ’ defendant his expenses incurred herein, besides the costs of this action.
    Chapter 475 of the Laws of 1890, to which, as is stated in the opinion, the deed under the contract in question was to conform, is the act providing for short forms of deeds and mortgages.

      Elliott J. Smith, for the plaintiff.

      George H. Bntoe, for the defendant.
   Barnard, P. J. :

The plaintiff and his grantors have occupied the premises in question continuously since January, 1862, under operative conveyances. The several owners, while in possession, have erected and maintained buildings and otherwise improved the lands under their claim of title. In March, 1892, the plaintiff agreed to sell the land to the defendant by deed, according to the provisions of chapter 475, Laws of 1890. The agreement contained this clause: “And it is mutually understood and agreed, by and between the parties to this contract, that the party of the second part shall not refuse to take title to said premises, by reason of the party of the first part having, or claiming to have, title by adverse possession, unless that the party of the first part does not hold a good title by adverse possession.” The record of deeds in the clerk’s office of Suffolk county show a record of a deed conveying the premises in question by Catherine Fleet to Horace Greely, dated April 5, 1851, and recorded June 14, 1854. Horace Greely died leaving no infant heirs. The plaintiff’s title is good under section 369 of the Code. The entry of the plaintiff and his grantors was under a claim of title founded on a written instrument as being a conveyance of the premises in question, and there has been a continued occupation and possession of the premises included in the deed for over twenty years under the same claim. By section 368 of the Code mere possession is presumed to be under the legal title, and occupation by another is deemed to have been in subordination to the legal title, “ unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action.” Such an advei’se possession is proven by the long occupancy under a series of warranty deeds from the beginning of 1862 to the present time. In Price v. Brown (101 N. Y., 669) it did not appear that any of the plaintiffs grantors were ever in the actual possession of the lands. A title acquired by adverse possession is as good as one obtained by grant. (Sherman v. Kane, 86 N. Y., 57.)

There should be judgment for the plaintiff upon the submitted case, with costs.

Pratt, J., concurred.

Judgment for plaintiff upon submitted case, with costs.


text:
    HENRY H. SNOW, Respondent, v. JOSEPH PULITZER, Appellant.

      Skieiion, rendering a building unsafe by the demolition of an adjoining building both owned by the same person — liability to a tenant.

    "Wliere the owner of certain premises purchases an adjoining lot and building subject to an outstanding lease, and by demolishing a building on the land previously owned by him renders the adjoining leased building unsafe and thereby destroys the value of the outstanding lease, and the public authorities compel the taking down of both buildings, which is done by the owner accordingly, this is an eviction for which the tenant may recover damages.
    This is so, even if each building had an independent wall.
    Proof of acts which rendered the premises unsafe, so as to cause an actual removal of the tenant therefrom, is sufficient proof of eviction.
    Such act of eviction is the act of the owner, even though done by a contractor.
    In an action to recover the damages resulting from such an eviction, which caused an actual removal of the tenant and the entire destruction of the value of his outstanding lease, loss of profits on the business previously carried on by the tenant in the leased building is, when once established by proof, a proper element of damages.
    Appeal by the defendant, Joseph Pulitzer, from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 9th day of February, 1892, for $5,6Y5.31, damages and costs, in favor of the plaintiff, Henry IT. Snow, and against the said defendant, and from an order denying the defendant’s motion, made upon the minutes of the judge presiding at the trial for a new trial, entered on the 29th day of February, 1892.
    The action was brought to recover damages for the destruction of a building leased and occupied by the plaintiff, and for his consequent eviction therefrom by the defendant. The case was tried at the Kings County Circuit, and resulted in a verdict in favor of the plaintiff for $5,200, on which the judgment appealed from was entered.

      John M. Bowen and J. Gerard BuoJcley, for the appellant.

      Abel Grook, for the respondent.
   Barnard, P. J.:

On tlie 5tli of January, 1886, Helen A. French granted a lease to the plaintiff of certain premises in the city of New York to be used for the sale of confectionery. The lease expired on the 1st of May, 1889. The plaintiff moved into the premises on April 1,1886, and expended money thereon to fit it for his business. In April, 1888, Mrs. French sold to the defendant the premises leased to plaintiff, but subject to it, and also other adjoining premises outside of those leased to plaintiff. In August, 1888, the defendant demolished the buildings next to those occupied by plaintiff. The removal of the walls on the south and west sides of the plaintiff’s premises rendered the same unsafe and dangerous, and the value of the remainder of plaintiff’s lease was destroyed entirely. The history of the removal of the walls was this: Mr. Pulitzer wished to erect a new building. He commenced upon the high building next plaintiff to take it down. When two stories had been removed it was certain that the plaintiff’s building would fall. The superintendent of buildings then obtained an order to take down both buildings, which was done by the defendant under the decree for the demolition. This was proof of an eviction. As between Mrs. French and the plaintiff he had a right to have his leased buildings stand to the end of the lease. Mrs. French had no right to destroy his lease by taking down the lateral support, even if each building had an independent wall, which was disputed. The defendant took Mrs. French’s title with the same duty imposed on him as existed against his grantor. The acts which rendered the premises unsafe, so as to cause an actual removal of plaintiff therefrom, were sufficient proof of eviction. (Dyett v. Pendleton, 8 Cow., 727; approved in Boreel v. Lawton, 90 N. Y., 293.)

The act of eviction was an act of defendant, even though done by a contractor. The plaintiff had a right to his possession from the defendant, and any act done or caused by defendant, which drove the plaintiff out of his possession, was an eviction.

The damages were proper. First, the court permitted a recovery for the value of personal property destroyed. Second, loss of profits; and, third, difference between the cost of fixtures put in at the commencement of lease over and above the amount allowed by Mrs. French thei*efor. The item seriously contested is the item of profits. The case is one where proof tending to show profits destroyed was admissible, and a recovery for such profits proper when once established by proof. (Schile v. Brokhahus, 80 N. Y., 614; Wakeman v. Wheeler & Wilson Mfg. Co., 101 id., 205; White v. Miller, 71 id., 118.)

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    GEORGE F. WELLMAN, Appellant, v. THE SUN PRINTING AND PUBLISHING ASSOCIATION, Respondent.

      Libel — defamation of plaintiff’s (a lawyer’s) deceased wife — alleged injury in a professional capacity.

    A complaint by a husband against the publisher of a newspaper, based upon an article which the complaint alleged stated, in effect, that the plaintiff’s deceased -wife died under circumstances which aroused the suspicions of her husband, a lawyer, that she had caused her own death by procuring a miscarriage upon her person, which w-as alleged to have been published of and concerning the plaintiff and his deceased wife, and to be false and to have injured the plaintiff, and that by reason thereof he had sustained special damage in his professional business, is demurrable as not stating a cause of action.
    Such an injurious publication solely affects the deceased wife, and is a personal wrong which dies with her.
    The mere allegation in the complaint that the article was published of and concerning the plaintiff does not, under the principle that a demurrer admits the complaint, make out a cause of action, the other facts stated being at variance with such allegation.
    No charge being made in the alleged libelous article against the plaintiff’s professional character, and no legal reason existing why the plaintiff as a lawyer should be injured by it, the charge of libel as regards the plaintiff is not supported by reason of his professional character.
    Appeal by the plaintiff, George F. Wellman, from an order made at the Kings County Special Term, and entered in the office of the clerk of Kings county on the 8th day of January, 1891, sustaining the defendant’s demurrer to the complaint, and from the judgment entered thereon dismissing the complaint, with costs.

      Tlie complaint demurred to was as follows: The plaintiff, in complaining against the defendant above named, alleges, for cause of action, the following facts, to wit:
    (1.) At the time and times hereinafter mentioned, as the plaintiff is informed and believes, the defendant was and now is a domestic corporation, duly organized and incorporated under the laws of the State of New York, and doing business as such in the city and county of New York in the publication and circulation of a daily newspaper known and called “ The Evening Sun.”
    (2.) That on or about the 1st day of February, 1890, the said defendant, contriving and wickedly and maliciously intending to injure the plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace with and amongst all his neighbors and other good and worthy citizens, and to cause it to be suspected and believed that the plaintiff’s deceased wife, Sophia M. Wellman, had, in her lifetime, been untrue to him, and unfaithful to her marriage vows; that she had been guilty of illicit intercourse or criminal connection with some man other than her husband, the plaintiff herein, by whom she had become pregnant; that she, the said Sophia M. Wellman, had been guilty of grave crimes and offenses against the laws of the State, and that while pregnant, as aforesaid, had procured one Dr. Mary J. McClery, a midwife, to produce an abortion upon her person, thereby causing and producing her, the said Sophia M. Wellman’s, death; and to vex, harass and oppress the plaintiff, and to degrade and disgrace the name, character •and memory of his deceased wife, and to injure him, said plaintiff, in his professional and social relations, the said defendant, on or about the 1st day of February, 1890, as aforesaid, at the city of New York, falsely, wickedly and maliciously composed and published, or caused or procured to be composed and published, in a daily newspaper called “ The Evening Sun,” of and concerning the plaintiff, and of and concerning his said wife, Sophia M. Wellman, the deceased, a false, scandalous, malicious and defamatory libel of and concerning her death, and the cause of her death, containing, among other things, the false, malicious, scandalous and defamatory matter of and concerning the plaintiff and his aforesaid wife, to wit: “ The lawyer (plaintiff meaning), who is very well known both down town and in Harlem, told the detectives that last Sunday his wife first told him of her condition, and that she intended to send for a doctor of her own choice. Next day a strange woman, who it appears was. Dr. McOlery, put in an appearance. She stayed for some days, and, finally, Mr. Wellmans suspicions (meaning plaintiff’s suspicions), were aroused; these suspicions were shortly confirmed by what he got his wife to admit. Notwithstanding her story of shame, Mr. Wellman (the plaintiff meaning), tried to do what he could for his indiscreet wife. * * * As a result of Mrs. Wellman’s story, detectives went to the Thirty-fourth street house and arrested Dr. McClery. * * * It is rumored that there is a young man. in the case, and another arrest may follow.”
    ( 3.) That all and singular the afoi-esaid statements, allegations and insinuations, by inuendoes and otherwise, of and concerning his-deceased wife, the said Sophia M. Wellman, and the cause of her death, and so printed and published in “ The Evening Sun ” on February 1, 1890, as aforesaid, were and are most wickedly and maliciously false and untrue in each and every particular.
    (4.) That the defendant caused and procured the said newspaper called “ The Evening Sun,” containing the aforesaid libelous and scandalous matter, to be extensively circulated through the mails and otherwise in the city of New York, and in other cities and towns of the United States, on February 1,1890, as aforesaid, and at divers other times, to plaintiff’s great loss and damage.
    (5.) That at the time and times of the publication of the false, scandalous and defamatory matter of and concerning the plaintiff, and of and concerning his wife, Sophia M. Wellman, as aforesaid, he was and still is an attorney and counselor-at-law, and duly engaged in the practice of his profession in the cities of New York and Brooklyn, and that by reason of the publication and circulation of the aforesaid libelous and scandalous matter he has been greatly damnified, and has suffered and sustained special damages in this, to wit: That his professional business has been greatly injured and depreciated, and his pecuniary income and profit therefrom largely diminished in more than one hundred dollars; that he has lost social and professional position and standing in the community, and has been thereby brought into public scandal, infamy and disgrace with and amongst all his neighbors and other good and worthy citizens, and solely for the cause aforesaid.

      Wherefore, the plaintiff demands judgment against the defendant, as and for his damages in the premises, in the sum of $50,000, besides the costs and disbursements of this action.
    To this complaint, the defendant served the following demurrer: The defendant, The Sun Printing and Publishing Association, demurs to the complaint herein on the ground that it appears upon the face thereof that the complaint does not state facts sufficient to constitute a cause of action.

      A. J. Moore, for the appellant.

      Franklin Bartlett, for the respondent.
   Barnard, P. J.:

The complaint alleges that the article states that Sophia Wellman, the plaintiff’s wife, died under circumstances which aroused her husband’s suspicion that she had caused her own death by procuring a miscarriage upon her person. The article states that the plaintiff was a lawyer. The complaint states that the article was published to injure the plaintiff. No cause of action is stated in favor of the plaintiff. The injurious publication solely affects the deceased lady and is a personal wrong which died with her. (Cregin v. Brooklyn, etc., R. R. Co., 75 N. Y., 192.)

There is an allegation that the article was published of and concerning the plaintiff. No libellous statement against him is made in it. The mere statement in the complaint that the article was published of and concerning the plaintiff does not, under the principle that a demurrer admits the complaint, make out a cause of action. (Fleischmann v. Bennett, 87 N. Y., 231.)

The facts stated are at variance with this allegation. The libel 'is upon the wife. The libel is not supported by reason of the plaintiff’s professional character being injured by the libel. No charge is made against the professional character of plaintiff, and no legal reason exists why the plaintiff, as a lawyer, should be injured by it.

The order sustaining the demurrer should, therefore, be affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment upon order sustaining the demurrer to complaint affirmed, with costs.


author: Dykman, J.:

text:
    In the Matter of the Application of ANDREW D. BAIRD and Others, Relators, Appellants, for a Writ of Mandamus Directed to the SUPERVISORS OF THE COUNTY OF KINGS, Respondents.

      Boards of supervisors — dividing assembly districts after an apportionment — the districts need not contain an equal number of inhabitants — wards of BrooMyn may be divided.

    The State Constitution (art. S, § 5), adopted in November, 1874, does not require the supervisors of counties, in making an apportionment of members of assembly in the several counties'] of the State, to divide their county into assembly districts which shall contain, as nearly as may be, an equal number of inhabitants.
    The matter of such divisionis left to the discretion of the supervisors, the legislature assuming that they would secure equality.
    Section 5 (supra) provides that “no town shall be divided in the formation of assembly districts.” The charter of the city of Brooklyn provides that “the said wards shall be considered, and are hereby declared, to be towns of the county of Kings,” but, beyond the right to elect a supervisor and a constable, these wards have no powers of any nature analagous to those of ordinary towns.

      Held, that the wards of Brooklyn were not towns within the purview of section 5, and were subject to division by the supervisors in erecting assembly districts.
    That the fact that more electors voted for an assemblyman in one district than for such an officer in another district, did not impair the right of suffrage nor partially disfranchise any of the electors.
    That if all electors voted and the proper number, in the aggregate, of assemblymen were chosen, all electors were represented and the end sought by the Constitution was secured.
    That, in dividing a county into assembly districts, a board of supervisors was performing a duty involving large discretion and bordering upon judicial power.
    That, where the duty had been performed and the discretion had been exercised, the action was final, and that ah unwise exei'cise of such discretion could not be altered by mandamus or reviewed in any manner.
    Appeal by the petitioners and relators, Andrew D. Baird, Owen E. Houghton, Martin S. Allen, Frank B. Otis, Charles Pierce, Edmund O. Eisher, Jesse Johnson and William O. Bryant, from an order of the Supreme Court, dated on the 1st day of September, 1892, denying a motion for a writ of mandamus commanding the supervisors of the county of Kings forthwith to convene and divide the county of Kings into assembly districts in the manner and form required by the Constitution and statutes of the State of New York.

      F. F. Ba/rna/rJ for the relators.

      John B. Meyenborg, for supervisors, respondents.
   Dykman, J.:

This is an appeal from an order of the Special Term which denied an application for a peremptory writ of mandamus, commanding the members of the board of supervisors to convene and divide the county of Kings into assembly districts in the manner required by the Constitution and the statutes of the State.

It appears, from the papers presented by the relators, that the defendants met on the nineteenth day of July and divided the county of Kings into eighteen assembly districts, but their action is challenged because the assembly districts made by them are unequal in population and are not in accordance with the requirements of the Constitution and partially disfranchise a portion of the electors, and that towns were divided in the formation of the districts.

No attack is made upon the enumeration or the statute making the apportionment of assemblymen to the county of Kings.

The provision of the Constitution involved is as follows:

“The assembly shall consist of one hundred and twenty-eight members, elected for one year. The members of assembly shall be apportioned among the several counties of the State by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts.
“ The assembly districts shall remain as at present organized until after the enumeration of the inhabitants of the State in the year eighteen hundred and seventy-five.
“The legislature, at its first session after the return of every enumeration, shall apportion the members of assembly among the several counties of the State in manner aforesaid, and the board of supervisors in such counties as may be entitled, under such apportionment, to more than one member, except the city and county of New York, and in said city and county the board of aldermen of said city, shall assemble at such times as the legislature making such apportionment shall prescribe and divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory, equal to the number of members of assembly to which such counties shall be entitled, and shall cause to be filed in the offices of the Secretary of State, and the clerks of their respective counties, a description of such districts, specifying the number of each district, and the population thereof, according to the last preceding enumeration, as near as can be ascertained, and the apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided. No town shall be divided in the formation of assembly districts.”

There is no requirement for an arrangement of assembly districts which shall contain an equal number of inhabitants, and the silence upon that subject is more significant, because the section, as it stood previous to amendment, did contain such a requirement in the following language:

Each assembly district shall contain as nearly as may be an equal number of inhabitants.”

- The reason of the omission obviously was, that the board of supervisors were invested with full power to make the divisions in the exercise of their discretion, and clothed with full authority for that purpose, and it would not be assume’d that they would fail to secure equality.

The appellants claim also that towns have been divided in the construction of the election districts in violation of the constitutional interdiction, but the position is sought to be sustained by inference drawn from the. contention that the wards of the city are towns of the county, and so fall within the inhibition against division.

Further, in this same connection, it may as well be stated that the boundaries of the city wards were changed by the common council on the 11th day of July, 1892, pursuant to chapter 455 of the Laws of 1892, and in. the construction of the assembly districts none of the wards, as so changed and constituted, were divided.

As to that, however, the ajrpellants maintain that the statute of 1892 did not confer upon the common council the power to change the wards because they were towns of the county, and the power to alter them could not be delegated to the common council.

It will conduce to brevity and perspicuity to determine first, whether the wards of the city are towns of the county within the meaning of the constitutional prohibition against division, for, if' they are not such, then both arguments are faulty and will not prevail.

The argument of the appellants is based upon the provision of the Constitution which forbids the division of towns in the formation of election districts (§ 5, art. 3), and the provision of the statute that “ the said wards shall be considered and are hereby declared to be towns of the county of Kings.” (Laws of 1888, chap. 583, § 28.)

Towns, as political organizations, were formed early in the New England settlement with governments vested in a town meeting, and when that method became cumbrous, officers were chosen to administer the affairs of the town, and that was the mode from the first in the State of New York, and now theyare practically corporations.

The people of the town elect their own officers to administer their own affairs independently of all other jurisdiction. The towns and their town meetings have ever been deemed of paramount importance in the preservation of local self government, and the great safeguard against centralized despotism, because they maintain inviolability in the parts without a sacrifice to the center.

The legislature has clothed the wards with no powers of local self government which are possessed and exercised by towns. They can neither incur corporate obligations, nor sue or be sued, nor exercise any of the functions of a corporation. Excejtting supervisor and constable, they elect no officer whose duties are analogous to those of town officers. They possess none of the powers, and are subject to none of the liabilities of towns.

Perhaps the most distinguishing feature is the'absence of the town meeting, which is essential to the autonomy of the towns. None of the statutes pertaining to towns have force or application to city wards. We think, therefore, the wards of the city are not towns, within the purview of the Constitution and statutes under consideration, and that, consequently, there is no prohibition against the division of wards in the formation of assembly districts in Kings county.

If it had been the intention of the legislature to transfigure the wards of the city into towns, in all that term implies, and clothe them with the powers and bestow upon them the privileges of county towns, it would have been easy to do so by the use of appropriate language, and in the absence of words indicative of such ■design, we cannot infer such intention.

For what purpose a city ward is to be deemed a town, except for the election of a supervisor and constables, we cannot determine, but it is quite plainly a town in a very limited sense, and not within the constitutional provision invoiced by the relators.

We conclude, therefore, that the wards are not towns in any sense which exempts them from division.

Let us pause for a moment to examine the contention of the relators, that the electors are partially disfranchised by the action of the defendants. The exercise of the elective franchise has been called a right by some and a privilege by others, but whichever it may be it accrues in this way.

In this country, all political power is vested in the people, but, as the exercise of that power by the people themselves is impracticable, it must be exerted by representatives under an organized government representing the collected will of the people, and as they are the agents of the people the right to a voice in their selection is the right of every qualified elector, and is his portion of political power. It is the mode by which power eminatesfrom its source and is delegated to agents; that delegation of power is called suffrage, and if the right of suffrage is insured to every qualified elector, his rights are protected because they have that extent, and no more.

The right of suffrage is limited, because the people limit themselves by their Constitution, which regulates and restricts the right. It must be exercised at a specified time and place, and in a particular manner by certain persons, and the enforcement of such limitations and restrictions is not disfranchisement in any legal or constitutional sense. If more electors vote for a representative in one district than in another, that impairs no right of suffrage. The aggregate number is chosen, and that secures the important aim. In the formation of government it is important that all should be represented, and that end is secured by the Constitution. This view discloses no disfranchisement by the action under review.

Beyond the questions discussed, however, there is another view. The board of supervisors was required to assemble and divide the county of Kings into eighteen assembly districts of convenient and contiguous territory, and file a description of the same. The performance of the duty so imposed upon the board required the exercise of large discretion bordering upon judicial power. The duty has been performed and the discretion has been exercised, and it is not made subject to any judicial control.

It is tbe office of a writ of mandamus to compel action by inferior bodies and tribunals, but it cannot be sent to dictate any particular action. It is not a remedy for erroneous determinations or decisions.

Where a subordinate body is vested with the power to determine a question of fact, the duty is judicial, and it cannot be compelled by mandamus to decide in any particular way, however clearly it may be made to appear what the decision ought to be.” (People ex rel. Francis v. Common Council, 18 N. Y., 33.)

Where, as in this case, a particular duty is addressed to the discretion and judgment of a particular body, in a case where the decision, when made, must be conclusive, and subject to no appeal or review, the rule must prevail which makes the decision final. (Cooley on Const. Lim., 52; Abrams v. Town Auditors, 10 N. Y. St. Rep., 318; Talcott v. Buffalo, 125 N. Y., 280.)

Finality must be reached somewhere. The machinery of government will not be arrested by the courts until all possible errors are subjected to judicial review. Its exigencies will admit of no such delay, and the writ of mandamus cannot be allowed to obstruct the movement of governmental action.

The board of supervisors has discharged the duties imposed upon it by the fundamental law, and, as if to insure finality to such action, and, as an admonition against judicial interference, the same great law which directs the action declares in the same section that “ the apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided.” Any other course would subject the discretionary action of all local officers and bodies to judicial review against well-settled principles.

The Constitution requires the members of assembly to be apportioned among the counties, “ as nearly as may be,” according to their inhabitants, excluding aliens; and where a county is entitled to more than one member under such apportionment, the board of supervisors is required to divide their counties into assembly districts, to consist of convenient and contiguous territory, equal to the number of members to which the county is entitled.

In such division, contiguity and convenience are to be attained and irregularity in territory and inequality in numbers are unavoidable. It cannot be made according to mathematical rules.

The constitutional requirement obviously implies the exercise of discretion by tbe boards of supervisors and not by tbe courts. If tbe courts can interfere and set aside the work of the boards because they have exerted their discretion unwisely, then they must exercise their own discretion and substitute their judgment for that of the boards in determining the division to be made, and so, in effect, wrest the authority from the body to which it was delegated by the fundamental law.

In the division of power among the great departments of government in this State the legislative power is vested in the senate and assembly, and the executive power is vested in the governor, and, although it is not so expressly declared by the constitution, it is yet a well recognized principle that the judicial power has been committed to the judiciary.

Each of these powers is independent of the other, a legislative discretion is no more subject to judicial review or control than a judicial discretion is subject to legislative control. Both are independent in their sphere and responsible to the people only for the manner in which they discharge their duties. It is important, therefore, that each should confine itself ydthin the bounds of its legitimate authority.

In no view, therefore, can the relators succeed on this appeal, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concurred.

Order denying writ of mandamüs affirmed, with costs.