author: Habdin, P. J.: MaRtiN, J.:

text:
    ANDREW W. MUNK, Respondent, v. THE CITY OF WATERTOWN, Appellant.

      Municipal corporations — liability for damages resulting from a defective sewer — negligence — notice—dmnages—loss of wife’s services — absence of evidence of value.

    Where the exercise of a judicial or discretionary power by a municipal corporation in adopting plans for a sewer results in a direct and physical injury to the property of an individual, which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan, the corporation is liable for such damages as occur in consequence of its negligence after notice thereof.
    On the trial of an action against a city for damages from a defective sewer, the court, after charging the jury that it was not sufficient to charge the city with liability that the sewer was insufficient, but that they must also find that the city had notice prior to the alleged flooding of the plaintiff’s premises, added: “ I think you will have no difficulty in finding for the affirmative.”

      Wd, that, by this remark, the judge did not take the case from the jury; that he did no more than express an opinion as to the evidence, leaving the jury at liberty to find in accordance with the testimony on the subject.

      That the city could not escape the consequences of a change from the plan and specifications for a sewer, simply because there was no resolution of the common council passed authorizing the change, when it appeared that one of the aider-men directed the change and that the city had approved of the sewer as constructed, when it settled with the contractor.
    Where the loss of a wife’s services through sickness is claimed as an item of damages from negligence, the plaintiff cannot recover substantial damages in the absence of evidence as to the value of the services performed by the wife when in health, and of the character or extent of the work performed by her in keeping the plaintiff’s house.
    Appeal by tbe defendant, tbe City of Watertown, from a judgment of .tbe Supreme Court; entered in tbe office of tbe clerk of Jefferson county on tbe 6tb day of May, 1892, on a verdict rendered at tbe Jefferson Circuit in favor of tbe plaintiff, Andrew W. Munk, for $250 damages; and also from an order denying a motion for a new trial made on tbe minutes, dated May 9, 1892.
    Plaintiff alleges damages sustained to bis premises, and loss of sei'vices of bis wife by reason of sickness caused by large quantities of water, filth and sewage being driven into his cellar and upon bis premises situated on tbe east side of Sherman street in tbe city of Watertown, occurring in tbe months of January, March, April and July, 1891.
    In tbe year 1890, the common council of tbe city of Watertown changed the system of sewage theretofore existing, so far as it affected tbe premises of tbe plaintiff, causing tbe sewer to be torn up which theretofore ran past the premises of the plaintiff, and inaugurated proceedings for tbe construction of a new sewer, with a view of draining a much larger territory than tbe old sewer, and with a view of discharging tbe same, in a different direction through Sherman street, into what is known as Baker street sewer. An engineer prepared plans and specifications; the contract was let in pursuance thereof, and tbe work was carried forward, after such proceedings bad in tbe common council; the sewer was commenced on tbe 9th day of September, and completed about tbe 23d day of October, 1890. According to such plans and specifications, no provision was made for taking into such sewer tbe large quantities of water that theretofore had gathered, and subsequently did gather in what is known as Oamp’s ditch; however, during the construction of the sewer, with the knowledge of several officers of the defendant, and by the direction of one of them, an opening was made in the sewer so as to take in tbe waters of Camp’s ditcb, one of the aldermen making the suggestion or request to the parties in charge of the construction. Camp’s ditch water was turned into the sewer before the completion of the same, and before a report was made to the common council of the construction of the sewer, and of the completion thereof under the terms of the contract, apparently with the knowledge of several of the officers of the opening made to receive the waters from Camp’s ditch, which knowledge they derived before the report of the engineer and the claim of the contractor for the construction of the sewer were received and approved. Evidence is given of acts of the defendant subsequently in shutting out from the sewer the water of Camp ditch, and of various other acts and measures resorted to by the defendant to remedy the difficulties which were found to exist in the sewers after the completion of the work by the contractor as aforesaid. Evidence was also given tending to show that Camp’s ditch, at various seasons of the year, held large quantities of water which was filthy, and drained a large territory used for gardening and other purposes; that the waters thereof were impregnated with drainages from manure and sewers. Extensive evidence relating to plaintiffs damage appears in the case, and defendant produced evidence of the orders of the common council in respect to a new system of sewage, and some evidence tending to contradict and rebut the testimony offered by the plaintiff on the main issues raised by the evidence of the plaintiff.

      John U. Carlisle, for the appellant.

      Elon B. Brown, for the respondent.
   Habdin, P. J.:

Upon the close of the evidence the trial judge ruled that he would submit to the jury, first, “ the/ question of the negligence of the city in not furnishing an outlet for the flow of the Woodruff, Sherman and Washington street sewer, so it set it back in the premises of the plaintiff at the time alleged in the complaint and proved on the trial; ” and, second, “ also on the question of damages.” By this ruling, apparently, all other questions were eliminated from the case and those two questions were presented to the jury by a charge which commented upon the evidence bearing upon those questions. Appellant’s learned counsel attempts to shield the defendant from liability by proof of certain plans and specifications which were adopted by the common council, and insists that in the exercise of its dircretionary powers and functions of a judicial nature, it should be exempt from liability.

He calls our attention to numerous cases that are reviewed and referred to in Seifert v. City of Brooklyn (101 N. Y., 136). In that case, however, it was held viz.: A municipal corporation has no right, in the exercise of its power to determine when, where and how to make improvements, to do so upon a plan which substantially involes the appropriation by it of the property of a citizen to a public use without making compensation therefor. Where exercise of a judicial or discretionary power by a municipal corporation results in a direct and physical injury to the property of an individual which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan and the adoption of prudential measures, the corporation is hable for such damages as occur in consequence of its continuance of the original cause, after notice and an omission to adopt measures to remedy the evil.” In that case it is said : “ It does not shield the corporation where injury results solely from the defective manner in which the authority was originally exercised and from continuance in wrong after notice of the injury.”

In the decision in Garratt v. Trustees of Village of Canandaigua (16 N. Y. Supp., 717; S. C., affirmed, 32 N. E. Rep., 142), we do not understand that the doctrine of the Seifert case is disturbed. In the Garratt case in the opinion delivered in the Court of Appeals, it is said: “ It is not alleged or found, and there is no request to find, that the defendants have omitted any duty that they owe to the plaintiff, with respect to the construction of the gates or the manner of their operation. It is not found, and there is no request to find that in any of these particulars the defendants or their predecessors have been guilty of any negligent or unlawful act.” In the case in hand evidence was given tending to show negligence on the part of the defendant. In the case before us as soon as the plaintiffs premises were flooded on the 1st of January, 1891, he sought out several of the officers of the defendant and called their ■attention to tbe circumstances attending tlie flooding of his premises ■and the deposit therein of filthy waters and noxious matters; and within a few days a committee in behalf of the common council visited the premises of the plaintiff and made an inspection of the premises. Surely on that occasion the defendant had knowledge that the sewer was inadequate and insufficient for the purpose for which it was designed. Shortly thereafter the defendant, by its agent, sought to remedy the defects and to remove the cause of the flooding of the premises of the plaintiff; however, their efforts were insufficient until after the damages mentioned in the complaint were sustained by the plaintiff and his wife. After a careful perusal of the evidence we are of the opinion that the same warranted a finding by the jury of negligence on the part of the defendant, and that the case falls within the principles laid down in the Seifert case. It seems some injuries were done to the plaintiff’s premises in the month of November, and a claim therefor was presented to the ■defendant and allowed. Probably, then, the defendant obtained information sufficient to call upon it to remedy the defects and imperfections.

In the course of the charge the tidal judge observed: “ I charge you that in view of the facts and circumstances proved in this case, that it is not sufficient to charge the city with liability that the Baker street sewer was insufficient as an outlet, but you must further find that the city had notice prior to the alleged flooding in January •of the plaintiff’s premises, that this outlet was insufficient and inadequate to carry off the water.” We think the charge was sufficiently favorable to the defendant. We think the evidence warranted the jury in finding in accordance with the instruction. Although in a subsequent sentence the judge remarked to the jury, viz., “ I think you will have no difficulty in finding for the affirmative.” We are of the opinion that he did not take the question'from the jury; that he did no more than to express an opinion as to the evidence, leaving the jury at liberty to find in accordance with the testimony upon that subject. (Gardner v. Picket, 19 Wend., 186 ; Althorf v. Wolfe, 2 Hilton, 345; S. C., affirmed, 22 N. Y., 355.) In a subsequent portion of his charge he observes, viz.: “ But, did the city have notice of this inadequacy of outlet ? On that proposition you have the fact that, at the time when this Sherman street sewer was put into the Baker street sewer, the city engineer examined the man-holes at that locality, and he discovered a certain amount of sediment around the inside of the wall of the man-hole, some two feet higher than the tile itself, indicating, as he says, that the water had risen above the tile, above the sewer, up into the man-hole, two feet above it. The city engineer was one of the defendant’s officers. Notice to him was notice to the city. And it is for you to say whether or not that was sufficient evidence, or sufficient notice rather, to charge the city with negligence in preparing the proper outlet for this Sherman street sewer.” And further on in his comments to the jury he said: “You have the fact that, pzdor to this January flooding, actual experience had demonstrated the fact that this outlet was insufficient because of the November flooding which has been testified to by the plaintiff, and of which the city had knowledge.” We think the defendant obtained no exception to that branch of the charge which would warrant us in interfering with the verdict.

We think the city may not escape the consequence following the change of plans and reception of the waters of Camp ditch simply because it passed no resolution of its common council authorizing the change. The evidence indicates a direction by one of the aider-men of the city in its behalf at the lime the departure was made from the plans and specifications prepared by the engineer and embraced in the contract. The city having approved of the construction of the sewex*, as it did when it settled with the contraetoi’, it is too late for it to say that the plans and specifications can shield it from liability. (Stoddard v. Village of Saratoga Springs, 127 N. Y., 261; Nims v. City of Troy, 59 id., 500.)

In the course of the charge upon the subject of damages the judge observed: “You have the fact that the plaintiff’s wife was sick in bed; that he lost the value of her services. And you may include in your verdict such damages as you shall deem the proper compensation for the loss of her services, aside from the actual expenditures in the procuring of servants to take her place.” Appellant’s learned counsel claims that that portion of the charge, which we have just stated, was erroneous and he took an exception thereto in the following language: “ I except to so much of your honor’s charge as says that we are entitled to give the plaintiff damages for the loss of the services of the wife incurred during her sickness.” The language of the exception is obscure, indefinite, if not, unfortunate. If the evidence relating to that subject was indefinite, the plaintiff would be entitled to recover nominal damages ; second, the facts and circumstances ; the strength and health of the wife were before the jury and some evidence pertinent to the question of the value of domestic services and household services was before the jury. The case differs from Leeds v. Metropolitan Gas-Light Company (90 N. Y., 26), as in that case there were “ no facts on which an estimate of such value could be founded ” given, and it was said in that case that “ if plaintiff fails to prove the value of the time lost, or facts on which an estimate of such value can be founded, only nominal damages for that item can be given.” Masterton v. The Village of Mount Vernon (58 N. Y., 391), was an action to recover damages for the negligence of the defendant, and, in the course of the opinion, Grover, J., said: “,The plaintiff had the right to prove the business in which he was engaged, its extent, and the particular part transacted by him, and, if he could, the compensation usually paid to persons doing such business for others. These are circumstances the jury have a right to consider in fixing the value of the time.” At the close of the opinion in People ex rel. Deverell v. M. M. P. Union (118 N. Y., 109), it was said: “ There was some evidence upon which to base their estimate and the question in this respect differed from that in Leeds v. Metropolitan Gas-Light Company (90 N. Y., 26).”

If a request had been made to the trial judge that in the absence of more full facts and circumstances the jury should only give nominal damages, probably the request woxild have been yielded to. We think the exception is not sufficient to warrant us in disturbing the verdict.

After the issue was joined, apparently, plaintiff applied for leave to serve a supplemental complaint, and, as no appeal is made from that order, we do not review the action of the court in respect thereto, nor as to the rulings at the trial receiving evidence thereunder. It was conceded at the trial that the complaint was amended in conformity to the order made in that regard.

We have looked at the other exceptions discussed in the brief of the learned counsel for the appellant and we are of the opinion that none of them require us to interfere with the verdict.

However, a majority of the court are of the opinion that there was error in respect to the damages awarded, and that the judgment ought to be modified by reducing the damages to $112.75.

The judgment and order must be reversed and a new trial ordered? with costs to abide the event, unless the plaintiff stipulates to modify the judgment by reducing the damages to $112.75, and, if such .stipulation be given, the order and judgment, as modified, affirmed, without costs of the appeal to either party.

MaRtiN, J.:

The plaintiff’s claim for damages included an item for $180 for loss of services of his wife during her sickness, which was claimed to have been occasioned by the defendant’s negligence.

The only evidence in relation to this item was that plaintiff’s wife was sick and confined to her bed about two weeks; that up to that .time she had been in the habit of doing her work for years, keeping no servant, and working some outside, and that a woman who was employed in the house during her sickness received seventy-five •cents a day for her services, which were of that value.

In submitting the case the court, after referring to the other items of damage proved, which amounted in the aggregate to the sum of $144.75, instructed the jury as follows: “Aside from those, .gentlemen, you have the fact that the plaintiff’s wife was sick in bed; that he lost the value of her services. And you may include in your verdict such damages as you shall deem the proper compensation for the loss of her services, aside from the actual expenditures in the procuring of servants to take her place.”

To this portion of the charge the defendant took the following exception: Defendant’s counsel — I except to so much of your honor’s charge as says that we are entitled to give the plaintiff damages for the loss of the services of the wife incurred during her sickness.”

Subsequently the defendant’s counsel asked the court to charge that the plaintiff is not entitled to recover any damages for loss of •services of the wife on the ground that the plaintiff has failed to give any evidence showing what the damages were by reason of the loss of such service.” The court declined so to charge, and the defendant excepted.

I tbink these exceptions fairly present the question of the sufficiency of the plaintiff’s evidence to entitle him to recover for the loss of services of his wife during her sickness. It would be hypercritical to hold that the defendant’s exception to the charge in this-respect did not sufficiently raise the question of its correctness. It. is true the appeal book shows that, in taking the exception, the-defendant’s counsel used the word “we” instead of “the jury.” That it was plainly the intent and purpose of the defendant to except, to the portion of the charge relating to this subject is manifest. I think a fair and reasonable construction of the exception shows-the defendant’s intent, and that the question was fairly raised. It was also presented by his request, the refusal of the court to charge; as requested, and the exception taken thereto.

Thus the question is, whether the evidence was sufficient to justify the court in submitting to the determination of the jury the value; of the services of the plaintiff’s wife during her sickness, and to-justify the court in instructing the jury that it might include in its-verdict such damages as it deemed a proper compensation for the loss of her services, aside from the actual expenditures in procuring' servants to take her place.

In Leeds v. Metropolitan Gas-Light Company (90 N. Y., 26) it-was held that where loss of time is claimed as an item of damages-from personal injury occasioned by negligence, if the plaintiff fails to prove the value of the time lost, or facts on which an estimate of such value can be founded, only nominal damages for that item can be given.

In Staal v. The Grand Street and Newtown Railroad Company (107 N. Y., 625) the correctness of the rule in the Leeds’ case was-recognized, and it was held that in an action to recover damages for personal injuries caused by the defendant’s negligence, where-no evidence was given as to the circumstances and conditions in life of the plaintiff, his earning power, skill and capacity, no damages for future pecuniary loss could be awarded. •

In Baker v. Manhattan Railroad Company (118 N. Y., 537) the plaintiff was a music teacher, also a teacher in the public schools. There was evidence to the effect that she was unable to attend her school for six weeks; that she lost her salary as such teacher for that time; that the injury to her finger was of such a character as to render it so sensitive that she conld not strike the keys of a piano with it, and that, in giving music lessons, it was necessary for her to play in connection with her instructions ; but there was no evidence as to the amount of the salary paid her as a teacher in the public school, or as to the amount of her wages as a private teacher of music. ' In that case, it was said that she was entitled to recover only nominal damages for her loss of services as such teacher.

In Wood v. City of Watertown (58 Hun, 298) this court had occasion to examine a similar question, and it was there held that where loss of time is claimed as an item of damages for personal injury occasioned by negligence, if the party fails to prove the value of the time lost, or facts upon which an estimate of such value can be based, only nominal damages can be given. As was said in that case, the doctrine of the Leeds case, so far as applicable to the case at bar, is in no way affected by the doctrine of the People ex rel. Deverell v. M. M. P. Union (118 N. Y., 101), as in the latter case there was evidence upon which to base an estimate of the damages. As was said by the learned judge who delivered the opinion in that case: £ The question, in this respect, differed from that in the Leeds case.’ An examination of the appeal book, upon which the case in 118 New York was heard in the Court of Appeals, shows that the relator’s evidence was to the effect that while he was a member of the respondent union his income was from twenty-five to thirty dollars per week, and that after he was expelled, it did not exced five dollars a week. Therefore, in that case, there was evidence upon which a claim for damages could be based with some degree of certainty.” The same principle was held in Meagley v. Hoyt (125 N. Y., 771.)

It seems to me that the question in the present case is plainly within the principle of the cases cited, and that the evidence was insufficient to justify the court in submitting to the jury the question of the value of the services of plaintiff’s wife, or to authoxdze the court to instruct the jury that it might include in its verdict such damages as it should deem a proper compensation for the loss of her services. I find in the case no evidence whatever, as to the value of the services performed by her when in health, nor of the character or extent of the work performed by her in keeping the plaintiff’s house.

Obviously, there were no facts established by the evidence upon, which any fair estimate of the value of her services could be founded. The effect of the charge was to leave it to the jury to guess or speculate as to the value of the services which it was allowed to include as a part of the damages claimed to have been suffered by the plaintiff. I think the defendant’s exception to this portion of the charge and its exception to the court’s refusal to charge, as requested, were well taken, and that, as the case shows that this item formed no inconsiderable portion of the recovery, the j'udgment should be reversed. I think it no answer to this ruling to say that the plaintiff was entitled to recover at least nominal damages for loss of services of his wife, as the jury must have understood from the charge of the court that the plaintiff was entitled to recover substantial damages for such loss, for it awarded about $100 damages therefor, in addition to the full amount paid physicians, nurses and servants to take her place.

I concur in the opinion of the learned presiding justice, except as to the charge of the court as to damages for the plaintiff’s loss of the services of his wife. For that error, I think, the judgment should be reversed or modified by reducing the amount of the plaintiff’s recovery to the sum of $112.75.

MbkwiN, J., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates to modify the judgment by reducing the damages to $112.75, and, if such stipulation be given, the order and judgment, as modified, affirmed, without costs of the appeal to either party.


source: Caselaw Access Project

author: HaediN, P. J.: MeewiN, J.

license: Public Domain

text:
    ANDREW G. WASHBON and Another, Appellants, v. NANCY COPE and Others, Respondents.
    Will— bequest with remainder over on the death of the first taker without children— construed, as relating to a death, after as well as before the death of the testator,

    A will, among other provisions, contained a bequest to the testator’s daughter Nancy of $10,000, and hy a subsequent clause bequeathed and devised the residue of the testator’s property, real and personal, to his children, Robert, Nancy and Henry, to be divided equally between them; the next clause being as follows: “I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion, herein given to her shall be given to my sons, John G-., Robert and Henry R., or their heirs, share and share alike.”
    The daughter Nancy, who survived the testator, had been married some ten years before the execution of the will, and was, at the time of its execution, and continued to be, childless.
    In an action brought by certain of the heirs-at-law and next of kin of the testator to compel the daughter Nancy to give security for the legacies received by her, on the theory that upon her death without children the principal of the legacies to her would belong to the plaintiffs:

      Held, that it appeared from the whole context of the will, and the circumstances surrounding the testator, that the words of contingency, in the event my daughter “shall die without children,” did not refer only to death within the lifetime of the testator, but referred to the death of the daughter after as well as before the death of the testator; that, consequently, in case she died childless her interest in the legacy was only the use thereof for her life, and that, therefore, the plaintiffs were entitled to the relief asked for. (Merwin, J., dissenting.)
    Appeal by the plaintiffs, Andrew G. Washbon and Anne W. Lee, from a judgment of the Supreme Court, entered in the office of the clerk of Otsego county on the 12th day of October, 1891, upon a decision rendered at the Otsego Special Term dismissing the complaint, with costs.
    The action was brought by Andrew G. Washbon and Anne W. Lee, sole heirs-at-law and next of kin of John G. Washbon, deceased, who was a son of Andrew G. Washbon, deceased, to compel the defendant, Nancy Cope, a daughter of said Andrew G. Washbon, deceased, to give security for the ultimate disposition of certain legacies received by her under the will of her father, or that a trus> tee be appointed; upon the theory that upon the death of Nancy Cope without children the principal of the legacies will belong to other parties, two of whom are the plaintiffs and the others are parties defendant.
    The action was commenced in May, 1890. Before that date, and on July 26,1889, the surrogate of Otsego county had made a decree upon the judicial settlement of the accounts of Robert Washbon and John Cope, Jr., as surviving executors of the last will and testa^ ment of Andrew G-. Washbon, late of the town of Morris, in said county, deceased, which decree adjudged, among other things, as follows: “ It is further ordered, adjudged and decreed, that the bequests to Nancy Cope by the fourth and- seventh clauses of the will are not absolute, but her interest therein is reduced to a life estate by the eighth clause of the will in the event of her dying without children, and that that contingency relates to her death without children after as well as before the death of the testator, and that said Nancy Cope is entitled to a life use only of the bequests to her in case she shall die without children.”
    Andrew G. Washbon died March 1, 1867, leaving a last will and testament bearing date the 31st day of January, 1866. He was in his seventy-seventh year when the will was executed. The first clause of the will provided an annuity for his wife. The second clause devised a farm in trust for his son, John Gr., with the remainder over to the descendants of John “ who shall be living at his deeasel to whom I devise and bequeath the same so that the descendants of each deceased child, if any, of my said son, John Gr. Washbon, shall take together and per stirpes, one share as said deceased child, their parents would have takeii if living, and for the benefit of said déscendants of said son, John G. Washbon.” The third clause devised a farm to his son, Henry R., containing 188 acres. The fourth provision was as follows: “ I give and bequeath to my daughter, Nancy Cope, wife of John Cope, Jr., the sum of ten thousand ($10,000) dollars.” The fifth clause gave a legacy of $2,000 to John Cope, Jr., husband of Nancy. The sixth clause contained a bequest to his second son, Robert, of $12,000. The seventh clause was as follows: “ I give and bequeath and devise all rest, residue and remainder of my property, real and personal, to my three children, Robert Washbon, Nancy Cope, wife of John Cope, Jr., and Henry R. Washbon, to be divided equally between them.” “Eighthly. I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons John Gr., Robert and Henry R., or their heirs, share and share alike.” In the ninth clause there was a provision for his sister and the tenth clause was as follows: “ I furthermore direct and authorize my executors hereinafter named, to sell all real estate which I may have, except such as I have otherwise given and devised in this my last will and testament for the benefit of my heirs, at such times as said executors shall deem best.” “ Eleventhly. I do hereby nominate and appoint my sons Robert Washbon and Henry R. Washbon and my son-in-law John Cope, Jr., to be the executors of this my last will and testament, hereby revoking all former wills by me made.”
    The Special Term held that the surrogate’s decree was not binding upon Nancy Cope ; and, secondly, that she took under the provisions of her father’s will absolutely under the provisions made in her behalf.
    Carver, Deyo c& Jenkins, for the appellants.

      Bwr Mattice, for the respondents.
   HaediN, P. J.:

(1.) If Nancy Cope only took a life estate or was “ entitled to the use of the legacy during her life and nothing more,” then this action was properly brought and the plaintiffs were entitled to some relief. (Tyson v. Blake, 22 N. Y., 558; Livingston v. Murray, 68 id., 485.) Plaintiffs alleged and sought to establish by evidence that their interests would be imperiled without some security required, and to bring their case within the qualified rule stated in Graham v. New York Life Insurance and Trust Company (46 Hun, 267), and Matter of Fernbacher (17 Abb. N. C., 389).

(2.) When the will was made Nancy Cope was about forty-four years of age, having been married ten years, and was then and still is childless. It is suggested “ the words of contingency refer only to a death in the lifetime of a testator.” In the tenth clause of the will the testator directs and authorizes his executors “ to sell all real estate ” wbicb be bad, except sucb as be bad “ given and devised * * * for the benefit of my (bis) heirs at sncb times as said executors shall deem best; ” and in the eighth clause be provides as follows: “ I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons, John G-., Robert and Henry R., or their heirs, share and share alike.” The language used indicates an intent on the part of the testator that the portion given to her, in the event she shall die without children, “shall be given” either to his sons John G-., Robert and Henry R. “or their heirs, share and share alike;” thus a provision is made for the giving of her share upon her death without children to his sons John, Robert and Henry, and, not being content to provide for their reception of it only, he provides still further for the portion being given “ to their heirs, share and share alike,” using words apt to control the estate at a time so far in the future as might be subsequent to the death of John G.> Robert and Henry R., or either of them. Considering the language just referred to, as well as the facts and circumstances surrounding the testator at the time of his execution of the will and the whole language of the instrument, and observing the rule “that all the parts of an instrument are to be taken together in ascertaining its meaning and that no part of it should be rejected as inoperative if the whole can reasonably stand together” (Norris v. Beyea, 13 N. Y., 283), the conclusion is reached that it was the intention of the testator to provide that the portion of his estate given to Nancy, in the event of her death without issue, should pass to those of the blood of the testator. And that the “ words of contingency ” used by the testator do not refer to a death in the lifetime of the testator. (Executors of Moffat v. Strong, 10 Johns., 12 ; Greyston v. Clark,( 41 Hun, 125; Nellis v. Nellis, 99 N. Y., 513 ; Vanderzee v. Slingerland, 103 id., 56; Buel v. Southwick, 70 id., 581; Britton v. Thornton, 112 U. S., 526, and the opinion of Learned, P. J., in Mead v. Maben, 60 Hun, 268; S. C., on appeal to Ct. of Appeals, 131 N. Y., 255.)

In speaking of the rule referring to death without issue to a time prior to the death of a testator, Andrews, J., in Vanderzee v. Slingerland (supra), says: “But the rule established by the courts applies only where the context of the will is silent, and affords no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue or other specific event. Indeed, the tendency is to lay hold of slight circumstances of the will to vary the construction and to give effect to the language according to its natural import.” See, also, his opinion in Soper v. Brown (32 N. E. Rep., 768).

In Mulla/rhy v. Sullivan (49 State Rep., 333), O’BbieN, J"., in giving construction to a will, says : “ It is perfectly true that in determining what the testator meant, every part of the will must be considered, and that the natural and ordinary'meaning of the words of a particular clause may be modified by other provisions.”

( 3.) As the foregoing views, if adopted, would lead to a reversal, it is not important to consider the effect of the surrogate’s decree declaring a construction of the will in accordance with the views already expressed.

There should be a reversal and a new trial.

IVÍARTiN, J., concurred.

MeewiN, J.

(dissenting):

Andrew G. Washbon died March 1, 1867, leaving a will dated January 31, 1865. In the first clause of this will he made provision for his wife in lieu of dower. In the second clause he gave and bequeathed to his executors thereinafter named, a certain farm of about 250 acres, upon which his son, John G. Washbon, then resided, together with the farming utensils and live stock thereon belonging to him at the time of his decease, £; and also the sum of four thousand (4,000) dollars, and also the equal one-fourth part of the residue of my estate as hereinafter mentioned, and also any other’s share or interest which may be hereinafter devised or given to them as trustees in trust to receive the income, rents, interests and profits thereof, and to apply the same to the use of my said son, John Gr. Washbon, during his life, and at his decease to grant, convey, transfer and pay over the same to the descendants of my said son, John Gr. Washbon, who shall be living at his decease,” and he provided that if any deceased child of John left descendants, they should take the share their parent would have taken if living. Then came the following clauses:

Thirdly. I give and devise to my youngest son, Henry E. Washbon, the farm in the town of Morris aforesaid, on which I now live, containing one hundred and eighty-eight (188) acres, more or less, with all the farming utensils and live stock thereon belonging to me at the time of :ny decease.
Fourthly. I give and bequeath to my daughter, Nancy Cope, wife of John Cope, Jr., the sum of ten thousand (10,000) dollars.
Fifthly. I give and bequeath to my son-in-law, John Cope, Jr., the sum of two thousand (2,000) dollars.
Sixthly. I give and bequeath to my second son, Eobert Wash*-bon, the sum of twelve thousand (12,000) dollars
Seventhly. I give and bequeath and devise all rest, residue and remainder of my property, real and personal, to my three children, Eobert Washbon, Nancy Cope, wife of John Cope, Jr., and Henry E. Washbon, to be divided equally between them.
Eiyhtly. I furthermore desire and direct, that in the event1 of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the poition herein given to her shall be given to my sons, John G-., Eobert and Henry E., or their heirs, share and share alike.”

In the ninth clause, he made provision for a home and residence for his sister on the farm he had devised for the benefit of' his son John. In the tenth clause he authorized and directed his executors to sell, at such times as they deemed best, all his real estate, except such as he had otherwise devised, and lastly, he appointed as his executors his sons Eobert and Henry, and his son-in-law, John Cope, Jr.

His four children named in the will were his sole heirs and next of kin. The testator at the date of the will was in his seventy-seventh year, and his daughter, Nancy, was then about forty-one years old and had been married about eight years. She has never had any children. The will was proved and letters issued to the executors on the 12th of March, 1867. During the years 1867 and 1868 the executors paid to Nancy Cope in full the amount of the legacies bequeathed to her by the terms of the will, which amounted to the sum of about $13,500, and she has ever since that time had the absolute possession and control of the same, and has always claimed full title under the will. The legacies to Eobert Washbon and to Henry E. Washbon were also paid wholly or to a large extent about the same time. Henry H. died about the 1st of April, 1884, leaving children who are parties defendant. On the 9th of March, 1890, John G, Washbon died leaving as his only heirs-at-law and next of kin the plaintiffs herein.

On the 23d of November, 1887, the plaintiffs filed in the Surrogate’s Court a petition asking that the executors be required to file an inventory of the estate and an intermediate account of their proceedings as executors and trustees. Thereupon a citation was issued to the executors returnable on 16th of December, 1887. Thereafter the executors filed an inventory and an account of their proceedings. Objections thereto were filed by the petitioners and evidence was taken before the surrogate and a referee, and the matter was adjourned from time to time to the 20th of September, 1888, when the executors applied for a judicial settlement of their accounts.® A citation was issued in the usual form returnable on 30th of October, 1888. In this citation Nancy Cope was named as one of the parties in interest. A hearing was had on December 4, 1888, and by consent of parties who appeared the accounts, objections and evidence taken and filed in the prior proceeding were admitted in the latter as if originally taken and had therein. On the 26th of July, 1889,.a decree was made by the surrogate which, among other things, adjudged that the bequests to Nancy Cope by the fourth and seventh clauses of the will are not absolute, but her interest is reduced to a life estate by the eighth clause in the event of her dying without children, and that this contingency relates to her death without children after as well as before the death of the testator.

The decree recited that the citation was returned with proof of service on the parties therein named, which would include Nancy Oope. The proof of service as filed does not show service on her. Upon the hearing on December fourth the attorney for the executors in the proceedings caused to be entered upon the record that Nancy Cope appeared in such proceedings by him as her attorney, and he thereafter acted therein as her attorney. It is, however, found by the Special Term upon sufficient evidence that the citation was not, in fact, served upon her, and that the appearance by the attorney was without any authority from her and without her knowl-. edge, and that she never employed him to appear or act for her and did not know that he assumed to do so.

The present action was commenced in May, 1890, and the question is whether Nancy Cope had an absolute title to the legacies which she has received. This depends upon whether the death without children, referred to in the eighth clause of the will, means only a death before the testator. If it does, then the title of Mrs. Cope is absolute. If it does not, then her title is defeasible, and the plaintiffs, it may be assumed, would be entitled to some relief. The plaintiffs, in support of their position, claim (1) that the decree of the Surrogate’s Court is a binding adjudication upon the subject, and, if not (2), then that the will should, in fact, be so construed.

It was held at the Special Term that the decree of the Surrogate’s Court did not bind Mrs. Cope, mainly on the ground that she was not bound by the appearance of the attorney, and that, therefore, the surrogate had no jurisdiction of her person, and that the will should be construed to refer only to a death before the testator.

The fund in controversy here was received by Mrs. Cope in 1867 and 1868. The undisputed finding of the court is that the amount she then received was in full of the legacies bequeathed to her by the terms of the will. That being so, she had no interest, in fact, in the accounting in 1888, as the surrogate had no power to compel her to pay back in case she had received more than she was entitled to. (Matter of Underhill, 117 N. Y., 471.) She was entitled to nothing farther under the decree and claimed nothing. There was, therefore, no fund then in the hands of the executors, so far as Mrs. Cope or her legacies were concerned, upon the status of which the Surrogate’s Court was called upon to pass, or in regard to which there was auy occasion to construe the clause in question.. The only parties who made objections to the executors’ accounts were the plaintiffs, and in these objections no reference was made to the legacies in question, although, presumptively, the payments thereof entered into the accounts as filed. Indeed, upon the trial before the surrogate no question seems to have been raised on the subject until the submission of the briefs of counsel upon the final argument. No brief was then submitted upon the part of Mrs. Cope, but on behalf of the executors upon one side and the plaintiffs upon the other. They were, in fact, the litigants. There was no issue between the plaintiffs and Mrs. Cope The latter had held the legacies for twenty years and upwards and claimed absolute ownership. As the Surrogate’s Court, under tlie rule of tbe Underbill case, had no jurisdiction to compel her to refund, it bad none to qualify or limit her ownership. That was not a matter within the scope of the accounting, and any opinion or decision on the subject did not conclude Mrs. Cope. (Hymes v. Estey, 116 N. Y., 509.) It is, therefore, not important to consider whether Mrs. Cope was bound by the appearance for her by the attorney.

We then come to the question of how the will should be construed. In this State it is, I think, well settled that where there is a testamentary gift to one person absolutely and then a subsequent provision that in case of his death without children it shall go to other parties, the words of contingency refer only to a death in the lifetime of the testator, unless there is something in the context indicating a contrary intent. (Quackenbos v. Kingsland, 102 N. Y., 128; Vanderzee v. Slingerland, 103 id., 47; Mead v. Maben, 131 id., 255; Black v. Williams, 51 Hun, 280.) The reason given in some cases is that the absolute gift, which is in the first instance made, should not be cut down or limited by any subsequent doubtful expression, and that as the limit of death without children may refer to a death in the lifetime of the testator that should be the construction adopted in order to give full force to both provisions, unless a different intent -appears elsewhere.

Does such an intent appear in this case ? The construction claimed by the plaintiffs would, in effect, give to Mrs. Cope only a life estate. The testator provides, in terms, a life estate for one of his children with remainder over. His failure to so provide for Mrs. Cope does not, at least, aid the plaintiffs’ view. Nor does the use in the second clause of the expression “also any other’s share or interest which may be hereafter devised or given to .them as trustees.” No such interest was, in fact, given to the trustees, and, if the testator had then in mind the share of Mrs. Cope, his failure to follow up any idea he may then have had does not take away or affect the meaning which, presumptively, is to be given to his subsequent language. It is urged that on the theory of the defense the eighth clause was unnecessary, as the legacies to Mrs. Cope, in case of her death before the testator, would by law have passed to her brothers as intestate property. Assume this might be so, still the provision would prevent partial intestacy and the law prefers a construction which will prevent partial intestacy to one which will permit it. (Thomas v. Snyder, 43 Hun, 15.) The same feature existed in the Quaekenbos case and does not seem to have been considered of any special importance. In that case, too, as here, there was one or more life estates provided for and the failure to provide such for the share in controversy was held to support the interpretation that the first taker, having survived the testator, took the absolute title.

I fail to find anything in the present’ case to overcome the presumed intent.

It follows that the decision of the Special Term is correct and should be affirmed.

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


author: MeewiN, J.:

text:
    RILEY V. MILLER and ELISHA M. MOORE, Respondents, v. THOMAS D. JONES, MARY E. JONES and THE JONES’ POSITIVE NUT LOCK COMPANY, Impleaded, etc., Appellants.

      Contract for the manufacture of a patented article — subsequent assignment of the patent by the patentee — action to vacate the assignment — service of a summons on a foreign corporation — service by publication.

    Where the plain object of a contract, made between a patentee and a manufacturer, for the manufacture of a patented article, is to place in the parties thereto the entire beneficial interest in the patent and its proceeds, and the manufacturer is liable to be called on for large expenditures, as security for which he has only the proceeds of the patent or profits in sales, it is not to be presumed that either party intended that the patentee could, whenever and on what terms he chose, dispose of any part or the whole of the patent and thus deprive the other party of his security.
    A contract between a patentee and a manufacturer for the manufacture and sale of a patented article, provided that the manufacturer would furnish all necessary machinery and capital, and would proceed with and continue the manufacture of the article during the life of the patent, and that in case he should fail to perform the contract the patentee should be at liberty to sell the article, and all things connected therewith, and each party agreed that he would not dispose of his interest in the business without the consent of the other; it was also provided that the profits of the business should be divided between the parties in a specified ratio, and that all improvements made by the patentee and patents in foreign countries, except in certain specified countries, were to be used by the parties and the proceeds divided in the same ratio. The manufacture was commenced under the contract, and proceeded with for some time, when the patentee, without the consent of the manufacturer, assigned the patent to his wife and thereafter organized a company in another State, to which company the patentee's wife assigned the patent and it engaged in manufacturing the patented article.

      Held, in an action by the manufacturer, under the said contract, to set aside the assignments of the patent as in fraud of his rights, that the contract was intended to be, and was, an exclusive license, vesting in the plaintiff the sole and exclusive right to make and sell the patented article for the full term of the patent without any reservation to the patentee, except in case of non-fulfillment by the plaintiff of the terms of the contract, and (it having been found that the plaintiff had performed his part of the contract) that the assignments of the patent should be set aside.
    Service, within this State, of a summons upon the secretary of a foreign corporation gives, by force of section 432 of the Code of Civil Procedure, the courts of this State jurisdiction of an action against such corporation, and it is not needful, in order to make such service effective, that the corporation should have any property within this State, or that the cause of action should have arisen here.

      Semble, that where an order for the publication of a summons is made against a nonresident, under subdivision 1 of section 438 of the Code of Civil Procedure, an attachment against property is not required in order to give jurisdiction, except in case a judgment is sought for money only, as provided by section 1217 of the Code.
    In the case above stated the contract for the manufacture of the patented article was executed in this State; the parties thereto lived here at the time of its execution; the business was to be carried on here, and the assignments of the patent, sought to be set aside, were executed and delivered here.

      Held, that the right to use the patent was property, in its character personal.
    That the plaintiff had, under the contract, a property right which, in its origin and use, was within this State.
    That the title to this right was affected by the transfers of the patent in controversy.
    That the judgment in the present action operated to clear the plaintiff’s title from clouds upon it, and hence that the action affected the title to personal property within the State, and, therefore, presented a case for the service of a summons by publication within subdivision 5 of section 438 of the Code of Civil Procedure.
    Appeal by tbe defendant, Mary E. Jones, from a judgment of tbe Supreme Court, entered in tbe Onondaga county clerk’s office March 30, 1892, upon a decision rendered at tbe Onondaga Special Term setting aside certain transfers of a patent; also appeals by tbe defendants, Tbomas D. Jones and tbe Jones Positive Nut Lock Company, from an order of tbe Onondaga Special Term, entered in the Onondaga county clerk’s office on April 23, 1892, denying a motion to vacate and set aside the same judgment.
    On the 31st of May, 1889, the defendant, Thomas D. Jones, being the inventor and owner of a certain valuable device known as the ‘‘ Jones Safety Nut Lock,” and having previously, in due form, applied to the commissioner of patents for the issuing to him of letters-patent, being about to receive such letters, entered into a contract in writing with the plaintiffs, bearing date May 31, 1889. In this contract, after a recital of the invention and the application for a patent, and an examination by plaintiffs as to its value, and that they were desirous of entering upon the manufacture and sale of the same when letters were issued to Jones, it is agreed by the plaintiffs that they would furnish all necessary machinery and capital for the manufacture and sale of the lock sufficient to fill all orders that they may receive, and wrould proceed at once with the manufacture and sale, and continue the same for, and during the life of, the patent. They agreed to devote such time and attention to the manufacture and sale as should be necessary for the sucessful carrying on of the business, and they agreed to employ Jones as manager of the manufacturing, and to pay all bills contracted by him relating to said patent. And in case the plaintiffs did not perform all the covenants on their part to be performed, or in case they should abandon or fail to proceed with the manufacture and sale, and refuse, ■ upon demand of Jones, to proceed with the manufacture of the same, then the agreement should be void, and Jones be at liberty to manufacture and sell the said lock, and all things connected therewith, to and with whom he should see fit, the same as if the agreement had not been made. The plaintiffs also agreed that they would not- sell, or in any manner dispose of, or transfer their or either of their interest in said business, in whole or in part, without the written consent of Jones, and he agreed that he would “ not sell or transfer, or in any manner dispose of his interest in said business without their like consent,” and in case either, with the consent of the other, should sell or dispose of the same, it was agreed that the plaintiffs should receive one-third of the net proceeds of the sale, and Jones two-thirds. Jones agreed to devote his time and attention to the manufacture of the lock, and to enter the employ of the plaintiffs, and to manage and oversee the manufacture of the same, and he also agreed that he would “ not allow or permit any person or persons, firm or firms, corporation or corporations to manufacture said lock, but that the same shall be manufactured exclusively by the parties of the first part, and that he will in no manner be inter, ested in the manufacture of it by or with any other persons. This covenant, however, is not to be so construed as to compel the party of the second part to bring actions to restrain parties from infringing on the same unless the parties of the first part shall bear one-half of the expense of such action or actions.”
    The net profits after deducting all expenses incurred by either relating to the business were to be divided, one-third to the plaintiffs and two-thirds to Jones. If, for any reason, Jones was unable to attend to the duties of the business, he agreed to furnish some one to take his place and pay the expense thereof out of his share of the profits. All improvements made by Jones upon the lock were to be used by all the parties, and all patents in foreign countries, except in certain named countries, were to be used by the parties, and the proceeds relating to the same be divided in the ratio above stated.
    Letters patent were issued to Jones on November 12, 1889, and the plaintiffs and Jones entered upon the performance of the contract at Syracuse where the contract was executed and where all the par'ties resided. In the complaint it is alleged, among other things, that such manufacture continued down to February, 1891, and that plaintiffs invested therein $10,000 upwards and over and above what they had received; that on 24th of October, 1890, Thomas D. Jones, in fraud of the rights of the plaintiffs, executed and delivered to his wife the defendant, Mary E. Jones, an assignment of the said letters-patent and all his interest therein, which assignment was recorded in the patent office January 15,-1891, and that Mrs. Jones had full notice of plaintiffs’ rights; that thereafter Thomas D. Jones went to Chicago and organized the corporation the “Jones Positive Nut Lock Company,” under the laws of the State of Illinois, and to this corporation Mrs. Jones on the 10th of March, 1891, assigned the patent; that all this was done with the intent to deprive the plaintiffs of their rights, and that Thomas D. is about to remove to Chicago and refuses to assist the plaintiffs in the business, and the new corporation is engaged in manufacturing the lock; that Thomas D. is tbe owner of 998 out of 1,000 shares of the stock, and the plaintiffs are excluded from all interest therein; that the corporation had knowledge of plaintiffs’ rights.
    The defendant, Mary E. Jones, is the only one who answers. Among other things, she denies the fraud, and alleges that she took the assignment to secure her for advances made to her husband.
    By the judgment, it is adjudged that the agreement of May 31, 1889, was intended to be and was an exclusive license vesting in the plaintiffs the sole and exclusive right to make, use and vend the patented article for the full term of the patent without any reservation to Jones, except in case of non-fulfillment by plaintiffs of the terms and conditions of the agreement, and Jones had no right to assign the patent to Mrs. Jones or to the corporation; that the assignment to Mrs. Jones, and from her to the corporation, be set aside and vacated as in fraud of the rights of plaintiffs; that Thomas D. Jones and the corporation be restrained from conveying the letters-patent to any other person or corporation; that the plaintiffs recover of Thomas D. Jones, Mary E. Jones and the said corporation the costs of the action.
    Upon the trial the defendants, Thomas D. Jones and the Jones Positive Nut Lock Company, appeared specially and objected to the rendering of any judgment against them, and after the judgment was entered'they moved at Special Term to set it aside, the motion being based upon the judgment-roll, and the case and exceptions proposed in the case. 'The order appealed from by them is the one made denying this motion.

      Homer Weston, for the appellants.

      Gexjlon H. Lewis and O. W Smith, for the respondents.
   MeewiN, J.:

The trial court, in substance, found that the plaintiffs had performed their part of the contract; that, under it, they were entitled to have the title of the patent remain in Thomas D. Jones, and that the transfers to Mrs. Jones and to the corporation were without the consent of plaintiffs, and were in violation of their rights. Mrs. Jones appealing from the judgment, takes issue upon all these propositions. They are the main ones upon the merits.

The trial court was, I think, correct in its construction of the contract. Its plain object was to place in the two parties to the contract the entire beneficial interest in the patent and its proceeds, except as to certain specified countries. The fact of this exception indicates the intent. The plaintiffs were likely to be called on for large expenditures as security for which they had only the proceeds of the patent or profits in sales. It would hardly be reasonable to suppose that either party then intended that the patentee could, whenever, and on what terms he chose, dispose of any part or the whole of the patent, and thus practically deprive plaintiffs of their security.

Whether the plaintiffs had performed upon their part, and whether the transfers were without the consent of plaintiffs, and, therefore, in violation of the contract, were, upon the evidence, questions of fact, and upon those the conclusions of the trial court should not be disturbed. Some of the allegations in the complaint were quite general, but no objection upon this basis was made. There is no question about the right of a State court to set aside such assignments.

.But it is claimed that the court had no jurisdiction to render the judgment by reason of the non-residence of the corporation and of the defendant, Thomas D. Jones. No defense upon this basis is set up. Assuming, however, that the appellant is in a position to raise the question, the case shows that service of the summons and complaint was made upon the defendant, the Jones Positive Nut Lock Company, by service within the State upon the secretary of the company. This method of service is authorized by section 432 of the Code and'operates to give jurisdiction to the court, and it is not needful, in order to make the service effective, that the corporation should have any property within the State, or that the cause of action should have arisen therein. (Pope v. Terre Haute C. M. Co., 87 N. Y., 137; Gibbs v. Queen Ins. Co., 63 id., 114.) In the Pope case it is said that a judgment against a corporation in an action so commenced will be valid for every purpose within this State. In the Gibbs case it is said that such action and judgment should be general in character, not directed against any particular property. •But it is suggested that the evidence does not show the legal existence of the corporation, or that the person served was secretary. There is evidence that tends to show those facts, and it is found upon the request of the appellant that the corporation was in exist.ence at the commencement of this action, and that after the organization. of the corporation Anderson (the person served) was elected secretary of the company.

Thomas D. Jones was served by publication under section 438 et seq., and it is claimed that the service was insufficient to give jurisdiction, because no attachment was issued and the property to be affected was not, as the appellant claims, within the State. The order for publication was made both under subdivision 1 and subdivision 5 of section 438. If made under subdivision 1, there would seem to be no requirement for an attachment, except in case a judgment was sought for money only (§ 1217 of Code), which is not this case.

Assuming, however, that the order' of publication can rest only upon subdivision 5 (Von Hesse v. MacKaye, 55 Hun, 365 ; affirmed 121 N. Y., 694), the question is whether a case is presented that is fairly within that subdivision. That subdivision reads as follows:

5. Where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated? defined or limited, or otherwise affecting the title to such property.”

The counsel for appellant says that “ while the complaint states a cause of action concerning specific personal property in this State? the proof for judgment merely fails to establish a cause of action.” The point, I suppose, is that under the evidence the property to be affected is not within the State.

It is to be observed that the subdivision is not limited to chattels, but the more extensive term is used “personal property.” The contract between plaintiff and Jones, the construction of which was in issue as well as the rights of plaintiffs under it, was executed in this State and all parties then lived here and the business was to be carried on here. The assignments which were sought to be set aside were executed and delivered here. They so appear upon their face. The plaintiffs’ cause of action, therefore, accrued here. Where the patent, the instrument itself, was at the time does not appear, except it may be inferred that it was then at Syracuse, where the assignments were executed. Where it was when this suit was commenced does not appear. ■ The patent itself was not the invention, but evidence that the party had, under the law, a monopoly. The right to use is property (Gillett v. Bate, 86 N. Y., 93), and in its character it is personal. The plaintiffs, under their contract, had a property right and in its origin and use it was within this State. The title of this was affected by the transfers in controversy and the judgment operated to clear their title from the clouds upon it. In a certain sense their contract was a lease to run during the life of the patent and the suit and judgment were to remove impediments to the exercise by plaintiff of their rights.

In view of the circumstances of this case it should, I think, be held that the action affected the title of personal property within the State.

The counsel for the appellant claims error in some rulings at the trial, but we find in them no sufficient ground for reversal. The appellant claimed a trial by jury, but clearly the suit was in equity, and no motion had been made to settle issues. The answer did not put at issue the existence of the corporation. (Code, § lJTfi.) It follows that no sufficient ground for reversal of the judgment appears.

The appeal from the order brings up substantially the same question as to the validity of the service on Thomas D. Jones by publication. Nothing further need be said as to the validity of the order. A further question, however, is raised as to the sufficiency of the proof of service. After the order was made the papers were served jDersonally on Jones, without the State. The affidavit of such service appears to have been made before a notary public The appellants claim that the clerk’s certificate as to the official character of the notary was not sufficient to entitle the affidavit to be read under section 844 of the Code. That section provides that an affidavit may be taken without the State “before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State; and when certified by him to have been taken before him, and accompanied with the like certificates as to his official character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the State, may be used as if taken and certified in this State by an officer authorized by law to take and certify the same.” The clerk’s certificate in this ca^e, instead of stating that the notary was authorized by the laws of the State to take and certify the acknowledgment and proof of deeds, stated, that lie was * * * duly commissioned, sworn and acting as • such, and authorized to administer oaths.” In other respects, the: certificate appears to be regular.

This objection, as the record shows, was not raised on the motion: made by these defendants, or on the trial. If it had been, it might. have been obviated. No suggestion was made that Mr. Jones had: not, in fact, been served without the State. On the contrary, it is; very apparent that all parties assumed that such service had been made, and the controversy was as to the sufficiency of such service, there being no attachment, and the property not being, as defendants claimed, within the State. The answer of Mrs. Jones was for the benefit of all the defendants, and was' so stated by the attorney who appeared specially for them at the trial, for the purpose of objecting to any judgment being rendered against them. The motion being made upon the case and exceptions, as well as on the judgment-roll, the whole case was before the Special Term upon making the order. The defect in the certificate, if one existed, was such that it could be cured by producing on the appeal a proper certificate. (Jarvis v. Sewall, 40 Barb., 450.)

I think the objection is not available. It follows that the order should be affirmed.

HardiN, P. J., and MartiN, J., concurred.

Orders affirmed, with ten dollars costs and disbursements.

Judgment affirmed, with costs.


author: MbewiN, J.:

text:
    WALLACE S. HATHAWAY and Another, Appellants, v. JERE L. JENKS, Respondent.

      JSncroaahment on highway — removal offence — action against commissioner of highways for trespass — notice to remove encroachment — collateral attack upon — certí-ficate, that the title to real property was in question — review of., on appeal.

    Where a certificate that the title to real property had come in question was granted some days after the trial of an action of trespass, and it did not appear whether or not it was given upon a hearing, and it was not referred to in the notice of appeal as an intermediate order:

      ■Held, that it was not revie-wable on appeal from the final judgment in the action.

      • Semble, that if such certificate of title were granted upon a hearing an appeal directly from it would lie; and that if given without a hearing a motion might ■ have been made to set it aside, and an appeal then taken from the order made •on such motion.

      'Quaere, whether the sufficiency of a notice for the removal of a fence as an encroachment upon a highway,, served under the statute (á R S. [8th ed.], 1388, § 103), can be attacked in an action of trespass against a commissioner of highways.

      .Semble, that an action of trespass does not lie against a commissioner of highways for removing, in the discharge of his official duty, and without unnecessary 'damage, an encroachment upon a highway, consisting of a fence within the 'boundaries of the highway, after notice, although informal, to the owner of ■the land bounded by the highway, by whom the fence was maintained.
    Appeal by Wallace S. Hatliway and B. C. Hathaway plaintiffs, from a judgment of the Supreme Court, entered in the Otsego count}' clerks office on tlie 21st of February, 1891, upon a verdict in favor of tbe defendant at the Otsego Circuit; also from an order made at the Owego Special Term on the 15th of April, 1892, and ■entered in the Otsego county clerk’s office on the 26th day of May, 1892, denying a motion for a new trial made by the plaintiffs upon ••a ease and exceptions.
    The action was in trespass. It was commenced in a justice’s court ••and came into this court on a plea of title. The plaintiffs in their ■complaint allege that they are the owners and in possession of a •farm situate in the town of Otego and bounded on the easterly side by a highway known as the west branch of the Otsdawa, and that ■upon their line on that side they have for more than twenty years ■maintained upon their own premises a fence necessary for their farm purposes; that on or about September 25, 1889, the defendant •wrongfully entered upon their premises and tore down the fence for ¡about fifty rods along said easterly line to their great damage. The •defendant interposed a general denial, and also alleged that the fence was upon the highway and was an unlawful and wrongful encroachment and obstruction, and was so maintained wilfully by the plaintiffs; that the defendant was the sole highway commissioner of the town, and as such duly ordered the removal of the fence from the bounds of the highway and duly served the plaintiffs with ■&, copy of the order and notice requiring the plaintiffs to remove the fence within tlife time required by law; that thereupon after the lapse of sixty days, the plaintiffs having neglected to move the fence, the defendant did so as he lawfully might. It was also alleged in the answer that the title to the lands upon which the alleged wrong was committed was not in the plaintiffs but in one Sheldon subject to the highway.
    In the appeal papers there is no certificate that the case contains all the evidence.

      A. P. Barber, for the appellants.

      Tilley Blakely, for the respondent.
   MbewiN, J.:

The highway in question was laid out in 1831, and the main question litigated at the trial was whether the fence of the plaintiffs was within its bounds. The.court charged the jury that if any part of the fence that was removed was not within the boundaries of the highway as laid out the plaintiffs could recover. The verdict of the jury in favor of the defendant was, therefore, in effect, a finding that all of the fence was within the boundaries and was an encroachment upon the highway. The evidence is sufficient to support the verdict.

But the plaintiffs claim that although the fence was an encroachment and the defendant was the highway commissioner, still he had no right to remove the fence, because the notice which he served upon the plaintiffs was defective in not fully complying with the provisions of the statute. (2 R. S. [8th ed.], 1388, § 103.)

A copy of the order for removal' was served with the notice and referred to therein as being annexed. In the order the original survey was recited and the width of the road as intended to be and as laid out was given, and it then stated that “said highway is encroached upon, on the westerly side thereof, by the fence of Wallace Hathaway and of Berosus Hathaway as follows, to wit: At a point west of and opposite of the south-west corner of a lot of land formerly known as the Lent lot, now owned by Timothy Sheldon to the extent of one and one-half rods ; at a point twenty rods north of the point first above mentioned to the extent of one rod ; at a point thirty rods south of the point first above mentioned to the extent of one rod ”

In tlie notice the encroachment was described in the same terms and the plaintiffs were required to remove it within sixty days. The claim of the plaintiffs is that the provision of the statute that requires the order and notice to specify the extent of the obstruction or encroachment and the place or places where the same shall be,” was not complied with.

The plaintiffs did not deny the encroachment as they had a right to do under the statute (§ 105), and made no objection then to the sufficiency of the description in the notice or order. These were served on plaintiffs on the 21th of May, 1889. The defendant waited until September fifteenth following and then removed the fence to the edge of the highway.

In James v. Sammis (10 N. Y. Supp., 143-145), which was an action for trespass like the present one, objections seem to have been made by the plaintiff to the order and notice that they did not suffi ciejitly state the extent and place of encroachment. The court say that the plaintiff could make no attack upon any of those ]iroceed-ings; that they were valid and effectual until set aside on review. The case was affirmed in the Court of Appeals, but upon other grounds. (132 N. Y., 239.)

In the present case the plaintiffs apparently, made no effort to comply with the order. It might have been more definite, but the plaintiffs were not misled by it. The real issue between the parties was over the location of the highway as laid out. Yery evidently the plaintiffs knew that if the line was as claimed by the commissioner, the fence was an encroachment.

But assume the notice was not sufficiently definite, is the defendant for that reason precluded from taking advantage of the fact, as found by the jury, that all of the fence was an encroachment ? In Van Wyck v. Lent (33 Hun, 301, 304) it is said that “ the highways of the State are made for and devoted to public travel, and the whole public have the right to their use in their entirety, and when obstructions to public travel are found within their bounds, the commissioners of highways are clothed with power to remove them without waiting for the slow process of law, even though travel be not. absolutely and entirely prevented.” This view finds support in other cases. (Cook v. Harris, 61 N. Y., 448; Wetmore v. Tracy, 14 Wend., 250.) In Davis v. Mayor, etc. (14 N. Y., 524), it is said by Judge DbNio that “ any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass.” (See Wood on Nuisances, § 252, and cases cited.) In Harrower v. Ritson (37 Barb., 301) this principle was conceded as applicable to encroachments by fences, but it was held that an individual had no right to abate sucli a nuisance unless it interfered with the use. of the road by the public. In Griffith v. McCullum (46 Barb., 561) it seems to have been held that, unless an encroachment upon a highway by fences is such as to constitute a private nuisance as well as a public one, an individual, even though he be commissioner of highways, is not justifiable in removing the fence, and that the remedy furnished by the statute in such cases is exclusive. The statute, however, does not make it exclusive, and the view taken in the Yan Wyck case seems to me to be preferable.

The commissioner of highways has the care and superintendence of the highways, and in that regard represents the public. His jurisdiction in the performance of his duty extended over the whole width of the highway as established. (Driggs v. Phillips, 103 N. Y., 77, 83.) If, in the discharge of his official duty, he removes without unnecessary damage an encroachment like the present, after notice, though informal, to the owner, he should not be deemed a trespasser. It would follow that this action is well defended.

It is further claimed by the plaintiffs that the court erred in giving at the close of the trial a certificate that the title tc real estate came in question upon the trial.

The trial closed upon January 20, 1891. The certificate is dated February 6,1891, and it does not appear whether or not it was given upon a hearing of the parties upon the subject. No motion on the subject appears to have been afterwards made. The certificate is not referred to in the notice of appeal, and is, therefore, not reviewable here, if it is to be deemed an intermediate order. (Code, § 1301.) If the certificate was granted upon a hearing, very likely an appeal directly from it would lie. If the certificate was given without a hearing, a motion might have been made to set it aside and an appeal then taken from the order made on such motion. (Hawkins v. Peterson, 9 Week. Dig., 408; Barney v. Keith, 6 Wend., 555 ; Lillis v. O’ Conner, 8 Hun, 282.) As the case stands, the question whether the certificate was properly given is not before us.

The judgment' and order appealed from should be affirmed.

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

Judgment and order affirmed, with costs.