author: By the Court.—Freedman, J.

text:
    THOMAS DONOVAN, an Infant, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK.
    THE BOARD OF EDUCATION OF THE CITY OF NEW YORK.
    Its history, and its powers ajsd duties.
    It is a governmental agency created by the sovereign power of the State, for the discharge of such powers and duties, as were conferred upon it by law, and in addition to its being or existence as such agency, it is also a corporation.
    The statutes expressly provide that for the purposes for which it was created, the board should possess the powers and privileges of a corporation (Laws of 1851, chap. 386, § 2, subd. 1, § 8). They must, therefore, be subject to the obligations incident to the exercise of such powers (G-ildersleeve ». Board of Education, &c., 17 Alb. Pr. 201; Ham v. Mayor, &c., 37 H. T. Super Ot. \J. & S.J 458; Dannat v. Mayor, &c., 6 Hun, 88).

      Held, that under the pleadings in this case, the duty, for the neglect of which this action was brought, must be deemed to have been imposed upon the board in its corporate capacity, and it is liable for its neglect of such duty.
    The case of Clarrissey r. Metropolitan Fire Department, 1 Sweeney, 224, held to be analogous to this case.

      Before Sedgwick and Freedman, JJ.

      Decided April 1, 1878
    The action is brought to recover damages for personal injuries sustained by the plaintiff on November 22, 1875, by falling into an unguarded opening extending from the yard of a public school building in Vandewater street, in the city of New York, into the cellar of said building, in consequence of the negligence of the defendant in allowing the covering thereof to be left open.
    The answer is in effect a general denial of all the allegations of the complaint, with the exception of the following, which it expressly admits :
    I. That the defendants are a corporation created by and existing under the laws of the State of New York.
    II. That the plaintiff is an infant under the age of fourteen years, and is the son of William Donovan aforesaid.
    ITT. That it is the duty of the defendant, as the board of education aforesaid, to have the safe keeping of all premises used for public ward schools in the city of New York, and to examine the safety of all school premises, and to see that the same are kept safe and in good order.
    IV. That the defendant, at the time hereinafter ‘mentioned, occupied a certain building and premises situate in Vandewater street, near Pearl street, in the fourth ward of the city of New York, and had the control and safe keeping of the same, with the appurtenances, which premises are known as grammar school No 1, and are used under the direction of the said board of education as one of the public schools of the city of New York, and was frequented by children attending said public school.
    Upon the trial before the court and a jury, the complaint was dismissed, and plaintiff was not permitted to give evidence thereunder.
    Plaintiff excepted to such ruling, and his exception was ordered to be heard at general term in the first existence.

      Thomas & Wilder, attorneys, and Edward P. Wilder, of counsel, for plaintiff.
    j William, Q. Whitney and B. J. Bean, of counsel, for defendant.
   By the Court.—Freedman, J.

The complaint having been dismissed at the trial before any proof was offered, the position of the parties is substantially the same as upon a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. For the purpose of determining whether it does or not, every allegation contained in it must be taken as true.

The complaint alleges that the defendant is a corporation, created by, and existing under the laws of the State of ¡New York, and that, as such, it was not only its duty to see that the school premises in question were kept safe, and in good order, but also that it occupied and had the control and safe keeping of the same, with the appurtenances, &c., &c.

These allegations sufficiently aver, at least so far as the rules of pleading require it in cases of ordinary corporations, the legal capacity of the defendant to be sued, the duty imposed by law, and the occupation and use of the premises by the defendant. Moreover,, they are expressly admitted by the answer, and hence the defendant was not, and is not now, in a position to insist that the duty averred rested upon, and the use and occupation in truth was by and in the trustees of the ward in which the premises are situate, and that if there was any negligence, it was by an employee of the trustees of the ward, for whose act or omission the defendant is not responsible.

A party who formally and explicitly admits, by his pleading, that which establishes the plaintiff’s right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission (Paige v. Willet, 38 N. Y. 28 ; Schreyer Mayor, &c. of N. Y., 39 N. Y. Super. Ct. [7 J. & S.] 1).

The defendant being thus concluded, and the complaint averring, in addition and with sufficient precision, an injury t,o the person of the plaintiff in consequence of the negligence of the defendant, the dismissal of the complaint can only be sustained provided, under the statutes relating to the board of education, no action whatever lies against it for negligence in the execution of its corporate duties.

Upon this branch of the case it has been argued:

I. That the board of education is an agency purely governmental, having no powers or franchises other than those which it is empowered and compelled to exercise for the public benefit, from which it derives no revenue or emolument as a corporation, and, therefore, is not liable for the consequence of neglect of an agent necessarily employed by it, in the absence of an express statute creating such liability.

II. That the duties defined by the statute creating the board fall within the class of purely governmental or public duties, and that, as to such duties, even when executed by a municipal corporation proper, endowed with all the powers usually vested in such a corporation, no liability arises for neglect of the agent employed in the execution thereof.

To determine the correctness of these propositions, it will be necessary to examine the statutes of this State relating to the defendant.

From the passage of the act passed April 9, 1805, entitled “An Act to incorporate the society instituted in the city of New York for the establishment of a free school for the education of poor children, who do not belong to and are not provided for by any religious society,” and until the year 1842, the common school education in the city of New York was substantially in charge of the society thus incorporated, and whose name was altered in 1826 to “Public School Society of New York.”

The General School Act of 1812 and the acts amendatory thereof, never applied to the city and county of New York during that period.

In 1842 the common school system, which had prevailed for thirty years in the residue of the State, was by statute extended to the city and county of New York {Laws of 1842, p. 184), and the management of the schools to be established under it was placed in the hands of inspectors, trustees and commissioners to be elected by the people. The act permitted the Public School Society and other corporations to continue their existing schools and to participate in the public funds according to the number of their scholars, but such participation was prohibited to any school in which any religious sectarian doctrine or tenet might be taught, inculcated or practiced. Under that act the first board of education was organized.

The new system, as matter of history, met with great opposition from the powerful, compact and disciplined private corporation that had so long enjoyed exclusive charge, but, being based on popular suffrage, it rapidly grew into popular favor and triumphed over all obstacles. In this contest between the two systems which radically differed in principle, the State further interfered by the passage of statutes forbidding the opening or establishing of any kind of new school in any way whatsoever without the consent of the board of education.

In 1847, the board of education presented a memorial to the legislature, praying for authority to establish a free college or academy. The memorial stated that “ one object of the proposed free institution is to create an additional interest in, and more completely popularize the common schools. It is believed that they will be regarded with additional favor, and attended with increased satisfaction, when the pupils and their parents feel that the children who have received their primary education in these schools can be admitted to all the benefits and advantages furnished by the best endowed college in the State, without any expense whatever.” The legislature responded by the passage of a law, authorizing the establishment of the free academy, giving the board of education power to direct the course of studies therein, and providing that the question of establishing the same should be submitted to the vote of the people. It was so submitted, and carried by a large majority.

In 1851, an act was passed entitled “An Act to amend, consolidate, and reduce to one act, the various acts relative to the common schools of the city of Yew York” (Laws of 1851, c. 386). The act provides for the election of two commissioners in each of the wards of the city of Yew York, and that the commissioners so elected shall constitute a board of education. The second section, as amended by Laws of 1854, ch. 101, provides as follows:

‘ ‘ The board of education shall have power .

“1. To take and hold property, both real and personal, devised or transferred to it for the purpose of public education in the city of Yew York.

“4. To estabish new schools as hereinafter provided. ......

“8. And for the purposes of this act, the said board shall possess the powers and privileges of a corporation.”

By section 25, as amended by Laws of 1853, c. 301, section 14, it is further provided :

“ The title to all school property, real and personal, purchased with any moneys derived from the distribution or apportionment of the school moneys, or raised by taxation in the city of New York, shall be vested in the mayor, aldermen, and commonalty of said city, but shall be under the care and control of the board of education, for the purpose of public education, and all suits in relation to the same shall be brought in the name of said board.” .....

In 1853 the contest between the system inaugurated by the State and the public school society terminated. The latter ceased to exist, and pursuant to chapter 301 of the laws of that year, all its corporate property was conveyed and transferred to the mayor, aldermen, and commonalty of the city of New York to be thereafter held by them in the same manner as the school property then used and occupied by the schools organized under the statutes of 1842 and 1851 was held by them.

By Laws of 1871, c. 574, § 7, amending the charter of the city of New York, that had been passed in 1870, the board of education was made a department - of the government of the city of New York, and its title changed to “The Department of Public Instruction.”

But by Laws of 1873, c. 112, it was again reconstructed, and its original title and designation restored. Notwithstanding these changes, all the powers originally conferred were carefully preserved, so that the board of education, as now constituted, possesses the same powers and discharges the same duties which ■were vested in it prior to 1871.

Numerous other legislative enactments and amendments of the act of 1851 might be referred to, but they are omitted because, though they affected the terms of office of the commissioners, trustees and inspectors and their mode of selection, and the general organization of the school system of this city, they worked no change in the powers and duties of the board of education, as above stated. 1 shall only add, for the present, that upon its reconstruction in 1873, -the board of education not only succeeded to all the powers and duties of the department of public instruction, but was expressly reinvested with the full control of the public schools and the public school system of the city, subject only to the general statutes of the State upon education.

From the foregoing examination it clearly appears that the board of education is a governmental agency created by the sovereign power of the State for the discharge of ¡Such powers and duties as were conferred upon it by law, and that in creating it the policy of the State was to instruct and enlighten equally the minds of all children needing education, irrespective of the nationality, religion or pecuniary condition of their parents, and by these means to gradually transform the heterogeneous and uncongenial elements of the cosmopolitan city of New York into an intelligent, virtuous, harmonious and happy people. But from these premises it does not necessarily follow that such agency cannot be sued for neglect of duty. The learned counsel for the defendant, it is true, has cited many cases in support of the theory that such liability does not exist, but most of them are cases in which it was held that political divisions of the State, municipal corporations, or boards of officers, exercising public duties only, are not liable, in the absence of a statute creating such liability, for the negligence of independent officers acting under them, whose duties are specifically prescribed by law, and who, though appointed and paid by them, are thus appointed and paid in pursuance of the requirements of a statute. The point decided in these cases is that, there being no control save in. strict accordance with the provisions of law, the principle of respondeat superior does not apply. But in the leading case belonging to that class and arising in this State, it was conceded, and cases were adverted to to illustrate the concession, that where the duty is imposed upon the municipal corporation itself, and not upon public officers appointed by it, and where it accepts the duty and the power to perform it, and itself, by its own agents, sets abqnt the work, or undertakes to set about it by its own agents, then, for negligent omission to do or for doing in a negligent way, it may be liable (Maxmilian v. Mayor, &c., 62 N. Y. 160).

The case at bar is not shown to fall within the class of cases cited by defendant’s counsel and above referred to, because the charge of negligence is made by the complaint against the defendant in its corporate capac ity, and not against any particular officer or set of officers acting under its authority. Not even the word “agent” or “ servant” is used. True, the defendant can act only through agents, but in the absence of proof of particulars, and especially in view of the admissions contained in the answer, it cannot be assumed that the negligence complained of was a negligent act or omission on the part of an independent officer, of whom the defendant is not the superior.

There is another class of cases which are equally inapplicable, in which it was held that certain persons spoken of as a concrete body could not be sued in their collective capacity, because they were not in law a corporation (Gardner v. Board of Health, 10 N. Y. 409 ; Brady v. Supervisors, Id. 260).

Nor would it answer any useful purpose to consider in what instances the commissioners constituting the board of education might perhaps incur an individual liability.

In addition to being a governmental agency, the board of education is also a corporation. This fact is alleged in the complaint; the answer expressly admits it; and the statutes relating to the defendant expressly provide that for the purposes for which it was created, the board should possess the powers and privileges of a corporation. For all such purposes it does possess all the powers and attributes of a corporation. This being so, the courts have held the defendant responsible for its own contracts, and refused to impose any liability therefor upon the mayor, aldermen and commonalty of the city of New York (Dannat v. Mayor, &c. of N. Y., 6 Hun, 88).

For the same reason the courts have refused to inflict upon the municipality of New York the responsibility for defendant’s torts or negligence (Terry v. Mayor, &c., 8 Bosw. 508; Ham v. Mayor, &c., 37 N. Y. Super. Ct. [5 J. & S.] 458, and affirmed by the court of appeals September 18, 1877). And finally, it has been established that this defendant may be directly sued, as a corporation, by a teacher employed pursuant to law by the board of trustees of a ward (Gildersleeve v. Board of Education, 17 Abb. Pr. 201, and cited with approval by the court of appeals in Ham v. Mayor, &c.).

In the opinion rendered in that case the general term of the court of common pleas held : “Though the power of appointing teachers is in the trustees, the payment of the salaries is imposed by law upon the board of education, and they are authorized to draw from the moneys which shall be raised for the purpose of public education such sums as may be requisite for the purpose {Laws of 1851, p. 735, ch. 386, § 2, subd. 5, § 3, subds. 1, 2, 5, 7, § 9). They may take and hold property, both real and personal, for the purpose of public education in the city of New York; and for all the purposes for which they were created, it is declared that they shall possess the powers and privileges of a corporation {Id. § 2, subd. 1, § 8). If they possess the privileges and powers of a corporation, they must be subject to the obligation incident to the exercise of such powers.”

Being thus subject to the obligation stated, it is difficult to perceive why the said board should not be liable to an action for the neglect of a duty imposed upon it by law. If the duty had not been imposed upon the board, but upon the commissioners or trustees of the ward in which the premises are situate, as such, the delinquent commissioners or trustees would be personally liable to the plaintiff (Bassett v. Fish, recently decided by the general term of the supreme court of the fourth department, see 5 N. Y. Weekly Dig. 360). As, however, the case stands at present under the pleadings, the duty for neglecting which the action was brought must be deemed to have been imposed upon the board in its corporate capacity, and hence the inquiry is narrowed down to the simple question whether the board as a corporation can be sued for its own neglect of duty imposed upon it by law.

To this it is objected :

1. That the rule holding a corporation liable for such neglect, applies only to a municipal corporation or any other corporate body enjoying franchises and privileges for its own convenience or benefit, and does not apply to those minor political organizations or quasi corporations, whose corporate powers and functions are conferred without their solicitation for the benefit, not of themselves, but of the public at large; and that the board of education belongs to the class secondly referred to ; and,

2. That the amount of money for defraying the expenses of said board, which was formerly apportioned by the State to the county of New York, from the common school fund, is now wholly paid from funds raised by taxation, pursuant to an estimate submitted to and sanctioned by the board of apportionment, in the manner prescribed by Laws of 1873, chap. 335, section 112, as amended by Laws of 1873, chap. 757, section 20.

Similar objections were urged, and carefully considered by this court, in the highly analogous case of Clarissey v. Metropolitan Fire Department (1 Sweeny, 224). The act establishing that department created a fire district, composed of the cities of New York and Brooklyn. The governor and senate were authorized to appoint four commissioners to take and have control and management of all officers, men, property, measures, and action, for the prevention and extinguishment of fires within the said district, and to be known by the name of the 1 ‘ Metropolitan Fire Department.” The department, as thus constituted, was not in terms declared to be a corporation, nor was it made subservient or responsible to any local authority in either city. Its officers and agents were appointed by a power above all local authority, and were held amenable only to the governor and the legislature. But the mode of raising money for its support was by estimates made by the commissioners and the comptroller and the mayor of the city of New York, as a board of estimate, which estimates, when approved by the board of supervisors of the county of New York, had to be levied and collected by said board of supervisors by taxation of the real and personal estate subject to taxation within the county of New York. All real estate, fire apparatus, hose, implements, tools, bells and bell towers, fire-telegraph, and all property of whatever nature, then or theretofore in use by the firemen or fire department of the city of New York, belonging to said city, was transferred to the keeping and custody of the Metropolitan Fire Department, and for its use, but the title to all such property remained in the mayor, aldermen, and commonalty of the city of New York. In regard to the title of property to be thereafter acquired, the act was silent.

Upon full discussion of all the facts and the provisions of law bearing upon the case, of which a more detailed mention than already given cannot be made here, and of the authorities cited, the court came to the conclusion that whether the Metropolitan Fire Department was regarded as a córporation sub modo, or as a collective body succeeding, under legislative authority, to the powers and capacities of the old lire department, which had been a corporation, it was, in either aspect, capable of being' sued, and might be rendered liable in an action for injuries resulting from the negligence of its agents or servants, or from the faulty, defective or insufficient character of the apparatus used by it in extinguishing fires, and that the existence of difficulty in the collection of any judgment that might be recovered for any such cause, was not sufficient to defeat the action.

This decision stands unreversed; nor have I been able to find any case since decided by the court of appeals in which it was questioned or overruled by implication or in effect. Being therefore the law of this court, the two objections lastly considered must be held untenable, especially as the board of education was expressly created a corporation for all the purposes of the act creating it, with power to take and hold property, both real and personal, devised or transferred to it for the purposes of public education in the city of New York.

For the foregoing reasons I am of the opinion that the complaint herein was erroneously dismissed, and that the exception taken by the plaintiff to such dismissal should be sustained and a new trial ordered with costs to plaintiff to abide the event.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, Ch. J. Sanford, J.

license: Public Domain

text:
    PHŒBE ROBERTSON, Plaintiff and Respondent, v. JAMES GORDON BENNETT, Defendant and Appellant.
    LIBEL.
    The term “blackmailing” is libelous per se (Edsall v. Brooks, 2 Eabt. 34).
    The law and practice of libel, especially in regard to publications in newspapers, discussed. Damages allowed plaintiff held not excessive, but judgment was reversed on the ground of erroneous admission of evidence.
    Before Curtis, Ch. J., and Sanford, J.

      Decided May 6, 1878.
    Appeal by the defendant from a judgment in the plaintiff’s favor, entered upon a verdict for §10,000, and also from the order denying a motion for a new trial.
    The plaintiff alleged that the defendant, being the proprietor and publisher of a newspaper, known as the New YorJc Herald,, permitted and caused to be published therein, on November 19,1876, an advertisement in these words: “The blackmailing crowd in West Twenty-fifth street had better beware, cautious 51 and 53.”
    The plaintiff claimed that she then resided in, and kept the two houses in West Twenty-fifth street, having the street numbers 51 and 53, as a boarding-house of good repute, and had so done for several years, and that this publication was particularly adapted and intended to be, and was injurious to her, in he? business and credit and reputation, and that she was greatly damaged, injured, and annoyed by such publication, and demanded judgment for §10,000 damages.

      The defendant denied that the publication was with his knowledge or consent, or that any person in his employ had any right or authority from him to make it, and he also denied the other allegation^ of the complaint.
    The defendant also alleged that the plaintiff was not the real party in interest, and designated another person as such.
    The defendant set up as a defense that the publication was true at the time thereof, in substance and in fact, and that there then was a blackmailing crowd at ¡Nos. 51 and 53 West Twenty-fifth street, and also that by “blackmailing crowd ” was meant and intended, not the plaintiff, but her daughter.
    The defendant further alleged, as a defense, and as extenuating circumstances, that there was a quarrel between the plaintiff and her daughter and certain other parties, one of whom procured the publication to be made, which was contrary to the defendant’s orders and without malice, and that before the commencement-of the suit, he agreed to publish a retraction, to be in satisfaction of plaintiff’s damage and claim, but that thereupon an attorney volunteered, at his own expense and risk, to commence this suit, and by threats and menaces compelled the plaintiff to consent thereto, and that after it was commenced the plaintiff wrote to the defendant, “All I desire is retraction,” and that the plaintiff informed the defendant that she wished to withdraw this action, but that the attorney would not allow her to do so.
    ¡No retraction was published. During the examination of the first witness called at the trial, the defendant’s counsel stated, “that there was not a word to be said against the respectability of the plaintiff or her house ; the respectability of both were conceded.”
    At the trial, there were exceptions taken by the defendant to various rulings of the court, in regard to the admission and exclusion of evidence, also to the charge of the court and to various refusals to charge as requested.
    On the rendering of the verdict, the defendant moved for á new trial on the minutes, on the ground that the damages were excessive, and that the verdict was contrary to the evidence. This motion was overruled and the defendant excepted.

      John Townshend, for appellant.

      Wm. W. Badger, for respondent.
   By the Court.—Curtis, Ch. J.

The evidence shows that the plaintiff was a person of good character, and keeping a large and respectable boardinghouse, which was a source of income and support for herself and her children, and that the publication complained of caused her injury, and damaged her business. Good character and respectability are elements of value in every worthy pursuit in life, and probably in few more so, than in the business conducted by the plaintiff. The law seeks to protect persons from being wrongfully deprived of them, and subjected to loss and injury.

The case shows, that the defendant’s newspaper was made the instrument of inflicting pain and injury, by this publication, which, without the personal knowledge or consent of the defendant was printed by the oversight of his servants.

It would be natural for almost any one, who had been thus made the instrument of injuring the character and business of a person situated as the plaintiff was, and so dependent upon good character and respectability, to hasten to restore to the person thus injured, as far as possible, her good name and reputation, and to do all that could be done, by publishing an explanation of the circumstance, and a retraction of the statement.

In the present instance, for reasons, if any, not appearing in the proofs, no retraction was published, and the answer states subtantially that the publication complained of, was, at the time thereof, “ true in substance and in facta defense not sustained by the evidence at the trial.

It was sufficiently shown at the trial, that the defendant was the publisher and'proprietor of the journal, and the law holds him responsible for whatever appears in its columns, although he neither authorized nor knew of the publication (Huff v. Bennett, 4 Sandf. 120).

The complaint alleges that the publication “ was a libel of the plaintiff, ” and that in her business as a boarding-house keeper she was damaged, and also in her credit and reputation. If the defendant was prejudiced by the averment being too general, he should have applied for an order that the plaintiff make her complaint more definite and certain (Van Wyck v. Guthrie, 4 Duer, 274).

As the publication did not designate the plaintiff or her business by name, she properly proved such extrinsic facts as showed that persons reading it and knowing her would apply it to her (Miller v. Maxwell, 16 Wend. 9). It was proper for the jury to determine from the evidence, whether the words were published of the plaintiff, and in what sense, if ambiguous, they were so published (Sanderson v. Caldwell, 45 N. Y. 398).

It was urged on the argument that there was nothing in the term “ blackmailing ” which is libelous, and that it has nothing in its primary and proper meaning which is libelous. It was however, conceded, that sometimes it is used in a different sense, and that in that sense it may be actionable. The words published should be construed in the sense in which they are understood by those who read them (Backus v. Richardson, 5 Johns. 483). It is inconsistent with a due regard for the protection of the public from libelous attacks, that obsolete or antiquated and practically unused meanings of words should be searched for and studied out, to show that at some remote period of history they were not opprobrious, in order to shield a party publishing and using them in respect to another in that now only used and universally established sense, that holds him up to public reproach, and indignation. Mr. Hamilton’s definition of a libel, in his argument in People v. Croswell (3 Johns. Cas. 354), is referred to with approval in Steele v. Southwick (9 Johns. 215), and in following it, the courts of this State have avoided the embarrassments from varying definitions that have elsewhere arisen. In Weed v. Foster (11 Barb. 203), the principle upon which it rests was presented in this language by Harris, J.: “Is such a charge calculated to injure the character of the plaintiff, or to degrade him in public estimation % If it is, then the court is required to say, as matter of law, that the charge is libelous. No extrinsic fact need be stated to give point or meaning to the charge. The language of the alleged libel is to be understood in the ordinary and most natural sense.” The conclusion reached in Edsall v. Brooks (2 Robt. 34), “that the term ‘ blackmailing ’ is universally regarded as an unlawful act,” and is libelous per se, is one to be concurred in.

The testimony made it apparent that these words complained of were understood and applied by persons knowing the plaintiff and reading them, as imputing to the plaintiff disgraceful and degrading conduct. In their ordinary and most natural sense they indicate that the plaintiff’s house was the abode and harbor of a blackmailing .crowd, and the proprietress and its inmates are held up to public scorn and avoidance.

It is claimed that the damages, $10,000, are excessive. In. this case, the plaintiff was presented to the public, under a charge personally degrading and seriously injuring her business. The advertisement was the offspring of malice. The defendant, by its publication, inflicted a great injury upon a comparatively helpless and entirely innocent person. Ho apology and no retraction were published by the defendant, but on the contrary a justification was pleaded, which was unsustained by proof. The welfare of society requires that the infliction of purely wanton and cruel wrongs of this class, without an effort to repair or retract them, should not be passed lightly over. The circumstances of this case are such, that if properly before the jury their discretion in determining the amount of the damages should not be inconsiderately interfered with, on the ground of excessiveness.

A grave question arises, as to whether there was not testimony received at the trial, which should have been excluded. A witness,—Meredith L. Jones, Esq., counselor-at-law,—testified to the effect that shortly after January 1, 1877, he was recommended to the plaintiff’s boarding-house, and made an examination of the rooms and prices, and expected, if he had gone, to pay $38 per week for second floor back, of Ho. 51, and when asked why he did not go to the house, he answered: “Well, my wife called my attention to a publication, something about a blackmailing crowd at 51 and 53 West Twenty-fifth street.” He also testified that it led him to hesitate about going there, and that he did not go there. Upon his cross-examination, he testified that he did not remember what newspaper it was; that he thought it was in the legal column, the reports of the courts.

The publication complained of was in the “personal” column of the Herald of Hovember 19, 1876.

The defendant moved to strike out the testimony of this witness, on the ground that it did not appear to relate to the libel complained of. This motion was denied, the court stating “ it has no effect as binding you, but simply giving what he heard,” and the defendant excepted.

There was no evidence connecting the defendant with this publication, made after January 1, 1877, which in fact was the report of a legal proceeding between these parties, and published in another newspaper, the Times of January 16, 1877. The testimony of this witness, when it appeared that he did not remember in what newspaper he saw the words that led him to hesitate about going to board at the plaintiff’s house, or not to go there, should have been stricken out pursuant to the defendant’s motion. The defendant can only be called on to respond for his own publication, and the damages caused by it. If another newspaper published the report of a legal proceeding in this cause, that prejudiced the plaintiff, this defendant is not liable for that. If such publication was unlawful, the plaintiff is entitled to redress from that publisher ; if lawful, she is without remedy. As soon as it was apparent that the injury which the witness testified the plaintiff herself sustained in her business, from his attention being called to a publication respecting her boarding-house was not occasioned by the publication complained of in this suit, but by another, the motion to strike out his testimony should have been granted.

If it appeared that this testimony did not prejudice the defendant, and that the jury were uninfluenced, by its remaining before them, subject to what was stated by the court at the time of the denial of the motion to strike it out, the defendant’s objection to it would be answered. But it is difficult to take this view of it. The testimony of this witness remained before them. There is nothing that indicates that they were to exclude it wholly from their consideration. Is it probable they drew the distinction, in determining the plaintiffs damages, between such as were caused by the publication in the defendant’s paper and such as were caused by publications in other journals, and which, as reports of legal proceedings, were lawful ? Can it be determined that the legal rights of the def ndant were not prejudiced, and the jury influenced to some extent adversely to him by this evidence? These questions cannot easily be answered in the negative. It is better to adhere to the rules of evidence, by which all parties are protected, than to sustain a departure from them, on grounds that are not clearly tenable.

The judgment and order- appealed from should be reversed, and a new trial granted, with costs to abide the event.

Sanford, J.

I concur on the ground that the evidence of Meredith L. Jones was inadmissible, and should have been stricken out.


author: By the Coubt.—Cubtis, Ch. J. Sanfobd, J.

text:
    SARAH SLAUSON, Plaintiff and Respondent, v. HEZEKIAH WATKINS, Impleaded, &c., Defendant and Appellant.
    SPECIFIC PERFORMANCE,—MARRIED WOMAN.
    In this case the plaintiff, a married woman, owned certain real estate subject to a purchase money mortgage for $33,000, executed by her. She entered into a contract with defendant to sell and convey the said real estate,.and defendant covenanted and agreed to pay this mortgage as a part of the purchase money. Plaintiff executed the contract on her part by conveying the property to a third person, as requested by defendant, subject to the lien of the mortgage, but without any covenant of the grantee to pay said mortn-asre.

      The mortgage not being paid according to its terms, the mortgagee commences an action to foreclose the same, making plaintiff a party defendant, to answer for any deficiency on the sale.
    The plaintiff commences this action against defendant for the specific performance of his contract to pay said mortgage. Held., that said contract cannot be enforced specifically until it is established, with definiteness and certainty:
    1st. That there will be a deficiency on the sale of said real estate.
    2nd. The amount of that deficiency.

      Held, also, by Judge Sanford, that plaintiff cannot enforce this contract, because she has no interest in the matter, for as a married woman she executed the bond and mortgage, and under Cashman ®. Henry (see page 193, post), she incurred no personal liability thereby, and did not charge in equity her separate estate other than the mortgaged premises, and, having conveyed away all interest in the mortgaged premises, she has no interest entitled to protection from the defendant.

    Before Curtis, Ch. J., and Sanford, J.

      Decided May 6, 1878.
    Appeal by the defendant Hezekiah Watkins from a judgment directing that the agreement set forth in the complaint be specifically performed and awarding other relief to the plaintiff.
    On the first day of October, 1872, the co-defendant, B. L. Ludington, sold and conveyed to the plaintiff a house and lot on Lexington avenue, for $30,000. The plaintiff, Mrs. Slauson, on the same day, executed and delivered to him (Ludington) a purchase money mortgage for $22,000 ; $5,000 payable October 1, 1873, and $17,000 October 1, 1877, together with her bond for the same amount, and payable in like manner. A few months afterwards, and about April 17, 1873, the plaintiff, by her husband, Charles S. Slauson, made a verbal agreement with the defendant Watkins, to sell to him said house and lot with the furniture, for $35,000. On April 18, 1873, the plaintiff delivered to Elizabeth F. Watkins a full covenant warranty deed of said house and lot. The deed from the plaintiff to Mrs. Watkins, was drawn by a Mr. Shear, who was then in the law office of the defendant, Watkins, and, by the direction of the latter, the name of Elizabeth F. Watkins, the wife of the defendant, Hezekial], Watkins, was inserted in the deed as the grantee of the premises.
    The premises were conveyed to Mrs. Watkins, subject to the mortgage of $22,000, but there was no covenant in the deed to pay the same.
    On the same day that the deed was executed and delivered by the plaintiff to Mrs. Watkins the defendant, Hezekiah Watkins, executed and delivered to the plaintiff a written agreement setting forth that he had purchased the house and lot and furniture, for the sum of $35,500, payable $22,000 thereof by his assumption of the payment of the mortgage of $22,000 given by the plaintiff to B. L. Ludington.
    The defendant, Watkins, took possession of the house on May 3 or 5, 1873, and has been in possession ever since.
    The installment upon the mortgage which became due October 1, 1873, not having been paid, Mr. Ludington commenced an action in the superior court to foreclose the mortgage, and thereupon Ludington and Watkins entered into an agreement, by which Watkins agreed to pay $2,000 thereon, and the payment of the balance of the installment ($3,000) was extended to April 1, 1876.
    On May 16, 1876, the $3,000 last mentioned not having been paid, and the defendant, Watkins, having made default in the payment of the interest which became due April 1,1876, Mr. Ludington commenced an action in the supreme court to foreclose the mortgage, making the plaintiff a defendant, and demanding judgment against her for any deficiency.

      On July 7,1876, the plaintiff commenced this action for a specific performance of the agreement made by Watkins, by which he assumed the payment of the mortgage.
    Ludington was made a party defendant, and the prayer of the complaint was that the defendant, Watkins, might be adjudged to pay the mortgage to his co-defendant, and that thereupon Ludington might be adjudged to surrender up the bond and mortgage to be canceled.
    The court, after finding substantially the foregoing facts, found, as matter of law, that the defendant Watkins should pay to his co-defendant the sum of $4,341.80, being the balance of the installment then due on the mortgage, with the interest on $20,000 to that date.
    The court further decreed that if the defendant Watkins should elect to pay the balance then unpaid, but not yet due, upon the mortgage (to wit: $17,000), then the defendant Ludington should assign the bond and mortgage to him, and that he might, at his election, proceed to foreclose the mortgage in the action then pending in the supreme court. Judgment was entered accordingly.

      Oliver W. West, for appellant.

      George W. Lord, for respondent.

       Cashman v. Henry has been reversed by the court of appeals. See post, p. 100.

   By the Coubt.—Cubtis, Ch. J.

The agreement of the defendant, Hezekiah Watkins, was to pay $22,000, being a part of the consideration for the sale of a house and furniture, bought by him from the plaintiff, “by the assumption of a certain mortgage now on said premises to B. L. Ludington, together with interest from April 1, 1873.” The plaintiff fulfilled the agreement on her part, conveying the property subject to this mortgage to the defendant’s wife instead of to him, but at his request. There was no covenant on the part of the grantee in the deed to assume the payment of this mortgage. This omission did not impair the obligation entered into by the defendant, her husband, to assume, that is, to take upon himself, such payment. He could fulfill this obligation, as far as the plaintiff was concerned, by permitting the property thus conveyed at his request, or its proceeds, if sold under foreclosure, to be applied to its discharge, and if they were insufficient, by paying the deficiency to the holder of the mortgage; or he could pay in cash the principal and interest of the sum secured by the mortgage as it became due.

A part of the mortgage, $5,000, became due October 1, 1873, and the balance, $17,000, became due October 1, 1877, subsequent to the commencement of this suit. The defendant Watkins paid $2,000 of the $5,000 when it became due, and obtained from the defendant, B. L. Ludington, the mortgagee, an extension of the time of payment of the remaining $3,000, until April 1, 1876. Upon the failure of the defendant Watkins to pay this $3,000, Ludington commenced an action in the supreme court to foreclose the mortgage. Subsequently to this, and about July 7, 1876, the plaintiff commenced the present suit. There is no claim made by the plaintiff, nor does it appear, from the proofs, that she is aggrieved, or sustains loss, by any delay, on the part of Ludington, to enforce the payment of the mortgage in question.

The procurement of the extension of the payment of $3,000, by the defendant Watkins, from Ludington, does not operate to discharge the defendant Watkins from his liability under the agreement entered into by him with the plaintiff. The protection afforded to her by this agreement cannot be defeated by an act to which she is a stranger.

The difficulty with the plaintiff’s case is this. There is nothing that establishes conclusively that there will be any deficiency resulting from a foreclosure and sale of the mortgaged premises. If the proceeds of such a sale are sufficient to pay the remaining unpaid part of the mortgage debt, the defendant Watkins’ obligation to the plaintiff in that behalf ceases. A foreclosure suit was in progress when the present suit was instituted. There is no delay in such suit shown that prejudiced the plaintiff. If in this foreclosure suit, there is a deficiency, then her remedy and the extent of it are clearly defined.

The judgment appealed from is based upon the finding, “ that there will be on the foreclosure sale a deficiency of several thousand dollars for which the plaintiff will be liable.” The remedy sought by the plaintiff in this action is, in effect, an attempt to obtain protection from her personal liability for such a probable deficiency. The evidence fails to establish with definiteness or certainty that there will be a deficiency, still less what will be its amount. It is apparent, that it depends upon contingencies affecting the prices of property, that cannot be determined in advance. In the very nature of things, these prices are ever fluctuating, in accordance with the laws of demand and supply, and when in addition, the legal tender qualities of various mediums of payments are subject to unforeseen changes by legislation, it is obvious that neither witnesses nor courts can with reasonable certainty divine what prices property will bring at future foreclosure sales, and also that justice cannot be administered upon the basis of such foresight.

This leads to the conclusion, that from what appears in the case, the plaintiff should have waited until her own liability, if any, was established by the result of the pending foreclosure suit, before resorting to her remedy.

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event of the suit.

Sanfobd, J.

I concur with the chief justice in the opinion that the enforcement of a right of action in favor of the plaintiff, and against the defendant Watkins, if any such there be, must be postponed until it shall have been definitely ascertained whether or not the proceeds of a sale under decree of foreclosure will suffice to satisfy the mortgage. But I am unable to perceive any ground, legal or equitable, upon which the plaintiff can insist upon the enforcement of a claim against Watkins, under any circumstances. She has no interest in the matter. If entitled to relief, at all, it must be by way of indemnity or protection against her own personal liability as obligor or mortgagor. Having conveyed the mortgaged premises, and being no longer interested therein, it is only as obligor that she can be charged. But it appears from the evidence and from the findings of fact, that when she executed the bond and mortgage, she was under the disabilities of coverture, being then the wife of her co-plaintiff, Charles S. Slauson, deceased since the commencement of the action. We.hold in Cashman v. Henry (decided concurrently with this case), that a married woman incurs no personal liability, and does not charge, in equity, her separate estate, other than the mortgaged premises, by assuming payment of a mortgage subject to which lands are conveyed to her, although the amount of such mortgage be allowed to her, as part of the purchase money, expressed to be paid as the consideration of such conveyance. The same principle is equally applicable to a bond and mortgage executed by a married woman for or on account of the purchase money of lands conveyed to her. In both cases, the common law disability of coverture renders her incaliable of contracting or of incurring liability, except in so far as she is expressly authorized by statute. Her bond is void. She charges her separate estate to the extent expressed in the mortgage, but neither the bond nor the mortgage creates any lien upon her separate estate, otherwise than as therein expressed, and neither bond nor mortgage subjects her to personal liability, as if she were a feme sole. The remedies of her vendor and mortgagee are therefore restricted, as against her, to the particular premises mortgaged, and to the enforcement of his lien thereon.

Under this view of the case, the plaintiff is under no personal liability for, and has no interest in the payment of the mortgage. She requires neither indemnity nor protection; and her interference on behalf of the mortgagee is wholly gratuitous.

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.


author: By the Court.—Sedgwick, J.

text:
    ROSE McDONALD, Administratrix, &c., Plaintiff and Appellant, v. CHARLES H. MALLORY, et al., Defendants and Respondents.
    POLITICAL JURISDICTION OF A STATE.
    Extent of, bight and exebcise of.—Statute giving adminis-
    TBATOB, &C., ACTION FOB DEATH CAUSED BY NEGLIGENCE.
    A State has a right of jurisdiction, through its law, over a vessel belonging to it, that is on the high seas (Crapo ®. Kelly, 16 Wall. 610, and authorities there cited; and also Thuhler ®. Trans. Co., 35 IK T. 353). But where the exercise of the right of jurisdiction is committed by the State to its legislators or officials, that exercise is limited, 1 st, by the powers given to them by the State, 3nd, by their intent as expressed or manifested by statute or action; that is, in the present case, whether or not the statute extends to vessels on the high seas, depends upon the intent of the legislature in that respect in enacting •the statute. Held, in this case, that the intent of the legislature was that this statute,—i. e., allowing action for benefit of next of kin, &c., for death caused by negligence, —should operate only within the territorial boundaries of the State, and the cause of action having arisen beyond the same, the action cannot be maintained.
    Before Cubtis, Ch. J., and Sedgwick, J.

      Decided May 6, 1878.
    Appeal from order sustaining demurrer to complaint.
    The complaint averred that at the times referred to, the defendants were residents and citizens of the State of New York, and owners of the steamer Waco, which belonged to and was registered in the port of New York, that the defendants loaded her,' among other things, with 300 cases of crude petroleum, in violation of section 4,472 of the Revised Statutes of the United States ; that when she sailed from the port of New York, and down to the time of his death, the deceased was a fireman belonging to her ; that when she was on the high seas in the G-ulf of Mexico, a fire started on the steamer which would not have endangered the life of the deceased, if it had not reached and ignited the petroleum ; but the fire did ignite the petroleum and thereupon it -was unextinguishable, and caused the death of all on the steamer, and among them, the deceased. The complaint in various charged the death to have been caused by the negligence of the defendants.
    The action ivas brought under the statute of 1847, as amended, found in 4 Edm. pp. 526, 527, and 7 Edm. p. 591.

      The defendants demurred that no cause of action was stated.
    The demurrer was sustained.
    Benedict, Taft & Benedict, attorneys, and E. M. Taft, of counsel, for appellents, urged :
    I. The statute upon which this action is based and the amendments thereto will be found in Edm. Ed. of Gen. Stat. vol. 4, pages 526 and 527, and vol. 7, p. 591.
    II. The death of Charles McDonald, under the circumstances stated in the complaint, was caused by such wrongful act, neglect or default on the part of the defendant as would, if death had not ensued, have entitled him to maintain an action and recover damages in respect thereof, (a) The receiving the petroleum mentioned in the complaint, on board the defendants’ steamer, and carrying the same, were acts sufficient in themselves to constitute such wrongful act, neglect, or default (Rev. Stat. of the U. S. § 4,472; Jetter v. New York and Harlem R. R. Co., 2 Abb. Ct. App. Dec. 458 ; Beisigel v. N. Y. Central R. R. Co., 14 Abb. Pr. N. S. 29 ; Blanchard v. New Jersey R. R. Co., 59 N. Y. 296 ; Massoth v. Delaware and Hudson Canal Co., 64 Id. 531-535 ; Quinn v. Moore, 15 Id. 32). (b) But in addition to the specific acts mentioned, there are ample allegations of negligence on the part of the defendants, which, upon the hearing of this demurrer, must be taken as true, sufficient to maintain an action by the party injured, had he survived the injury.
    III. The next question then is, does the statute extend to this case so as to give a right of action to the administratrix ?—and this we suppose to be the substantial question in the case, (a) It will be contended by-defendants’ counsel, that this case cannot be distinguished from the many cases which, with entire uniformity, hold that this statute has no extra-territorial force ; but they are all cases in which there could ha\e been no recovery, without giving the statute an operation beyond any possible jurisdiction of this State (Whitford v. Panama R. R. Co., 23 N. Y. 465 ; Crowley v. Same, 30 Barb. 99 ; Beach v. Bay Steamboat Co., 30 Id. 433 ; Vanderventer v. N. Y. & New Haven R. R. Co., 27 Id. 244; Whitford v. Panama R. R. Co., 3 Bosw. 67; Mahler v. Norwich & N. Y. Trans. Co., 45 Barb. 226; S. C., 35 N. Y. 352). (b) That there may be no mistake as to our understanding of the operation of the statute in question, we quote here a statement of the rule by which we are willing to stand or fall, contained in the case of Whitford v. Panama R. R. Co. (23 N. Y. 471), as follows: £ 1 Prima facia, all laws are co-extensive, and only co-extensive with the political jurisdiction of the law-making power.” Our contention is that the case at bar, as stated in the complaint, occurred within the political jurisdiction of the State of New York, and is therefore covered by the law in question ; and this upon two grounds: First. That the complaint states such a wrongful act committed at the city and port of New York, and within the strict and exclusive territorial boundaries of the State as will support this action. Second. The political jurisdiction of the State of New York, so far as the subject-matter of the statute in question is concerned, extended to the steamer Waco, not only while it was in the port of New York, but after it left that port, and until its burning and the death of McDonald upon the high seas, as alleged in the complaint (Crapo v. Kelly, 16 Wall. 610; Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Allen, 93 U. S. [3 Otto] 99).

      Butler, Stillman é Hubbard, attorneys, and William Allen Butler, of counsel, for respondents, urged :
    —I. This statute gives a remedy unknown to the common law, and its operation is limited to the sovereignty and dominion of this State, and can only apply when the cause of action arose within the State. It does not give a right of action in thi-s State to recover for injuries committed without the State and resulting in death (Whitford v. Panama R. R. Co., 23 N. Y. 465 ; S. C., 3 Bosw. 67; Crowley v. Panama R. R. Co., 30 Barb. 99 ; Beach v. Bay State S. Co., Id. 433 ; Vandeventer v. N. Y. and New Haven R. R. Co., 27 Id. 244; S. C., 6 Abb. Pr. 239).
    II. It was conceded on the argument of the demurrer at special term, by the plaintiff’s counsel, that the statute could have no extra-territorial force, but it was insisted that the steamer being owned by citizens of Mew York, and belonging to the port of Mew York, it was, although on the high seas at the time of the disaster which caused the death of the plaintiff’s intestate, constructively within or a part of the territory of Mew York, so as to be under the operation of the statute. In support of this proposition, the case of Crapo v. Kelly, 16 Wall. 610, was cited and relied upon. This case was carefully considered by the court at special term, and the learned justice who sustained the demurrer rightly held that it had no application to this action, and did not contravene the rule as laid down by the court of appeals in Mahler v. Nor. & W. Trans. Co., 35 N. Y. 352. In the opinion of Mr. Justice Hunt (Crapo v. Kelly), the ground was taken that for the purposes of the suit, which related only to the validity of the title of the assignee in the Massachusetts insolvent proceedings as against an attaching creditor in Mew York, the vessel, although on the high seas, was a portion of the territory of Massachusetts so far as to pass the title, in the same manner as if she had been within the territory of Massachusetts. But this point was not necessary to the decision, and even if Judge Hunt’s view is correct, it was expressly limited to the case under discussion, and it goes only to. the extent that for the purpose of giving validity to a title to property on the high seas, a transfer under the law of a State made within the State, equally with a transfer made by private deed, would be upheld, and the judge expressly excepts the case of marine torts as well as marine crimes (see p. 623, at foot) where he says in reference to such exceptions, that in respect to jurisdiction as regards them “no rule of property is thereby established.” The case is thus confined to the question of title to property, and in no wise asserts extra-territorial force to a statute which relates not to property rights, but to the operation of a quasi-penal statute which, under all the authorities, can have no extra-territorial force. “It is a conceded principle that the laws of a State have no force, proprio vigore, beyond its territorial limits” (Hoyt v. Thompson, 5 N. Y. 320, 340).
    III. It appears on the face of the complaint that the steamer was at the time of the disaster on the high seas, near the harbor of Galveston, Texas, and therefore out of the territory of the State of Hew York, and it also appears that the sole cause of action is for a tort there committed. The law having been settled by the court of appeals that the right to enforce such a cause of action depends upon the question whether the alleged tort was committed in a locality actually within the territory of this State, it is impossible for the plaintiff, on the facts alleged in the complaint, to maintain this action in this court, and the order for judgment for the defendant on the demurrer should therefore be affirmed.
    IV. The averments in the complaint respecting the shipment of 300 cases of petroleum in Hew York, contrary to the provisions of section 4,472, U. S. Revised Statutes, do not aid the plaintiff’s case. The sole alleged ground of imputing blame to defendants, as respects the petroleum, is, that it was a contraband article of freight. But its contraband quality did not set it on fire, and its shipment did not naturally or legitimately lead to its conflagration ; so that the connection between the shipment and the death of plaintiff’s intestate is not direct, but remote, and according to well-settled rules of law it cannot be made the ground of any claim in this statutory action, or relieve the case of the fatal defect of w7ant of jurisdiction (See Bradley v. Mutual Ben. Life Ins. Co., 45 N. Y. 422; Butler v. Kent, 19 Johns. 228 ; Hoey v. Felton, 11 C. B. [N. S.] 142; Cox v. Burbridge, 13 Id. 430; Clarke v. Brown, 18 Wend. 213, 229 ; Addison on Torts, 3rd Ed. 5).
   By the Court.—Sedgwick, J.

The demurrer was sustained on the ground that the statute had no operation on a vessel on the high seas.

The case of Crapo v. Kelly (16 Wall. 610), and the authorities cited by Judge Hunt, show that a State or nation has a right of jurisdiction through its law, written and unwritten, over a vessel belonging to it, that is on the high seas. This was held to be true of a vessel of a State of the Union. It was deemed that such State had the right of jurisdiction that she held before she became part of the Union. This proposition is sustained by Mahler v. Transportation Co. (35 N. Y. 352).

These positions are not founded upon the fiction of the territory being extended to the vessel. But the fiction is an illustration of, and is founded upon the necessary principles in relation to the power and prevalence of municipal law. A vessel, or the people upon it, would be without law or law-less, unless the obligations of the law of the place from which they had come followed and controlled. Therefore, both the laws of the State and the nation have dominion on a vessel on the high seas.

But this right of jurisdiction may never be exercised. However imperative may be the duty of the State to exercise it, or however much it may be for the interest, yet the fact may be that it never meant to exercise it. In case the only evidence as to this exercise of jurisdiction is the existence of the right of sovereignty, without any self-imposed limitations upon it, created by the State, there can be no doubt that there has been an exercise of the jurisdiction. The unwritten law, therefore, controls, in full power, wherever the right of jurisdiction extends.

But where the exercise of jurisdiction is committed by the State, that is, the people of the State, to legislators, or to men in other official relations, that exercise is limited by the intent of the legislators or officers in acting within the powers given by the people. That is, in the present case, whether or not the statute extends to vessels on the high seas, depends upon the intent of the legislature in passing the statute.

On first impression, it might seem that the intent must be, that the law was meant to operate in all places where the sovereignty of the State extended, and that, as to a general law, it is not necessary to suppose that the legislature had in conscious view the particular places where the law was to operate, and where it was not to operate.

This, however, is to be modified in the present instance. The State, through its officers or legislature, had never claimed that the sovereignty of the law of the State included its ships on the high seas. No legislative or executive or judicial act had recognized the right to jurisdiction.

At the last revision of the statutes, the first section begins(p. 120, vol. 1, Banks 6 Ed.): “It being deemed useful for the information of the citizens and officers of this State, that its boundaries, so far as its jurisdiction is now asserted, should be declared, it is therefore declared that the State of New York is bounded as follows,” &c., and the first section of the next title (p. 127, Id.), is : “ The sovereignty and jurisdiction of this State extends to all the places within the boundaries thereof as declared in the preceding title,” &c.

And the highest evidence that this State never intended to extend its law to its vessels on the high seas, is contained in the opinion of the court of appeals in Kelly v. Crapo (45 N. Y. 86). For of course that court would not have denied to Massachusetts the kind of jurisdiction it recognized as existing for this State.

Although the reversal of this case stated a rule which leads to a recognition of the right of jurisdiction of our State, it did not, of course, touch the fact of our State having exercised it.

As the legislature, when passing this statute under consideration, did it in view of the State having, as a fact, abstained from the exercise of the jurisdiction, and the State never having recognized the right of jurisdiction, it must be that the intent was that the law should operate only within the territorial boundaries of the State. The particular circumstances take it out of the general rule that the sphere of the operation of statute is co-extensive with the sovereignty of the State.

I therefore think that the statute does not support this action, and further, that the cause of action did not arise within the territory of New York. The nature of the cause of action, as a marine test, does not make the prosecution of this common law remedy inconsistent with the admiralty and maritime jurisdiction of the United States (Dougan v. Champlain Transportation Company, 56 N. Y. 4).

Order affirmed, with costs.

Curtis, Ch. J., concurred.


text:
    CORNELIUS SCULLY, Plaintiff and Respondent, v. JOSHUA C. SANDERS, Defendant and Appellant.
    CONVEYANCING.
    A general clause of description in a deed is sufficient.
    The following description, held good:—“Also all other lands contained within the limits of said commons, as described on said map, &c., not heretofore conveyed by the parties of the first part, &c.”

      Semble, the above does not apply to sale by sheriff and other officers.
    Jackson v. Delancey (11 Johns. 373, affi’d 13 Id. 551), distinguished from the case at bar.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided May 6, 1878.
    Appeal from judgment entered on verdict of jury.
    The complaint alleged that the defendant wrongfully entered into and upon certain lots, land of the plaintiff, and took certain lumber.
    The answer was a general denial.
    On the trial the plaintiff read a stipulation that the fee simple of lands known as Harlem Commons, including the lots in question, were on May 1, 1882, vested in Dudley Selden. Harlem Commons were laid out on a map on file in the Register’s office, and the lots in question were 59 and 60 thereon.
    The plaintiff offered in evidence a deed by Dudley Selden to Isaac Adriance. It recited: “Whereas the said Dudley Selden has heretofore received sundry conveyances of certain lands, known as the Harlem Commons, in the Twelfth ward of the city of New York, and has from time to time bargained, sold, convoyed and mortgaged parts thereof, and whereas, the title to certain other parts of said premises still remains unconveyed, a description whereof is hereinafter set forth, as appears by the lot book, as the same has been examined by the parties of the first and second parts,” and it conveyed “All the following lots, pieces or parcels of land, situate, lying, and being in the Twelfth ward, and known and distinguished as part of the Harlem Commons, and which said lots hereby conveyed are laid down on a map, said commons made by Charles Clinton, of the city of New York, surveyor, as lots, numbered and bounded as follows, lots number 1, &c., &c.” Also all other lands contained within the limits of said commons, as described on said map of said Charles Clinton, not heretofore conveyed by the parties of the first part, &c.
    The defendant objected to the admission of the deed, on the ground that it does not embrace the premises in question. The objection was overruled and exception was taken.
    The will of Isaac Adriance, the above grantee, devising all his real estate to his wife Margaret E. Adriance, was offered in evidence. The defendant objected on the same ground, and excepted to the ruling of the court admitting it.
    The deed of Margaret E. Adriance to John Townshend, having a specific description of the land in question, was admitted in evidence, the defendant objecting on the ground that the grantor had no title.
    A lease from Townshend to plaintiff was offered in evidence and received, with exception by defendant, on the ground that Townshend had no title.
    Testimony was given as to the trespass and damages. At the end of plaintiff’s case, defendant’s counsel moved to dismiss the complaint on the ground “that no title to the lots in question was conveyed by the deeds and instruments put in evidence, and the plaintiff has no title to the premises, and on the ground that the plaintiff had no actual possession of the premises, at the time of the commencement of the action.” The motion was denied, and exception taken.
    The defendant proved that before the plaintiff entered into actual possession of the premises, the defendant had taken possession of the lots, which were then vacant, and had enclosed them with a substantial fence, under a conveyance in fee of the premises to him by Gordon Burnham. It was not shown that Burnham had any title or had ever been in possession. There was no deed on record conveying the premises to Burnham.
    The court charged that the plaintiff was entitled to a verdict, and directed the damages to be assessed. The defendant’s counsel excepted to the charge that the plaintiff was entitled to a verdict.
    The jury found for plaintiff, and judgment was entered, from which defendant appeals.

      Townsend & Mahan, for appellant.

      John Townshend, for respondent.
   By the Court.—Sedgwick, J.

It appeared that before the trespass complained of, the defendant had been in actual possession of the lots. That then the plaintiff entered under his landlord, Mr, Townshend, and built a small house. This was afterwards torn down, but the plaintiff was in actual possession when the defendant entered and did the damage complained of. If Townshend was the owner in fee, at the time the plaintiff was in possession, the latter had an action of trespass against defendant. And in case the defendant had no title, when in possession, he was only a trespasser as to Townshend, if the latter had title. The latter might lawfully enter, so far as the matter of title and possession between the parties was concerned. Any subsequent entry of defendant was a trespass as to Townskend and the plaintiff, Ms lessee.

These being the rights and obligations of the parties, the plaintiff proceeded to prove Townshend’s title.

The only question that I can perceive, that the defendant raised or called to the court’s attention, had regard to the intrinsic character of the conveyance by Selden to Adriance, and the only point actually raised was that such conveyance could transfer no title, because of the uncertainty of the description of the premises, there being no “ word of description, whereby a single inch of land, within the 290 acres composing the Harlem Commons can be located.” The argument was ‘ ‘ It is, therefore, so far as conveying any portion of said commons, inoperative and void.”

The objection does not seem valid. A general clause of description is sufficient. An ancient and most common form was all my land or messuages, &c., in such a town or county. The appellant cites Jackson v. Delancey, 13 Johns. 551, as sustaining his position. That case referred to the certainty of description necessary in proceedings to sell taken by sheriffs, but the chancellor takes the distinction and says : “ Perhaps the case may be different, if the description in the mortgage be general, and the mortgagee sells under a power and the mortgagor will not come forward at the sale and point out and identify the lands. The sale in such a case depends upon the contract of the parties, &c.” The case affirmed the judgment of the supreme court (11 Johns. 373), and the opinion of the supreme court had said more specifically: u The general description in this mortgage is liable to no objection. A party conusant of his right may sell a mortgage, by general description, though an officer must define what he sells. The general description was : ‘ And also other the lands, tenements and hereditaments whereof the said William &o., was seized, &c., within the county of Ulster.” The present description is very much like it. All the land within the commons, which the party has not conveyed, is tantamount to all the land there of which he is seized.

On the trial or the argument the defendant did not raise any question as to whether, in order to show title under the deed of Selden to Adriance, it was necessary for the plaintiff to give some proof that Selden, at time of his deed, had not conveyed or remained seized of that part of the commons which is now described as lots numbers 59 and 60. That specific question has not been presented, and it is not necessary to find if it has any importance. It was not presented below, and probably, as I judge from a part of the printed brief, because it was taken for granted that the record would have disclosed no conveyance, and that that was sufficient for the purpose as against the defendant, as he did not prove any title from Selden.

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

Curtis, Ch. J., concurred.