text:
    In the Matter of the Judicial Settlement of the Account of Henry E. Nesmith, as Sole Surviving Testamentary Trustee under the Will of James Nesmith, Deceased.

      Testamentary trust — permanent improvement to the trust property by the trustee— reimbursement out of the income — trustee chargeable with interest on funds used by him.

    A will gave certain real estate to the testator’s sons in trust, for the benefit oí themselves and the other heirs, and provided that the trustees should have ‘ ‘ sole direction and management of said property, to improve the property if they see fit, and to buy the adjoining property on the same block (any such purchases to be included in this trust) if they see fit, raising money on mortgage for either or both, purposes', if in their judgment necessary ; to receive the earnings of said property, and after deducting therefrom all charges, expenses and disbursements, including the aforesaid anuuity, to account to the heirs for their respective portions * * * and it is my will that when either of said trustees shall die, the survivor shall hold the trust, and on his death the property shall be sold and the proceeds divided,” etc. Under this power to improve, the trustees erected an additionál building, at a cost of 812,450, which was necessary to increase and hold the business carried on upon the premises, and the yearly rental was increased thereby 86,000.

      Held, that the trustees should be paid for the cost of this improvement out of the increased income from the property ; and that this did not constitute an illegal ' accumulation of rents;
    The trustees had been in business with the testator whose moneys were deposited in the firm name, and the account was not changed in form after his death; the business was successfully continued by the trustees, and the income divided yearly among those entitled thereto.
    Money deposited in this account was used by the surviving trustee for his jn-ivate use; and the beneficiaries claimed that he should be charged with interest on the whole deposit.

      Held, that the trustee was chargeable with interest only on such sums as were used by him, it appearing that the deposit was used to carry on the business under the old name ; that there was no intent to use the trust moneys for the trustee's personal benefit or to strengthen his individual credit; that the beneficiaries understood the way the business was managed, and that no harm was intended or done.
    Appeal by Sarah F. Nesmith, individually and as administratrix of James I. Nesmith, deceased, and others from a decree of the Surrogate’s Court of Kings county, entered in the office of the surrogate on the 25th day of November, 1892.

      J. Tredwell Richards, for the contestants, appellants.

      L. H. Arnold, for the respondent.
   Barnard, P. J.:

The deceased was a warehouseman doing business near the Fulton ferry in Brooklyn in connection with his two sons, James I. Nesmith and Henry E. Nesmith. He died in 1812, leaving a last will and testament with two codicils thereto. The second codicil is as follows, so far as needed to present the question raised:

“I give to my sons, James I. and Henry E. Nesmith, * * * the Empire Stores property, or by whatever name known, in trust for the benefit of themselves, one-quarter each, of my son Beniamin I. one-quarter, and of tlie children of my daughter Caroline, one-quarter subject to an annuity of my wife Caroline, of five thousand dollars per year during her life; said James I. and Henry E. Nesmith to have sole direction and management of said property, to improve the property if they see fit, and to buy the adjoining property on the same block (any such purchases to be included in this trust) if they see fit, raising money on mortgage for either or both purposes, if in their judgment necessary; to receive the earnings of said property, and after deducting therefrom all charges, expenses and. disbursements, including the aforesaid annuity, to account to the heirs for their respective portions except as to the children of my daughter Caroline, who may not be of age, to them paying sufficient to support and educate them till they become of age, if necessary; and it is my will that when either of said trustees shall die, the survivor shall hold the trust, and on his death the property shall be sold and the proceeds divided in the manner directed in my will concerning my personal property.”

Under this power to improve, the trustees erected a shed at a cost of $12,450, which was necessary to hold and increase the business, and the year’s rental thereby was increased $6,000 a year. The surrogate decided that they were' to be paid out of this increased income. This was a favorable construction to the appellants. The clause taken together means to give very full power to the trustees. The power to raise the needed money by mortgage was not imperative and did not subject the trustees to loss if it was not exercised. That was one way of getting the money and, in view of the heavy mortgage on the property, an uncertain way. If there had been a mortgage the interest would be chargeable on the income. When payable out of the increased income there is no reason why the appellants should object. There is no illegal accumulation of rents. The trustees had power to charge the $12,450 on the income wholly where a shed costing $12,450 would increase the rental so much as to pay it .back in two years. The decree only postpones the payment until the increased rents will pay it.

The referee has found that the office in New York is necessary to the business, both as carried on by the trustees and the present occupant and tenant, whose occupancy will terminate so soon, when the office will be liable to become again a necessity. The charge for rent was, therefore, proper. The trustee gave substantially Ms entire time to the management of the business at this office.

The moneys of Nesmith were deposited in the firm name. The account was not changed in form after his death. There was no time when the deposit did not equal the trust funds, in other words, when the trustee had used the money for his private use. The decree appealed from charges him with the interest on such sums as were used by him. The appellants claim that he should be charged with interest on the whole deposit. The referee has found that it was used to carry on the business under the old name. That there was no intent to use the trust moneys for the trustee’s personal benefit or to strengthen Ms individual credit. The beneficiaries generally understood the way the business was managed. No harm was intended. None was done. The business was successfully carried on and the income divided yearly among those entitled thereto.

The decree of the surrogate should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Decree of surrogate affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    Eliza Bird and Others, Appellants, v. Samuel Pickford and Others, Respondents.

      Illegal suspension of the power of alienation for more than two lites in being.

    A will gave the residue of tne estate, real and personal, to the executors in trust to keep invested and to divide the income between a daughter and two cousins, the survivors or survivor of them during their lives, and then, in the event of the two cousins dying before the daughter, gave the corpus of the trust estate to the daughter absolutely, but in the event of her dying before the two cousins, gave the corpus to such person as she might designate by will. The three persons named survived the testator.

      Held, that the trust was invalid, for the reason that under its provisions the . absolute power of alienation might be suspended for more than two lives in being at the death of the testator, it being the evident purpose of the testator that if the cousins survived the daughter and the latter made no disposition of the estate, the cousins should still have an estate for life therein.

      Appeal by tbe plaintiffs, Eliza Bird and others, from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 11th day of July, 1893, on a decision of the court, rendered after a trial by the court at the Kings County Special Term.
    The action was brought to obtain a construction of the provisions of the residuary clauses of the will of ’William Baltz, deceased.

      JeMel T. Hurd, for the appellants.

      John R. Tresidder, for the respondents.
   Barnard, P. J.:

The residuary clauses contained in the will and codicil of William Baltz, deceased, are as follows:

TIvw'dly. I give and devise all the rest of my estate, real and personal, to my executors hereinafter named, in trust nevertheless, to invest and keep the same invested, and divide the net income arising therefrom equally among my said daughter-in-law, Ophelioe Baltz, and my said cousins, Rachel and Addie Van Gilder, the survivors or survivor of them, during their natural lives.
“ Fourthly. If my said cousins, Rachel and Addie Van Gilder, should die before my said daughter-in-law, Ophelioe Baltz, then, and in that event, I give and devise the corpus of said trust estate to the said Ophelioe, her heirs and assigns, forever. But if my said daughter-in-law, Ophelioe Baltz, should die before my said cousins, Rachel and Addie Van Gilder, then, and in that event, I give and devise the corpus of said trust estate to such person or persons as my said daughter-in-law, Ophelioe Baltz, may designate in her last will and testament.”

The three persons named in these clauses all survived the testator, and the question presented is whether tliere is an illegal suspension of the power of alienation created by these clauses. It seems clear that the absolute power of alienation-may be suspended for more than two lives in being at tiie death of testator. If Ophelioe Baltz die first and leave no will, the estate would still continue in trust during the lives of Rachel 0. Van Gilder and her sister, Addie E. Van Gilder. The only escape from that conclusion is to hold that if Ophelioe die first, and without exercising the power of appointment, that the interest of the Van Gilder sisters ceases, and the estate at once, upon Ophelioe’s death, goes to the testator’s heirs at law, as in case of intestacy. This would defeat the purpose of the will, which was to give the income of the trust fund to the three legatees or survivor of them, during their natural lives. It was not within the purpose of the testator to divide the estate when Ophelioe died, whether she made a will disposing of the body of the trust fund or not. A valid trust must be so drawn that in every possible contingency or it will absolutely terminate within the prescribed period of two lives. (Schettler v. Smith, 41 N. Y. 328; Haynes v. Sherman, 117 id. 433.)

If the scheme of the will in question is carried out, there may be an illegal suspension if Ophelioe die first and leave a will. The income would go to the Yan Gilder sisters and to the survivor during their lives, and it would be only after the death of the last of the three lives that the property could be divided.

The trustees would hold the fund until the last of the three lives had passed away.

The judgment should be reversed, and judgment ordered that the clauses in question create an illegal suspension, and that the fund go to the next of kin and heirs at law, as in cases of intestacy.

DyKMAN, J., concurred.

Judgment reversed, and judgment ordered that distribution be made as claimed in complaint, with costs to parties out of estate.


author: Pratt, J.:

text:
    Susan Cassidy, Respondent, v. The City of Poughkeepsie, Appellant.

      Negligence of a municipality in the care of its streets — cover of a sewer opening permitted to become dangerous — liability for personal injury.

      A. municipality, in the exercise of care over its streets, should look after the effects arising from the ordinary incidents of the protracted use of a sewer basin cover in a sidewalk, likely to become dangerous in the course of time; and it is not relieved from this duty, or from liability to one who sustains a personal injury through its negligence in this respect, by the fact that the appliance may have been originally constructed by lawful authority, and that the municipality was not responsible for the adoption of the plan, or the actual building of the work.

      Appeal by the defendant, the city of Poughkeepsie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office.of the clerk of Dutchess county on the 17th day of March, 1893, upon a verdict rendered at the Dutchess Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for a personal injury alleged to have been sustained by the plaintiff, while walking along the sidewalk on the south side of Duane street in the city of Pough-keepsie, through falling into the opening of a sewer silt basin in the sidewalk. It was claimed that the injury was caused by the negligence of the defendant, the city, in not having a proper covering over the top of the silt basin, and in leaving the cover in a dangerous condition.
    The plaintiff recovered a verdict for $600, and from the judgment entered thereon this appeal is taken.

      G. B. .Herrick, for the appellant.

      J. F. Ringwoocl and J. Morschauser, for the respondent.
   Pratt, J.:

The trial judge gave this case to the jury upon the simple question of whether the plaintiff had suffered her damages through the neglect of the defendant to discharge its duty to care for the safety of the public streets in respect to that portion of Duane street through an opening in which the plaintiff had fallen.

This was a plain issue upon a sound basis of law, from the determination of which by the jury, the defendant is not relieved by the argument and authorities presented by its learned counsel.

The sewer basin and its cover were constructed in 1876. Granting that the city was not responsible for the action of the water commissioners, either in the adoption of the plan or the actual building of the works, it by no means follows that it could wholly neglect, for a period of fifteen years, to look after the safety of the street so far as it was affected by the structure erected, and remain free from all responsibility. It would seem that the cover or bridge was fit and adequate for many years, and evidence was given upon the trial to show that its instability had arisen from the ordinary incidents of protracted ase. Common prudence dictated that the city, in the exercise of care over its streets, should look after the effects of such use upon a structure quite likely to become dangerous in the course of time; and this duty was equally incumbent where the foothold had been originally constructed by lawful authority, as if it had been the work of trespass or the elements.

The trial judge appears to have concurred with the defendant’s counsel in his views of the limitations upon municipal liability applicable to the case. The case rested, and its trial was steadily conducted, upon the fundamental ground of the defendant’s liability for its own negligence. The jury, thus guided, found the facts sufficient to make out the plaintiff’s case, and we see no reason why their verdict should be disturbed.

The judgment must be affirmed, with costs.

DyKmaN, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: PRATT, J.:

text:
    Josephine Whitlatch, Appellant, v. The Fidelity and Casualty Company of New York, Respondent.

      Mfe insurance — suicide as a defense to an action on the policy — burden of proof.

    “When in an action upon an accident life insurance policy, the defendant, the insurance company, avers as an affirmative defense that the insured intentionally inflicted the injuries which caused his death, the burden of proof to establish intentional injury rests upon the defendant; and if the proof fails to show whether or not the injuries were intentional, the defense is not made out, as the plaintiff is not required to prove a negative.
    In an action on a life insurance policy, the plaintiff is not required to allege and prove that death did not result from suicide.
    Appeal by the plaintiff, Josephine Whitlatch, from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 14th day of February, 1893, upon a verdict rendered at the Kings County Circuit in favor of the plaintiff for $100 and interest, and from an order denying the plaintiff’s motion for a new trial made upon the minutes.

      The plaintiff claimed as beneficiary under an accident insurance policy issued by the defendant upon- the life of plaintiff’s husband, James W. Whitlatch. This policy insured Whitlatch “ in the sum of ten thousand dollars against death resulting from bodily injuries effected during the term of this insurance, through external, violent and aeceidental means which shall, independently of all causes, result in death within ninety days from the happening thereof. * * * in case 0f ¿[oath under the provisions of this policy, the company will pay the principal sum to Josephine Whitlatch, his wife, if surviving * * * except that in case of death resulting from injuries wantonly inflicted by the insured or inflicted or caused by him while insane, the measure of this company’s liability shall be the sum of one hundred dollars, the same being agreed upon as in full liquidation of all claims under this policy. It is hereby understood and agreed that this contract is subject to the conditions named on back hereof.” Among these conditions was the following:

      “ 4. This insurance does not cover * . * * accident, nor death or injury resulting wholly or partly, directly or indirectly, from any of the following causes or while so engaged or affected: Intoxication or narcotics * * * voluntary exposure to unnecessary danger, * * * injuries intentionally inflicted by the insured.’5

      Thomas Dmiington and John L. Hill, for the appellant.

      Chas. O. Nadal and Thomas 8. Moore, for the respondent.
   PRATT, J.:

’The appeal brings up the question whether the verdict is so against the weight of evidence that it should be set aside, and also whether there were errors committed in the charge to the jury requiring a reversal.

The deceased was found dead with a discharged pistol by his side, and the defense may fairly claim it to be established that death was caused by the ball discharged from that pistol.

But we do not succe'ed in finding proof that deceased voluntarily discharged the pistol, much less that he did so with intent to take his life. While the position of the wound does not preclude the possibility of the weapon having been held in the hand of deceased, it at least renders it improbable. And the letters written that evening do not disclose any expectation of Mr. Whitlatch is shown to have been singularly free from the weaknesses that lead to suicide.

But we do not need to decide the question whether the verdict should be set aside as contrary to the weight of evidence, for the reason that errors were committed in the charge that require a new trial.

The court properly refused a nonsuit, thereby ruling that plaintiff had made & prima facie case.

The only affirmative defense open to defendant under the pleadings is found in the averment that deceased intentionally inflicted the injuries. Being an affirmative defense, unless proved, plaintiff was entitled to recover.

The burden of proof to establish intentional injury rested upon the defendant. If the proof failed to show whether or not the injuries were intentional, the defense was not made out.

Plaintiff was not required to prove a negative. (Travellers' Ins. Co. v. McConkey, 127 U. S. 661.)

The cases of negligence referred to are not in point, for in this State it is held that freedom of plaintiff from negligence is the foundation of his case and must be affirmatively proved.

Were it the law that plaintiff must allege and prove that death did not result from suicide, a demurrer might have been successfully interposed, as no such allegation is found in the complaint.

The court declined to charge in accordance with these views, and the exception thereto must be sustained.

The court also charged that if the injury resulting in death was caused by intoxication the plaintiff could not recover. No such defense was pleaded nor was any proof interposed which warranted the charge.

For these errors a new trial should be had, with costs to plaintiff to abide the event.

Barnard, P. J., and DyemaN, J., concurred.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    The Board of Health of the City of Yonkers, Respondent, v. John Copcutt, Appellant.

      Board of health of Yonkers — enforcement of its requirements — penalties — abatement of a pond and dam, as a nuisance.

    It is not a defense to an action brought by the board of health of the city of Yonkers, pursuant to the provisions of the city charter (Chap. 184 of Laws of 1881, tit. 9, § 2), to enforce obedience to its requirements for the abatement of a pond shown to be an intolerable nuisance, and dangerous to life and health, that others beside the defendant contributed to it, and even the city itself, by discharging sewage into it, where the act of the defendant in maintaining a dam, kept the foul substance confined in the pond.
    3STor is it a defense to the defendant in such an action, that others, guilty of maintaining a nuisance, have not been prosecuted.
    The board of health of the city of Yonkers has power to ordain in its sanitary code that “whatever is dangerous to human life or health, * * * and whatever renders the air or food and water or drink, unwholesome are declared to be nuisances and to be illegal, and every person having aided in creating or contributing to the same, or who may support, continue or retain any of them, shall be deemed guilty of a violation of this section,” and to ordain a penalty of $100 for the violation of such section.
    The board of health may maintain an action in the Supreme Court to recover the above penalty, and to enforce the provisions of the above section, by compelling the defendant to destroy a dam maintained by him, and by enjoining the rebuilding of any obstruction to the current of the water in a stream, where the proof shows that to be the only effective way to abate the nuisance.
    An action cannot be maintained to enforce a penalty for disobedience of a resolution by the board of health directing the removal of a dam, passed without notice to the parties to be affected thereby.
    The board of health has power to prohibit the rebuilding of a dam, after its destruction, as being a nuisance, and thereby prevent a nuisance; it is not compelled to wait until the dam is rebuilt, and then adjudge it to be a nuisance.
    Appeal by the defendant, John Copcutt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Westchester county on the 25th day of March, 1893, upon a decision of the court rendered after a trial by the court at the Westchester Special Term.
    The action was brought to recover three penalties of $100 each — one for a violation of the general provisions of the sanitary code adopted in 1881; one for a violation of an ordinance especially relating to defendant’s property, adopted on December 7, 1892, wliicb required the defendant to i-emove from the channel of the Nepperhan river all obstacles which interrupted its flow, and the dam owned by him, and to clean out and wall up the channel of the river; one for a violation of another ordinance, also especially relating to defendant’s property, adopted on December 7, 1892, requiring the defendant to refrain from rebuilding his dam and continuing his pond after the dam had been partially torn down pursuant to a warrant of the plaintiff board of health, and to remove the obstructions in the said river where the dam theretofore existed. The plaintiff also asked for an injunction restraining defendant from obstructing the natural flow of said river, and from rebuilding his dam, and from re-creating and continuing his pond, etc., also, that he be required to clean out and wall up the channel of said river, and to provide a stone bottom to said channel, and fill in with earth the low places upon his land adjacent to said river.

      M. E. Prime and Calvin Frost, for the appellant.

      James M. Hunt, for the respondent.
   Pratt, J.:

This is an appeal by defendant from a judgment of the West-chester Special Term, after a trial before a judge without a jury.

The action was brought by the board of health, directly pursuant to section 2 of title 9 of chapter 184 of Laws of 1881, to enforce obedience to its requirements.

Several important questions are raised by this appeal, but the facts are not open to much discussion, as there is no certificate that the case contains all the evidence, and we must, therefore, assume that the findings are supported by the proofs.

Neither is it necessary to discuss the principles irpon which the judgment is founded, as that subject was fully discussed in the opinion rendered at the Special Term.

But, even assuming that the appeal book contains all the testimony, it is established to a reasonable certainty that the pond in question was an intolerable nuisance and dangerous to life and health, and the fact that others besides the defendant contributed to it, and even tbe city of Yonkers itself, by discharging sewer matter into it, does not relieve the defendant from responsibility for its condition, for it was his act in maintaining the dam that kept the foul substance confined in the pond.

Neither is it any excuse for the defendant that others guilty of creating or maintaining a nuisance have not been prosecuted.

The first cause of action is for a penalty under section 82 of the sanitary code of the city of Yonkers. Chapter 184 of Laws of 1881, section 2, title 9, provided as follows: And the board of health is hereby authorized and empowered to establish, etc., * * * regulations as may be necessary to carry into effect the powers of said board, and to enforce observance of its sanitary code * * * by imposing penalties,” etc.

Pursuant to the power thus conferred, the board of health duly adopted and published a sanitary code, in section 82 of xvhicli it was provided: “ "Whatever is dangerous to human life or health * * * and whatever renders the air or food and water or drink unwholesome are declared to be nuisances and to be illegal, and every person having aided in creating or contributing to the same, or who may support, continue or retain any of them, shall be deemed guilty of a violation of this section.”

And section 97 of the sanitary code provides for the penalty for a violation of section 82, or any other section of the code, as follows:

“ Every person violating any of the provisions of this sanitary code, or any ordinance, by-law, rule, order, resolution or regulation of the board of health of the city of Yonkers, shall, for each and every such offense, forfeit and pay a penalty of one hundred dollars, which penalty shall be recovered, with costs, in an action brought by said board of health in its name in any coui’t of competent jurisdiction. Such violation is also liable to be restrained by injunction.”

The proof made out a clear case of maintaining a nuisance under section 2, title 9 of chapter 184 of the Laws of 1881, and of violating section 82 of the sanitary code, and the defendant was properly held liable to the plaintiff for such violation in the sum of one hundred dollars ($100) and costs, and the court properly restrained and prohibited the defendant from continuing to maintain his pond in the Nepperhan river or stream, upon the ground that such pond is, necessarily, a nuisance. This was a part of the relief sought for by the complaint.

It should be observed that section 2, title 9 of chapter 184- of the Laws of 1881, contains, also, the following provisions in regard to the power of the board of health of the city of Yonkers :

“ In addition to the powers herein expressly granted, to have and exercise all the powers now or at any time hereafter conferred upon boards of health in cities by any general law.”

The plaintiff lias, therefore, all the powers that were under discussion in the case of Gould v. The City of Rochester (105 N. Y. 46). Under this decision of the Court of Appeals, plaintiff had full power to ordain the section of the sanitaiy code now under consideration, and also to enforce the same in such an action as the present. The proof showed that the only effectual way to abate the nuisance was to destroy the dam, and enjoin the rebuilding of any obstruction to the running current of the water.

The second «cause of action is for disobeying directions of the board of health in regard to removing the dam and clearing out the pond, etc.

It is to be observed in regard to. this cause of action that the defendant had no notice of the proposed action of the board of Health; he only had notice of the resolution directing him to remove the dam, after it was passed. Again, at this time the board did not adjudge the dam to be a nuisance, or the cause of any nuisance.

We think an action cannot be maintained to enforce a penalty for a disobedience of such a resolution passed without notice to the parties to be affected thereby. (People v. Wood, 62 Hun, 131.)

The remedy of the board of health was to abate and remove the nuisance, if one existed, and charge the expense upon the owner of the land, not to order him to do it, and impose a penalty for failure to do so. It will not do to say that the facts proved upon the trial -of the case justified a judgment upon this count in the complaint, as the defendant was on trial for a violation of this specific ordinance, and if the ordinance was insufficient the defendant must be acquitted of the charge under it. The finding, therefore, under the second cause of action must be reversed.

The answer of the defendant by not denying it, admits that the resolution which proved the basis of the third cause of action, was duly served upon Mm, and lie conceded that it has been violated and disobeyed.

It is objected on the part of the defendant that the board had no power to prohibit the rebuilding of the dam and thereby prevent a nuisance, but that the board must wait until it was rebuilt and then adjudge it a nuisance.

It might as well be said that the board could not prohibit a load of cholera-infected clothing from coming into the city, but must wait its arrival before taking measures to abate the nuisance. It was simply a means taken to prevent the increase or renewal of what had already been adjudged a nuisance dangerous to life and health. We think the resolution was reasonable and proper, and within the powers conferred on the board of health.

The judgment should be affirmed as to the first and third causes of action, and reversed as to the second; also affirmed as to the injunction.

We find no exceptions disclosing error sufficient to reverse the judgment.

Barnard, P. J., concurred; DyKMAN, J., not sitting.

Judgment affirmed as to the first and third causes of action, and reversed as to the second, without costs to either party on this appeal.

       The Special Term opinion is given, ante, page 87, in connection with the case of People ex rel. Copcutt v. Board of Health.


author: Dykman, J.: Pratt, J.:

text:
    Leslie M. Saunders and Another, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.

      Riparian owners right of access to the Hudson river — accretions — occupation by a railroad —grant from the State.

    The owner of upland along the navigable waters of the Hudson river has such a title to accretions to his land, in the sense of having the right to unobstructed access to the shore, as entitles him to restrain the occupation of such accretions by a railroad company which has acquired no title thereto nor made compensation-therefor to the owner, and to compel the removal of its tracks therefrom.
    A former owner of upland on the east side of the Hudson river, in front of which there was a bay, gave a deed to the Hudson River Railroad Company, for a strip of land under water seventy-three feet wide across the bay, on which the company constructed its road; the right of the grantor to cross the railroad was recognized in this deed, by a covenant to that effect on the part of the company; thereafter the company filled up the land to the east of the strip conveyed to it and laid tracks thereon, and finally the whole bay, from the original high-water line west to the original railroad embankment, was filled with earth so as to exclude the water.
    In an action brought by the present owners of the upland to restrain the use by the railroad company of the land so formed, between the strip covered by its deed and the upland, it appeared that the State had by letters patent granted the land under water west of the railroad line to the plaintiffs’ grantors.

      Held, that the deed to the railroad company could not be deemed to affect the right of the grantor to pass from the original shore over the parcel conveyed thereby without obstruction, at least as far as the east line thereof; especially after the State by letters patent had granted the land west of the railroad to the plaintiffs’ grantors.
    The defendant, the railroad company, insisted upon its right to the land in question by virtue of the right bestowed upon the Hudson River Railroad Company by chapter 30 of the Laws of 1848, to alter its line and file a new map and acquire the lands within the new location, the filing of such new map and a grant from the Commissioners of the Land Office of the State of New York, in 1873, of land under water on both sides of the original road bed of the Hudson River railroad from New York to Albany.
    Held, that neither the charter of the company nor the filing of maps conferred any title upon the defendant to the land in question, and that the grant from the Commissioners of the Land Office was ineffectual in so far as it assumed to convey a strip of land under navigable water in front of the shore of the Hudson river without any reservation in favor of the shore owners, and thus to deprive them of their exclusive rights of access to the water.
    Appeal by the defendant, tlie New York Central' and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of West-chester county on the 8th day of April, 1893, upon a decision of the court rendered after a trial by the court at the Westchester Special Term.
    The nature of the action, the facts and the questions presented are set forth in the following opinion rendered at the Special Term, and approved by the General Term:
   Dykman, J.:

The plaintiffs in this action are upland owners on the east bank of the Hudson river at Yonkers.

The Hudson River Railroad Company was incorporated as a body politic and corporate, by a special law in May, 1846, with power to construct and operate a railroad from New York to Albany.

At that time Ethan Flagg was the owner of the upland now belonging to the plaintiffs, and there was a small bay in front of the land, across which the railroad was projected, and Ethan Flagg gave a deed of conveyance to the railroad company August 13, 1847, for a strip of land seventy-three feet wide and 1,037 feet in length.

The Hudson River Railroad Company constructed its road across the bay upon the land covered by the deed from Ethan Flagg.

Thereafter the Hudson River Railroad Company became consolidated with the New York Central Railroad Company, under the-name of the New York Central and Hudson River Railroad Company.

Subsequent to such consolidation the defendant made filling on the east side of the strip included in the Flagg deed, and in 1882-laid down a railroad track east of the original track, and in 1888 laid down another track still further east, and both these tracks extend along the whole front of the plaintiff’s upland.

At this time the whole of the bay from the original high-water line west to the original railroad embankment is all filled in with earth so as to exclude the water. Some of that filling was made by the defendant and some by the owner of the upland. The precise-quantity of filling done by each is not stated definitely.

Since the two extra tracks were laid down they have been used by the defendant in its business. Its yard is there and large cars are run there and remain upon the tracks for different periods of time.

This action is brought to restrain such use and compel the removal of the two tracks so laid down east of the original road bed of the defendant and in front of the upland of the plaintiffs.

In December, 1873, the defendant obtained from the Commissioners of the Land Office letters patent for a grant of land, under water, on both sides of the original bed of the Hudson River railroad from New York to Albany, containing many thousands of acres of land, and including the land upon which the two tracks above mentioned were laid.

These are the substantial and basal facts upon which the questions involved in this action are to be determined. The questions are interesting bnt intricate, and their examination affords a wide scope for research and requires cai’eful discrimination and analyzation.

It will be orderly to determine first the rights of the plaintiffs as riparian or littoral proprietors, and that inquiry can now proceed without embarrassment from the case of Gould v. The Hudson River Railroad Company, which, after repeated attacks from flank and rear, has now received an assault in front from the Court of Appeals and been overthrown. (Rumsey v. The Railroad Company, 133 N. Y. 80.) This case can, therefore, be determined in the light of authority upon principles more consonant with i’eason •and justice.

The rights of riparian proprietors, to the water, flow from the ■contiguity of their land thereto. They have the right of access to the navigable part of the river from the front of their land, the right to make a landing or wharf, subject to the rights of the public, the right of fishing and landing and of accretion. (Yates v. Milwaukee, 10 Wall. 497.) They may also fill up shallow water in their .front and upon such reclaimed land construct wharves so long as they do not infringe upon the rights of navigation. (Dutton v. Strong, 1 Black, 23.)

Under the civil law they might project a mole in the sea.

These rights and privileges constitute property which is under the protection of the Constitution and the laws, and which cannot be impaired or destroyed without compensation.

In this case the right of accretion is important, because the rule is the same whether the accretion is natural or wrongful, whether it results from natural causes or the work of man. (Steers v. Brooklyn, 101 N. Y. 56.)

Justice can be done to the littoral owner in no other way. Accretion, whether natural or wrongful, must belong to the upland owner, •or he will be excluded from the water and changed into an inland instead of a riparian owner without his assent.

If that rule of law enumerated in the Steers case is applicable here, it is difficult to see why the accretion in front of the upland of the plaintiffs did not vest in them and their predecessors in title. If the wrongful construction of a wharf in front of the old shore in that case was viewed as accretion, which went to the riparian proprietor because it was between him and the river, it is difficult to see why the filling in here should not have the same result, and accrue to the benefit of the upland owners.

In each case the access of the owner is similarly affected, and unless his rights are extended to the new shore he is converted into an inland owner and deprived of the important and valuable rights-of a littoral owner without compensation.

In the case of Ledyard v. Ten Eyck (36 Barb. 126), the defendant owned the land on the east shore of Oazenovia lake, in this State, and the Canal Commissioners excavated the outlet and deposited the material in the shallow water in front of his premises. The defendant took possession of the reclaimed land. The court said the trusteeship of the State, both for the public and the landowner,, was at an end, and the land became necessary for the beneficial enjoyment of the upland, and thus arose, if not a legal, at least a. strong equitable title which, with the possession, should not be disputed except by the State itself. That case favors the contention, of the plaintiffs.

• I think the doctrine of the Steers case is applicable to this, and that the right of access of the plaintiffs is extended to the new shore-formed by the railroad.

I intend to rest my decision on this branch of the ease upon the. right of the plaintiffs as riparian proprietors, independent of the rights, they may have as owners of the land under water west of the railroad.

The defendant contends that the plaintiffs’ right of access to the river was terminated or limited by the execution and delivery of the. deed from Elagg to the railroad company for the strip of land across the bay, but the deed can have no such operation. At most, that deed conveyed that strip of land, and that only, for the use of the road, for the purposes expressed in its charter, and the grantor-surrendered none of his rights with which he was clothed as upland owner. (New York Central & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83.)

Moreover, the grantor reserved to himself and his heirs and assigns all his and their rights to the land below high-water mark except the ship so conveyed, and unlike the reservation which was. condemned in the Blakslee case, because the right is regarded as appurtenant to the land and cannot exist if severed from the ownership thereof, this reservation was valid because the grantor remained the owner of the upland and reserved the right as appurtenant thereto.

The case of Buccleuch v. Metropolitan Board of Works (L. R. [5 H. L.] [Eng. & Irish App.] 418), was this: The Duke of Buc-eleuch was the owner of land on the bank of the river Thames through which a road was constructed along the shore of the river under an act of Parliament, which cut off his access to the river, and it was decided by the House of Lords that he was entitled to compensation, not only for the land actually taken for the construction of the public road, but also for the permanent damage to the whole property in consequence of its change from riverside to roadside property, including his particular right to use the shore of the river.

That ease seems to be a direct authority in favor of the plaintiffs here.

The defense to this action is based upon the right bestowed upon the Hudson River Railroad Company by chapter 30 of the Laws of 1848, to alter its line and file á new map and acquire the land embraced in the new location, the filing of such new map, and the grant from the Commissioners of the Land Office in 1813.

It is to be said of this grant preliminarily that it was for railroad purposes only and the company could take it for no other purpose, and Judge Brown, in his opinion in the first Rumsey Case (114 N. Y. 432), took pains to show how adequate provision was made to give every upland owner easy access to the water and preserve to such owners their access to the river.

There are, however, other reasons why this grant can have no operation which will abridge the rights of riparian owners along the oast bank of the Hudson river.

By the common law of England, the title to the soil under navigable waters was in the Crown, and the control over such waters rested in the British Parliament, but by the Revolution and the separation of the States from the Crown the title to the bed of navigable waters which before that rested in the Crown, was transferred to the people of the State by the Revolution, as the successor of their former sovereign.

At the same time the people in their sovereign capacity became vested with the absolute control over rivers which before rested in the British Parliament, but surrendered the power to regulate commerce and navigation to the Congress of the United States in 1118 by the adoption of the Federal Constitution.

So that now, through its Legislature, the people may exercise all the power over navigable waters and the soil upon which they lie which could have been exercised by the King in conjunction with Parliament previous to the Revolution, subject to the restrictions imposed by the Constitution of the United States, and no more.

We must now inquire what those powers of the Crown and Parliament were.

It was determined in England at a very early period, that the title to property in the soil under tide waters was vested in the King as the representative of the public for the public use, and after Magna Cliarta, at least, he never had the authority to make an exclusive grant in an arm of the sea.

It was laid down by Bracton that those things which related particularly to the public good could not be sold, and that rule was based upon principles of public policy. The sea and the navigable rivers are the natural highways of the world, and although the sovereign may make grants of the soil for certain purposes, yet such grants are subject and subordinate to the paramount right of the public, and there is even an implied reservation of such public right in all such grants.

As the people of the State succeeded to the rights of the King and Parliament they took no greater rights.

The distinction is between the “ domain of the State,” which is the property of which the people have the absolute estate like an individual, and the “public domain,” which the State holds as a mere trustee for the use of the public, and “ which remains in the state of primitive indivisión.” (2 Kent’s Comm. 339.)

The former applies to things in which the State has an absolute property, and the latter to the property which the State holds as trustee for the public, such as highways and navigable streams.

In the latter case, the State holds only “ a regulating power for the purposes of protecting the jrublic in the use of the waters for navigation and other public purposes, and of this power and duty of regulation the State cannot divest itself.”

“It is equally true that the riparian proprietors have certain rights and interests which are valuable and of which they cannot be deprived, except under the exercise of the rights of eminent domain. Among those rights are the rights of access to the navigable river or sea from the front of his lot; the right to make a landing, wharf or pier for his own use or the use of the public, subject to the supervision of the State to see that it does not interfere with navigation; the rights of fishery, of ferry, of towing on the banks, of landing, lading and unlading, the right of accretion, etc.” (Report of Hon. Daniel Pratt, Attorney-General, to the Senate, January 28, 1875.)

This quotation is not made because it has the force of authority, but because it expresses in terse language the doctrine which prevails in this State upon that subject.

The same doctrine is laid down by Angelí in his learned work on Tide Waters in these words :

“ Although the King is regarded as the legitimate proprietor, yet his character in this respect is fictitious, inasmuch as he cannot exercise his ownership to the exclusion, inconvenience or injury of his subjects. He can, therefore, be considered only as guardian and trustee for the benefit of his subjects.” (Angelí on Tide Waters, 135.)

The same doctrine was laid down by the Supreme Court of the United States in the Chicago Lake Front case in the following language: “ That the State holds the title to the lands under the navigable waters of Lake Michigan within its limits, in the same manner that the State holds title to soils under tide water, by common law, we have already shown. * * * But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States holds in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.” (Illinois Cent. R. R. Co. v. State of Ill., 13 Sup. Ct. Rep. 110 ; 146 U. S. at p. 452.)

A line of decisions, which commenced with the celebrated Story case, holds that an owner of land abutting upon a public street has a property right therein for access, light and air, and that the State has no power to grant a railroad the right to occupy the street when such occupation affects injuriously the enjoyment of such rights,, without compensation.

In the opinion of the Court of Appeals in the Rumsey case, in the 133 N. Y. Reports, where the Gould, case was overruled, it was said: “ Unless there is some distinction to be made between the rights which pertain to an owner of land upon a public river and one upon a public street Avhich is not perceived, then the principles sanctioned by this court in these cases virtually overrule the Gould case, as they are apparently irreconcilable.”

So far as those cases relate to the right of access, they are applicable to this case.

We have already seen that, upon the declaration of independence in 1776, the people of each State became sovereign, and in that character became invested with the absolute right to all navigable waters and the soil upon which they rested for their own common use, and such title was held by the State in its sovereign capacity in trust for the public, and continued to be so held and owned in such trust capacity until 1788, when it surrendered the right to control the waters for purposes of commerce and navigation. But it surrendered nothing more. It still remains the owner of the soil and can make grants of the same within the restrictions of the statute, but .the extent of the grant in question is almost sufficient of itself to prove that its execution was in contravention of the trust under which the property is held.

The trust is governmental, and the property cannot be alienated except in the execution of the trust in the interest of the beneficiaries. It cannot, with any propriety, be claimed that the surrender of a strip of land containing thousands of acres from New York to Albany to a trading corporation, is in the interests of the public.

The size of a similar grant did not escape the attention of the Supreme Court of the United States in the case of The Illinois R. R. Co. v. Illinois (supra), and in relation thereto it was said in the opinion: “We hold, therefore, that any attempted cession of the ownership and control of the State in and over the submerged lands in Lake Michigan by the act of April 16, 1869, was inoperative to affect, modify or in any respect to control the sovereignty and dominion of the State over the lands or its ownership thereof.”

It is not necessary for me to hold this grant void, except so far as it contravenes the rights of these plaintiffs, and my conclusion is that their rights remain unimpaired.

Frank Loomis and Lra A. Place, for the appellant.

Ralph E. Prime, for the respondent.

It must be borne in mind that the right of access is an exclusive right of the riparian proprietor, and the grant in question assumes to convey a strip of land in front of the east shore of the Hudson river without any reservation in favor of shore owners, and thus deprive them of their exclusive rights of access to the water.

My conclusion, therefore, is that the grant in question is unavailing against these plaintiffs and their exclusive right of access to the water, and the obstruction of which they complain must be removed :and they must have judgment therefor.

Pratt, J.:

We think the judgment in this case should be affirmed upon the facts and principles stated in the opinion filed by Mr. Justice Dykman upon the trial.

There was no error on the part of the trial judge in refusing to find the third, fifth, sixth and ninth requests of the defendant. Some of said requests were not justified by the evidence and others, if found, could not have changed the result.

The judge found that the title to the land in question was in the plaintiff by virtue of being upland owner, and the same being an accretion to his shore, in this the decision is sustained by authority. (Steers v. Brooklyn, 101 N. Y. 56.) This case differs from that of People ex rel. Blakslee v. The Commissioners of the Land Office (135 N. Y. 447), as in that case the relator was not the owner of the adjoining upland.

The plaintiff, at least, had title in the sense that he had the right of unobstructed access to the shore of the Hudson river, which, we think, is sufficient to sustain the judgment. (Yates v. Milwaukee, 10 Wall. 497; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79; Matter of Yonkers, 117 id. 564; Illinois Central R. R. Co. v. State of Illinois, 13 Sup. Ct. Rep. 115 ; Doane v. Broad Street Assn., 6 Mass. 332; Boston & R. Mill Corp. v. Newman, 12 Pick. 467; Rice v. Ruddiman, 10 Mich. 125.)

We think the deed of Flagg to the defendant of the parcel seventy-three feet in width did not cut off the shore owners’ right to go to the river. This deed, expressly limited to parcel B (seventy-three feet in width), could not he held to affect the right of the grantor to pass from the original shore over parcel F in question without obstructions, at least as far as the east line of parcel B, but we think the right also remained in Flagg and his grantees to cross the railroad — parcel B — and go to the river, especially after the State patented the land west of the railroad line (parcel B) to the plaintiffs grantors in 1869. (Langdon v. Mayor, 93 N. Y. 151; Smith v. N. Y. & O. M. R. R. Co., 63 id. 58, and cases cited; chap. 140, Laws of 1850, §§ 44 and 49.)

The right to cross the i’ailroad is recognized in the deed of Flagg to the defendant by a covenant on the part of the latter to that effect.

The defendant utterly failed to show any title to the parcel in question, or any right to occupy the same. Neither the charter nor the filing of maps could confer any title upon the defendants. (N. Y. Central & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83, 89.)

The power of the Commissioners of the Land Office and the quality of the title of the State to lands under water are sufficiently discussed in the opinion below before referred to. The defense of title by adverse possession was not established as matter of fact, so also of the defense that the plaintiff’s deeds of the land were void because of the statute avoiding deeds of land in the actual possession of other persons claiming adversely.

We also think the court below was right in refusing to find defendant’s request No. 14, as the proof was against such a conclusion.

There are many questions in this case upon both sides of which much can be said, but in view of the long opinion rendered below, and the discussion of recent cases in the Court of Appeals of a similar character, it seems unnecessary to state more here than the conclusions at which we have arrived after a careful examination of the case and the briefs.

The eon elusions of fact seem to be supported by the evidence and the conclusions of law are well supported by reason and authority.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Dykman, L, not sitting.

Judgment affirmed, with costs.


author: Pratt, J.: Barnard, P. J.:

text:
    Adrian Iselin, Respondent, v. John H. Starin, Appellant.

      Ancient road, claimed to he private — dedication and acceptance thereof — public user of the road for access to a ferry to an island — right of the occupants of the island to use the road.

    In an action in equity, brought by the owner of Neptune Island in Long Island Sound, connected with the mainland by a causeway, to enjoin the owner of Glen Island from using a road leading from the Pelham highway in Westches-ter county through Neptune Island to a ferry running to Glen Island, on the ground that the road was a private road, it appeared that the road had been opened to the public in 1836 by the then owner of Neptune Island, followed by user for public business, confirmed by certain subsequent owners, under such circumstances as indicate a right to the permanent use thereof by anybod}'-who had occasion to use it, followed by a grant from the State of land under water for the erection of a dock at the end of the road, upon a petition statiDg that the dock was required for the use and convenience of the public; it further-appeared that there had been a formal acceptance of the road by the highway authorities.

      Held, that the facts made out a dedication to public use for road purposes (per Pratt, J.);
    That the failure of the plaintiff and his grantors, during such a length of time, to do any significant act opposed to such dedication, estopped them from maintaining- an action in equity to enjoin the use of the road; and that the road should he deemed a public highway not only by long use, but by actual dedication and user.
    It further appeared that for over forty years there had been a ferry, by means of which the occupants of Glen Island had been carried to the mainland by way of Neptune Island, there being a float maintained by the occupants of Glen Island at the termination of the ferry on Neptune Island, the means of access to which, from the Pelham highway, was over the old road in suit.

      Held, that as to the question presented, it was of no importance whether the way was public or private; and that if the occupants of Glen Island owned a ferry right, with a float on Neptune Island, and a right of free passage to and from the Pelham highway, they should not he prevented by injunction from using it (per Barnard, P. J.).
    Appeal by the defendant, John II. Starin, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of "Westchester comity on the 18th day of January, 1898, upon a decision of the court, rendered after a trial by the court, at the Westchester Special Term.
    The action was brought to obtain a permanent injunction against the defendant which should restrain him from the use of a dock on Neptune Island, in Long Island Sound, as a place for landing passengers from Glen (Starin) Island, and from using Neptune Island and tire roadway leading therefrom to the Pelham road, on the mainland, as a public highway for passengers to and from Glen (Starin) Island.

      G. II Roosevelt, W W. Goodrich, Peter Cernirme and Cornelius II Kene, for the appellant.

      Marti/n J. Keogh and Calvin Frost, for the respondent.
   Pratt, J.:

This controversy relates to a road leading from the old main highway which runs from Pelham to New Rochelle, in'Westchester’, to a ferry at tide water on a creelc formed by the waters of Long Island Sound, as they ebb and flow, opposite Glen Island. It is the approach for the public by land to the present Glen Island ferry. Plaintiff claims that it is a private road, and has obstructed it. Defendant contends that it is a prjblic road, and, by way of equitable counterclaim, asks that the obstructions be removed.

The defendant’s Glen Island was formerly known as Locust Island. The plaintiff’s main property is also an island, now known as Neptune Island, formerly called Moses Island. It was originally separated from the mainland by a small creek across which a stone causeway was built, so that street cars and wagons now run to, or substantially to, the defendant’s ferry.

The testimony shows that this Moses or Neptune Island was owned by William Turpin in 1833, who conveyed the same to Catherine Wyman, who then owned the adjacent mainland. This Neptune Island and the mainland then passed to Jacob Rhinelander, through Catherine Wyman’s will and deeds by her executors, in 1836; this deed conveys the road and causeway in question. The island then passed under Rhinelander’s will, to the Underhills, in 1837, who conveyed the same, with the road and causeway, to Philip Underhill, in 1850, and the mainland was conveyed to other parties.. Philip Underhill then conveyed the island, road and oause-Avay, to Isaac Underhill, in 1859. Thorne and wife also gave Isaac Underhill a conveyance affecting some part of these premises in 1871, and in the same year Isaac Underhill conveyed the same to Higgins, who mortgaged to Guión. The mortgage was assigned to Philip R. Underhill, and was subsequently foreclosed, and the premises were purchased by this Mr. Underhill in 1880, who meantime received other conveyances from Mr. Higgins. He, in 1882, conveyed the premises to Fredericks, who conveyed back to Hannah Higgins in the same year, and she conveyed to plaintiff in 1885. Each of these conveyances assumes to convey the road and causeway in question.

The defendant’s title to Glen Island comes from Davenport, who conveyed to Depau in 1847, nothing being said about any landing or road. Depau conveyed to Livingston in 1848, and he conveyed to Godwin in 1854. These Departs seem to have conveyed to Foulke in 1855, and Godwin conveyed to Foulke on the same day. Foulke then conveyed to Schmidt in 1862. This deed assumes to convey a right of way over the road in question from the old Pelham road to a steamboat landing to be presently mentioned, and the use of the ferry dock as used by the Fonlkes, together with the right to land thereon, and the right of ferriage and docking. Schmidt died, and his executors in May, 1879, conveyed to defendant, granting like subject-matter.

It thus appears that Foulke owned the Glen Island, and Isaac Underhill, or his estate, owned the Neptune Island and the road, from about 1858 or 1859, at least, until after 1861. During this interval, Foulke used this dock for ferry purposes to Glen Island as a landing, having a regular ferry propelled by horse power. Foulke and Isaac Underhill contributed to the expenses of keeping this road in repair. Foulke paid him twenty-five dollars January 26, 1858, as “liis proportion of the expenses or repairs of the causeway and roads.” This fact is attested by Underhill’s receipt, which defendant produced. A like receipt signed by Philip R. Underhill for I. Underhill’s estate, attests the fact that Foulke, January 11, 1861, paid him fifty dollars for “ his proportion of expenses repairing causeway and bridges for two years to January 1,1861, on Neptune House Island.” In 1868, Schmidt, and other owners on Glen Island, paid Philip R. Underhill seventy-five dollars, “ being in full to January 1, 1868, for their contributions of twenty-five dollars each towards working of the road leading to the steamboat pier on the Neptune House Island for the estate of I. Underhill, deceased.”

It seems that Isaac Underhill built the Neptune House on his island, and enlarged the former steamboat dock which stood at the water end of the road. He also had an interest in a steamboat which landed thereat. The precise circumstances under which these payments for road expenses were made, do not appear; but it is plain that the owners of the Glen Island and Neptune Island together, kept this road in repair, and it is quite obvious .that they used it and this dock in common, the former for ferry purposes and the latter for steamboat purposes, and as an approach to his Neptune Island property.

There is no intimation that the payments were made as for licenses; on the contrary, they are said to be “proportion of expenses ” in the earlier receipt, and “ contributions ” in the last one. I think it fair to assume, in the absence of any conveyance of a right of way over this road, and the absence, also, of any satisfactory explanation, that there was an understanding between these people .that they should use this road in common as an approach to this dock. The road was open for the use of the Underhills’ Neptune House guests, and was evidently used by Eoulke and Schmidt as means of approach by the dock to the Glen Island property. So, too, it must have been used by the public as an approach to the Underhill steamboat which landed at the dock, and the patrons of Foulke’s ferry.

Perhaps these facts do not necessarily show an unlimited offer of this road to the public as a highway. On the other hand, the evidence shows that when Depau owned Glen Island, he and Underhill had some bitter controversy about the location of the dock, in which Underhill had his way about it.

I think, however, that these facts do show that the Glen Island owners, certainly in Depau’s time, had a right of way at the Under-hill dock, and over this road up to the old Pelham road, and the fact is that Depau’s deeds say nothing respecting this right of way. It is certain that the Foulke and Schmidt deeds do assert such a right.

Under these circumstances, especially in view of Foulke’s ferry business, I think this case plainly shows an open user of both the dock and road by the Glen Island owners from 1858 on, under a claim of right, with the knowledge and consent of the Neptune Island owners; and since Foulke’s deed to Schmidt in 1862, such user was certainly under claim of right and color of title which could be conveyed.

"We now come to consider another fact of great importance in this controversy. In 1845 Isaac Underhill and his wife, and Philip R. Underhill filed their petition with the Commissioners of the Land Office of this State praying for a grant of land under water for the purposes of enabling them to extend this steamboat dock, and asking to establish a dock thereon, with leave to collect wharf-age, etc. They therein state that the dock was built by, or, at least, in Catherine "Wyman’s time, “ for the convenience of navigation, and for the accommodation of steamboats and other crafts passing into the bay.’’ There is no intimation that this use was in any way restricted. This must have been prior to 1836, for she died before that time, and her executors, during that year, conveyed to Rhinelander.

This petition also states that Rhinelander believed that she had obtained title to the land under water where the dock stood, but that it was subsequently discovered that she had not obtained such title. It also states that this dock or landing is “ a great public convenience and necessary for the purposes of commerce, and will greatly increase those objects by extending the dock a little farther into the bay as designated ” on a map filed. This map shows the road in question.

The petition also states that the contemplated extension of the dock “ will be of great public convenience in a commercial point of view,” and the object of the acquirement of the land was to increase that public convenience by extending it to deeper water so that larger vessels may moor thereat.

The petition also states “ that, to render a landing place convenient at the place now spoken of, and that the public cmd others may pass from the. main islcmd either on foot or with carriages -x- -x- * fo †,]16 eonte/mplated (loch / and that for such purpose it will be necessary to build of stone * * * abutment or bridge,” etc.

It thus appears that this road was opened for these purposes by Catherine Wyman prior to 1836 as a means of reaching this dock, long before the Neptune House was erected ; and that it had reference to public travel between the old Pelham road and this dock for the purposes of commerce, as a means of enabling the public for business purposes to come to this dock both by land and water, and that there was a business ferry at the dock.

The people of the State granted their patent on this petition. The patent expressly recites that it is for the purpose of promoting the commerce of our State, and for no other object, and the grant was made subject to reservations and conditions expressed; one of which was that if the patentees should not “ within three years from that date (April 17, 1845), actually apjyroyoriate cmd apfby the above-described premises to the purposes of a dock or docks thereon ” the grant should be void. There is no pretense that the patentees failed to perform the condition, and they and their grantees now claim the land thus obtained because they thus appropriated that property to that public use.

Under these circumstances, I do not see how it can be doubted that the object of the dock and road was to enable anybody who chose to use it to come and go on the dock, and to use the dock itself for all purposes of a dock. Very likely the commerce between the mainland and Glen Island may not have been in Catherine Wyman’s mind, or in the minds of the Underhills to the extent which we now see the development of that island, and the business there carried on, but we cannot doubt that that business is within the development of the general object and purpose for which the road was opened and the dock built, and within the purposes of the grant.

I do not now mean to say that this necessarily renders the dock a free, public dock, or the road necessarily a public highway. But, under these circumstances, I cannot doubt that the subsequent transactions between Glen Island, Eoulke and Schmidt and the Underhills, indicate that the former were then acting in view' of existing and conceded rights, to use the road as a means of approach to their property, and their business ferry. It thus seems plain to my mind that there was at least an acknowledged private right of way for Eoulke and Schmidt and their grantees, and any lawful business to which they chose to devote their property. Hence, it seems to me, that the plaintiff, being one of Underhill’s grantees, has no right, certainly no standing in a court of equity, to such aid in obstructing this road as a means of preventing the grantees of the Glen Island to reach their property or to carry on their ferry business. If that be true of the grantees themselves, it must also be true of their patrons.

Plaintiff and his grantors have slept too long upon their elaims to expect any aid of a court of equity. Their laches alone seems to me to weigh heavily against their contention on the merits.

Perhaps this conclusion will dispose of the case adversely to the plaintiff and in favor of the defendant. But, since other phases of it are before us, I may not unwisely go farther.

The fact is distinctly stated in this old petition to the Land Commissioners that one of the objects of this dock was its public convenience ; and it is plainly intimated, if not alleged, that the object of the proposed extension of the dock, and of obtaining the land grant for that purpose, in part, at least, is to invite “the public to pass on foot or in carriages ” over this stone road, which was so necessary. Under these circumstances, while it is possible that the Underhills may all the while have had some dim idea of retaining this road as their private right of way, it seems to me wholly improbable that they did such a thing. The plain fact was that the more the public used it the better for them and their purposed business scheme. They thus, by their recorded act and their subsequent conduct, clearly evinced their invitation to the public to use the road freely, and their erection of the hotel only emphasized this desire to profit by this public use of the road.

Here, then, was an offer of this road to the public which dates back to 1836, and there can be no doubt, upon this evidence, that the public did use it without interruption, unless by the gate, to be presently noticed.

We thus find an offer of this road to the public — an offer made by Catherine Wyman in 1836, followed by user for public business purposes, confirmed by the Underhills under such circumstances as to indicate the right to the permanent use thereof by anybody who had occasion to use it, followed by a grant from the State which necessarily involved anybody and everybody’s right freely to come and go over it. I think they were thus estopped from withdrawing that offer. We think this seems to make out dedication so far as one may dedicate his land to public use for road purposes. This was followed by the formal acceptance of this road by the highway authorities of New Rochelle village. A street railroad has since been laid and lias been for years used upon it, and all the while plaintiff and his grantors have done no significant act. To come now into a court of equity seeking equitable ■ relief seems to me unwarranted.

I am, therefore, unable to see why this road should not be held a public highway, not only by this long use, but by actual dedication and acceptance. Under these circumstances, I regard the testimony about the gate as of very little importance. That testimony was very unsatisfactory at best, and it, in no way, shakes my confidence in the conclusions already stated. The same is true of the notices and declarations of the Underhills about their supposed rights.

These views lead to a reversal of this judgment and to the conclusion that plaintiff is wrong in obstructing this road.

Judgment must be entered for the defendant, with costs.

Barnard, P. J.:

For over forty years there has been a ferry by means of which the occupants of Locust Island, now Glen Island, have been carried to the mainland over Neptune Island. During all that time there has been a float maintained by the occupants of Glen Island on Neptune Island, the termination of the ferry. The means of access from the Neptune Island float has been over an old way which passed over Neptune Island and over a causeway to the Pel-ham road, a public highway. This old road was improved by the occupants of Neptune Island so as to provide better means of approach to a dock on Neptune Island at which steamboats landed for general carriage of passengers to and from Neptune Island, upon which there was a hotel; but the way existed long before this causeway was built. There is much doubt whether the part of the way from the Pelham road to the docks on Neptune Island were public highways; but there can be none but that the Glen Island occupants and all who came to it and went from it, passed as a matter of right over this way. As to the question presented it is a matter of no importance whether the way is public or private. If Glen Island owns a ferry right, with a float on Neptune Island, and a right of free passage from this float to and from the Pelham road, they should not be prevented by injunction from using it. The right of approach, if it exists, would not be destroyed by the increased number of passengers which now pass over the ferry. The use acquired by prescription was for all who wished to go to Glen Island, and the right is not destroyed because the number of passengers is increased by the creation of a place of resort for people in summer to visit for purpose of pleasure and recreation.

I, therefore, concur in the result arrived at by Judge Pratt.

Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.


author: Barnard, P. J.: Pratt, J.:

text:
    Franklin P. Roberge, Respondent, v. Maria N. Winne and Another, Appellants.

      A mortgage as consideration for a conveyance — agreement to substitute a valid for a woi'thless mortgage — verbal agreement executed by one pa/rty — Statute of Jfrauds— consideration.

    In an action brought to compel specific performance of an agreement to execute a mortgage, it appeared that the plaintiff had conveyed certain real estate to the defendant, in accordance with a parol contract which provided that part of the consideration should consist of a certain mortgage upon property of the defendant; that this mortgage was discovered to be worthless and the defendant then agreed verbally to substitute for it a mortgage for the same amount upon other property, hut afterwards refused to comply with that agreement; the plaintiff brought the action for specific performance, and obtained a decree which directed the defendant to execute the mortgage agreed to be substituted.

      Held, that the contract for conveyance having been executed by the plaintiff, and the defendant having thereby received the consideration for her promise, the Statute of Frauds did not apply ;
    That the consideration for the original mortgage attached to and sustained the mortgage decreed to be executed in its place.

    The decree provided for a mortgage to run a yeai', while the proof was silent as to the time the mortgage should run.

      Held, that the law implied that the mortgage should run for a reasonable time ; that a year was a reasonable time ; and that there was no variance.

    Appeal by the defendants, Maria N. Winne and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Westchester county on the 2Jth day of January, 1893, upon a decision of the court rendered after a trial by the court at the Westchester Special Term.
    The action was brought to compel the specific performance of an alleged parol agreement by the defendant Maria N. Winne to execute a mortgage for $3,500 on certain real property situate in the town of Greenburgh, in Westchester county, in the place of a mortgage, discovered to be worthless, which it had been .agreed should be. given to the plaintiff as part consideration for certain real estate in New Jersey, conveyed by the plaintiff to the defendant Winne in accordance with a parol agreement entered into between them.

      Edmund Lewis Mooney and Andrew J. Shipmcm, for the appellants.

      Frank LI. Gray, for the respondent.

       Sec Coffin v. Lockhart, post, page 262. — [Rep'.

       See Van Schaick v. Van Buren, 70 Hun, 575.— [Rep.

   Barnard, P. J.:

The plaintiff conveyed to the defendant Winne certain real estate in New Jersey. It was part of the contract for the payment of the consideration that Winne should assign a second mortgage of $3,500 on real property on Thirty-ninth street, New York, the first mortgage being $21,000. It was found that there was a second mortgage of $5,000, and that the $3,500 mortgage was worth nothing. The defendant Winne agreed to substitute a first mortgage on her lands in Westchester county for $3,500, and this second mortgage was to be released. The defendant now refuses to comply. The Statute of Frauds does not cover the case. Mrs. Winne has received the consideration for her promise. If the contract was an executory one no action would lie upon it, but it has been performed by one party, and it would be inequitable to refuse a specific performance when the vendee lias transferred the property in question without consideration and fraudulently, to evade her promise, and is worth nothing beside this land. (Beardsley v. Duntley, 69 N. Y. 577; Newman v. Nellis, 97 id. 285 ; Miller v. Ball, 64 id. 286.)

The judgment should be affirmed, with costs.

Pratt, J.:

The justice of the judgment given below cannot be questioned. We need only examine whether any technical objection requires our interference.

Appellants insist that by filing a bill in equity in New Jersey for rescission, plaintiff is precluded from maintaining an action in affirmance of the contract. A sufficient answer is that no such defense is pleaded.

It is said that no consideration existed for the agreement to give the mortgage decreed to be executed. A full consideration was paid in advance for the prior mortgage.

When, upon the failure of that mortgage, the parties agreed upon a substitution, no further consideration than their mutual promises was necessary. The consideration of the first mortgage attached and sustains the last.

Nor is there any merit in the objection that to enforce the agreement to substitute a valid mortgage for the worthless one, plaintiff must surrender the store which was part of the original consideration.

As to the objection that the decree provides for a mortgage to ran a year, while the proof is silent as to the time the new mortgage should run, the law implied that the mortgage should run for a reasonable time. We think one year is such a length of time, and that there is no variance.

Judgment must be affirmed, with costs.

Dykman, J., not sitting.

Judgment affirmed, with costs.


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    Anna Megrue, Respondent, v. The United Life Insurance Association, Sued as United Life and Accident Insurance Association, Appellant.

      Action on a policy of life insurance — affirmative equitable defense — trial of the cause— necessity of putting the application in evidence.

    In an action brought to collect the amount due upon a life insurance policy, an affirmative equitable defense was pleaded, and the case was tried without objection at a Circuit Court, before the court and a jury.

      Held, that a judge in an equity case can seek the verdict of a jury to inform his conscience.
    That where in such an action the policy and admissions contained in the answer make out a prima facie case, it is in the discretion of the trial judge whether or not to require the plaintiff to put in evidence the application'for the insurance, and the defendant in such an action is not prejudiced by his refusal to so order.

      Appeal by tbe defendant, tbe United Life Insurance Association, sued as the United Life and Accident Insurance Association, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of Kings on tbe 3d day of February, 1893, upon a verdict for $11,591.53, rendered at tbe Kings County Circuit, and from an order entered in tbe said clerk’s office on tbe 8th day of February, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes of tbe court.

      Henry Wilber, for tbe appellant.

      Jam,es 0. Bergen, for tbe respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a new trial upon tbe minutes.

Tbe action was upon a life insurance policy and the defense was an affirmative one, based upon allegations that tbe deceased made false answers in bis application for insurance.

Tbe issues submitted to tbe jury were three in number, viz.: First. Whether tbe application for insurance was made December 31, 1889, or on January 9, 1890. Second. Was tbe deceased’s answer to question No. Yin bis application a true answer, and, third. Did tbe deceased make a true answer to tbe question, Ha.ve you ever had any serious illness, local disease or personal injury ? ”

It is apparent, and the court so instructed tbe jury, that if they found in tbe affirmative upon tbe first question, i. e., that tbe apph-cation was made on December 31, 1889, there was no occasion to consider tbe second question, as it was conceded that at that time there bad been no refusal by any other company to issue a policy upon any application made by tbe deceased.

Upon tbe first question there was much evidence taken, and it was of a highly contradictory character. We think, as the matter stood, tbe court properly submitted tbe case to tbe jury, and that their verdict must stand.

Tbe main issue was upon tbe third question, to wit, the physical condition of tbe insured at tbe time tbe insurance was effected.

The defendant assumed tbe affirmative upon tbe issue that tbe deceased falsely answered tbe question as follows: Have you ever had any serious illness, local disease or personal injury ? ” Upon this issue much evidence was taken, and we cannot say there was any such preponderance of testimony as to require the court to take it away from the jury, and it is entirely clear that the verdict is sustained by the evidence.

But the defendant claims that inasmuch as an affirmative equitable defense was pleaded it was error to try the cause at Circuit with a jury.

One answer to this proposition is that it was tried at Circuit without objection, and another is that a judge in an equity case can seek the verdict of a jury to inform his conscience.

Another ground of error is that the plaintiff did not put in evidence the application for insurance made by the deceased. The policy, and the admissions in the answer and upon the trial, made out a prima, faoie case, and it was in the discretion of the judge whether to require the plaintiff to put in the application or not.

The defendant was not prejudiced by his refusal to so order.

It was preeminently a case for a jury to determine, as it involved disputea questions of fact and conflicting testimony, and the credibility of witnesses. There was evidence to support the contentions of both parties. Under such circumstances, the verdict must stand.

We have examined all the exceptions, and find no error sufficient to warrant a reversal of the judgment or the granting of a new trial.

The judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Jacob Jamer, Appellant, v. Emma E. Jacobs and Charles H. Jacobs, Respondents.

      Pm'tnership accounting — responsibility for the bookkeeping.

    In an action brought by one member of a partnership against his copartners for an accounting, and to obtain a judgment charging upon the defendants an apparent deficiency of assets, the plaintiff claimed that the defendants were especially charged with the duty of keeping the books, and should be held responsible if any assets were missing, it appearing that for two years, at the outset of the business, the defendants’ representative in the firm, did, in fact, keep the books, but that as the business grew, his attention was given to other duties, and the accounts were kept by various subordinates, subject to the orders of all the partners.

      Held, that the defendants were not shown to have assumed such responsibility;
    That it was not clear that had the defendants kept the books, they would be held responsible to make good any apparent loss;
    That a failure to keep a '“suspense account” during thirteen years, though it might well, at the end of that time, result in an apparent deficiency of assets, did not indicate any wrongful disposition of the firm property.
    Appeal by the plaintiff, Jacob Jamer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of Kings county on the 21st day of June, 1892, upon the report of a referee.

      A. J. Perry, for the appellant.

      Stephen R. Jacobs, for the respondents.
   Pratt, J.:

The action is brought to settle the accounts of a copartnership, and also seeks to charge upon defendants an apparent deficiency of assets.

The referee declined to hold either partner responsible for such deficiency, which he found to be rather apparent than real, and due to a faulty system of bookkeeping, and decided that the plaintiff, who was the liquidating partner, was indebted to the defendants upon a settlement of the accounts.

"We have examined the grounds of both these results, and find them sustained by the evidence.

The appellant claims that defendants were especially charged with the duty of keeping the books, and should be held responsible if any assets are missing.

"We do not find them to have assumed such responsibility.

Prom 1812 to 18J4, at the outset of the business, it seems that defendants’ representative in the firm did, in fact, keep the books, but, as the business grew, his attention was given to more active duties, and the accounts were kept by various subordinates, at least four having been thus employed, subject to the orders of all the partners. Nor is it clear that had defendants kept the books they would be held to make good any apparent loss. "We also find that the evidence sustains the finding that the boobs were so kept as truthfully to represent the transactions.

The failure to keep a “suspense account” during thirteen years, though it might well at the end of that time result in an apparent deficiency of assets, did not indicate any wrongful disposition of the firm property which the referee correctly held was not established.

The proof sustains the report as to the balance found owing by the plaintiff. There was no dispute that the property was divided at the dissolution, $18,834.21 to plaintiff, and $14,793.30 to defendants, by which plaintiff became chargeable with $2,030.45.

Nor is there any question that plaintiff as liquidating partner received $45,817.32 cash assets.

He is given credit for $22,825, paid out in settlement of the firm affairs, leaving him chargeable with $22,992.30, of which one-half belonged to defendants. He is credited with paying $9,157.95 of this amount to defendants. It is not suggested that he made any further payments, and the balance found against him is justified.

For a large amount of the payments credited to plaintiff no vouchers were produced, and it is not easy to see how he was entitled to be allowed for the payments.

The referee was equally indulgent to plaintiff in respect to interest. The affairs were liquidated, and defendants should have been paid their shares in July, 1886, yet interest was only allowed from January, 1887.

There are no exceptions to evidence which have injured plaintiff, and the judgment is affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    Port Richmond and Prohibition Park Electric Railroad Company, Appellant, v. The Staten Island Rapid Transit Railroad Company, Respondent.

      Intersection of railroads — electric street railroad, crossing a steam railroad— application of section 12 of the Railroad Law.

    Tlie provisions of section 12 of tlie Railroad Law (Okap. 565 of 1892), providing for the determination by commissioners of the method of railroad intersections when the companies cannot agree, apply to the intersection of a steam railroad, at a street crossing guarded by gates working by means of an overhead chain, by an electric street railroad operated by an overhead trolley wire.
    Appeal by the plaintiff, Port Richmond and Prohibition Park Electric Railroad Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Kings county on the 2d day of March, 1893, upon a decision of the court dismissing the complaint, rendered after a trial by the court at the Kings County Special Term.
    The action was brought to compel the defendant, the Staten Island Rapid Transit railroad, to remove the obstruction of a gate and its wires and chains to the operation of the plaintiff’s electric road, and to permanently restrain the defendant from interfering with the plaintiff’s road, cars, trolley and wires at a crossing, by erecting or maintaining a gate or otherwise.
    The trial court made, among others, the following findings of fact:
    “I. The plaintiff is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York, and is operating an electric surface railroad on a part of the shore road in the village of Port Richmond, New York.
    “ II. The defendant is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York, and for many years last past has been and is now operating a locomotive steam railroad which passes through said village.

      “ III. The route of the plaintiff’s railroad crosses the track of the defendant’s railroad on the shore road in said village.
    “ IY. For a long time prior to the organization of the plaintiff, and the construction of the plaintiff’s railroad on the shore road, the defendant had been crossing the shore road on grade, and had protected its said crossing by a ‘ Copeland ’ gate having four arms, two on each side of the tracks, operated by one crank, the four arms being connected by an endless chain which crosses the shore road on each side of the tracks fifteen feet eleven inches above the shore road when the gate is open.

      “ Y. The plaintiff operates its railroad by means of a trolley overhead wire.
    “ YI. The plaintiff cannot string its trolley wire across the defendant’s tracks and operate its cars across said tracks by the trolley system so long as defendant’s ‘ Copeland ’ gate is in use. The stringing of said wire and the operation of the plaintiff’s railroad by the trolley system are impossible unless the chain of said gate be broken, and the breaking of said chain renders said gate useless.

      u YII. About the end of J une, 1892, the plaintiff opened a negotiation with the defendant to obtain an agreement from the defendant giving it the right to string its wire and cross the defendant’s tracks. While this negotiation was pending, and before the terms and conditions of crossing had been fixed, the plaintiff requested the defendant to disconnect the chain of its gate and permit the plaintiff’s wire to be strung and its cars to be operated across the defendant’s tracks temporarily, pending the settlement of the terms and conditions of crossing. The defendant complied with said request in or about the month of June, and the plaintiff operated its cars across the defendant’s tracks by the trolley overhead system, between about July 3 and November 27, 1892, under said temporary permission granted by the defendant. The defendant’s gate during that period was useless in consequence of the breaking of the chain. After the plaintiff had strung its wires and had begun to operate its cars across the defendant’s tracks, through the courtesy of the defendant, it broke off the said negotiation, and no agreement of any kind has ever been made between the parties to this action with reference to the terms and conditions of crossing.
    “ YIII. On November 27, 1892, the defendant again connected its gate ehaiD, and since that time the plaintiff has been unable to operate its cars across the defendant’s tracks by means of the trolley system.
    “ IX. No application has been made to the court by the plaintiff for the appointment of commissioners, as provided in section 12 of the Railroad Law.”
    The court found the following conclusions of law :

      “ I. That the defendant’s gate was and is a lawful structure.
    “ II. That the plaintiff could not lawfully string its wires and operate its cars across the defendant’s tracks without either agreeing with the defendant upon the terms and conditions of crossing or having the same fixed by commissioners appointed by the court, pursuant to section 12 of the Railroad Law.

      “ III. That the plaintiff obtained no permanent right of crossing the defendant’s tracks by reason of the temporary permission to cross the same granted by the defendant in the latter part of June, 1892, and that the defendant’s act in the reconnecting its gate chain in November, 1892, was proper and legal.
    “ IT. That the plaintiff has made no case for the interference on its behalf of a court of equity.
    “ V. That the complaint should be dismissed, with costs.”
    Section 12 of chapter 565 of the Laws of 1892, the General Railroad La-w, provides as follows:

      “ 12. Every railroad corporation whose road is or shall be intersected by any new railroad, shall unite with the corporation owning such new railroad in forming the necessary intersections and connections, and grant the requisite facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or upon the line or lines, grade or grades, points or manner of such intersections and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court, as is provided in the Condemnation Law; and such commissioners may determine whether the crossing or crossings of any railroad before constructed shall be beneath, at or above the existing grade-of such railroad, and upon the route designated upon the map of the corporation seeking the crossing, or otherwise.”

      Alexander 8. Bacon, for the appellant.
    Tracy, Bomdman & Platt, for the respondent.
   Pratt, J.:

We think the seventh finding of fact is sustained by the evidence. From that it follows that no agreement was reached between the companies as to the crossing.

If plaintiff cannot make a satisfactory arrangement it must apply under the Railroad Act, which we believe to be applicable.

The judgment must be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.