author: Van Brunt, P. J:

text:
    ALEXANDER WARNER, Respondent, v. THE UNITED STATES LAND AND INVESTMENT COMPANY, Appellant.

      Allegations in an answer, of no knowledge or information sufficient to form a belief as , to certain facts alleged in the complaint, constitute a good, denial

    In an action, brought to recover the face value of twenty mortgage bonds of $1,000 each, issued by the defendant, the complaint alleged, among other things, that the defendant had made default in the payment of the interest, and that on a given day, at the office of the agency of the defendant, a foreign corporation; in the city of New York, the plaintiff demanded the payment of said interest, which the defendant refused; and, further, that the defendant had made default in the payment of the interest after such application, and that such default was continued ninety days after such interest became due and was duly demanded. The plaintiff claimed that the defendant, having defaulted in the payment of the interest due thereon, that, under the option contained in the defaulting clause of the bonds, the principal thereof had become due and payable.
    In its answer the defendant alleged that it had no knowledge or information sufficient to form a belief as to the averments in the fifth, seventh and eighth paragraphs of the complaint, the last two of which contained the paragraphs relating.to the demand, and the default after such demand, and, therefore, denied the same.

      Held, that such allegations of the answer constituted a denial, and that such denial was not frivolous.

      The People v. Field (58 N. Y., 498); Lawrence v. Derby (34 How. Pr., 133); Richardson v. Wilton (4 Sandf., 708); Sherman v. New York Central Mills (1 Abb., 187) and Bronson v. Rock Island Railway Company (40 How., 48) distinguished.
    Appeal from a judgment in favor of tbe plaintiff, recovered at tbe New York Circuit, wbicb was entered in tbe office of tbe clerk of the county of New York on the 14th day of March, 1889 ; and, also, an appeal from an order, entered in the office of the clerk of the county of New York on April 11, 1889, denying the defendant’s motion for a new trial made upon the minutes of the justice presiding at the trial.

      W. B. Cowles, for the appellant.

      C. A. H. Bartlett, for the respondent.
   Van Brunt, P. J:

This action was brought to recover the face value of twenty mortgage bonds of $1,000 each issued by the defendant, the plaintiff claiming that the defendant had defaulted in the payment of the interest thereon, and that under the option contained in the defaulting clause of the bonds he had a right to claim that the principal thereof was due and payable. It was held upon the trial not only that the answer did not set up any defense, but that it did not controvert any allegation upon the part of the plaintiff necessary to a recovery, and accordingly a verdict was directed for the plaintiff, and from the judgment thereupon entered this appeal is taken. It is claimed, upon the part of the plaintiff, that the principal of the bond was due and payable. It was provided by the bond that if default should be made in payment of the interest thereon for ninety days after it became due and payable and had been duly demanded, at the option of the holder thereof, the principal sum, with all arrears of interest, should thereupon become due and payable; and it is because of this clause of the bond that the plaintiff claims that the bond became due and payable.

It will be seen that not only must the interest become due and remain due for ninety days before the holder may exercise the option, but that ninety days must elapse after the interest has been duly demanded; and, therefore, without proof of the fact that the interest has been demanded ninety days before the commencement of the •suit, there is nothing to show that the plaintiff has aright to exercise the option to claim the whole amount of the principal and interest; and that this is the theory upon which the complaint was framed is evident from the allegations therein contained. After alleging that the defendant is a foreign corporation organized under the laws of the State of New Jersey, that it issued its bonds, that the plaintiff had become the holder' and owner of the bonds mentioned in the complaint, and that the defendant had made default in the payment, of the interest, there is an allegation that on a given day, at the office of its agency in the city of New York, the plaintiff demanded the payment of said interest, which the defendant refused; and? further, that the defendant has made default in the payment of the interest after such application, and that such default has continued ninety days after such interest became due and was duly demanded. If this allegation of demand has been put in issue, it seems to be clear that proof must be offered. It is claimed, however, that the-case of the Northampton Bank v. Kidder (106 N. Y., 221), established a different proposition, namely, that when the default in the payment of interest had occurred that the condition of the bond thereby attached, and the principal by the very terms of the bond became due at once.

An examination of that case, however, shows that nothing of the kind was decided. It is true that the condition of the bond was that in case of non-payment, when demanded, of any installment of interest, and of its remaining unpaid for six months, the principal should, without further demand or notice, become due and payable. But the learned court held that, under the stipulated facts of the case,, it has been stipulated that there was a default, that stipulation implied that there had been a demand and refusal, because until there had been a demand no default could occur. And they further held that, even if this were not so, it was conceded that the contribution to the sinking fund had not been made, and that default in that, respect clearly entitled the holder of the bond to exercise the option. It, therefore, was necessary for the plaintiff to prove the demand in case such demand was denied.

The denial of the demand contained in the answer, it is claimed upon the part of the plaintiff, was clearly frivolous and not a denial. In the answer the defendant alleged that it had no knowledge or information sufficient to form a belief as to the averments in the fifth,, seventh and eighth paragraphs of the complaint, and, therefore, denied the same. The seventh and eighth paragraphs of the complaint were the paragraphs relating to the demand and the default after such demand. In support of the proposition that such a. denial was frivolous, we are referred to various authorities, among which are the cases of the People v. Field (58 N. Y., 498); Lawrence v. Derby (24 How. Pr., 133); Richardson v. Wilton (4 Sandf., 708); Sherman v. New York Central Mills (1 Abb., 187) and Bronson v. Rock Island Railroad Company (40 How., 48). In none of those cases, however, was an answer held frivolous simply because it was upon information and belief.

In the case of Bronson v. Rock Island Railroad Company, it was held, in an action upon a bond payable to bearer in the possession of the plaintiff, that the answer, denying any knowledge or information sufficient to form a belief as to whether he was or was-not the holder and owner thereof, was frivolous because it raised no issue, not because of the form of the denial. In none of the other' cases was the answer held to be frivolous because of such denial, but was stricken out as sham, for the reason that in those particular-cases, from the very nature of the transaction, the defendant must, have had personal knowledge as to whether the allegation contained in the complaint was true. In the case of Sherman v. New York Central Mills, it is true the answer was stricken out as. frivolous, but upon the ground that the denial was in the conjunctive form, and that, therefore, it was impossible to state whether there-had been any material allegation in the complaint denied or not. It is also true that in the case of the People v. Field, in the opinion of' the court, the remark is made in respect to the allegation contained in the answer that the defendant had no knowledge or information sufficient to form a belief as to a fact contained in the complaint,, that the allegation did not specifically deny the averment as it should have done, but it subsequently appears that no such question existed in the ease, because the court say the case proceeded upon the-recognition, tacit or otherwise, by both parties, of the existence of the-facts which were averred in the complaint in this respect. But. the answer in that case was evidently different from the one now before the court, because in this answer there is a specific denial.. The defendant says that it has no knowledge or information sufficient to form a belief as to those averments, and, therefore, denies the same, which last clause was evidently absent from the-answer in the People v. Field. From the nature of this case,. there was nothing in the allegation contained in the complaint from which the defendant was necessarily presumed to have knowledge of the fact of this demand. It was a foreign corporation and the demand was made at its agency in the city of New York. And .although individuals and corporations are presumed to be acquainted with the acts done by themselves, yet they cannot be presumed to know as to acts done by others at agencies remote from the situs of the corporation itself. The court, under these circumstances, was not in a condition to direct a verdict in favor of the plaintiff, as the facts had not been proven which justified him in the exercise of his option.

The judgment should be reversed and a new trial ordered, with ■costs to appellant to abide event.

Brady and Daniels, JJ., concurred.

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


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    ADELE BERNHEIMER, JEROME BERNHEIMER and SANFORD BERNHEIMER, as Executors of the Last Will and Testament of ISABELLA BERNHEIMER, Deceased, Respondents, v. THOMAS KILPATRICK, Appellant.

      Liability of a person ca/using an excavation to be made in New Torh city for building purposes — chap. 410 of 1882, sec. 474 — the adjoining building must remain as stable as before the excavation.

    An action was brought to recover damages resulting to the building No. 644 Madison avenue, in New York city, from the excavation of the lot adjoining made by one Kilpatrick for the purpose of erecting his building, the “ Hoffman Arms,” at the corner of Madison avenue and Fifty-ninth street, under section 474 of chapter 410 of 1882, which contained the following provisions: “Whenever excavations, for building or other purposes, on any lot or piece of land in the , .city and county of New York, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times, from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stableasbefore the excavations ioere commenced.”

    Upon an appeal from a judgment in the action in favor of the plaintiff, the appellant urged that the only duty which the builder owed to the owner of the adjoining lots ceased at the completion of the excavation.

      Held, that this contention could not be sustained.
    That, under such a construction of the section, an adjoining owner could excavate to any depth that he might see fit, as long as, while he was in the act of digging, he kept the foundation of the adjoining house as stable as it was before the excavation was commenced, and as soon as he completed his work he would have the right to take away the support which he had put to the wall of the adjoining owner and let it fall down.
    That the act imposed upon the builder upon a lot the duty to so protect the adjoining wall, if he went more than ten feet below the level of the curb, that such wall should not be injured by reason of the structure which he put into the excavation after making it; so that the wall of such adjoining owner should remain as stable as before the excavation was commenced.
    The defendant claimed that there was no direct connection between the injuries sustained by the plaintiff’s house and the construction of the building of the defendant. It appeared that the plaintiff’s house had been erected for a number of years, and that it stood without settling; that an excavation to an immense-depth was made alongside of it, and that very shortly thereafter the walls began to crack and’the house perceptibly settled towards the excavation.

      Held, that this evidence was of such a character that the jury might safely infer that there was a very intimate connection between the two events, and that as it was impossible to produce witnesses who could swear that they had seen the excavation, and that as a result of the excavation the foundation of the adjoining house settled and cracks appeared, the jury were authorized to find a verdict in favor of the plaintiff.
    Appeal by tbe defendant from a judgment recovered upon a trial at tbe NewYorb Circuit before tbe court and a jury,wbicb was entered in tbe office of tbe clerk of tbe county of New York on tbe 24th day of January, 1888, and from an order denying a motion made upon tbe minutes of tbe justice wbo presided at tbe trial to set aside tbe verdict and for a new trial.

      W. F. Mac Rae, for the appellant.

      J. C. Smith, for the respondents.
   Van Brunt, P. J.:

Tbis action was brought to recover damages sustained by tbe building 644 Madison avenue, resulting from tbe excavation of tbe lots adjoining by the defendant, for tbe purpose of erecting bis building, “ The Hoffman Arms,” at the corner of Madison avenue and Fifty-ninth street.

The single question presented seems to be, whether, where an excavation is made, for the purpose of putting up a new building, to' a depth of more than ten feet below the curb adjoining a house .already built, the builder of the new building will be liable for injuries suffered by the adjoining building arising from the settlement of the foundations of the new building after completion, •carrying with it the foundation of the old. This question seems to be presented by the request to charge of the defendant, which .request was refused.

It is conceded that the plaintiff’s right to recover depends upon the construction of section 474 of chapter 410 of the Laws of 1882. 'That section provides as follows: “ "Whenever excavations for building or other purposes on any lot or piece of land in the city and ■ county of New York shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing .such excavation to be made, if afforded the necessary license to ■enter on the adjoining land, and not otherwise, shall, at all times, from the commencement to the completion of such excavations, at his own ■expense, preserve such wall from injury, aud so support the same by a proper foundation that it shall remain as stable as before the ■excavations were commenced.”

It is urged, upon the part of the appellant, that the only duty which the builder owed to the owner of the adjoining lots ceased at the completion of the excavation. It is clear that this construction cannot obtain, although it may accord strictly with the language upon which it is founded, because none of the evils which the act was intended to remedy, under such a construction, would be avoided. If the duty exists only from the commencement until the completion of the excavation, then, after the hole is dug and completely dug, all duty towards the adjoining neighbor ceases, which clearly was not the intention of the act. Under such a construction, an adjoining owner could excavate to any depth that he might see fit, and as long as he kept the foundation of the adjoining house as stable as it was before the excavation was commenced, while he was in the act of digging, Ms duty would have ceased, because immediately upon his ceasing to excavate his obligations to the adjoining owner would be fulfilled, and he would then have the right to take away the support which he had put to the wall and let it fall down if it would do so.

It is clear that the intention of the legislature went beyond this, and that the intention was to secure the adjoining owner against erections which went to a depth of more than ten feet below the curb; and this intention is expressed by a subsequent provision of the statute which compels the excavator to support the adjoming wall in such a way that it shall be preserved from injury and shall remain as stable as before the excavations were commenced. Therefore, it is a duty imposed upon the adjoining builder to so, protect the adjoinmg wall, if he goes more than ten feet below the level of the curb, that such wall shall not be injured by reason of the structure which he has put into the excavation after it is made, because the provision of the law is that the foundation of the adjoining house must be supported in such manner that it shall remain as stable as before the excavations were commenced. Now, if by the erection of a heavy structure the weight of the wall carries down the foundation of the building already erected, it is evident that the party making the excavation has not supported the wall of the adjacent house so that it remains as stable as before the excavation. The builder is bound at Ms own expense to preserve the wall from injury from the commencement until the completion of such excavation, and then he has the further duty imposed upon him of so supporting the wall by proper foundations that it shall remain as stable as it was before. It is difficult to see, if he has a right to make the excavation, and by the settlement of the building which he erects to carry down the foundation from underneath the house adjoining, how he has fulfilled the obligation placed upon him by the statute, that the foundation of the adjoining house shall remain as stable as it was before.

It was the intention of the legislature to protect houses that had a reasonably deep foundation from the incursions of those who desired to go down into the bowels of the earth in order to get additional stories for their buildings. And it has sought to protect adjacent owners from such a class of building by as explicit language as it was possible to employ. In other words, it has indicated its intention that, as the result of the excavation and the building thereon, the adjacent owner shall not be compelled to sustain any damage if the excavation has been carried to a depth of more than ten feet below the curb. The construction which is sought to be placed upon this act by the appellant would, it seems to us, absolutely defeat the purpose for which it is enacted. It would leave the adjacent owner, after an excavation had been concluded, absolutely at the mercy of the constructor of the new building.

There is another question to which attention is called by the points of the appellant, namely, that there was no direct connection between the injuries sustained .by the plaintiff’s house and the construction of the building of the defendant. It seems to us that the evidence hr this respect was of such a character that the jury might safely infer that there was a very intimate connection between the two events. It was impossible to produce witnesses who could swear that they had seen the excavation, and had seen that, as a result of the excavation, the foundation of the adjoining house settled and cracks appeared. "We think that it is a reasonable conclusion that the jury might very well draw from showing that the house had been erected for a number of years, that it stood without settling; that an excavation to an immense depth was made alongside of it and very shortly the wall began to crack and the house perceptibly settled towards the excavation. It hardly seems necessary to have any more definite proof in order to justify a finding of a connection between the excavation and the settlement of the house in question. If our construction of the act under which this action was brought is correct, it seems to-us that the proof was ample to justify the jury in coming to the conclusion which they did.

"We are of opinion that the defendant, having gone to more than ten feet below the ground in his excavation, became responsible to the owner of the adjoining house for any injuries which would result from the settlement of the foundation of the house he was erecting, he not having supported the walls of the adjacent house by a proper foundation, so that it remained as stable as before the excavations were commenced.

The judgment should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


text:
    MARTIN RHING, Respondent, v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Appellant.

      Action for negligence — when the master is not liable for am, error of judgment of the servant in extricating am, injured, person from a perilous situation.

    In an action, brought to recover damages claimed to have been sustained by the plaintiff by reason of the negligence of the defendant, it was alleged in the complaint that while the plaintiff was crossing Broadway at Twenty-sixth street, in the city of New York, a passenger car belonging to the defendant, with a team of horses, was so carelessly driven and managed by the driver thereof that, by reason of the negligence of the driver, and without any negligence on the part of the plaintiff, he was run into, thrown down, trampled upon by the horses and crushed and bruised by the said car, and in consequence was severely injured about his body and cut on tbe head and stunned.
    It appeared upon the trial that at the time the car was stopped, after the plaintiff had been knocked down, that he was under the front platform of the car, and that the car was pushed back to extricate him without unhitching the horses, and in consequence of this alleged negligence on the part of the driver the horses trampled on the plaintiff as he reappeared from under the platform.
    Tbe judge, in submitting the case to the jury, charged, among other things, that though the agents or servants had not been careless in the management of their car prior to the happening of the accident, and although they might not have been responsible therefor, yet if, after the plaintiff was knocked down, and after the horses had passed over him and he had got under the platform of the car and was in this perilous position, his injuries were increased by the failure of the driver to unhitch his horses at the time the car was pushed back in order to extricate the plaintiff, that the plaintiff was entitled to recover.
    Held, that he erred in so charging.
    That as this charge assumed that, for the happening of the original accident, the plaintiff had no right to recover, either because of his own contributory negligence or because the defendant had not been guilty of negligence in causing the accident, that the right of recovery for the subsequent injuries must rest upon the fact that the driver of the car had been guilty of an error of judgment as to the best means to use to extricate the plaintiff from the position in which he had placed himself by reason of his own negligence, which afforded no basis for the recovery of damages.
    That the right of action under such circumstances could arise only where the injury was inflicted or increased because of the doing or omission to do some act or acts the doing of which, or the omission to do which, was something other than the result of an error in judgment as to the means to be used in extricating the plaintiff.

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the New York Circuit, which judgment was entered in the office of the clerk of the county of New York on the 10th day of November, 1888; and also from an order dated November 8, 1888, and entered in the said clerk’s office on the 19th day of November, 1888, denying the defendant’s motion made upon the minutes of the justice presiding at the trial to set aside the verdict and for a new trial.

      Samuel B. Clark, for the appellant.

      John Frankenheimer, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages claimed to have been sustained by reason of the negligence of the defendant, the allegation in the complaint Tpeing that while the plaintiff was crossing Broadway, at Twenty-sixth street, a passenger car belonging to the defendant, with a team of horses, was so carelessly driven and managed by the driver thereof that, by reason of the negligence of the driver, and without any negligence on the part of the plaintiff, he was run into, thrown down, trampled upon by the horses and crushed and bruised by said car, and in consequence was severely injured about his body and cut on the head and stunned.

The answer of the defendant denied these allegations, and evidence was offered tending to prove the allegations of the complaint; and it also appeared that at the time the car was stopped, after the plaintiff had been knocked down, that he was under the front platform of the car with his head under the front wheel, and that the car was pushed back to extricate the plaintiff without unhitching the horses, and in consequence of this alleged negligence on the part of the driyer the horses trampled on the plaintiff as he reappeared from under the platform.

The learned coiu’t, submitting the case to the jury, charged, amongst other things, that though the agents or servants had not been careless in the management of their car prior to the happening of the accident, and although they may not have been responsible therefor, yet if, after the plaintiff was knocked down and after the horses had passed over him and he had got under the platform of the car and was in this perilous condition, Ms injuries were increased by the failure of the driver to unhitch Ms horses at the time the car was pushed back in order to extricate the plaintiff, he was entitled to recover. This instruction may have been error, because no such cause of action was set up in the complaint, and because no liability would be incurred by the defendant' because of the failure of their driver to use the best means to extricate the plaintiff, it being without fault as to Ms getting under the car, and if there is any exception or ruling which raises the point, it is necessarily fatal to the judgment.

The court, in answer to a request of the defendant to charge, reiterated the charge that if the plaintiff was in a perilous condition, and by the failure to use ordinary care and prudence he suffered injury, the defendant would be hable, assuming the plaintiff himself not to have in any way contributed to it. To this charge an exception was duly taken. It seems to us, therefore, that the question was raised and that it was the intention to have the jury understand that although the plaintiff might not be entitled to recover because of his own negligence for the original happening of the accident, yet still the servants of the defendant having, in the extrication of the plaintiff from his perilous position, failed to use the best method for extricating the plaintiff, and he having suffered additional injuries he might recover. TMs proposition is erroneous if no such cause of action is sot up in the complaint, or if there is no such rule of law. In this proposition, in view of the facts of this case, it seems to be assumed that for the happeMng of the original accident the plaintiff had no right to recover, either because of his own contributory negligence or because the defendant had not been guilty of negligence in causing the accident.

In this condition of the proof, the right of recovery for subsequent injuries incurred by reason of the fact that the driver of the car made an error of judgment as to the best means to be used to extricate the plaintiff from the position in wMeh he had placed himself, by reason of his own negligence, does not exist. A right of action, under such circumstances, can arise only where the injury was inflicted or Mcreased because of the doing or the omission to do some act or acts the doing of which or the omission to do which was other than the result of an error of judgment as to the means to be used in extricating the plaintiff. Any other rule would, where there were various steps in the happening of an accident culminating in the injuries suffered, authorize a division of liability as to those various steps which contributed to the happening of the whole accident. The plaintiff would not be able to recover for some of these steps by reason of his contributory negligence. But if at any stage of the happening of the accident he was free from contributory negligence, the liability of the defendant would begin, notwithstanding the fact that it had been guilty of no negligence whatever in the initiation of the events which produced the injury. It is clear that this proposition cannot be maintained, because if the plaintiff was guilty of contributory negligence at all, the effects of such negligence permeate the whole transaction. ¥e think, therefore, that the jury were allowed to take into consideration improper facts upon which they may have based their judgment, and have deemed themselves authorized, simply because of the error of judgment of the defendant’s driver, in extricating the plaintiff, to give the plaintiff compensation for all the injuries which he had sustained, even for those which were initiated by his own negligence.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Cullen, J., concurred.

Judgment reversed, and new trial ordered, with cost to the appellant to abide the event.


author: Van Brunt, B. J.:

text:
    JOHN I. TILTON, Respondent, v. SUSAN M. VAIL and Others, Appellants.

      A tenant by the curtesy in an undivided shcwe of real property may maintain an action for partition — Code of Civil Procedure, sees. 1532-1538.
    In January, 1871, Joseph. R. Vail died intestate seized of certain premises, leaving Mm surviving his widow, Susan M. Vail, Ms son, JohnR. Vail, and Ms daughters, Adelina M. Vail and Lilla B. Vail. In September, 1881, Lilla B. Vail married the plaintiff, and in June, 1884, gave birth to a living child, which died shortly after its birth, and herself died in July, 1884, intestate, leaving her husband, the plaintiff, and her mother and sister and brother above named surviving.

      The plaintiff, claiming as tenant by the curtesy in ihe undivided share oí his deceased wife, commenced this action for a partition, which was resisted upon the ground that the plaintiff, claiming solely as a tenant by the curtesy, was not only not permitted to bring an action for partition, but that it*was expressly forbidden by section 1538 of the Code of Civil Procedure.

      Held, that the plaintiff was entitled to maintain the action, because of the authority conferred upon him so to do by section 1532 of the Code of Civil Procedure, which provides that where two or more persons hold, and are in possession of, ■ real property as joint tenants, or as tenants in common, in which either of them has an estate of inheritance, or for life or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein, and for a sale thereof, if it appears that a partition thereof cannot be made without prejudice to the owners.

      Van Arsdale v. Brake (2 Barb., 599) followed.
    That the plaintiff, as a tenant by the curtesy of his wife’s share in this real estate, was entitled to the same possession during his life that his wife would have been entitled to had she been alive, which was a right in possession of every part and parcel of the subject-matter of the tenancy, and that he thus fulfilled the definition of a tenant in common.
    A tenant by the curtesy of an undivided share of real estate is just as much entitled to the possession of the real estate as though he owned the fee of that share, because he is, during his life, the owner of that share.
    The rule that a tenant by curtesy cannot maintain an action of partition applies to those cases where he is tenant by the curtesy of the whole estate, and as a consequence his possession is exclusive and he clearly does not come within the definition of being tenant in common with any body or of anything.
    Appeal by tbe defendants from an interlocutory judgment confirming tbe report of a referee, appointed to take proof of title in an action for partition, and ordering a sale, which was entered in tbe office of tbe clerk of tbe county of New York on January 30, 1889.

      Alexander Thain, for tbe appellants.

      W. C. Beecher, for tbe respondent.
   Van Brunt, B. J.:

Tins action was brought for tbe partition of certain real estate situate in the city of New York. In January, 1811, Josiab B. Vail died intestate, seized of tbe premises in question, leaving him surviving bis widoTv, Susan M. Vail, bis son John B. Vail and bis daughters, Adelina 1VI. Vail and Lilla B. VaiL In September, 1881, Lilla B. Vail married tbe plaintiff, and in June, 1884, gave birth to a hving child, who died shortly after its birth, and herself died in July 1884, intestate, leaving her husband, the plaintiff, and her mother and sister and brother, above named, surviving. The plaintiff, claiming as tenantry the curtesy of the undivided share of his deceased wife, commenced this action for a partition, which was resisted upon the ground that the plaintiff, claiming solely aá tenant by the curtesy, is not only not permitted to bring an action for partition, but is expressly forbidden by the Code of Civil Procedure to be plaintiff in an action brought for that purpose. The plaintiff claims that by authority of section 1532 of the Code, the right to maintain this action has been conferred upon him. The defendants, however, are equally strenuous in asserting that by section 1538 he is expressly prohibited from bringing such an action. Although this case has been before the court upon a previous occasion, yet the decision upon that appeal in no way disposes of the question now presented, as the question then seemed to turn upon the condition of the pleadings, and not upon the facts as they have been subsequently proved upon the hearing before the referee. Section 1532 of the Code is the same as section 1, title 3, chapter 5, part 3 of the Revised Statutes (2 R. S., 317) with some unnecessary alteration of expressions which have in no degree added to the clearness of the language therein contained. This section provides that where two or more persons hold and are in possession of real property as joint tenants or as tenants in common, in which either of them has an estate of inheritance or for life or for years, any one or more of them may maintain an action for the partition of the property according to the respective rights of the persons interested therein, and for a sale thereof if it appears that a partition thereof cannot be^ made without prejudice to the owners.

Our attention has been called to no adjudication tending to elucidate the language of this section as it appears in the Code or as it appeared in the Revised Statutes. Reference is made to the case of Reed v. Reed (16 Hun, 212) and which was subsequently affirmed in 107 New York, 545, which, however, from its facts cannot be considered as an authority under the section in question. There is one case, however, decided many years ago, in 1818 (Van Arsdale v. Drake, 2 Barb., 599), in which it was held that the assignee of a person seized of a life estate in a share of real property might maintain an action in partition, upon the ground that the plaintiff in the suit was seized of an estate for life in the premises described in the pleadings, as tenant in common with the defendants representing the whole estate, and, therefore, had an absolute right under the statute to a decree of partition, which is the identical question involved in the case at bar. A reading of the section shows that it was the understanding of the legislature that tenants in common might be seized of different estates in the same property, as, for example, one might have an estate of inheritance in a portion of the property, another might have an estate for life and another might have an estate for years, and yet they would be tenants in common in the property; and being tenants in common and in possession of the property, any one of them might maintain under the provisions of this section an action for partition. This is precisely what was held in the case to which attention has been called, namely, that the owner of the life estate in the premises was a tenant in common with the owners of the fee.

If this is not the construction to be placed upon this section, it is difficult to see what was intended by this legislation, because the section does not say that where two or more persons hold and are in possession of real property, as joint tenants or tenants in common, in which they have an estate of inheritance or for life or for years, they may maintain an .action; but it provides that where two or more persons hold and are in possession as joint tenants or as tenants in common of real property, in which either of them has such an estate, he may maintain such an action, clearly embodying the idea that where there is a right of possession, and possession upon the part of a person either holding an estate of inheritance as to part, or an estate for life or for years, he is a tenant in common. To constitute a tenancy in common, there must be an equal right in the possession of every part and parcel of the subject-matter of the tenancy. The plaintiff, as tenant by the curtesy of his wife’s share in his real estate, was entitled to the same possession during his life that his wife would have been entitled to had she been alive, which was a right in the possession of every part and parcel of the subject-matter of the tenancy, and thus he fulfills the definition of a tenant in common.

Tenants in common have been described to be such as hold by several and distinct titles, but by unity of possession. It appears, therefore, that the test as to whether the parties are tenants in common oí*'not does not depend upon the extent or the duration of their right as long as they have a right of possession in common with the other holders of the title. A tenant by the curtesy of an undivided share of real estate is just as much entitled to the possession of the real estate as though he owned the fee of that share, because he is during his life the owner of that share. There is, therefore, that unity of possession which the law requires in order to make the owners of the estate tenants in common. The rule that a tenant by the curtesy cannot maintain an action of partition applies to those cases where he is tenant by the curtesy of the whole estate, and as a consequence his possession is exclusive, and he clearly does not come within the definition of being a tenant in common with anybody or of anything. The case of Reed v. Reed was a case of this description. And this interpretation of section 1532 fully complies with the prohibition in section 1538, which seems to have been injected into the law by the codifier, as we cannot find that it existed in the [Revised Statutes. Now, as we have seen that a tenant by the curtesy of an undivided share in an estate is a tenant in common with the other owners of the property, the prohibition of this section 1538 does not apply. It would seem, therefore, that the court below was correct in holding that the plaintiff had a right to maintain the action in partition. The objection that the referee erred in not finding that the defendant Susan M. Vail was entitled to an undivided third part of the estate as heir-at-law of the deceased daughter is not well taken, because such deceased daughter, having a brother and sister living, the fee of said undivided third part did not descend upon the mother under the provisions of the statute.

The judgment appealed from should be affirmed, with costs.

Brady and Daniels JJ., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. I.:

text:
    EMIL A. KOSMAK, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Permit to enter a private drain — the owner acts at his own risk — -power of a city to make a pi’ivate drain a public one — the city not liable for a drain used by it as a private owner — examination of a witness as to statements made by him.

    One Kosmak, who was the lessee of the premises known as Nos. 13 and 15 Chatham street, in the city of New York, which he occupied as a restaurant and liquor saloon, brought an action against the city of New York, to recover damages for a nuisance committed by it, upon the aforesaid premises, by causing the refuse and contents of a sewer situated in Frankfort street, in the said city, to be emptied thereon. Upon the trial it was proven that the plaintiff occupied the premises, known as No. 15 Chatham street, during the periods mentioned in the complaint; that a public sewer had been constructed in Frankfort street, from the corner of Frankfort and Chatham streets, towards the East river; that, on the 13th day of October, 1857, upon the application of the owner of the house No. 17 Chatham street, a permit was issued to her to construct a private drain from said house, through Chatham street, to connect with the sewer in Frankfort street. The said drain passed the premises of the plaintiff and connected with the Frankfort street sewer, on its northerly side, at a point some distance from the corner of Chatham street.
    In October, 1880, a permit was issued, on the application of the then owner of the plaintiff’s premises, to open the street for the purpose of making connection with this private drain, the applicant being told by the permit clerk that there was no public sewer in Chatham street; that the property No. 17 Chatham street had been taken by the Brooklyn bridge, and that no permission to use the drain would be given unless with the permission of the bridge officials. This permission having been procured by the applicant a permit was given, the applicant being told that if he went in there he went at his own risk, as the city officials did not know anything about it and did not have anything to do with it. The plaintiff fitted up the premises, and subsequently, in February, 1881, and on several occasions thereafter, sewer refuse ran into the plaintiff’s premises, through the connection which had been made with the drain, and his property was injured. In October, 1883, a public sewer was built in Chatham street.
    Upon the trial the jury were instructed that if the drain in Chatham street was obstructed, and the difficulty arose from that fact, the city was not responsible; whereas, if the jury found that the obstruction was in the Frankfort street sewer the public authorities had not performed their duty and they became responsible for the overflow.

      Held, that the charge was correct.
    The plaintiff offered to show that the premises No. 17 Chatham street, to which this drain was an appurtenance, had been conveyed by the owner thereof to the trustees of the Brooklyn bridge, and that such trustees had, by carrying into this sewer the water from the bridge, overcharged this drain, and that this was one of the causes of the overflow, claiming that the bridge trustees were the joint agents of the two cities of Brooklyn and New York, and that the city of New York was responsible for the damages occasioned by such action on the part of the trustees.

      Held, that there were two answers to this claim:

      Mrst. That the plaintiff had alleged no such cause of action.

      Second. That the damage which the plaintiff suffered arose from the connection which he had voluntarily made with the drain in Chatham street, of the use of which he was a mere licensee, and for the damages resulting from which he had no right of action against the city.
    That the owner of No. 17 Chatham street was under no greater obligation to keep the sewer in good condition than he was.
    That nothing could be predicated of the fact that the corporation had issued the permit to make the connection with this drain, as it appeared from the evidence that at the time the permit was applied for the applicant was told that this was a private drain, and that the connection could not be made except with the consent of the owners.

      Qucere, whether the public authorities can, by an acknowledgment and adoption of a private sewer, make it a public one.
    That the conveyance to and the use of the sewer by the bridge trustees was evidence of a possession, use or control of the sewer by the cities of New York and Brooklyn as private owners, and in that manner only, and not a possession, use or control by the city of New York, under any public authority, or a use accompanied or impressed with any public duty.
    Upon the trial an objection was taken to the reading of a portion of the testimony taken on the preliminary examination of the plaintiff, pursuant to the statute, by the comptroller. His signature to the original examination being shown to the plaintiff, and he being asked if the signature was his own, and having said that it was, he was then asked whether he did not swear thus and so in that exam- . ination before the comptroller. It appeared from the record that the questioner read from this examination in asking the witness whether he did not swear thus and so before the comptroller.

      Held, that it was not necessary, in order to frame a proper question, that the examiner should have shown the plaintiff the examination, or read from any portion of it; but that, if he choose to put the question, using the examination for the purpose of framing the question, he had the right to do so.
    That the fact that the plaintiff had been asked whether he had or had not testified in the previous action in a certain way did not give him the right to read the balance of such deposition in evidence, as no part of the deposition had been offered in evidence.
    Appeal from a judgment recovered at the New York Circuit, which was entered in the office of the clerk of the county of New York on the 11th day of January, 1889, in favor of defendant; and also from an order, entered on the 19th day of December, 1888, made upon the minutes of the justice presiding at the trial denying a motion to set aside the verdict and grant a new trial.

      D. Levenhitt, for the appellant.

      David, J. Dean, for the respondent.
   Van Brunt, P. I.:

The complaint in this action sets up two causes of action. In the first cause of action it is alleged that the plaintiff was the lessee of the premises known as Nos. 13 and 15 Chatham street, in the city of New York, which he occupied as a restaurant, wine and liquor saloon. That the defendant was a municipal corporation, and as such had charge of the sewers laid in and under the streets of the city of New York; that on or about the 1st of February, 1882, the defendant committed a nuisance upon the aforesaid premises by causing the refuse and contents of the sewer situated on Frankfort street in said city to be emptied thereon, and that, notwithstanding due and proper notice thereof was given to the proper officers of the defendant, the defendant continued to maintain the same from February, 1882, to October, 1883, whereby the plaintiff was damaged to the extent of $50,000.

For a second cause of action the complaint makes the same allegations in regard to ownership and occupancy by the plaintiff, and that the defendant, as such municipal corporation, had charge of the sewers laid in and under the streets of the city of New York, and that it was the duty of the defendant to use reasonable care and diligence in the management and repairs of such sewers so that the abutting owners should not be injured thereby, and that in disregard of said duty the defendant so negligently and carelessly managed the sewer laid in Frankfort street and Chatham street that the refuse and contents of said sewers, and each of them, flowed in and upon the premises of the plaintiff from February 1,1882, to October 24,1883 ; that the plaintiff suffered damage to the amount of $50,000, which damage the plaintiff claimed to recover in this action. Upon the trial it was proven that the plaintiff occupied the premises known as No. 15. Chatham street during the periods mentioned in the complaint; that a public sewer had been constructed in Frankfort street from the corner of Frankfort and Chatham streets toward the East river; that on the 13th of October, 1857, upon the application of the owner of house No. 17 Chatham street a permit was issued to her to construct a private drain from said house through Chatham street, to connect with the sewer in Frankfort street; that said drain passed the premises of the plaintiff and connected with the Frankfort street sewer on its northerly side at a point some feet distant from the corner of Chatham street.

In October, 1880, a permit was issued on behalf of the then ■owner of the plaintiff’s premises to open the street for the purpose of making a connection with the private drain constructed .by the owner of the premises-No. 15 Chatham street. At the time of applying for permission to make this connection the applicant was told by the permit clerk (and this was the fact) that there was no public ■sewer in Chatham street at that point. The applicant then wanted to know how the building No. 17 Chatham street was drained, and he was told that it was drained by a private drain built in 1857, connected with the sewer in Frankfort street; he was also told that the property No. 17 Chatham street had been taken for the Brooklyn bridge, and that no permission to use the drain would be given unless with permission of the bridge officials ; and subsequently the applicant returned and said he had the consent of the bridge officials to connect with the drain, and thereupon the permit was given. lie was also told that if he went in there he went at his own risk as the city ■officials did not know anything about it and did not have anything to do with it (referring to the private drain). On this permission the pavement was taken up and the connection made to drain the plaintiff’s premises from the drain in question. The plaintiff fitted up the premises as a restaurant and bar-room, and commenced business in February, 1881, and subsequently in February, 1882, and on several occasions thereafter, sewer refuse ran into the plaintiff’s premises through the connection which had been made with the drain, and his property was injured. On the 26th of February, 1883, and at various times thereafter the plaintiff gave notice that his premises were flooded from the sewer. In October, 1883, a public sewer was built in Chatham street, and the plaintiff’s premises connected therewith, and since that time the drainage thereof has been perfect.

The main question submitted to the jury upon the trial was. whether the overflow which came into the plaintiff’s premises resulted from the stoppage of the private drain or the public sewer in Frankfort street, and the jury were instructed that if the drain in Chatham street was obstructed, and hence arose the difficulty, the city was not responsible, whereas if the jury found that the obstruction was in the Frankfort street sewer, the public authorities had not performed their duty and they became responsible for the overflow. The plaintiff sought to show that the premises No. 17 Chatham street, to which tins drain was an appurtenance, had been conveyed by the owner thereof to the trustees of the Brooklyn bridge, and that such trustees had, by carrying into this sewer the water from the bridge, overcharged this drain, and that this was one of the causes-of the overflow; claiming that as the bridge trustees were the joint agents of the two cities, of Brooklyn and New York, and that as-they held this property in trust for the benefit of the two cities, and as the two cities were responsible for the wrongs which these bridge-trustees committed in the administration of their trust, that, therefore, in this action the plaintiff had a right to recover the damages thereby sustained.

There seems, however, to be two answers to this proposition. In the first place he has alleged no such cause of action The cause of action alleged in the complaint arises from the public duty which the city of New York owes to all its citizens in the maintenance of its public streets and sewers. It has no reference to any act which, it may have perpetrated by its agents in respect to the management, of its own private property. The cause of action is entirely separate and distinct from what would have arisen (if any exists), had it been attempted to charge the city as the owner of these premises for misuse of the appurtenances thereof which resulted in damage to the plaintiff. But it may well be said that even if the plaintiff had declared, so as to have entitled him to have this proof admitted, that- no cause of action whatever had accrued, the damage which the plaintiff suffered arose from the connection which he had voluntarily made. It is clear he was a mere licensee for its use ; and if as the result of that use he suffered damage, he had nobody to thank but himself. He had the means within his own control to stop that damage at once by cutting off his connection with the drain from which the damage arose, and the owner of No. 17 Chatham street was under no greater obligation to keep that sewer in proper condition than were the owners of No. 15 Chatham street, who by their license had been permitted to make use of that drain.

There does not, therefore, seem to be any ground upon which the plaintiff could sustain a recovery under the pleadings, even if the plaintiff had been allowed to show that the property No. 17 Chat-ham street and the drain appertaining thereto had been conveyed to the trustees of the bridge, and was owned by the city of Brooklyn and the city of New York, and that these cities were responsible for the acts of the bridge trustees.

Neither can anything be predicated upon the fact that the corporation had issued the permit to make this connection with this drain. It appears from the evidence that at the time that permit was applied for the applicant was told that this was a private drain, and that the connection could not be made except upon the consent of its owners. It is urged that it was error to admit this evidence. But if it was error to admit this evidence, certainly it was error to admit the evidence of the clerk issuing the permit for the purpose of showing that the authorities had exercised dominion over this drain. If the clerk had the power to act for the city in the issuing of the permit, and thereby bind the city to the acknowledgment of this drain as a public drain, he certainly had equal authority to restrict that permit, and to prevent its operating in that direction. In fact, it would be rather a strained argument to hold that a permit clerk who has the right to issue a permit to open a public sewer (which sewers can only be opened under the regulations of the city authorities) could by such permit commit the city to the adoption of a private work. There is no principle upon which such a claim can be sustained, and it is only when there has been an acknowledgment and adoption by the public authorities that any right can be predicated upon the result of such adoption; and it is extremely doubtful whether there are any authorities that can adopt a private sewer and make it a public one. There are distinct provisions of law in regard to the construction of sewers. The law provides as to how they shall be laid, and how the plans shall be prepared so that .there shall be a unity of system in reference to their construction. All these provisions would be abrogated by the pub-lie authorities if they had the power to adopt a private work by anything that they might do.

Various cases are cited for the purpose of establishing the fact that it is a familiar principle that municipal corporations are responsible for all private drains or sewers of third persons in the event of adoption, user or dominion. But it will be found that in the leading case of Nims v. City of Troy (59 N. Y., 500), portions of that sewer were actually constructed by the city authorities, and that it was part and parcel of the same plan, and there does not appear to "have been any restriction upon the city authorities as to the manner in which the sewers should be built, a very different case from the one at bar. The authorities cited in reference to the adoption of a public street have no application. In fact, there is nothing in this case going to show a public adoption except the issuing of the permit, which, from the very circumstances attending its issue, could not have any such effect; and by the fact that the bridge trustees have used the drain in connection with the very premises to drain which it was built.

We are asked was not the excluded testimony (namely the proof ;as to the premises being conveyed to the bridge trustees) the strongest and most conclusive possible to show adoption or possession, use or control of the Chatham street sewer by the defendant % As we have already said, that was no proof whatever of any adoption of the sewer by the city in its public capacity. By the conveyance and use of the sewer by the bridge trustees it was evidence of a possession, use or control of the sewer by the cities of New York and Brooklyn, and that only as private owners, and not a possession, use or control of such sewer by the city of New York under any public authority or impressed with any public duty.

As has already been suggested, even if the drain was overcharged by the bridge trustees it is difficult to see that they were under any obligation to the plaintiff. The users of a common drain have no action one against the other. It is no more the duty of the one to keep it open than it is the duty of the other; and if this drain was stopped, it was just as much the duty of the plaintiff to see that it was opened as it was the duty of the owners of the property No. 17 Chatham street to do so. The action of the bridge trustees in acquiring the title to this property and its appurtenances in no manner rendered the drain a public sewer ? It was an appurtenant to the property just the same as before, and was just as private as it had been before; and the mere fact that the cities of New York and Brooklyn owned this property, represented by their servants the bridge trustees, in no wise altered this relation.

The court, therefore, seems to have been entirely correct in holding that the plaintiff had no right to recover if the damage sustained by him resulted from a stoppage in the private drain which had been constructed to connect No. 11 Chatham street with the sewer in Frankfort street, and the jury having found by their verdict that the obstruction was not in Frankfort street, which finding was certainly according to the. evidence, there seems to be no reason for disturbing the verdict which has been rendered.

Yarious other exceptions have been taken to the re j ection of evidence. Amongst others was an objection to the reading of a portion of the testimony taken on the preliminary examination of the plaintiff, pursuant to the statute, by the comptroller. The record shows that the original of such examination was in court, and the plaintiff was shown what purported to be his signature to such examination and asked if it was his, and he said it was. Fie was then asked whether he did not swear thus and so in that examination before the comptroller, and a variety of questions were put to him in that form. It appears from the record (improperly, as no such statement should have been made in view of the manifest manner in which the question was put) that the questioner read from this examination and asked the witness whether he did not swear thus and so before the comptroller. It was not at all necessary, in order to frame a perfect question, that he should have shown plaintiff this examination or read from any portion of it, but if he chose to put the question, using the examination for the purpose of framing the question, the examiner had a right to do so. He was not reading the examination in evidence or any part of it. He was only asking the witness whether, on a previous occasion in connection with this transaction, he had not stated certain things. This gave no right, upon the part of the plaintiff, to have read the whole of his deposition. If there was anything that was pertinent in reference to the matter inquired about, and which would explain the answer which he then made, it was competent, upon the part of his counsel, to have asked him Do you not also state thus and so” in connection with the matter about which you have testified ? Or, in the event of his having been asked for a statement which formed part of the testimony relating to a particular point, he could have been asked to state the balance relating to that subject. But the mere fact of his having been asked whether he had or had not testified on a previous occasion in a certain way in no way gave the plaintiff the right to read the balance of such deposition in evidence, as no part of the deposition ever had been offered in evidence, and it was only a method of cross-examination, well recognized and well established.

Our attention is called to another exception which is claimed to exist, and which, if it did exist, would be a very serious impediment in the way of the affirmance of this judgment. It is claimed, upon the part of the appellant, that the following question was excluded, the witness on the stand being Mr. Stephenson Towle, who had testified that during the years 1882 and 1883 he held the position of chief engineer of the bureau of sewers, and it is claimed that Mr. Towle, by reason of his position, might well be presumed to be officially cognizant of all acts of the city which were performed in reference to that sewer in order to establish adoption or dominion over the sewer by the city. The question put to Mr. Towle was, “ Did your department do anything with that private drain while you were there, so far as you know ? ” It is claimed that this question was put by the plaintiff’s counsel and was excluded,- and that the plaintiff excepted. It, however, appears from the record that the question was put by defendant’s counsel; that the plaintiff objected to its being answered; the objection was overruled and an exception taken, and the question was answered “Ve did not.”

Ilpon the whole case we are of opinion that no error was committed and that the judgment should be affirmed, with costs.

Daniels and Barrett, JJ., concurred.

Judgment affirmed, with costs.


author: Daniels, J.:

text:
    In the Matter of the Petition of MARSHALL O. ROBERTS to Vacate an Assessment for the Eighty-first Street Sewer, from Ninth Avenue to and Through Eighth Avenue, Confirmed April 27, 1871.

      Proceeding to vacate an assessment — dismissed because of delay in prosecuting it — it abates on the death of the petitioner.

    Upon an appeal from an order denying a motion to revive, in the name of the executors of the deceased petitioner, a proceeding brought to vacate an assessment, it appeared that the petition to vacate was made in the early part of the year 1872, and that„ no active proceedings were thereafter taken for its prosecution.
    On or about the 11th day oí September, 1880, the petitioner died, leaving a last will and testament whereby he appointed, as the executors of his estate the applicants, who qualified as such in the month of October, 1880. No action was taken thereafter to revive the proceeding until the latter part of February, 1888. Held, that this delay, both in the prosecution of the proceeding by the testator himself and in the making of the application on the part of his executors, being wholly unexcused, was sufficient, under the rules applicable to proceedings in courts of justice, to make it the duty of the court to deny the application.
    That this was a special proceeding, and under the rule which was applied in Leary v. Gardner (68 N. Y., 624) entirely abated with the decease of the . testator, the petitioner.

      In the Matter of Courtlandt Palmer (43 Hun, 572) followed; People ex rel. Fairchild v. Department Fire, etc. (105 N. Y., 674) distinguished.
    Appeal' by tbe above-named petitioner and Susan Lawrence Roberts and John E. Patterson, as executors, from an order made at a Special Term, beld in tbe county of New York, wbicb was entered in the office cf tbe clerk of tbe county of New York on January 28,1889, denying a motion to revive this proceeding in tbe name of the executors of tbe deceased petitioner.

      P. A. Hargous, for the petitioners, appellants.

      G. L. Sterling, for the respondent.
   Daniels, J.:

The petition of tbe testator to vacate tbe assessment was made in tbe early part of the year 1872, but no active proceeding appears to have been afterwards taken for its prosecution. On or about tbe 11th of September, 1880, tbe petitioner departed this life, leaving a last will whereby he appointed the applicants the executors of his estate. They qualified, as such in the month of October, 1880, and no action whatever was taken afterwards to revive the proceeding until the latter part of February, 1888, when a notice of motion to revive was given. This delay, both in the prosecution of the proceeding by the testator himself, and in the making of the application on the part of his executors, has been wholly unexcused, and it is sufficient, under the rules applied to proceedings in courts of justice, to make it the duty of the court to deny the application, as that was done by the order from which the appeal has been brought. Beyond that this was a special proceeding, and under the rule which was applied in Leavy v. Gardner (63 N. Y., 621), it entirely abated with the decease of the testator. And that view was taken of a similar proceeding by this court in the case of Courtlandt Palmer, (decided in March, 1887, and reported in 43 Hun, 572). The case of The People ex rel. Fairchild v. Department of Fire, etc. (105 N. Y., 674), has been brought to the attention of the court as substantially overruling these preceding authorities. But no intimation was given in the opinion that that was intended or understood to be the effect of the decision, and the facts upon which it was made were very substantially different than those now presented to the court. For the proceeding which was by cerUorcvri had matured into a judgment. It had been heard and finally determined by the court, and for that reason did not and could not abate by the death of the relator, while in the present instance all that was done was to present the petition, and when the petitioner died, then, under the authority of these preceding cases, the proceeding abated.

The court, therefore, was right in denying the application made to revive the proceeding, and the order should- be affirmed, with ten dollars costs and also the disbursements.

Van Brunt, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.: Brady, J.:

text:
    KINNEY TOBACCO COMPANY, Respondent, v. OSCAR MALLER, Appellant.

      Trade-mark — when a party will be restrained from using a label which resembles a trade-mark theretofore adopted by another.

    In an action brought to restrain the defendant from making use of a device adopted hy him as a trade-mark, upon the alleged ground that it infringed a trade-mark previously adopted and used by the plaintiff, a cigarette maker, and its predecessors in the same business, it was found by the court that each cigarette manufactured by the plaintiff was inclosed in a rice-paper wrapper, and that upon the middle of the cigarette, outside of this wrapper, were the words, in circular form, “Sweet Caporal.” Below these words, and lengthwise of the paper, was the word “rice;” and below that still the words “Kinney Bros.” Under this name was a short line, and still below it the word “ paper.”
    Upon the cigarettes manufactured by the defendant, in similar circular form, were the words “Sweet Coronal;” lengthwise of the paper, also, the word “rice,” and underneath that was the name “Oscar Mailer;” and still below that, and under a more extended line than that of the plaintiff’s label, was printed the word “paper;” and below this device, add across a portion of the wrapper, is the figure of a crown.

      Held, that it appeared, from the combination, location and general description of the words used for the case or wrapper of each cigarette, that the defendant, in the employment of the words selected by him, had endeavored, in appear-, anee, to imitate the label adopted and used by the plaintiff, and that a careless and inattentive observer would be very likely to accept one in the place of the other.
    That the judgment should restrain the use of the label by the defendant in such combination and form of the words and line as to colorably resemble the form of the words and line in the plaintiff’s label.
    That the fact that the plaintiff had derived its right to use the wrapper, by assignment from the successors of Kinney Brothers, was sufficient to entitle it to the protection afforded by the court in casas of this description.

      Merry v. Hoopes (111 N. Y., 415) followed.
    Appeal by the defendant from tbe decision made at a Special Term, held in the county of New York, which was entered in the office of the clerk of the county of New York on March 6, 1888, restraining the defendant and his servants and agents from using or applying • to cigarettes a label or report adopted and used by the successors of the plaintiff.

      Samuel J. Crooks, for the appellant.

      Oudin & Oakley, for the respondent.
   Daniels, J.:

Tlie plaintiff and defendant are manufacturers of cigarettes in the city of New York, and the action was brought to restrain the defendant from the use of a device adopted by him as a trade-mark upon the alleged ground that it infringed a trade-mark previously adopted and used by the plaintiff and his predecessors in the same business. The cigarettes manufactured by the plaintiff were put up in packages, upon the paper of which was its label containing the words in circular form “ Sweet Caporal.” These words were above a space containing a cap ornamented with a device extending from the top over the side and beneath the rim of the cap; and over this, upon one side, was the word “ Trade ” and on the other the word “ Mark.” This was followed with the words “ Mild and Extra Eine ” below the cap, with the name of Kinney Brothers, and the place of business still beneath those words.

The defendant placed the cigarettes manufactured by him in a red colored paper box, sufficiently large to contain 100 in number. And upon this box was his label, printed upon plain white paper, with the words, in circular form across the top, “ Sweet Coronal.” Beneath the word “ Sweet ” was the word “ Trade; ” then followed the figure of a crown, and beyond that and to the right the word “Mark.” Underneath these words and the crown were the words “ Cigarettes Manufactured for Oscar Mailer, New York.” This was followed by the number and location of the factory and a warning not required to be noticed. In this respect there was no such resemblance or similarity between the wrappers used by the jilaintiff upon its packages of cigarettes and that used by the defendant as could prove in any degree deceptive. And no interference with this use by the defendant of these words in this manner was directed or provided for by the judgment. So far it in no way undertook to interfere with the defendant in the packing of his cigarettes or with the label placed upon the box.

But it was proven upon the trial, and the fact was found by the court, that each cigarette manufactured by the plaintiff was enclosed in a rice-paper wrapper. And upon the middle of the cigarette, outside of this wrapper, were the words, in circular form, “ Sweet Caporal.” Below these words, and lengthwise of the paper, was the word “ Rice; ” below that still the words “ Kinney Bros.” Under this name was a short line, and still below that the word “ Paper.” Upon the cigarettes manufactured by the defendant in similar circular form were the words “ Sweet Coronal,” lengthwise of the paper, also, the word ‘‘Rice.” Underneath’ that was the name “ Oscar Mailer,” and still below that, and under a more extended line than that in the plaintiff’s label, is printed the word Paper.” And below this device and across a portion of the wrapper is the figure of a crown. And it is this use of these words and of this device that the judgment has prohibited the defendant from employing or making. The words themselves, which have been in this manner employed, cannot be exclusively appropriated by the plaintiff. The first of them relates only to the quality of the article. And no exclusive right to the appropriation of that word can be secured by a manufacturer or trader, in any quality or style of manufacture. This was determined in Manufacturing Company v. Trainer (101 U. S., 51), where it was said in the opinion that the owner of a trade-mark has no right to the exclusive use of any words, letters, figures or symbols, which have no relation to the origin or ownership of the goods, but are only meant to indicate their names or quality. He has no right to appropriate a sign or symbol which, from the nature of the fact it is used to signify, others may employ with equal truth, and, therefore, have an equal right to employ for the same purpose.” (Id., 54.) And the same principle was applied in Caswell v. Davis (58 N. Y., 223), where it was said that “ words are but symbols. "When they are used to signify a fact, or when with what purpose soever used, they do signify a fact which others may by the use of them express with equal truth, others have an equal right to them for that purpose.” (Id., 235.) The defendant was also equally entitled to print the words, “ Rice Paper ” upon the paper used by him as the wrapper or case of the cigarette. Por the plaintiff had acquired no exclusive right to the use of paper, or to its denomination as rice paper for this object. The employment of the words themselves in this manner devoted to the defendant’s manufacture, would, therefore, be no violation of the plaintiff’s exclusive right to this label as a trade-mark.

But it appears from the combination, location and general description of the words used, for the case or wrapper of each cigarette, that the defendant, in the employment of the words selected by him, has endeavored in appearance to imitate the label adopted and used' by the plaintiff. This will appear from the form and manner in which the words, lines, and location and character of the printing are used in the respective labels. That employed by the plaintiff, lengthwise of the cigarette, is in the following form:

"While that employed by the defendant in the same manner is in this fonn :

And a casual or inattentive observer, as most purchasers are, would be very likely to accept one in place of the other. Purchasers or persons using these cigarettes, and desiring to obtain those manufactured by the plaintiff, might very well in this manner accept and purchase the defendant’s manufacture in place of the plaintiff’s. His cigarettes, having this label on each wrapper, were sold from the box, while each of the plaintiff’s cigarettes had the label upon its wrapper or case, as they were put up in the packages of tens or twenties for the purposes of sale. In selling from the box used by the defendant, and containing 100 cigarettes, purchasers in this manner would ordinarily be deceived, for they would not be expected or inclined to look closely at the label upon the wrapper of the cigarettes to ascertain whether it was that of the plaintiff or of another manufacturer. And in this manner the plaintiff could well be defrauded out of a corresponding portion of its trade. It is by this peculiar form, combination and location of the words, rendering one label a close resemblance of the other, that deception and injury would be caused. And when that is the nature of the device resorted to, although the defendant may employ the words he has the legal right to select and use, yet he violates the right of the plaintiff by so printing, placing and arranging them as to pro'duce the conclusion that the manufacture is that of the other party. That, under the legal rule applicable to this case, is an infringement of the plaintiff’s exclusive right to the use of its trade-mark. For by the peculiar location of the words, and the general form of the defendant’s label, he has given it the appearance of the label of the plaintiff. And the deception could only be avoided by close observation and inspection. . And when that may appear to be the fact in the case, then the plaintiff has the right to appeal to the court to restrain such a composition and use of the defendant’s label as will be calculated to deceive the plaintiff’s customers. (Colman v. Crump, 70 N. Y., 573; Enoch Morgan's Sons Co. v. Troxell, 89 N. Y., 292.) And to the extent necessary to prevent that, and only to *that extent, is the plaintiff entitled to relief against the defendant in this action.

It is not entirely clear from the judgment that it was intended to extend farther than the awarding of this specific relief, but it has not been expressed so as clearly to describe and define this object. What the judgment should do by way of restraining the use of tire label employéd by the defendant, is such a combination and form of the words and line, as will colorably resemble the form of the words and line in the plaintiff’s label. For this purpose the defendant’s label must be changed, and changed in such a manner, even though the same words are still employed in it, as to clearly distinguish it, in the location of the words, the size of the type and the general appearance of the label, from the label used by the plaintiff, and when that shall be done the defendant will be entitled to the use of his label, employing the same words, if he desires to do so, upon his cigarettes, but avoiding such a general resemblance in form, combination of words and the manner in which they are printed upon the wrapper, as will lead ordinary purchasers to buy ■ his cigarettes in the belief that they are the manufacture of the plaintiff.

It is probably needless to add that the fact of the plaintiff deriving its right to use the wrapper by assignment from the successors of Kinney Brothers is sufficient to entitle it to the protection applied by the courts to cases of this description. This was so held in Merry v. Hoopes (111 N. Y., 415). The judgment from which the appeal has been taken should be modified, limiting its restraint to the use of the label by the defendant, to such a location and combination of the words upon it, and of the type composing the words, as will not create a deceptive resemblance to the label of the plaintiff; and, as so modified, the judgment should be affirmed, without costs to either party.

Yan Brunt, P. J., concurred.

Brady, J.:

The plaintiff uses as a trade-mark, stamped upon each cigarette sold by him, what is shown by Exhibit A, and the defendant by what is shown by Exhibit B, and they are herein placed in contiguity.

The plaintiff succeeds to the ownership of the trade-mark by purchase, and there is no doubt about its title. The defendant sells his cigarettes in boxes containing one hundred, but upon each is the device shown swpra. He calls them “ Sweet Coronal,” and it would seem for the purpose of imitating the sound as near as he could design it of “ Sweet Caporal,” and as well the appearance on the cigarette stamped Sweet Caporal,” which it resembles and which might readily, without close examination, be mistaken for it. Of this similitude the plaintiff complains, and justly. It is impossible to reject the proposition as valueless that the defendant did not intend to so prepare his cigarettes for sale that they might be sold for Sweet Caporal, a brand popular and in great demand. If such were not his intention, and if he designed to compete on fair terms with the plaintiff, why imprint upon his cigarettes the name of them in type and general characteristics so closely resembling those of the plaintiff ? There are many devices which he might have adopted, in different type, in different ink, in different form and setting, which would have shown that he relied upon the merits of his own production and designed to succeed upon them, and not upon invading the realms of another already established in business and legitimately.

It is very evident, whatever the form or color of the box he employs may be, when the cigarette is removed or taken from it it suggests Sweet Caporal by the imprint to which reference has been made. This is what the protection given to trade-marks is particularly intended to prevent, namely, deceit of the people using the article simulated. "When the conclusions expressed are adopted upon inspection of the different articles and marks upon them, the duty of the court to restrain the apparent violation of good faith is imperative, unless, indeed, there is no trade-mark to which the plaintiff has exclusive claim. Such is not the case here. It has been repeatedly held that a word in common use may be so employed as to create a property in such use. Here Caporal was adopted to distinguish the plaintiff’s manufacture from that of others, and this created in it a special property for that particular purpose. The whole language, indeed all languages, are open to the enterprise of business men, and they may, by skillful or successful use of words in them, gain notoriety, exclusive use for a particular article and great pecuniary advantages. The learned justice presiding in the court below felt controlled by these principles, and, therefore, disposed of the question presented to him in a brief opinion based upon the following authorities: Kinney v. Basch (16 Am. L. R., 596) Colman v. Crump (70 N. Y., 578); Edleston v. Vick (23 Eng. L. and Eq., 51); Croft v. Bay (7 Beav., 84); Enoch, Morgan's Sons' Co. v. Schwachofer (5 Abb. N. C., 265); Lea v. Wolf (13 Abb. [N. S.], 391); Lockwood v. Bostwick (2 Daly, 521); Williams v. Spence (25 How. Pr., 367). To these may be added that of Selchow v. Baker (93 N. Y., 59, 69), in which it was said: “ Our conclusion is that where a manufacturer has invented a. new name, consisting either of a new word, or a word or words, in common use, which he has applied for the first time to his. own manufacture, or to an article manufactured for him, to distinguish it from those manufactured and sold by others, and the name' thus adopted is not generic or descriptive of the article, its qualities, ingredients or characteristics, but is arbitrary or fanciful, and is. not used merely to denote grade or quality, he is entitled to be protected in the use of that name.” This proposition is answered by the observation that the trade-mark cannot be the name of the article itself. It is supposed that this means that Caporal is the name of the tobacco of which it is composed, but this is a designation not generic or descriptive of the article, its ingredients or characteristics, but is fanciful, the word itself being French, and denoting a soldier or non-commissioned officer of the French army. It may be further said that the observation made by the Vice-Chancellor in Edleston v. Vick (23 Eng. L. and Eq., 51, 53) is appropriate here as already suggested, namely: The court or jury would, in such a state of things, be bound to presume that it was not a fortuitous concurrence of events which has produced this similarity; it would be irrational not to rest convinced that this remarkable coincidence of appearance, external and internal, is the result of design.”

The judgment appealed from should be affirmed, with costs and disbursements, and without any further discussion. There are, it may be said, too many refinements presented in the multitudes of decisions relating to the use of trade-marks, refinements which frequently result in fostering a spirit of piracy not at all commendable, and adverse to the culture and encouragement of honest competition. The inquiry should be mainly as to the intent, which will rarely be found worthy when there is a close resemblance to the symbols used in an established business.

Judgment modified as directed in opinion, and, as modified, affirmed, without costs to either party.


text:
    WILLIAM W. DUDLEY, Appellant, v. THE PRESS PUBLISHING COMPANY, Respondent.

      Extending time to answer — for what period, such time is properly extended, while the plaintiff by absence from the State prevents service of an order for his examination.

    Upon an appeal from an order denying a motion to vacate or limit an order extending the defendant’s time to answer, it appeared that the action was commenced on November 3, 1888, to recover damages for the publication of an alleged libel, and that the complaint was served on the twentieth of the same month, and that when the time for the defendant to answer was about to expire an order was made extending it, which order was obtained because of the inability of the defendant’s attorney to serve upon the plaintiff an order for his examination made, under the authority of section 872 of the Code of Civil Procedure, in order to allow the defendant to ascertain facts necessary to enable it to frame its answer.

      After this order for the plaintiff’s examination had been obtained diligent efforts were made to serve it upon the plaintiff personally, but they were unsuccessful because of the fact that he had left the State of New York.

      Held, that this order for the plaintiff’s examination, so long as it remained in force, must be held to have been regularly made, and that it entitled the defendant to an examination of the plaintiff as a witness under its direction, before the defendant could be compelled to serve an answer in the action.
    Aípeal from an order made at a New York Special Term on the 12th day of February, 1889, and entered in the office of the clerk of the county of New York on the same day, denying a motion to vacate or limit an order extending the defendant’s time to answer.

      George Bliss, for the appellant.

      De Lancey Nicoll, for the respondent.
   Daniels, J.:

This action was commenced on the 3rd of November, 1888, to recover damages for the publication of an alleged libel. The complaint was served on the twentieth of the same month, and when the time for the defendant to answer was about to expire an order was made extending it. This order was obtained chiefly because of the inability of the defendant’s attorney to serve upon the plaintiff .an order for his examination made under the authority of section 8T2 of the Code of Civil Procedure. This order was made upon the ground that it was necessary that the defendant should examine the plaintiff as a witness in the action, for the purpose of obtaining a knowledge of facts requisite for framing and serving the answer. After this order was obtained diligent efforts were made to serve it upon the plaintiff personally, but they were unsuccessful because of the fact that he had left the State of New York.

This order, so long as it remains in force, must be held, as it reasonably may be from the affidavits upon which it was obtained, to have been regularly made, and it entitled the defendant to an examination of the plaintiff as a witness under its directions, before it could be obligated to serve its answer in the action. That examination was shown to be necessary to obtain a knowledge of facts without which the answer could not be intelligently framed. The inability to serve the order upon the plaintiff furnished a ground, therefore, for the extension of the defendant’s time to answer, and that was sufficient to entitle it to a denial of this motion.

It may, however, be not inappropriate to add that the mere making of the order for the examination of the plaintiff, followed by ineffectual efforts to serve it personally upon him, will not entitle, the defendant to an indefinite repetition of orders extending the time to answer. For by section 815 of the Code of Civil Procedure^ the order, after it has been obtained, must be served uj>on the attorney of the plaintiff in the action. And compliance with that section is-in no respect impractical Or out of the power of the defendant’s-attorney. And such a service may result in the voluntary appearance and examination of the plaintiff. If it does not, then a case-will be presented upon which the court may order a substituted service of this order, if that authority can be exercised, in view of the other provisions contained in title 3 of article 1 of the Code.. "What the defendant is required to do is to proceed, as far as it may be permitted, to make the service of the order for the examination of the plaintiff effectual. And if that shall fail to secure his attendance, then a case will appear to arise entitling the defendant to a. continued extension of its time to answer the complaint. The plaintiff by bringing this action in this court has subjected himself to its jurisdiction. And if he fails to comply with the order legally and properly made, after being by its service brought to the knowledge of himself or his attorneys, he may forfeit his right to proceed in the action and even entitle the defendant to a dismissal of his-complaint. As the case now appears, the order was a proper one from which the plaintiff has appealed, and it should be affirmed,, with ten dollars costs and the disbursements.

Yan Brunt, B. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, L :

text:
    MARIA W. CROOME, Respondent, v. DANIEL H. CRAIG and HELENA CRAIG, Appellants.

      Demurrer to a reply — when it will le overruled.

    In an action brought to obtain an accounting and the distribution of the proceeds of property sold, in pursuance of a contract executed by the defendants, the complaint stated that the contract was made upon the settlement of disputes concerning an account between the parties. The defendants, in their answer, alleged that errors intervened in the accounting, which they had discovered, at a date therein mentioned, diminishing their liability under the agreement, and demanded that they should be allowed to prove these errors and mistakes, and that certain amounts mentioned should be credited accordingly.
    By way of reply to this part of the defendant’s answer, it was alleged that the defendants had delayed so long before attempting to correct the alleged errors, mistakes and untrue charges, and had been guilty of such gross and culpable negligence, carelessness and laches, as not to be entitled to the consideration of a court of equity, or to the reformation of the contract as asked for in the answer.
    Upon an appeal from an interlocutory judgment overruling a demurrer interposed to this reply:

      Held, that, as no fact whatever was inserted in this part of the reply that did not already appear from the complaint and the answer, both of which related to an accounting under the same agreement, that the interlocutory judgment should be reversed.
    That if the defendants had forfeited by delay their right to relief from the mistake that had occurred upon the accounting, that such delay would necessarily appear by the proof that could be given under their answer.
    Appeal by the defendants from an interlocutory judgment dismissing a counter-claim, with costs, and from an order made at a New York Special Term directing such judgment, which were both entered herein on the 11th day of April, 1889, in the office of the clerk of the city and county of New York, and from an order overruling a demurrer to plaintiff’s reply, which was entered in the same office on the 20th day of March, 1889.

      E. Haines, for the appellants.

      Alan D. Kenyon, for the respondent.
   Daniels, L :

The action was brought to obtain an accounting and the distribu- - tion of the proceeds of property sold under a contract executed by the defendants. The complaint stated the contract to have been made upon the settlement of disputes concerning accounts between the parties. By their answer the defendants alleged.that errors intervened in the accounts which they had discovered, diminishing their liability under the agreement. As a relief they demanded judgment that they should be allowed to prove these errors and mistakes, and that the amounts otherwise mentioned should accordingly be corrected. By way of reply to this part of defendant’s answer, it is alleged that the defendants had delayed so long before attempting to correct the alleged errors, mistakes and untrue charges, that they had been guilty of such gross and culpable negligence, carelessness and laches, as not to be entitled to consideration in a court of equity, or to the reformation asked for in the answer. And it was to this part of the reply that the demurrer was interposed, upon the ground that it failed to state facts sufficient to constitute a reply, or for the avoidance of the counter-claim.

No fact whatever was inserted in this part of the reply that did not already appear from the complaint and the answer. It was alleged, as a fact, in this portion of the answer, that the errors and mistakes were discovered by defendants on or about the 1st of March, 1887, and that they then made them known to the plaintiff and required a correction of the same, but that the plaintiff refused to comply with that request.

The counter-claim relied on in the answer was for the correction of errors or mistakes alleged to have been included in the accounting mentioned in the agreement; and if such mistakes did, in fact, exist, their allowance would result in reducing the liability asserted by the plaintiff under the agreement. The counter-claim set forth was not so much for the correction of the agreement itself as it was for the correction of the accounting, and the defense, for that reason, is not strictly within the authorities referred to by the plaintiff. If the defendants have forfeited their right to relief, by delay or negligence, that fact will appear by the proof which must be given to support their answer. Whatever defect may in this respect exist in their ease has in no way been extended or -changed by the reply, for it has not alleged that any other delay has arisen than that appearing on the face of the answer itself,' and an inference from those facts, which is all that this part of the reply includes, will not form the subject-matter of a reply. If the reply had stated that the errors and mistakes mentioned in the answer had come to the knowledge of the defendants at some assignable period of time different from that mentioned in the answer, then it might be substantially capable of being supported, but it contains no such averment ; but all that it has stated upon this subject is apparently by way of argument from the facts previously disclosed by the j>leadings and a reply has not been rendered necessary for the presentation of that argument. As this division of the reply contained a statement of no fact by way of answer to the defendant’s counterclaim, the demurrer taken to it by defendants should have been sustained. The interlocutory judgment, therefore, should be reversed and a judgment entered sustaining the demurrer. But, inasmuch as the defendant’s pleading is not entirely free from defect, the costs of the appeal should be allowed to abide the event of the action.

Yan Brunt, P. J. and Brady, J., concurred.

Interlocutory judgment reversed and judgment entered sustaining demurrer, with costs of appeal to abide event of action.