author: Huger, Ch. J.

text:
    Frank Seifert, Respondent, v. The City of Brooklyn, Appellant.
    A municipal corporation haa no right, in the exercise of its power to determine when, where and how to make improvements,' to do so upon a plan which substantially involves the appropriation by it of the property of a citizen to a public use without making compensation therefor.
    Where exercise of a judicial or discretionary power by a municipal corporation results in a direct and physical injury to the property of an individual, which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan and the adoption of prudential measures, the corporation is liable for such damages as occur in consequence of its continuance of the original cause, after notice and an omission to adopt measures to remedy the evil.

      It seems that immunity from liability for the consequences following the exercise of judicial or discretionary power by a municipal corporation presupposes that the act performed may in some manner be lawfully authorized. Where the act is of such nature as to constitute a positive invasion of the individual rights guaranteed by the Constitution, legislative sanction is insufficient as a protection.
    The rule that a municipal corporation acting under the authority of a statute cannot be subjected to a liability for damages arising from the exercise by it of the authority so conferred, is confined to such consequences as are the necessary and usual result of the proper exercise of the authority. It does not shield the corporation where injury results solely from the defective manner in which the authority was originally exercised and from continuance in wrong after notice of the injury.
    Commissioners of sewage and assessment of the city of Brooklyn, in pursuance of the authority given them by statute (Chap. 521, Laws of 1857; chap. 136, Laws of 1861), established a drainage district, not theretofore drained over the lands of plaintiff, and apion of drainage which contemplated the construction of a main sewer into which lateral sewers to be constructed from time to time should empty. The main sewer was built in 1868, and subsequently various lateral se*ers. Soon after the completion of the main sewer, actual use demonstrated that it was insufficient to carry off the sewage turned into it, and at times this was forced through the man-holes and inundated plaintiff’s premises, inflicting serious injury. These inundations increased in frequency as new lateral sewers were connected with the main trunk, and became well known to the municipal officers. Notwithstanding this the city continued to build and attach lateral sewers, increasing from year to year the evil produced by the defects in the original plan. In an action to recover damages, held, that the city was liable ; that having by the exercise of its power created a private nuisance on plaintiff’s premises, it incurred a duty of adopting such measures as should abate the nuisance, and having the power to perform it, its omission to do so renders it liable.

      Mills v. Oily of B. (33 N. Y. 489), Smith v. Mayor, etc,. (66 id. 895), Wilson v. Mayor, etc. (1 Den. 595), Lynch v. Mayor, etc. (76 1ST. Y. 60), distinguished.
    (Argued November 30, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made July 14, 1884, which reversed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial and which granted a new trial.
    This action was brought to recover damages alleged to have been caused to plaintiff’s premises by defendant’s negligence in the construction of a sewer.
    The facts are sufficiently stated in the opinion.

      John A. Taylor for appellant.
    The perfecting and consummation of the sewage plan thus committed to a special commission was a matter of public concern, called for by the health' and safety of the people at large, in which the commissioners acted quad-]udicially and as public agents. (Maxmillan v. Mayor, etc., 62 N. Y. 168; N. Y. & Brooklyn S. M. Co. v. Brooklyn, 7 id. 580.) Municipal corporations are in no case liable for errors of judgment committed by subordinate departments as to matters of a judicial nature. (Wilson v. Mayor, etc., 1 Denio, 595; Governor v. Meredith, 4 Durnf. & East, 796; Mills v. City of Brooklyn, 32 N. Y. 496; McCarthy v. Syracuse, 46 id. 196; Himes v. Lockport, 50 id. 238; Kavanagh v. City, 38 Barb. 232; Lynch v. Mayor, etc., 76 N. Y. 60; Urquhart v. Odgensburgh, 91 id. 71; 97 id. 230; Carr v. Northern Liberties, 35 Penn. St. 324; Detroit v. Beekman, 34 Mich. 125; Lansing v. Toolan, 37 id. 152; Allen v. Chippewa Falls, 52 Wis. 430; Darling v. Bangor, 68 Me. 108; Flagg v. City of Worcester, 13 Gray, 601; City Council v. Gilmer, 33 Ala. 116; Daniels v. Denver, 2 Col. 669; Denver v. Capelli, 4 id. 25; Judge v. Meriden, 38 Conn. 90; Magarity
      v. Wilmington, 5 Houst. [Del.] 530; Bamadan v. District of Columbia, 2 Mackay, 285; Rozell v. Anderson, 91 Ind. 591; City of Atchinson v. Challis, 9 Kans. 603; Van Pelt v. Davenport, 42 Iowa, 308; Brewster v. Davenport, 51 id. 427; Wicks v. De Witt, 54 id. 130; Bennett v. New Orleans, 14 La. Ann. 120; Dorley v. Bangor, 68 Me. 108; Childs v. Boston, 4 Allen, 51; Merrifield v. Worcester, 110 Mass. 216; Dermont v. Detroit, 4 Mich. 435; Foster v. St. Louis, 71 Mo. 157; Weyman v. Jefferson, 61 id. 55; Wilson v. Mayor, etc., 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 496; Smith v. Mayor, etc., 66 id. 295; Springfield v. Spence, 39 Ohio St. 665; Grant v. Erie, 69 Penn. St. 420; Allentown v. Kramer, 73 id. 406; Fair v. Philadelphia, 88 id. 309; Heth v. Fond du Lac, Cent. L. J., August 14, 1885.) The city cannot be held for consequential damages. (Radcliff v. Mayor, etc., 4 N. Y. 195.) A municipal corporation is not liable for damage to private - property unless the act complained of was without the authority of or against law or' was improperly or wantonly executed. (Weeks on Damnum Absque Injuria, 21; Dillon on Mun. Corp. 1078; Shearm. & Redf. on Neg., § 127.) Plaintiff has no equitable standing in court, for if there was any thing improper in either the plan or construction of the sewer, it was known to him when he built his house, it then having been in operation four or five years. (Springfield v. Spence, 39 Ohio, 465.) His voluntary occupation of a low lying lot rendered his tenement servient to the discharge of all waters which fell upon the higher lands. (Martin v. Biddle, 26 Penn. St. 415; Kouffman v. Grismer, id. 407; Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, id. 369; Frazier v. Brown, 12 Ohio St. 294.)
    William. C. De Witt for respondent.
    A municipality is not liable in a private action for an omission to exercise discretionary functions, nor for an exercise thereof in a partial or limited extent, nor for the style or plan upon which it may construct a public improvement. (Mills v. Brooklyn, 32 N. Y. 489; Urquhart v. Odgensburgh, 91 id. 69; Hines v. Lockport, 50 id. 236.) A municipal corporation has no right to collect the sewage of a large portion of a city and by artificial channels cast it upon lands of another, and for such acts it is liable in damages whether or not they be done in conformity to a plan adopted by its officers, judicially or otherwise. (Noonan v. Albany, 79 N. Y. 475; Byrnes v. Cohoes, 67 id. 204; Bartin v. Syracuse, 36 id. 54; Rochester W. L. Co. v. Rochester, 3 id. 466; Richardson v. Boston, 19 How. [U. S.] 270; Perry v. Worcester, 6 Gray, 544; Sleight v. Kingston, 11 Hun, 594; Bastable v. Syracuse, 8 id. 586; Beach v. Elmira, 22 id. 158; Ashley v. Port Huron, 35 Mich. 296; Seifert v. Brooklyn, 15 Abb. N. C. 97.)
   Huger, Ch. J.

The defendant in this case invokes the principle, exempting municipal corporations from liability for damages, occasioned through the exercise of judicial functions, by its officers, as a defense to the action. The cases on the subject are by no means harmonious and render it difficult to deduce from them any general rule, founded upon principle, which clearly marks the line of distinction, between liability and exemption therefrom. We have, however, been unable to find any case in this State going far enough to sustain the contention of the appellant.

Here certain officers of Brooklyn were constituted by statute commissioners of sewage and drainage, with power to devise and frame, a plan of drainage and sewerage for the whole city, upon a regular system, and upon the adoption of such plan to proceed to construct the drains and sewers, as the public health, convenience«or interest should demand, or so much thereof as might be necessary. (Chap. 521, Laws of 1857.) By chapter 136, of the Laws of 1861, the commissioners were further empowered, whenever it became necessary, to construct a drain or sewer in any street or avenue for the purpose of preventing damage to property, or to abate a nuisance, and if the same was not in accordance with any plan already adopted, to construct temporary sewers in certain cases, in a manner to avoid such damages, or abate such nuisance. Under the authority con-f erred by these acts the commissioners, prior to the year 1868, established a certain drainage district covering a surface of nearly twenty-three hundred acres of land, and embracing within its limits a territory not theretofore drained, over the lands of the plaintiff, situated in the same district, and which contemplated the construction of a main sewer, through certain avenues and streets, into which it was designed that lateral sewers intersecting the whole district should "empty, as they should be from time to time thereafter constructed, for the convenience of the people desiring them.

In pursuance of this plan the main sewer referred to, was built in 1868, and subsequent to that date various lateral sewers were from time to time prior to the trial in 1884, constructed and connected with said main sewer. "Within a short time after the completion of the main sewer, actual use demonstrated that it had not sufficient capacity to carry off the accumulations of water and matter turned into it, and-the result was that at times of heavy rain and melting snow the collected sewage, being obstructed in its flow, was forced through the man-holes and inundated the district in which plaintiff resides, inflicting serious injury to his property

These inundations commenced nearly ten years previous to the trial and increased in frequency and severity as new lateral sewers were built and connected with the main-trunk, until finally they occurred as often as eight or ten times a year and became well known to the officers of the corporation. Hot-withstanding this fact the corporation has continued to build and attach lateral sewers to the main-trunk and increased from year to year the evil produced by the defects of the original plan.

From this review of the facts, it would seem that the case is not brought within the principles decided in the authorities referred to by the appellant. The immunity of a municipal corporation from liability for damages, occasioned to those for whose benefit an improvement is instituted by reason of the insufficiency of the plan adopted, to wholly relieve their wants, or on account of a neglect of the municipality to exercise its power in making desired improvements and other like circumstances, is quite clearly established by the cases The liability in such cases has been generally, if not always, predicated upon the duty, which tip corporation owed its citizens to exercise the power conferred upon it to build streets, sewers, etc., for the convenience and benefit of its property-owners, and its exemp-' tian from liability was based upon the limitations necessarily surrounding the exercise of such power, and the judicial character of the functions employed in performing the duty. The question in Mills v. Brooklyn (32 N. Y. 489, 495), as stated by Judge Denio, was that “the grievance of which the plaintiffs complain is that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of certain capacity was built, but it was insufficient to carry off all the water which came down in a rain-storm and the plaintiffs’ premises were to a certain extent unprotected. Their condition was certainly no worse than it would have been if no sewer at all had been constructed.” It was there held that the corporation was not liable. The case of Smith v. Mayor, etc. (66 N. Y. 295), related to a sewer of sufficient capacity but which was temporarily obstructed by a deposit of mud and sand of which the corporation had no notice, and an overflow, injuring plaintiff, resulted. It was held that the corporation was liable for negligence alone, and that, could not be predicated, upon the facts established. McCarthy v. City of Syracuse (46 N. y. 194) was a similar case, and the same principle was there established, the city being charged with liability for a-n injury occurring through its neglect to repair a sewer after a lapse of time warranting the presumption of notice of the defect. In Wilson v. Mayor, etc. (1 Denio, 595, 598), the damages were occasioned by surface water naturally falling upon the plaintiff’s premises but prevented from flowing off by the changes made, in grading its streets, by the city. It was held to owe no duty to its citizen to furnish drainage for the water naturally collected on his premises, and that no liability resulted from the change in the street grade made under statutory authority. It was further said that the power of the corpora-, tion “ to make sewers and drains is clear, but it is not their duty to make every sewer or drain which may be desired by individuals or which a jury might even find to be necessary and proper.” Lynch v. Mayor, etc. (76 N. Y. 60), was" also a case where the natural flow of surface water and drainage was obstructed by the exercise of municipal power in grading, pitching and raising the public streets, and the city was declared free from liability for the damages incidentally occasioned to property in consequence of the obstructed drainage, and its omission to build drains for the convenience of the citizen. Its liability, however, in a case like the present was conceded in the opinion delivered by Judge Earl. In Hines v. City of Lockport (50 N. Y. 236), the plaintiff was injured by defects in a public street. It was held that{the duty resting upon the corporation of building, opening and grading streets, sidewalks, sewers etc., was judicial, but that after they were constructed the duty of keeping them in repair was ministerial, and from an omission to perform that duty liability arose. Urquhart v Ogdensburgh (91 N. Y. 67, 71) was also a case of injury arising from a defective sidewalk, and the principle there laid down is in harmony with the cases above considered. We have thus referred to the principal cases cited by the appellant, and find no warrant in them for the doctrine that a municipal corporation, in the exercise of its discretionary or judicial power of determining when, where and how to make improvements, such as streets, sidewalks, sewers, etc., has the right to do so upon a plan, which substantially involves the appropriation by it, of the property of a citizen to the public use.

We entertain no doubt as to the liability of the defendant for the damages occasioned by the defects of the sewer, and think it rests upon principles not conflicting with those announced in any reported case, but substantially in harmony with all of them. Municipal corporations have quite invariably been held liable for damages occasioned by acts, resulting in the creation of public or private nuisances, or for an unlawful entry upon the premises of another whereby injury to his property had been occasioned. (Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317.) This principle has been uniformly applied to the act of such corporations in constructing streets, sewers, drains and gutters, whereby the surface water of a large territory, which did not naturally flow in that direction, was gathered into a body and thus precipitated upon the premises of an individual, occasioning damage thereto. (Byrnes v. City of Cohoes, 67 N. Y. 204; Bastable v. Syracuse, 8 Hun, 587; also in 72 N. Y. 64; Noonan v. City of Albany, 79 id. 470, 475; Beach v. City of Elmira, 22 Hun, 158; Field v. West Orange, 36 N. J. Eq. 118, 120; S. C. on appeal, 29 Alb. L. J. 397.)

We are also of the opinion that the exercise of a judicial or discretionary power, by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which from its nature is liable to be repeated and continuous, but is remediable by a change of plan, or the adoption of prudential measures, renders the corporation liable for such damages as occur in consequence of its continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper. (Wood’s Law of Nuisances, § 752.) While in the present case the corporation was under no original obligation to the plaintiff or other citizens to build a sewer at the time and in the manner it did, yet, having exercised the power to do so and thereby created a private nuisance on his premises, it incurred a duty, having created the necessity for its exercise, and having the power to perform it, of adopting and executing such measures as should abate the nuisance and obviate damage. (Phinizy v. City of Augusta, 47 Ga. 260, 263; Byrnes v. City of Cohoes, supra.)

It is a principle of the fundamental law of the State that the property of individuals cannot be taken for public use except upon the condition that just compensation be made therefor, and any statute conferring power upon a municipal body, the exercise of which results in the appropriation, destruction or physical injury of private property by such body, is inoperative and ineffectual to protect it from liability for the resultant damages, unless some adequate provision is contained in the statute, for making such compensation. The immunity which extends to the consequences, following the exercise of judicial or discretionary power, by a municipal body or other functionary, presupposes that such consequences are lawful in their character, and that the act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, the power to make such an appropriation or create such nuisance will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guaranteed by the Constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts from responsibility for their consequences. (Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195.)

It has been sometimes suggested that the principle illustrated in the maxim, “ satis fopuli est supremo lex” may be applied to and will shield the perpetrators, from liability for damages arising through the exercise of such power, by a municipal corporation ; but we apprehend that this maxim cannot be thus invoked. (Wilson v. Mayor, etc., 1 Den. 595.) The cases where such a doctrine can be properly applied must, from the very nature of the principle, be confined to circumstances of sudden emergency, threatening disaster, public calamity and precluding a resort to remedies requiring time and deliberation. (Whart. Leg. Max. No. 89; Mayor, etc., v. Lord, 17 Wend. 285.) It is suggested in the latter case that even in such an event, under the principles of the Constitution, the public would be liable for the damages inflicted; However this may be, we are quite clear that the theory that a municipal corporation has the right in prosecuting a scheme of improvements, to appropriate without compensation, either designedly or inadvertently, the permanent or occasional occupation of a citizen’s property, even though for the public benefit, cannot be supported upon the principle referred to. If the use of such property is required for public purposes, the Constitution points out the way in which it may be acquired, when there is no such imminency in the danger apprehended as precludes a resort to the remedy provided, and the only mode by which it can be lawfully taken in such cases, is that afforded by the excuse of the right of eminent domain.

No question arises here over the-distinction between actual or constructive damages, for the inundation of an individual’s premises, constitutes a trespass rendering the party occasioning the injury liable for the damages caused. (Scriver v. Smith, 100 N. Y. 471; Cooley on Torts, 332; St. Peter v. Denison, 58 N. Y. 416; Pumpelly v. Green Bay Co., 13 Wall. 166, 168; Eaton v. B. C. & M. R. R. 51 N. H. 504.)

We are also of the opinion that the cases, holding that corporations acting under the authority of a statute cannot be subjected to a liability for damages arising from the exercise by them of the authority conferred, have no application to the circumstances existing in this case, as those cases are confined to such consequences only, as are the necessary and usual result of the act authorized.

The exercise of the authority conferred upon the commissioners of sewage and drainage did not require the injury to the property of the citizens of Brooklyn,' which has been occasioned by the inundation complained of, and it was not the natural or necessary result of a proper exercise of their powers. Those injuries arose solely from the defective manner in which the authority was originally exercised, and the continuance of the wrong after notice of the injury occasioned. In such cases \corporations have been uniformly held liable. (Radcliff's Exrs. v. Mayor, etc., supra. Wood on Nuisances (§ 752) says: “ The rule being that no action lies against an individual or corporation for doing that which is authorized by the legislature, so long as the authority is properly exercised and not exceeded, but that liability does attach where the authority is negligently or improperly exercised, and where, by a reasonable exercise of the power given either by statute or the common law, damages might be prevented, it is held that a failure to exercise such power is such negligence as charges them with responsibility for consequent damages.” “As to the necessity for a sewer or its location or the system, or plan of sewerage, the decision of the proper municipal is conclusive, because it is an exercise of a discretion reposed in them by the law, and consequently is not reviewable by the courts ; but if in the selection of a location it unnecessarily creates a nuisance to public or private rights, it is responsible therefor.” (Citing Franklin Wharf Co. v. Portland, 67 Me. 46; Haskell v. New Bedford, 108 Mass. 208, and many other cases.) Dillon, on Municipal Corporations (§ 1051), lays down the rule where the injury is occasioned by the plan of the improvement, as distinguished from the mode of carrying the plan into execution, that there is not ordinarily, if ever, any liability; but in that case he says: “ There will be a liability if the direct effect of the work, particularly if it be a sewer or a drain, is to collect an increased body of water and to precipitate it on to the adjoining private property to its injury.”

It follows from the principles stated that the order of the General Term should be affirmed, and judgment absolute ordered for plaintiff.

All concur.

Order affirmed and judgment accordingly.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Rebecca A. Wolf, Respondent, v. Walter F. Kilpatrick et al., Impleaded, etc., Appellants.
    The defendants who appeal were owners of certain premises in the city of New York which they leased to M., who, under and in accordance with a permit from the city, built vaults under the sidewalk in front thereof, with a coal-hole, which was properly constructed, and in the usual and permitted manner. Through the wrongful act of a stranger, who broke the stone supporting the iron cover of the coal hole, the cover turned when plaintiff stepped upon it and he fell and was injured. In an action to recover damages, it did not appear that the appellants had any knowledge or notice of the defect. Held, that they were not liable, and it seems they would not have been liable had they themselves constructed the vaults lawfully and with due prudence and care, and thereafter transferred possession of the premises to a third person without covenant on their part to repair; that if the coal-hole became a nuisance after the stone was broken only the person who created the nuisance, or he who suffered it to cohtinue was responsible, and that a party out of possession and control and who had no knowledge, actual or constructive, of the defect could not be said to have suffered it to continue.
    A landlord out of possession is not responsible for an after-occurring nuisance unless in some manner he is in fault for its creation or continuance; the bare ownership will not produce this result.

      Clifford v. Bam (81 N. Y. 52), Anderson v. Bielde (1 Robt. 238), Bygert v. Behenek (23 Wend. 445), Congreve v. Morgan (18 BT. Y. 84), Bamenport v. Muckman (37 id. 568), Swords v. Edgar (59 id. 28), distinguished.
    (Argued December 3, 1885;
    decided January 19, 1886.)
    Appeal by defendants, Walter F. and Frank J. Kilpatrick, from a judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made November 9,1885, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for injuries sustained by plaintiff, who, in passing over the sidewalk in front of premises owned by the appellants in the city of New York, stepped upon the cover of a coal-hole opening into vaults under the sidewalk. The stone supporting the cover had been broken, and in consequence the cover turned as plaintiff stepped upon it, and she fell and was injured. '
    The further material facts are stated in the opinion.

      W. F. Mac Rae for appellants.
    The coal-hole, having been constructed under license from the city, was noty>cr se a nuisance, and responsibility for the injury to plaintiff could not be charged upon the Kilpatricks even as owners, except upon the theory of negligence, and no negligence was imputable to them. (Ditchett v. Spuyten Duyvil R. R. Co., 67 N. Y. 425; Swords v. Edgar, 59 id. 35; Gaudy v. Jubber, 5 B. & S. 78; Kirby v. Boylston Mk't Assn., 80 Mass. 251; Menzler v. McCotter, 87 N. Y. 122; Ryan v. Wilson, id. 471.) At common law the occupier and not the landlord is bound, as between himself and the public, so far to keep the premises in repair that they may be safe for the public, and such occupier is prima facie liable to third persons for damages arising from any defect. (Payne v. Rogers, 2 H. Blackst. 350; Regina v. Watts, 1 Salk. 357; Blunt v. Aiken, 15 Wend. 522; Moody v. Mayor, etc., 43 Barb. 282.) The law has been so modified in this State as to make the landlord also liable in regard to nuisances on the premises, provided that said nuisances existed at the time the landlord parted with the possession of the premises, and that he derives a profit or benefit from the premises, such as receiving rents. (Roswell v. Prior, 12 Mod. 635; Gaudy v. Jubber, 5 B. & S. 485; Fish v. Dodge, 4 Denio, 311; Anderson v. Dickie, 1 Rob. 238; Bellows v. Sackett, 15 Barb. 96.) If at the time the owner parts with the possession and control of his premises, they are in good condition, he .will not be liable for damages resulting from a subsequent defect in the premises while they are in possession of a lessee. (Ditchett v. Spuyten Duyvil R. R. Co., 67 N. Y. 425; Clancy v. Byrne, 56 id. 129; Cooley on Torts, 167.)

      H. Morrison for respondent.
    On “the sound and firm set earth ’ ’ this respondent, as one of the public, had a right to walk, and any defect from its original undisturbed condition renders these appellants liable irrespective of the license of the mayor, etc., and the accompanying easements of coal-hole or slide to the excavated vault beneath. (Anderson v. Dickie, 1 Rob. 238; Dygert v. Schenck, 23 Wend. 446; Congreve v. Morgan, 18 N. Y. 75; Clifford v. Dam, 81 id. 52; Davenport v. Ruckman, 37 id. 568.) That another person may be in possession, occupation or enjoyment, by the permission of the proprietor of the premises, does not affect the legal consequences of. the original wrong to the public of being the owner of premises, which by defect become a dangerous pit-fall in a public highway. (Storrs v. Utica, 17 N. Y. 108; Dalzell v. Md. & Cin. R. R. Co., 32 Ind. 45; Whalen v. Gloucester, 4 Hun, 25; Chicago v. Robbins, 2 Am. L. Reg. [N. S.] 535, 537; State v. Dover, 46 N. H. 452; Rathburn v. Rathburn, 6 Barb. 98.)
   Finch, J.

The defendants who appeal were shown to be the owners of premises which had vaults for the storage of coal extending under the .sidewalk. The plaintiff was in jured by a defect in the stone supporting the cover of the opening which arose while such premises were in the occupation of one Macpherson and others who were tenants having entire control of the premises.- The defect was not one of original construction, but occurred through the act and interference of third persons engaged in building the elevated railway, and who broke the stone supporting the iron cover so that it turned under plaintiff’s weight and occasioned the injury. We do not know at what time, prior to the accident, the defendants became owners. The building and the vault, were constructed by Macpherson, and if, at the time, the appellants were owners, and responsible for the work actually done, it is still established that the vaults were built under a permit from the city and in accordance with that license. The coal-hole and its cover were safely and properly constructed, and in the usual and permitted manner. The case is not, therefore, within the doctrine of Clifford v. Dam (81 N. Y. 52), and the kindred authorities cited by the respondent. In that case no permission or license from the municipality to make the excavation was either pleaded or proved, and the construction of the vaults-was an unauthorized wrong and a nuisance, for the consequences of which the owner was responsible irrespective of the question of negligence. There was the same lack of special authority in most of the other cases to which we are referred. (Anderson v. Dickie, 1 Robt. 238; Dygert v. Schenck, 23 Wend. 445, 446; Congreve v. Morgan, 18 N. Y. 75, 84.) For is the case one in which the owner or landlord has let the premises when in a defective and dangerous condition (Davenport v. Ruckman, 37 N. Y. 568), for the proof establishes no such ground of liability. The evidence does not disclose the.preciselegal relation existing between the occupants and owners. The former were tenants of some kind, although it does not appear that any rent was reserved or paid to the owners, or that the latter were ever in possession at all. On the contrary, Macpherson testified that from the time he built the houses, which was in 1857, to the time of the accident he had the care and control of the premises both as owner and occupant. So that the recovery must stand, if at all, upon the sole ground that an owner, -who has constructed vaults under the sidewalk lawfully and with due prudence and care, and transferred possession of the premises, if he ever had it, to third persons without covenant on his part to repair, is liable for a defect in the vault covering which afterward occurs through the interference of a stranger, although he may have had neither notice nor knowledge of the defect. The court went so far in the case as to charge that “if the plaintiff sustained injury by reason of the defective condition of said coal-hole and without contributory negligence that said defendants Kilpatrick are liable in damages,” to which there was an exception. The court was asked to charge “ that notice of the alleged condition of the coal-hole must have been given to the Kilpatricks before they could be held liable as owners, when the possession was in Maepherson and that “ if Maepherson was in the control and care of said premises, and deriving all the benefit therefrom, he alone is liable to the plaintiff.” These requests were refused, and the appellants excepted. The basis on which the case was sent to the jury was still more clearly developed in the course of the charge. After stating the liability of the city as founded upon negligence, and involving notice, actual or constructive, of the alleged defect, the learned court added: “ The law is a little more severe with respect to the owners of the premises for whose benefit this hole in the sidewalk has been authorized. It holds them to a stricter liability; a party injured by falling through any coal-hole in the sidewalk is not bound in the case of the owner of the premises to show that the owner had notice that the hole was out of repair. It appears, according to the current of decisions, that the owner of the premises is bound to see that the coal-hole and cover over it affords just as safe a passage to the wayfarer as any other portion of the sidewalk. Therefore, the question with respect to these defendants who are the owners of the property is simply how much they should be required to pay the plaintiff.” The doctrine of the trial court was thus made extremely plain. It went upon the ground that the defect in the vault-stone was a nuisance for which the vault owner was responsible, though out of possession and control, without the least knowledge of the fact, and when the defect was produced by the interference and misconduct of strangers.

It may be that the condition of the coal-hole in the sidewalk became a nuisance, while Macpherson was in possession, and after the stone was broken. (Swords v. Edgar, 59 N. Y. 28, 34.) But if so, the party responsible can only be the person who either creates the nuisance, or suffers it to continue. The owners did not create it; that was the wrongful act of strangers. How can it be said that they suffered it to continue and so failed in their duty if they had no knowledge, actual or constructive, of the defect, and were out of possession and control % That can only be true on the theory that every owner of rented property in Hew York is bound to watch the sidewalks and coal-holes in front of his premises and protect them against unauthorized trespasses, and is bound to know when such a trespass is committed. We are aware of no case which goes so far as that. In Swords v. Edgar (supra), the premises were a pier upon which the public having business were invited to go, and which became dilapidated whereby injury arose. That condition was denominated a nuisance for which, primarily, the lessee in the actual occupation was liable; and he was held to be so liable independent of any covenant to repair and solely by force of the occupancy. But it was also held that the lessors were liable, and upon the ground that the pier was unsafe when demised, and they took a rent for it in that condition. The whole drift of the opinion shows that the landlord out of possession is not responsible for an after-occurring nuisance unless in some manner he is in fault for its creation or continuance. His bare ownership will not produce that result. It was said in Clifford v. Dam (supra), that proof of authority from the municipality to build the vault would mitigate the act from an absolute nuisance to an act involving care in the construction and maintenance. In Clancy v. Byrne (56 N. Y. 129, 133), it was held that if the premises are in good repair when demised, but afterward become ruinous and dangerous, the landlord is not responsible therefor either to the occupant or the public, unless he has' expressly agreed to repair or has renewed the lease after the need of repair has shown itself. In the recent case of Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245, 248) the circumstances under which the landlord may become liable are very fully considered with the declared result that “ the responsibility of the landlord is the same in all cases. If guilty of negligence or other delieium which leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him.” It is quite certain then that the plaintiff in this .ease was bound to establish some fault of omission or commission on the part of the landlord leading to the injury, and barely showing him to be owner is not enough. There was no fault of commission. That is conceded. There could be no fault of omission unless the landlord was bound to repair the defect, had actual or constructive notice of its existence, or was bound at his peril to discover and remedy it. Ho such duty rested upon him. It was the tenant’s duty to repair the stone ; it was his neglect which left it unsafe ; and the landlord was not shown to be in any respect in fault. The charge made him liable barely from the fact of ownership, and was erroneous.

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

All concur.

Judgment reversed.


author: Andrews, J.

text:
    Theodore V. Masten, Respondent, v. Adelaide Olcott et al., Appellants.
    In an action of ejectment, to recover possession of a small triangular piece or parcel of land, it appeared that the land in question was, prior to 1806, included in a lot known as “ the saw-mill lot,” and within the courses and distances as given in the deed of said lot. In that year the owner of said lot and the owner of land adjoining it on the south entered into an arrangement to ‘ ‘ square the line ” between the lots, by which a line was located cutting off said parcel from the saw-mill lot. A fence was built upon said line which was replaced in 1820 by a heavy stone wall. From the time of the location of the line up to 1873, the land in question was inclosed and occupied as part of plaintiff’s lot by him and his predecessors in title and the lot north of the line was known as the “ saw-mill lot.” In 1873, a partition suit was commenced to which plaintiff was made a party. The defendants’ premises sought to be partitioned wOje described as being part of the lot “ known as the saw-mill lotfollowing this the courses and distances were given, as in the old deed of said lot. The land sought to be partitioned was sold under the judgment in said action, and defendant J., claiming as tenant of defendant A., the grantee, under said sale, took possession of the parcel in question. The person under whom the plaintiffs in the partition suit claimed was a party to the location of the line; he devised it as the premises ‘1 known as the old saw-mill premises.” Held, that plaintiff was not precluded by the j udgment in the partition suit from claiming title to the land in question; that the testator must have intended to devise the premises north of the stone wall; that the words “known as the saw-mill lot,” in the description in the partition action, were the controlling descriptive words, and as at the time when the said action was commenced and for more than fifty years prior thereto the lot so known was north of the wall, the judgment and sale in partition did not embrace the land in question.
    The description clause in a deed is to be so construed if possible as to carry out the intent of the parties; for this purpose false particulars in the description are to be rejected and less material points subordinated to the more certain and material ones when there is inconsistency between them; thus monuments generally control courses and distances.
    It was claimed that plaintiff was equitably estopped by statements made by him, at the time he was served with the complaint in the partition suit, to the attorney for the plaintiff therein. It did not appear that these statements were communicated to any of the parties or that it influenced the action of the attorney. Held, that the claim was untenable.
    Plaintiff bid off the premises on the partition sale for one of the other parties to the action. Held, this was not an admission that the premises included the land in question.
    A survey was made after the partition sale with a view of ascertaining the location of the premises according to the courses and distances in the deed, and plaintiff pointed out the places where the old monuments were located. Held, that this in no way prejudiced his legal rights.
    After J. had taken possession he brought an action of trespass in justice’s court against plaintiff for the entry of the cattle of the latter upon the land in question, of which his complaint alleged he was in possession. The answer was a denial and an averment of possession in the defendant in that action for more than twenty years. There was no plea of title, and the evidence on the trial related merely to the question of actual possession at the time of the alleged trespass. J. recovered a judgment. Held, that the judgment did not conclude on the point of title and in no way affected it. Also held, that as A., the real defendant in interest here, was not a party to the justice’s court suit, as a judgment upon the title for or against J. would not have bound her, and as estoppels must be mutual, even if the question of title had been involved in that suit, it did not estop plaintiff here.

      It seems that a judgment in ejectment against a tenant at the suit of a stranger does not bind the landlord unless he has been brought in and made a party, in fact or in substance, to the litigation.
    The rule that estoppels bind parties and their privies applies only to a privity arising after the event out of which the estoppel arises.
    (Argued December 4, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 9, 1883, which directed judgment in favor of plaintiff upon a verdict, and denied a motion for a new trial.
    This was an action of ejectment, brought to recover possession of a triangular piece of land containing about one acre, situate in Sullivan county.
    The answer set up a title to the premises in defendant Adelaide Olcott. On the trial defendants claimed, among other things, that plaintiff was estopped by reason of a judgment in a partition suit, also a justice’s court judgment.
    The material facts are stated in the head-note and in the opinion.

      T. A. Read for appellants.
    The doctrine of estoppel is applied to promote justice and fair dealing, never to aid a fraudulent purpose. (Royce v. Watrous, 73 N. Y. 597; Lawrence v. Seventh Nat. Bk., 54 id. 432.) The judgment in justice’s court was a bar to plaintiff’s right to maintain this action. He showed no paper title from either the State or a common source. He must show possession for twenty years, and that under a claim of title. (22 N. Y. 170; 72 id. 94; 73 id. 560.) The plaintiff in this action did not appeal from the judgment and decision in the justice’s court, and not having done sois bound by" the determination of the facts there tried. (Lengen v. Governeur, 1 Johns. Cas. 436; Smith v. Smith, 79 N. Y. 634.) It need not appear, by the record of the prior suit, that the particular controversy to be precluded was then necessarily tried and determined; it is sufficient if there might have been judgment in the first action for the cause of action alleged in the second. (Smith v. Smith, 79 N. Y. 634.) It is only necessary to show both causes of action are identical or substantially so. (Perry v. Dickinson, 85 N. Y. 345; Jordan v. Van Epps, id. 427; Masten v. Olcott, 24 Hun, 587.) In this action to recover possession of the land, and establish the fact that defendant wrongfully holds, plaintiff must depend upon the strength of his own title, and not upon the weakness of the title of his adversary. (Lamon v. Cheshire, 65 N. Y. 130; Wallace v. Swinton, 64 id. 188; Bowers v. Arnoux, 33 N. Y. Super. 530.) A party against whom a- verdict is ordered is upon appeal entitled to have every doubtful fact found in his favor. (Colgrove v. N. Y. C. & H. R. R. R. Co., 20 N. Y. 492; Hart v. E. R. Co., 3 Alb. L. J. 312; Scofield v. Hernandez, 47 N. Y. 313.)

      T. F. Bush for respondent.
    Estoppels are not favored. (Jackson v. Brinkerhoff, 3 Johns. Cas. 101.) The affirmative is upon the party asserting an estoppel to prove that the question or matter has been in fact litigated and decided between the same parties or their privies. (Campbell v. Butts, 3 N. Y. 173; Doty v. Brown, 4 id. 71; Duckell v. Wiles, 11 id. 420; Stowell v. Chamberlain, 60 id. 272; Dawley v. Brown, 79 id. 398; Ferrett v. Cowenhoven, 11 Hun, 320; Kerr v. Hayer, 35 N. Y. 331; Patrick v. Shaffer, 94 id. 423; Clemens v. Clemens, 37 id. 59.) Where it appears prima facie from the record that the question was litigated, the party against whom the estoppel is urged may show by proof aliunde that it was not litigated. (Royce v. Burt, 42 Barb. 663; Doty v. Brown, 4 N. Y. 75; Mors v. Osborn, 64 Barb. 543.) The justice’s judgment is not a bar to this action. A judgment is conclusive only upon the parties thereto, or their privies, and only in respect to the grounds covered by it and the law and facts necessary to uphold it. (People v. Johnson, 38 N. Y. 63; Campbell v. Consalus, 25 id. 613; Woodgate v. Fleet, 44 id. 1.) The justice’s court had no jurisdiction, and could acquire none, over the question of title to the premises. (Code of Pro., §,58; Ferrett v. Cowenhoven, 11 Hun, 320.)
   Andrews, J.

The complaint in the partition suit described the premises sought to be partitioned, as being part of the lot “ known as the saw-mill lot,” and following this designation, courses and distances were given, and the description concludes, which said premises are known as the old saw-mill lot.” The saw-mill lot, as known and occupied at the time, was separated from the lot on the south, occupied by the plaintiff, by a heavy stone wall, erected in 1820. The premises in controversy comprise about an acre of land in a triangular form, south of, and adjacent to the stone wall, which has been inclosed and occupied as part of the plaintiff’s lot by him and his predecessors in title from about the year 1806. In that year, Johannas Hasten conveyed to Jacob Hasten and others, a lot described in the deed by the same description contained in the complaint in partition, and what was then known as the saw-mill lot, embraced the premises now in controversy. But soon after that conveyance an arrangement was entered into between the Hastens, and the owner of the lot next south of the saw-mill lot, to “ square the line ” between the lots, by which the line was located where the stone wall was subsequently built. Before the erection of the stone wall, and soon after the arrangement referred to, a wood fence was bnilt on the same line by the owner of the plaintiff’s lot. From that time to the commencement of the partition proceedings in 1873, a period of more than sixty years, the respective lots had been occupied according to. the line fixed in 1806, and when this action was commenced the stone wall had been for more than fifty years the division fence between the lots. The plaintiff has an unquestionable legal title to the premises in controversy unless he is concluded from asserting such title by the judgment and sale in the partition action in which he was made a party defendant. It is claimed on the part of the present defendant that as the land in controversy is included within the lines mentioned in the description in the partition proceedings, and was in fact originally a part of the saw-mill lot, the plaintiff if he claimed title thereto was bound to set up his title in the partition action and having failed to do so, the judgment and sale therein is conclusive against any subsequent assertion of such title. This would be true on the assumption that it was adjudged in that action that the premises alleged therein to have been owned in common by the parties, and of which partition was decreed, embraced the part of the original saw-mill lot, now in controversy. The parties to a partition suit are bound by the judgment therein whether their interests were rightly stated or not, and an adjudication that they were tenants in common of the land adjudged to be partitioned concludes a party to the action, served with process, although he did not appear, and although his title to a part of the land partitioned was in severalty. This was a fact he was bound to put in issue, and have determined on the trial. (Jordan v. Van Epps, 85 N. Y. 427; Cook v. Allen, 2 Mass. 462.) It comes, therefore, to the question whether the judgment and sale in the partition action did embrace the part of the original saw-mill lot now claimed by the plaintiff. A survey, according to the metes and bounds and courses and distances in the description includes these premises. But the description by courses and distances is not the whole of the description in the partition,proceedings. It begins by declaring .that the premises sought to be partitioned are known as the saw-mill lot.” It is clear beyond controversy that the lot known as the saw-mill lot, when the partition action was commenced, and for fifty years prior to that time, was north of the stone wall. The stone wall was the line marked on the ground dividing the two lots. It had been located as the south line of the mill lot by agreement between the owners of the two lots and had been acquiesced in as the true line for all that long period. The conveyances of the plaintiff’s lot from 1815, had bounded it on the north by the saw-mill lot or “ Masten’s saw-mill lot,” and the grantees understood that their grants carried them to the stone wall. Jacob Hasten, who died in 1852, and under whose will the plaintiffs in the partition suit claimed was a party to the location of the line in 1806 and he devised the saw-mill lot as the premises known as the old saw-mill premises.” It is apparent that he must have intended the premises north of the stone wall, and that it was these premises which were known to him at that time as the saw-mill premises. The rules for the construction of deeds, established to effectuate the intention of the parties, authorizes the rejection of false particulars in the description of the granted premises, and subordinates the less material facts to the more certain and material ones, where there is inconsistency. (Brookman v. Kurzman, 94 N. Y. 272, and cases cited.) Thus monuments generally control courses and distances, because grants are supposed to be made with reference to an actual view of the premises. (Wendell v. People, 8 Wend. 183, 190.) It cannot be doubted that the parties to the partition action on reading the description in the complaint, would locate the land by reference to the actual inclosure of the saw-mill property, rather than by the courses and distances, which could only be located by a survey, the monuments mentioned, having been lost or destroyed, and so also as to a purchaser on. a partition sale. If the devisees under thé will of Jacob Hasten had conveyed by the same description contained in the complaint in the partition suit, could the grantee have claimed that the grant was intended to cover the premises in controversy ? If a grantee in a voluntary conveyance could not do so a purchaser on a partition sale stands in no better position. We think the words “ known as the saw-mill lot,” in the description in the partition action were the controlling descriptive words, and that the premises covered by the sale were the saw-inill lot as it was then known bounded on-the south by the stone wall. The judgment and sale in that action, therefore, did not conclude the plaintiff from asserting his title to the premises now in controversy.

The defendants claim that an equitable estoppel has arisen against the plaintiff, by reason of acts and conduct before, at, and after the sale in partition; The claim cannot, we think, be supported. The interview with the attorney, when the plaintiff was served with the complaint in the partition action, was casual, and what was said, so far as appears, was never communicated by the attorney to any of the other parties, nor did it influence his action. The bidding off of the property on the sale by the plaintiff for one of the other parties to the action, was not an admission that the premises sold embraced the land now in question. The act was commensurate only with the thing to which it related, that is, a sale of the land included in the description, and this, as we have seen, did not embrace any part of the plaintiff’s lot. The surveys made after the sale, when the plaintiff was present were made with a view of ascertaining the location of the premises according to the courses and distances in the deed, and his pointing out the places where the old monuments were located did not in any way prejudice his legal rights.

The remaining question arises upon the claim of the defendants that the justice’s judgment rendered in December, 1876, in an action for trespass brought by the defendant John Olcott, against the plaintiff, in which Olcott recovered $5 damages, is a conclusive adjudication against the title now claimed. There are several answers to this point. The action in the justice’s court was for the entry of the defendants’ cattle upon the land in question, trampling the plaintiff’s crops, etc. The complaint alleged possession simply of the locus in quo in the then plaintiff and not title. The answer was a denial, and possession in the then defendant for twenty years. There was no plea of title, and the evidence on the trial related solely to the point of actual possession at the time of the alleged trespass, and no evidence was given of twenty years possession by the defendant. Possession was the only point litigated, and the question of legal title was not in any way brought into controversy. It is very plain that the judgment did not conclude on the point of title, or in any way affect it. The question of title was not tried before the justice, and could not be, except perhaps where a plaintiff in an action of trespass in a justice’s court should be permitted without objection on the part of the defendant to give evidence of title as the ground of and to support his allegation of possession the defendant not disputing such title, and judgment should pass in favor of the plaintiff, a point, however, as to which we express no opinion. (See Boyer v. Schofield, 2 Keyes, 628; Koon v. Mazuzan, 6 Hill, 44.) The actual question tried being the possession only, the judgment was an adjudication merely that the actual possession at the time of the alleged trespass was in Olcott,- and that for the purposes of that action his possession was lawful and that Hasten’s cattle were wrongfully on the land. Judgment for Olcott was inevitable under the pleadings as framed, although in law he may have been a trespasser on the premises, and although at the very time of the alleged trespass and of the rendition of the judgment the legal title and the right of possession were conjoined in Hasten. The latter by not pleading title had precluded himself from raising the question. He elected^thereby to stand or fall in the action upon the question of the actual and naked possession of the land. (Ehle v. Quackenboss, 6 Hill, 537.) It is extremely well settled that a judgment is conclusive only as to matters within the jurisdiction of the court by which it was rendered, and only upon such questions as the court had the power to adjudicate in the action. There is another conclusive answer to the alleged estoppel of the justice’s judgment as between the present plaintiff and the defendant Adelaide Olcott, the real defendant in interest. John Olcott, the plaintiff in the justice’s suit, could not bind her title by a litigation to which she was not a party, and as estoppels must be mutual, a judgment upon the title for or against John Olcott in the trespass suit, would not bind her in the one case, or entitle her to its benefit in the other. Á judgment against a tenant in ejectment at a suit of a stranger does not bind the landlord unless the landlord has been brought in and made a party in fact or in substance to the litigation. (Doe v. Challis, 17 Ad. & El. [N. S.] 166; Chirac v. Reinecker, 2 Pet. 613; Sheridan v. Andrews, 49 N. Y. 478; Bennett v. Leach, 25 Hnn, 178.) This rests upon the broad principle of justice that a person ought not to be bound by the result of a litigation to which he was not a party. The rule that estoppels bind parties and privies is no exception. This applies only to a privity arising after the event out of which the estoppel arises and the person in privity is bound by or entitled to the benefit of the estoppel because he comes in after the fact creating the estoppel by succession or representation to the original title or interest. (Campbell v. Hall, 16 N. Y. 575.) The cases of feoffer and feoffee, lessor and lessee, ancestor and heir, are examples. (See 1 Smith’s Lead. Gas. 800, n, and cases cited.) The tenancy between John Olcott and Adelaide Olcott orginated prior to the rendition of the justice’s judgment and within the rule stated the landlord was not entitled to the benefit of the estoppel in favor of the tenant created thereby, assuming that the judgment determined the title as between the parties.

We think the judgment below is right, and it should be affirmed.

All concur, except Huger, Ch. J., dissenting.

Judgment affirmed.


author: Earl, <T.

text:
    Michael Denman et al., Respondents, v. John McGuire, impleaded, etc., Appellant.
    Plaintiffs commenced an action against defendant, McC., by service of summons by publication. An attachment was issued therein, which was levied upon certain lands, and plaintiffs obtained judgment. In an action brought to set aside as fraudulent against creditors, a conveyance of land by McC. to defendant McG., and to have the judgment declared a lien thereon, the latter attacked the attachment proceedings and the judgment. McG. was found guilty of co-operating with McC. to defraud his creditors. Held, that the proceedings should be upheld unless absolutely void for jurisdictional defects; and that they should be liberally construed to uphold the judgment, although they might have been held insufficient in a direct proceeding by the judgment debtor to set them aside.
    Proceedings taken during the twenty days that the Code of Remedial Justice was in force were valid if taken under that Code, or under the Code of Procedure, so far as any action was based upon them prior to September 1, 1877, when the Code of Civil Procedure went into effect.
    (Argued December 2, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 3, 1883, which affirmed a judgment in favor of plaintiffs, entered on a decision of the court, on trial at circuit, certain questions of fact therein Paving been submitted and tried by a jury.
    The nature of the action and the material facts are stated in the opinion.

      Arthur C. Betts for appellant.
    The judgment in the action against McCann, he never having been personally served and having never appeared, was m rem. / all the steps to vest the court with jurisdiction of the subject-matter of the action must be taken as required by law. (McKinney v. Collins, 88 N. Y. 216; Warren v. Tiffiny, 17 How. 106.) Plaintiffs have no standing in court, because their judgment against Felix McCann is void for want of jurisdiction and never had any life or validity against the defendant McCann, and especially against the defendant McGuPe. (Staples v. Fairchild, 3 N. Y. 41; Wallace v. Swinton, 64 id. 188; McKinney v. Collins, 88 id. 216; Towsley v. McDonald, 32 Barb. 604.) A jurisdictional defect can be raised at any time by any one sought to be affected by any judgment. (Buck v. Ayers, 19 Hun, 24; Bartlett v. Holmes, 12 id. 398; Chemung Co. Bk. v. Judson, 4 Seld. 259; People v. Soper, 3 id. 429; Van Alstyne v. Erwin, 11 N. Y. 331; Dobson v. Pearce, 12 id. 164.) In a case like the one at bar where the defendant is a non-resident and has not been served personally with process, and it is sought' to divest him of his property by a proceeding under the statute, the statute must be strictly followed or the judgment will be a nullity. (Hallett v. Righters, 13 How. 43; Warren v. Tiffiny, 17 id. 106; Hyatt v. Wagenwright, 18 id. 248; Cook v. Farran, 34 Barb. 95; Evertson v. Thomas, 5 How. 45; Hulbert v. Hope Ins. Co., 4 id. 278; McKinney v. Collins, 88 N. Y. 216; Stanton v. Ellis, 2 Kern. 579; People v. Board Police, 6 Abb. 162; Bloom v. Burdick, 1 Hill. 130.)

      T. F. Bush for respondent.
    The court having acquired jurisdiction by due service of the summons, and proof by affidavit having been produced on application for judgment showing the issue and levy of the attachment, and an undertaking having been given to indemnify the defendant as required by Rule 34 then in force, the judgment rendered was conclusive as against a stranger to the record. (Candee v. Lord, 2 N. Y. 269; Hall v. Stryker, 27 id. 596.) An attachment is a provisional remedy, and any irregularity in granting or executing it is available only to a party to the action on a motion to vacate it. (Tracy v. First Nat. Bk., 37 N. Y. 523; Hall v. Stryker, 27 id. 596.) Questions relating to the proceedings under the attachment after it was granted are not jurisdictional in their nature; all such proceedings are amendable if defective, and the statute relating thereto is directory only. (White v. Bogart, 73 N. Y. 256; Wright v. Nostrand, 94 id. 47; O'Brien v. Merch. & T. Ins. Co., 57 id. 57.) Chapter 318, Laws of 1877, made the Code of Procedure applicable and put out of existence the “ Code of Remedial Justice,” as effectually as if it had never been passed, except that all proceedings had in conformity to it were not impaired by the suspension. (Washburn v. Franklin, 35 Barb. 599.) This legislation being remedial no objection to its retroactive effect can exist. (Washburn v. Franklin, 35 Barb. 599.) It having been found on the trial, and it being undisputed, that all the facts existed when the attachment was granted which were necessary to authorize it, a court of equity cannot be required to ignore the facts which are now made clear and deal only with the shadow upon which the judge granting the attachment was required to.act. (Howe Machine Co. v. Pettibone, 12 Hun, 657; 74 N. Y. 68.)
   Earl, <T.

This action was brought by the plaintiffs, judgment creditors of defendant McCann, to set aside a conveyance of land situated in Sullivan county, made on the 15th day of October, 1874, by McCann, to his son-in-law, the defendant McGuire, and to have their judgment declared a lien on such land.

The plaintiffs attached the land and obtained a judgment against McCann as a non-resident, by the service of summons by publication, and this action is based upon the judgment thus obtained. The affidavit for the attachment was made April 21, 1877, and the undertaking for the same was executed on the same day. The undertaking was approved and warrant of attachment was issued on the 2d day of May. The complaint in the action against McCann was verified April 25, and the summons in that action was dated May 3. The order for the publication of the summons was granted May 8, and the judgment was entered August 21.

The Code of Remedial Justice which was enacted in 1876, took effect May 1,1877, and was in force until May 22, when its operation was suspended until September 1, 1877, and the Code of Procedure was re-instated until that time. Hpon the trial of this action the defendant assailed the attachment proceedings and the judgment for various irregularities and defects, and claimed that they were absolutely void for want of jurisdiction. As the merits of this controversy have been decided against McGuire, and he has been found guilty of co-operating with McCann to defraud his creditors, his technical objections to the proceedings against McCann to which he was an entire stranger, should not be listened to with favor.

In this collateral attack upon them, those proceedings should be upheld unless absolutely void for jurisdictional defects. There seems to have been singular carelessness and inattention in conducting the proceedings, and a court considering a motion made by McCann to set them aside might well hesitate to uphold them. But in this action they should be liberally construed for the purpose of upholding the judgment against McCann and the judgment now appealed from. We will now notice some of the most material objections separately.

(1.) The attachment was obtained on the ground that McCann had assigned and disposed of his property and departed from the State with intent to defraud his creditors. It is objected that the affidavit made to procure the attachment did not sufficiently state the facts showing the fraudulent intent. While it is not so full as could be desired, yet we think there was enough to confer jurisdiction to issue the attachment.

(2.) It is objected that the affidavit did not state that the plaintiffs were entitled to recover the amount mentioned therein over and above all counter-claims known to them ” as required by section 636 of the Code of Remedial Justice. By section 3 of the Suspending Act (Chap. 318 of the Laws of 1877) it was provided that any proceeding taken in conformity to the Code of Remedial Justice during the twenty-two days of its existence, should not be impaired by the suspension, but that all subsequent proceedings in the action should conform to the Code of Procedure, and that the court should allow without costs any amendment or other proceeding necessary for that purpose. The affidavit was in strict conformity with the Code of Procedure which was in force when it was made, but it did not conform in the respect specified by the objection with the Code of Remedial Justice when it was presented to the judge who granted the attachment. But while the operation of section 636 above referred to was suspended and the prior Code was in force, the provisions of that section could not be invoked against an affidavit which conformed to that Code. The affidavit' conformed to the law in force when the judgment was entered in August, 1877. We think the effect of the statutes is that proceedings taken during the twenty-two days were valid if taken under either Code, at least so far as any action was based upon them prior to September 1, 1877 when the present Code took effect.

(3.) It is objected that the affidavits upon which the order of publication was granted were insufficient to confer jurisdiction, in that they did not show that any effort had been made to serve the summons within this State, or that the plaintiff had used reasonable diligence to ascertain where the defendant would receive matter transmitted through the post-office. We think the affidavits sufficient in these respects. They show that efforts were made to serve the summons upon McCann and to ascertain his place of residence, and that his residence and whereabouts were unknown. The facts sworn to were sufficient to confer jurisdiction.

(4.) It is objected that the notice attached to the summons published did not state where the summons was filed as required by the Code of Remedial Justice (§ 442). The notice was not in the precise form prescribed by that section, but we must hold that it was in substantial compliance therewith. The summons and notice were attached, and the latter referred to the former. In the summons it was stated that the action was in the Supreme Court and triable in Sullivan county, and the notice states that the order was issued by the special county judge of that county, and that the summons was filed with the complaint. As the complaint was required to be filed in the clerk’s office of Sullivan county, we think there was sufficient notice that the summons was filed in the same place. This notice was so far deficient and irregular that it might have been held insufficient in a direct proceeding instituted by McCann to set aside the service of the summons and the subsequent proceedings had thereon. But we think it ought to be held sufficient, as against a collateral attack by McGuire, a stranger to that judgment. It was not so defective that the court failed to acquire jurisdiction to give judgment.

(5.) Various other objections are made to the attachment proceedings and to the mode of obtaining the judgment against McCann, but those objections simply point out irregularities and do not present or raise any question of jurisdiction.

(6.) The exception to the charge of the judge to which our attention is called points out no error. The language of the judge was a fair commentary upon the case. He did not charge that it was as a rule of law incumbent upon the defendant to procure the evidence of McCann, and he laid down no rule of law in reference thereto. But he distinctly charged that the burden was upon the plaintiffs to establish the fraud which they alleged.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

All concur, except Akdbews and Danfobth, JJ., dissenting.

Judgment affirmed.


author: Eabl, J.

text:
    William Scholle, Appellant, v. Jacob Scholle et al., Respondents.
    Where a trustee who has an interest to protect, by bidding at a sale of the trust property, makes special application to the court for permission to bid, which, upon a hearing of all the parties interested, is granted, he can make a purchase which is valid and binding upon all the parties, and under which he can obtain a perfect title.
    (Argued December 8, 1885;
    decided January 19, 1886.)
    Appeals from two orders of the General Term of the Superior Court of the city of New York, made November 6, 1885, one of which affirmed an order of Special Term confirming the report of a referee of a sale under the judgment herein, and requiring plaintiff William Scholle and defendant Jacob Scholle to complete the several purchases made by them on the sale; the other affirmed an order of Special Term which denied a motion on the part of said parties to be released from their said purchases.
    This action was for partition. The material facts are stated in the opinion.

      Alexander B. Johnson for appellant.
    Jacob Scholle, being the executor, trustee and guardian under the will of his brother, is incapable of purchasing the trust property. (Fulton v. Whitney, 66 N. Y. 548; Davoue v. Fanning, 2 Johns. Ch. 252; Campbell v. Walker, 5 Vesey, 678; Ex parte James,
      8 id. 337; Randall v. Erington, 10 id. 423; Morse v. Royol, 12 id. 355; Lowther v. Lowther, 13 id. 95; Coles v. Trecothick, 9 id. 234; Ex parte Bennett, 10 id. 385; Gallalan v. Cunningham, 8 Cow. 361; Torrey v. Bank of Orleans, 9 Paige, 661; Michoud v. Girod, 4 How. [U. S.] 553.) Sales of such a nature are void or voidable, without regard as to whether the sale is had under judicial sanction; whether the sale is at public auction, or whether the prices bid are fair and adequate. (People v. Open Board, 92 N. Y. 98; Iddings v. Bruen, 4 Sandf. Ch. 263; Ten Eyck v. Craig, 62 N. Y. 419; Lytle v. Beveridge, 58 id. 606; Gardiner v. Ogden, 22 id. 327; Van Epps v. Van Epps, 9 Paige, 237; Case v. Carroll, 35 N. Y. 385; Forbes v. Halsey, 26 id. 153; Whelpdale v. Cookson, 1 Ves. Sr. 8; Cumberland C. Co. v. Hoffman, 30 Barb. 569; 16 Md. 456; Conger v. Ring, 11 Barb. 356.)

      Ferdinand R. Minrath for respondents Siegman.
    Ordinarily a purchase by an executor, directly or indirectly, of any part of an estate held by him as such, whether at public auction or private sale, is voidable at the option of the beneficiaries under the will, and these rules can be enforced without regard to the question of good faith or adequacy of price, and whether the trustee lias or has not a personal interest in the same property. (Michoud v. Girod, 4 How. [U. S.] 503; Davoue v. Fanning, 2 Johns. Ch. 251; Gardiner v. Ogden, 22 N. Y. 327; Conger v. Ring, 11 Barb. 356; Fulton v. Whitney, 66 N. Y. 548; 1 Greenlf. Cruise on Real Property, 447; Tiffany and Bullard on Trusts and Trustees, 483; 4 Kent’s Com. 438.) ¡Nor is the mere formal leave to buy usually granted to the parties in a foreclosure or partition decree of sale sufficient to legalize such purchase by an executor or trustee, as said consent is granted merely to obviate the technical rule that parties to the action cannot buy, and is not intended to determine equities between the parties to the action or between such parties and others. (Fulton v. Whitney, 66 N. Y. 556; Torrey v. Bk. of Orleans, 9 Paige, 661; Conger v. Ring, 11 Barb. 356.) Any court having jurisdiction of both trustees and cestui que trustent and having jurisdiction of the subject-matter may, in a proper case, and after the hearing of such cestui que trustent or beneficiaries, authorize such trustees, to buy individually at a sale of such trust property, and such leave of a court will effectually bar any rights of said beneficiaries to question or attack such purchase. (De Caters v. Chaumont, 3 Paige, 178 ; Gallatin v. Cunningham, 8 Cow. 361; Campbell v. Walker, 5 Ves. Jr. 678; Michoud v. Girod, 4 How. [U. S.] 503; Potter’s Willard’s Eq. Jur. 607; Lewin on Law of Trusts [7th ed.], 443; Godefroy on Trusts, 184; Fulton v. Whitney, 66 N. Y. 556; 11 Barb. 365; 33 id. 593; 59 id. 13; 21 id. 201; 5 N. Y, 262; 22 id. 349; 27 id. 565; 44 id. 241.)

      Samson lachman for respondents.
    The court had power to authorize the trustees to bid at the sale in partition. (Davoue v. Fanning, 2 Johns. Ch. 252; Fulton v. Whitney, 66 N. Y. 548; Van Epps v. Van Epps, 9 Paige, 237.) An exception exists where the trustees have a personal interest in the property, which would otherwise be seriously prejudiced or where, in the opinion of the court, it would be to the advantage of the cestui que trust to grant such leave. (Campbell v. Walker, 5 Ves. 678; Farmer v. Dean, 32 Beav. 327; Gallatin v. Cunningham, 8 Cow. 380; De Caters v. Chaumont, 5 Paige, 178; Fulton v. Whitney, 66 N. Y. 548; Bergen v. Bennett, 1 Caine’s Cas. in Error, 20; Colgate v. Colgate, 23 N. J. Eq. 372; Faucett v. Faucett, 1 Bush [Ky.], 511; McCarty v. Press Co., 5 La. 16; Willis on Trusts [1827], 164; Underhill on Trusts, 228, art. 53, 234; Lewin on Trusts [7th ed.], 443; Hill on Trusts [4th Am. ed.], 159; Perry on Trusts [3d ed.], § 195; Sugd. on Vend. 694 [8th Am. ed. 419] ; Dart on Vend. [5th ed.] 44 ; Willard’s Eq. Jur. 607; White and Tudor’s Lead. Cas. 212; Tuttle’s Farm Titles, East Side, 217.) All parties to the suit, infant or adult, and all unborn children are bound by the orders, judgment and decree in the suit. All were represented, and no step was taken without notice to every party. (Code of Civ. Pro., §§ 1557,1577.) The decree constitutes an adjudication, which is final and binding upon all the parties. (Clemens v. Clemens, 37 N. Y. 73; Blakely v. Calder, 15 id, 617; Brevoort v. Brevoort, 70 id. 136.)
   Eabl, J.

Prior to March 15, 1880, Abraham Scholle, together with the plaintiff, William Scholle, and the defendant, Jacob Scholle, were seized of certain real estate in the city of Hew York as equal tenants in common. Abraham Scholle died in March, 1880, leaving a will whereby he appointed his brothers, Jacob and William Scholle, his widow, Babetta, Julius Ephrmann and Simon Davidson executors and trustees, all of whom but William Scholle qualified as such. Davidson was subsequently discharged by order of the Surrogate’s Court and the other three acted as sole trustees and executors of the will. The mil was also admitted to probate in California, and there William Scholle qualified as executor. By the provisions of the will the testator gave his executors power to sell his real estate, and he directed them to sell the same and invest the proceeds as directed and pay the income thereof to his children during their lives, and at their deaths the share of each parent was to go to his or her children per stirpes. The testator left two sons and two daughters, the daughters having infant children living, all of whom were made defendants in this action, and the infants were represented therein by a guardian ad litem duly appointed. The action was brought by William Scholle for the partition of all the real estate held in common by him, Jacob and the testator. The action was referred to a referee who reported that a large portion of the property was incapable of partition and would have to be sold ; and a judgment in accordance with his report was entered. Thereupon plaintiff and the defendant, Jacob Scholle, presented to the court their petition setting forth their individual interests in the property, and various other facts, and asking for leave to buy at the sale. The petition came on for a hearing before the court on notice to all parties, including the guardian ad litem for the infants and all the other beneficiaries under the will, and the matter was referred to a referee to take testimony and report to the court together with his opinion whether Jacob and William Scholle could with safety be permitted to purchase. The referee after hearing the testimony, and full notice to all parties, reported that Jacob and William Scholle should be permitted to purchase, provided their bids were made subject to confirmation by the court, both as to their adequacy and fairness, and his report was subsequently confirmed by the court on notice to all parties. The property was subsequently exposed for sale by the referee appointed for that purpose, and Jacob and William Scholle were the highest bidders for property amounting in value to about $200,000. In pursuance of the directions contained in the interlocutory judgment, the same referee summoned all the parties before him, and took evidence as to the adequacy of the bids and prices paid, and after hearing all the parties found that they were adequate, and so reported to the court, and Ms report was confirmed. Subsequently William and Jacob Scholle made a petition to the court to be relieved from their purchase on the ground that they could not obtain a good title because they were trustees named in the will, and at the same time the referee appointed under the interlocutory judgment to sell the property made a motion to compel them to complete their purchase. Both motions came on before the court at the same time on due notice to all parties interested in the property, including all the beneficiaries, and the court made an order directing William and Jacob Scholle to complete their purchase and denied their application to be relieved therefrom; and they appealed from that order to the General Term and from affirmance there to this court.

The general rule is not disputed that the purchase by a trustee directly or indirectly of any part of a trust estate which he is empowered to sell, as trustee, whether at public auction or private sale, is voidable at the election of the beneficiaries of the trust; and this rule will be enforced without regard to the question of good faith or adequacy of price, and whether the trustee has or has not a personal interest in the same property. Nor is it sufficient to enable a trustee to make such a purchase that the formal leave to buy, which is usually granted to the parties in a foreclosure or partition sale, has been inserted in the judgment. Such a provision is inserted merely to obviate the technical rule that parties to the action cannot buy, and is not intended to determine equities between the parties to the action, or between such parties and others. (Fulton v. Whitney, 66 N. Y. 548; Torrey v. Bank of Orleans, 9 Paige, 649; Conger v. Ring, 11 Barb. 356.) But where the trustee has an interest to protect by bidding at the sale of the trust property, and he makes special application to the court for permission to bid, which, upon the hearing of all the parties interested, is granted by the court, then he can make a purchase which is valid and binding upon all the parties interested, and under which he can obtain a perfect title. (De Caters v. Chaumont, 3 Paige, 178; Gallatian v. Cunningham, 8 Cow. 361; Davoue v. Fanning, 2 Johns. Ch. 251; Bergen v. Bennett, 1 Caine’s Cas. 1, 20; Chapin v. Weed, 1 Clarke’s Ch. 464, 469; Colgate’s Ex’r v. Colgate, 23 N. J. Eq. 372; Froneberger v. Lewis, 79 N. C. 426; Faucett v. Faucett, 1 Bush, 511; Michoud v. Girod, 4 How. [U. S.] 503; Campbell v. Walker, 5 Ves. Jr. 678; Farmer v. Dean, 32 Beav. 327; Potter’s Willard's Eq. Jur. 607; Lewin on Trusts [7th ed.], 443; Godefroy on Trusts, 184.) Here, upon notice to all the beneficiaries, an order was made allowing these appellants to bid. After they had made their bids and signed the terms of sale, a further hearing was had upon notice to all the parties as to the fairness of the sales and the adequacy of the prices, and the sales were approved and confirmed by the court. Hnder such circumstances there can be no doubt that these appellants would get a good and perfect title to the lands purchased by them, and their title would be good, not only as against all the living parties to the suit, but as against unborn grandchildren, if any such should hereafter come into being. (Code of Civ. Pro., §§ 1557, 1577.)

The orders appealed from should, therefore, be affirmed, with costs.

All concur.

Orders affirmed.


author: Danfokth, J.

text:
    The Oneida County Bank, Respondent, v. Amos Bonney et al., Appellants.
    Where an action was commenced in a State court upon a joint contract by-service upon one of the joint contractors, and was upon his motion removed into the U. S. Circuit Court, and a second action was commenced in a State court upon the same contract, by service upon another of the joint contractors,—Held, that the pendency of the former action was not a good ground for setting aside the summons in the second action.

      ll seems that a former action in a court of the United States or of another State is no stay or bar to a suit upon the same cause of action in this State; while a recovery in one may be pleaded to the further continuance of the other, until this is obtained both may proceed to judgment and execution, when a satisfaction of one will require a discharge of the other.
    (Argued December 8, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made September 15, 1885, which reversed an order of Special Term which vacated and set aside the service of summons herein on defendant Otis and dismissed the action.
    .This action was upon two drafts drawn upon and accepted by defendants’ firm and discounted by plaintiff. The summons was served upon defendant Otis, who moved to set aside the service of the summons upon the ground that an action had previously been commenced on the same causes of action by service of summons oh defendant Arthur S. Herenden, upon whose motion it was removed into the United States Circuit Court, where it is still pending.

      James S. Sherman for appellants.
    When the liability is joint all claim is merged in the judgment, whether one or all the defendants are served, and judgment against one is a bar as to all. (Benson v. Paine, 9 Abb. 28; Robertson v. Smith, 10 Johns. 459; Mason v. Eldridge, 6 Wall. 231.) Mo action against a defendant not originally served can be brought until judgment has been entered and execution returned unsatisfied out of joint property. (Code of Civ. Pro., §§ 1932-7, 1946.) Where the liability is joint only and the action is brought against all, but only oite is served, the claim is merged in the judgment, and the judgment is a bar to an action against the other defendants. (Benson v. Paine, 9 Abb. 208; Streatfield v. Halliday, 9 Durnf. & East, 372.) Where it is brought against all, the action can be prosecuted to judgment, if one only is served. The Code of Procedure provides how this judgment can be enforced out of individual property where joint property fails. (Code of Pro., §§ 1932-7.) The filing of the petition for removal, and the giving of the bond, brings to an end the jurisdiction of the State court, and all future proceedings therein are coram non judice and void. (Stephens v. P. Ins. Co., 41 N. Y. 149; Vandervoort v. Palmer, 4 Duer, 677.)

      Nicholas E. Kernam, for respondent.
    The pendency of a similar action in the United States court is never a bar to an action in the State court. To this position there is no answer. (Browne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 id. 99; Burrows v. Miller, 5 How. 51; Cook v. Litchfield, 5 Sandf. Sup. Ct. 330.) The Code provisions are 'cumulative and do not prevent the maintenance of a new and separate action. (Lane v. Salter, 51 N. Y. 1; Morey v. Tracy, 92 id. 581; Ticknor v. Kennedy, 4 Abb. Pr. [N. S.] 417; Mason v. Eldred, 6 Wall. 239; Oakley v. Aspinwall, 4 Comst. 512; Code, §§ 1932-1937.) Since the process herein is the same in form as in the first action there is no reason why this action should not be deemed a continuance of the suit in the State court against the other defendant, Otis. (Wormser v. Dalham, 57 How. Pr. 286; N. J. Zinc Co. v. Dahlman, 7 Rep. 740; Girardy v. Moore, 4 Am. L. Rep. [N. S.] 387; 22 Int. Rev. Rec. 394.)
   Danfokth, J.

The question upon this record, stated most favorably to the appellant, is whether the pendency of an action upon contract in the United States Circuit Court is good ground for setting aside the service of a summons issued in a court of this State to enforce the same cause of action. As to it the courts below have differed. We agree with the General Term. At common law the pendency of another suit for the same cause could, at most, only be pleaded in abatement; but where the former action is in a court of the United States, or a sister State, it is no stay or bar to a suit in the courts of this State. A recovery in one might be pleaded to the further continuance of the other*, but until that was obtained each might proceed to judgment and execution, when a satisfaction of either would require a discharge of both (Walsh & Gallagher v. Durkin, 12 Johns. 99; Mitchell v. Bunch, 2 Paige, 606, 620), and the rule is the same since the Code. (Burrows v. Miller, 5 How. Pr. 51; Cook v. Litchfield, 5 Sandf. 330.)

That the first action was commenced in a State court by service upon one of several joint contractors, and removed by him into the United States court, and the second action afterward commenced by the service of a summons upon a different defendant cannot relieve that defendant. The plaintiff is entitled to all the remedies provided by law for the collection of its debt, and need not be satisfied until it has had such a judgment as will bind the defendants individually as well as jointly. It might, perhaps, proceed in the same suit against the other defendants (U. S. Rev. Stat., § 639, 2d subd.), in the State court, or, after judgment against all in such form as would bind the joint property, take proceedings to charge the defendants not personally summoned. It was not bound to do either, but might, as in this instance, commence a new action. (Lane v. Salter, 51 N. Y. 1; Morey v. Tracey, 92 id. 581.)

We think the order appealed from should be affirmed.'

All concur.

Order affirmed.


text:
    The Merchants' National Bank of the City of New York, Respondent, v. James F. Sheehan, Impleaded, etc., Appellant.
    The Code of Civil Procedure (§§ 870, 876) authorizes the granting of an order, before an action has actually commenced in a court of record, for the examination of a person against whom such an action is “about to be brought,” upon the application of the person who is about to bring the action.
    The granting of such an order is within the discretion of the court, and it seems the cases are rare where justice will be promoted by granting it.
    (Argued December 8, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made the first Monday of May, 1885, which modified, and affirmed as modified an order of Special Term adjudging the appellant guilty of contempt in disobeying an order requiring him to appear before a referee named to be examined and make a deposition as an expected party to an action about to be commenced in the Supreme Court. The appellant appeared before the referee, but refused to be examined.

      M. J. Scanlan for appellant.
    The order is appealable. (Brinkley v. Brinkley, 47 N. Y. 40; Ludlow v. Knox, 4 Abb. Ct. App. Dec. 326; People v. Dwyer, 90 N. Y. 402.) In order to render a party liable for contempt in disobeying an order of the court or of a judge, it must appear that it was á lawful mandate. (Code of Civ. Pro., § 14; People v. Riley, 25 Hun, 587; O'Gara v. Kearney, 77 N. Y. 423; People v. Edson, 52 Sup. Ct. 53; In re Fisk, 7 Civ. Pro. [Brown] 169.) Before a party can be imprisoned for contempt, a reasonably clear case upon the law and the facts should be made, and there should be an adjudication that the alleged misconduct defeated, impaired, impeded or prejudiced a right or remedy of a party to a civil action. (Fischer v. Raab, 81 N. Y. 235.) The right of a party to the examination of his adversary is strictly statutory. The court has no inherent or common-law power to order the examination. The statute points out how the examination is to be procured, and that mode must be followed. (Hershon v. Knickerbacker L. I. Co., 77 N. Y. 278.) The order for examination was void because no action had been commenced. (Code, § 870; Paulmier v. Sweeney, 56 How. 1; 5 Abb. N. C. 151; De Leon v. De Lima, 66 How. 287; Matter of Paulmier, 5 Abb. N. C. 151; 3 R. S., chap. 7, title 3, art. 1, § 1; Code of Pro., § 390.) The appearance .of an attorney on the application for the order for examination was not sufficient to give the court jurisdiction. (Couch v. Mulhane, 63 How. 79; Brandon Mfg. Co. v. Pettingill, 2 Abb. N. C. 162.)

      G. Zabriskie for respondent.
    The justice who granted the •order for appellant’s examination had jurisdiction of the subject-matter and of the person of the appellant, and the order was in all respects regular and cannot be questioned by the appellant in proceedings to punish him for contempt in disobeying it. (Hunt v. Hunt, 72 N. Y. 217; Fisher v. Hepburn, 98 id. 41; Clapp v. Graves, 26 id. 418; Erie Ry. Co. v. Ramsey, 45 id. 637; Higgins v. Rockwell, 2 Duer, 650; Cooley v. Lawrence, 5 id. 605; Code of Civ. Pro., § 424.) There is no force in the objection that under the Code you can examine only “ a person who expects to be a party to an action about to be brought,” and not a person whom you expect to make a party. (Code, § 872, subds. 1, 6, §§ 873, 875, 881; Code of Civ." Pro., § 877.)
   Andrews, J.

The question on this appeal depends upon the construction of section 870 of the Code, which is as follows : “ The deposition of a party to an action pending in a court of record, or of a person who expects to be a party to an action about to be brought in such a court, etc., may be taken at his own instance or at the instance of an adverse party, or of a co-plaintifE or co-defendant, at any tune before the trial, as prescribed in this section.” The question presented is whether this section authorizes an order for the examination of a person against whom an action is about to be brought, upon the application of the person who is about to bring such action, but before it has been actually commenced. The section is obscure, and its interpretation is by no means clear. The deposition to be taken is of the person “ who expects to be a party.” A person who contemplates bringing an action expects to be a party "thereto, and it seems to be clear that under the section he can procure his own testimony to be perpetuated. The person against whom the action is to be brought, may expect to be sued. A suit may have been threatened, or he may know that a cause of action has accrued against him, or that a liability is claimed, likely to result in litigation. Is the remedy given by this section available to either of the persons so situated, and may an order be granted before suit brought, upon the application of either, for the examination of his adversary? Considering this section alone, the most natural meaning would seem to be that a person who expects to become, or to be made a party to an action, may on his own application have his deposition taken in anticipation of the actual commencement of the suit, and that the words “ or at the instance of an adverse party,” only apply when the person seeking the examination of his adversary, is a party to a pending action. The change of phraseology by the substitution of the word party in the second clause, for the word person in the first clause, gives some force to this construction. But section 876 seems to render it clear that a proceeding under section 870 may be instituted by an adverse party against the other, although no suit has been commenced, but is only contemplated. That section provides that certain specified sections for the punishment of contumacious witnesses, shall apply to the examination of a party, or a person expected to be an adverse party.” It would be absurd to provide for the punishment of a person who sought to perpetuate his own testimony. The section plainly was intended to provide for the case of a contumacious witnéss, expected to be made a party to an action, whose examination was sought by his adversary. On the whole we are of opinion that the order issued in this case, on the application of the bank, for the examination of Sheehan, against whom the bank was about to commence an action, was authorized and that he was in contempt for disobeying it. The bank might have commenced its action, and then have procured an order for the examination of the defendant. The granting of an order in such a case as this, before suit brought, upon the application of the proposed plaintiff, is within the discretion of the court, but it can rarely happen that justice will be promoted by granting an order on the application of a proposed plaintiff, before the commencement of an action, and the practice, unless carefully guarded, may lead to great abuses.

The order should be affirmed.

All concur.

Order affirmed.