text:
    HORACE H. CHITTENDEN, as Assignee, &c., Appellant, v. ALEXANDER V. DAVIDSON, as Sheriff, &c., et al., Respondents.

      Equity—Assignee for "benefit of creditors—when not entitled to restrain proceedings under execution, Sc., against assigned property.

    An equitable action by an assignee for the benefit of creditors, to restrain the sheriff and judgment creditor from taking any proceedings under a judgment obtained in another court and the execution issued thereon, and to sej; aside the levy thereunder, will not lie.
    The complaint contained allegations to the effect that one W. made an assignment for the benefit of creditors, which was accepted by plaintiff as assignee, and duly filed; that plaintiff thereupon took possession of the assigned property, and proceeded to make an account of the assets, which he had been unable to complete, and therefore had not filed his inventory and schedules; that it was his intention to file his bond as soon as the amount thereof could be fixed ; that the day after the assignment, the sheriff defendant; by direction of his co-defendant, the judgment creditor, against the protest of plaintiff, and on notice of his claims, levied upon the assigned property under an 'execution issued on a judgment that day obtained in the city court, and gave notice of his intention to sell the same on the premises. It further alleged, among other things, that irreparable damage will result, as the sheriff announced that he would sell the goods at auction, by which means the full value thereof will not be obtained; that plaintiff is unable to furnish the necessary replevin bond; that he is without adequate remedy at law, and cannot perform his duties as assignee unless the court interposes ; that any remedy at law which he may have, must be tardy, and its prosecution impede the execution of the trust; and the complaint prayed that the defendants be enjoined from taking any proceeding under the judgment and execution, and that the levy be set sustained.

      Held, insufficient to entitle plaintiff to equitable relief, and that a demurrer thereto should be sustained.

      It seems, that such a complaint fails to state any cause of action whatever.

      Before Van Vokst and Feeedman, JJ.

      Decided December 7, 1885.
    Appeal from judgment entered on order sustaining defendant’s demurrer to plaintiff’s complaint, and from said order.
    The complaint alleged ¿hat on April 16, 1885, one George F. Wilson, engaged in business in New York city, made an assignment for the benefit of creditors, of the property of the limited partnership carried on under his name, and of which he was general partner, to plaintiff, which assignment was duly accepted by plaintiff, and filed in the county clerk’s office April IT, 1885 ; that plaintiff, on the same day, took possession of the assigned property and proceeded to take an account thereof, which he had not been able to complete, and therefore had, not been able to file his inventory and schedules; that when this was done and the amount of his bond could be fixed, it was his intention to file it; that the day after filing said assignment, defendant Drewson obtained a judgment in the city court of New York against plaintiff’s assignor for $1,091.T6, and issued execution thereon, directing the sheriff defendant to satisfy the same out of the property of plaintiff’s assignor ; that on said last named day, the sheriff defendant, through his deputy, against defendant’s protest and with full notice of his claim, levied upon the assigned property in plaintiff’s possession, and gave notice of his intention to sell the same upon the premises. The complaint then proceeded :
    ‘ ‘ Fifth. Plaintiff further alleges that the said stock of buttons, laces, braids, combs and notions is, as he is informed and believes from such investigation as he has been able to make, worth at least the sum of $15,000, but he believes that care and judgment must be exercised in the sale thereof to realize such sum therefrom, or any sum approaching it. Plaintiff further alleges that a sale under the execution hereinbefore set forth, would result in irreparable injury and damage to the estate which he holds as assignee for the benefit of the creditors of said George F. Wilson, and would seriously and irreparably decrease the value thereof ; that the sources of plaintiff’s information and the grounds of the belief upon this point are the fact that the said sheriff has announced his intention to sell the said goods at public auction, and plaintiff’s knowledge that at an auction sale, under an execution, the full value of goods so sold, or anything approaching thereto, is not realized.

      “Sixth. Plaintiff further alleges that the said George F. Wilson does not in any capacity make any claim to said property, but expressly disclaims all ownership therein or claim thereto.

      “ Seventh. Plaintiff further alleges that under said assignment he is a trustee for more than sixty creditors, representing an indebtedness of about $25,000, whoso interest is greatly imperiled by the action of the defendants already taken and the unlawful action they threaten to take.

      “Eighth. Plaintiff further alleges that the said levy is excessive in amount, and if the defendants have any right to such property, their claim might be satisfied out of a portion only of said goods ; that while the defendant Davidson as sheriff is so in possession claiming to have levied upon the entire stock, it is impossible for the plaintiff to proceed with the execution of the trust created by said assignment; that he cannot replevy said goods without furnishing an undertaking for their full value, which he cannot do ; that he has no adequate remedy at law, and that it is impracticable for him to perform his duties as assignee and to protect the interest of the creditors under said assignment unless the court interferes to stay the proceedings of the defendants until their right, if any they have, to sell the said property, or any portion thereof, is ascertained, and that it is for the best interest of the plaintiff, as assignee of the estate, and all creditors interested therein, that the defendant’s proceedings be stayed, the property judiciously converted into money and held for the benefit of the parties having lawful claim thereto.
    ‘ ‘ Ninth. Plaintiff further alleges, that any remedy at law, which he may have against the wrong complained of, must necessarily be tardy and long postponed, and that his being remitted thereto, would unnecessarily and unjustly impede him in the execution of his trust under the said assignment.
    “ Wherefore plaintiff prays judgment, that the defendant, Ernst F. Drewson, and the defendant, Alexander V, Davidson, as sheriff of the city and county of New York, their agents, attorneys, deputies and servants be enjoined and restrained from taking any proceedings whatever under the said judgment, entered in favor of the said defendant Drewson, against George F. Wilson, on April 18, 1885, or upon the execution issued thereon.
    “That the alleged levy, made by the defendant Davidson, as sheriff, &c., be vacated and set aside, and the property so levied upon be restored to the possession and ownership of the plaintiff, for the purpose of the trust created by the said assignment.
    “ That the plaintiff have such other and further order and relief as he may be entitled to, in equity and good conscience, together with costs.

      James M. Townsend, Jr., for appellant.
    The complaint presents a perfect cause of action for equitable relief (High Inj. § 119 ; Wilson v. Butler, 3 Munf. [ Virg.] 364 ; Boyce v. Grundy, 3 Pet. 210 ; Watson v. Sutherland, 5 Wall. 75 ; 3 Wait's Actions & Defenses, 684).
    In cases where the property is affected by a trust, a court of equity will always interfere to preserve the trust estate in specie (High Inj. §§ 370, 371; Scarlett v. Hicks, 13 Florida, 314).

      Blumenstiel & Hirsch, for Drewson, respondent,
    cited Drewson v. Am. Surety Co., G. T. Supr. Ct., First Dept. Oct. 1885, Opinion by.Daniels, J. (MSS.).

      W. Bourlce Cochran, for the sheriff, respondent.
   By the Court.—Van Vorst, J.

An execution was issued to the defendant, the sheriff of the county of New York, out of the city court, on a judgment recovered in an action in favor of the defendant Drewson, against one Wilson. The sheriff, by the direction of the defendant Drewson, levied upon goods and merchandise, which Wilson had formerly owned, and which, before the recovery of the judgment against him, he had transferred to the plaintiff, as his general assignee for the benefit of his creditors.

This is an action on the equity side of the court, in which the plaintiff seeks to enjoin the sheriff from taking any proceedings whatever, under the judgment and execution in favor of the defendant Drewson, and asks that the levy be set aside. For this extraordinary relief no sufficient facts are alleged. Equity should interfere to arrest the execution of process issuing out of another court, only upon satisfactory grounds. The defendants demurred to the complaint, upon the grounds that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained.

Treated as an action for equitable relief through a perpetual injunction, restraining the sheriff from executing the process in his hands against the property of the judgment debtor, it cannot be sustained against the objection constituting the ground of demurrer. If the property levied upon did not belong to the judgment debtor, but was the property of the plaintiff as his assignee,the remedy of the latter was by a legal action to recover damages, or he could, upon giving security, have commenced an action for the claim and delivery to him of the property. The remedy afforded by law for the recovery of damages to the full extent of the plaintiff’s injury, is ample.

It is only when the remedy at law is insufficient, that a court of equity will interpose by injunction (High on Inj. §§ 458, 462).

Had the complaint been of a nature to allow legal redress, and had appropriate allegations, adapted to such a cause of action, been stated in the complaint, the demurrer would not have been sustained, and such cause of action could have been tried.

The complaint states facts upon which equitable relief only is asked. And in order that there might be no doubt as to what relief the plaintiff expected, under his facts, and that it was equitable only, he states in his complaint, that a remedy at law must be tardy, and that its prosecution would impede the execution of the trust under the assignment to him. These constitute no sufficient reasons for an action in equity.

If the plaintiff has been unjustly deprived of the possession of the goods in question, their full value can be recovered of the sheriff in an appropriate action, and with the moneys so collected, the plaintiff can proceed to the execution of his trust, so that the injury of which complaint is made is not irreparable.

Under such circumstances, equity will not restrain the execution of the process issued upon the judgment, nor a sale of the property thereunder (Freeman on Executions, § 437).

The complaint states no ground which would authorize a court of equity to interfere, and, in fact, no cause of action whatever:

The order from which the appeal is taken is affirmed, with costs and disbursements of the appeal.

Freedman, J., concurred.

       In Willis v. Fairchild (51 Super. Ct. 405), it was held that a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, only raises the question whether or not plaintiff is, under the allegations, entitled to the relief demanded; not whether those allegations entitle him to some other relief. But see contra, Mackey v. Auer, 8 Hun, 183.


source: Caselaw Access Project

author: By the Court. —Van Vorst, J.

license: Public Domain

text:
    JENNIE THOMPSON, as Administratrix, &c., Appellant, v. THE MAYOR, &c. of N. Y., Respondents.

      Fire department—liability of city for acts employees of.

    The corporation of New York city, under the laws applicable thereto, not being the superior of the employees of the fire department in said city, is not liable for their negligent acts or omissions.
    This is so, though the alleged negligent act on which the action is founded occurred white the employees of said department were engaged in testing certain apparatus,—e. g., a fire tower,—prior to its purchase by the city for use in said department.
    Before Sedgwick, Oh. J., and Van Vorst, J.

      Decided December 7, 1885.
    Appeal by plaintiff from dismissal of the complaint a trial term, on the opening of the case.
    The facts are stated in the opinion.

      C. S. Spencer, and C. B. Waterbury, for appellant.
    I. The act alleged in the complaint was of a private character, performed for the benefit of the city, and it is therefore liable. The apparatus was to become the property of the city. The laws of 1865, chapter 249, provide that all fire apparatus, &c. shall remain the property of the mayor, &c. of the city of New York (Consolidation Act, § 424). The commissioners were performing an action reasonably necessary in the buying or acquiring property for the defendants, and in all matters in which they are interested, and in reference to the ownership of property the defendants must be treated as a private person or corporation (Potter Corp. § 455 ; Dillon Mun. Corp. 991; Bailey v. Mayor, 3 Hill, 531; Lloyd v. Mayor, 3 N. Y. 374).

      E. Henry Lacombe, counsel to the corporation, and D. J. Dean, of counsel, for respondents.
    The purchase of apparatus is as clearly within the powers conferred by the statute as is the extinguishment of fires ; and, therefore, the duty which the commissioners were performing, in endeavoring to ascertain the fitness of the apparatus they proposed to purchase, is as clearly within the principles which relieve the city from liability, as is the duty performed when fires are extinguished (Edgerly v. Concord, 59 N. H. ; S. C., 29 Alb. L. J. 291).
    Even if the commissioners were engaged in the performance of an act beyond the scope of the duties prescribed by them by the statutes, and their employees were engaged therein, at the time of the occurrence of this incident, still the city would not be liable. It is clear that in such cases the commissioners, or the parties under their direction, would be acting outside the scope of public duty, and therefore upon their individual responsibility, and that liability for carelessness or negligence would extend no farther than to the person who was careless or negligent (Smith v. City of Rochester, 76 N. Y. 506).
   By the Court. —Van Vorst, J.

The fire commissioners, who administer the fire department, within the city of New York, were engaging in testing, with reference to' a purchase thereof, by the defendant, some fire apparatus, called a “ tower,” in a public place known as the “ Battery.”

The plaintiff’s husband, who was standing by, was killed by the fall of the tower.

The plaintiff, as administatrix of her late husband’s estate, brings this action to recover damages for her husband’s death, occasioned, as she claims, through the negligence of the defendant.

Upon the opening of the plaintiff’s case, the learned judge who presided at the trial dismissed her complaint, and from the judgment upon such dismissal this appeal is taken.

That the defendants are not liable in damages for the negligence of the commissioners of the fire department, or their servants, has been repeatedly decided. Under the system of laws applicable to the city of New York, it is well settled that the defendants are not the superiors of the employees of the fire department, and are not liable for their negligent acts or omissions (Maxmillian v. Mayor, &c., 62 N. Y. 160 ; Ham v. City of New York, 70 N. Y. 459 ; Hill v. City of Boston, 122 Mass. 344; 17 Alb. L. J. 218). In Woodbridge v. Mayor, &c. (49 How. Pr. 67), the subject was considered, and the result above expressed was reached. Cases on the subject are there cited.

The learned counsel for the plaintiff argued, however, that the fire tower was being tested only by the fire commissioners, preparatory to a purchase thereof by the defendants. But the trial judge said upon that subject: “I do not see how a distinction can be drawn between the use of a fire tower, after the title has been vested in the city, and the test of a water tower in view of its acquisition.” We concur in that, statement.

It is the duty of the fire commissioners to provide themselves with proper apparatus for extinguishing fires, which would involve the obligation to test the tower in advance.

A similar point was considered in Edgerly v. Concord (59 N. H.; S. C., 29 Alb. L. J. 291); Smith v. City of Rochester (76 N. Y. 506).

The judgment is affirmed, with costs.

Sedgwick, Oh. J., concurred.


author: By the Court.—Van Vorst, J.

text:
    WILLIAM E. SMITH, Jr., et al., Respondents, v. CONSUMER’S ICE COMPANY, Appellant.
    This action was brought by plaintiff for an injury to a horse owned by him, caused by negligent driving of one of defendant’s servants. On a review of the evidence,—Reid, sufficient to carry the case to the jury, and to support a verdict for plaintiff.
    After the judge had concluded his charge to the jury, the defendant’s counsel requested him to charge further: “ If you find from the evidence that the plaintiffs’ driver drove his horse close to the wheel of defendant’s wagon, upon nice calculations of the chances of injury, then that in itself constitutes such negligence as would prevent the plaintiffs’ recovery, and "entitle the defendant to a verdict,”—which request was refused. Reid, not error; that the true question under this head was, did the action of the plaintiff’s driver load or contribute to the injury?— and this without regard to his calculations, or how nice they were; and the subject having been exhausted by the charge previously made, the instruction asked for could have answered no useful'purpose.
    The defendant’s counsel also requested the judge to charge as follows: “ If you are satisfied from the evidence that the injuries complained of were aggravated by the subsequent negligence of the plaintiff’s driver in driving the horse after he was aware of the injury, this fact must be considered in mitigation of plaintiff’s damages,” which was refused. Reid, not error. The injury to the horse by the passage of the wheels of the ice cart over its foot, was the destruction of the “ os corona,” and was such that it was impossible for the horse to recover; therefore the question suggested by the request was immaterial.
    The damages recoverable were the value of the horse, with the surgeon and stable bills.
    Before SeUgwiok, Oh. J., and Van Yobst, J.

      Decided December 7, 1885.
    Appeal from a judgment in favor of the plaintiffs upon the verdict of a jury, and also from an order denying a motion on the minutes for a new trial.
    The action was brought to recover damages for an injury to the plaintiffs’ horse, alleged to have been caused by the negligent driving by the defendant’s servant of his ice wagon, over the foot of the horse. The injury was so severe, that it, in the end, occasioned the loss of the horse.
    The defendant interposed as a defense a general denial, and alleged contributory negligence on the plaintiffs’ part.

      Jones Cochrane, for appellant.

      Clin, Beeves & Montgomery, for respondents.
   By the Court.—Van Vorst, J.

Upon this appeal it has been earnestly contended by the appellant’s counsel, that the case does not show that it was the defendant’s wagon which did the injury complained of.

There was assuredly enough in the plaintiffs’ evidence to take the case to the jury upon the question as to whether the injury was occasioned by the wheel of the defendant’s ice cart.

The plaintiffs’ driver testified that at the time of the collision of the two wagons, at the corner of West and Vesey streets, he was seated on his truck. He was going towards Jay street. He saw the defendant’s cart approach; he says, “they started the ice cart, and ran the wheel over my horse’s leg.” Upon his cross-examination the witness said, “I know he” (the defendant’s driver with his cart), “ went behind my back strap, and it must be his wheel that passed over my horse’s leg and cut it; it must have been the hind wheel; it was a wheel of the cart which ran over my horse’s foot;” and he added that when the hind wheel went over the horse’s foot “ he flinched.”

Now, it appears to us that the plaintiffs’ driver, from his situation on the truck, and with his observation of the movements of the defendant’s driver, and the passage of the wheels of his cart behind his back strap, could not be mistaken as to the cause of his horse’s “ flinching.” It was when the defendant’s wheel passed over and crushed it. After" such statement, there can be no reasonable doubt but that the jury were right when they decided that the injury was done by the defendant’s wagon. Why speculate about other causes, when there was present an efficient cause, to do the precise injury ?

Conceding the correctness of the contention of the defendant’s counsel that negligence must be shown by competent proof, and not be left to conjecture, an examination of the evidence shows that there was enough therein to justify the conclusion reached by the jury, that the negligence of the defendant’s servants in driving the ice cart, under the circumstances disclosed, occasioned the injury, and that there was no contributory negligence on the part of the plaintiffs’ driver. Such questions in a case like the one under consideration, where a collision occurs between vehicles in a place so crowded as the one where this injury occurred, where reasonable care should be exercised by persons driving, both to avoid injury to one’s self or to cause it to others, may well be left to the judgment of a jury whose verdict, when there is any reliable evidence as to the cause of the injury, is not likely to be otherwise than right.

In this case, the parties and the jury had the benefit of a carefully prepared charge by the learned judge who presided on the trial, with instructions so clear and just that the jury could not fall into error in accepting it as a guide.

The defendant, after 'the judge had completed his charge, asked the court to charge in these words : “If you find from the evidence, that the plaintiffs’ driver drove his horses close to the wheel of the defendant’s wagon upon nice calculations of the chances óf injury, then that in itself constitutes such negligence as would prevent the plaintiffs’ recovery, and entitle the defendant to a verdict.” The court declined to charge otherwise than it had already charged. The defendant’s counsel excepted. The true question under this head, which was one of contributory negligence, was, did the action of the plaintiffs’ driver in conducting his vehicle on the occasion, lead or contribute to the injury % It matters not what his calculations were, or how nice—was he guiltjr of negligence ? In his charge the learned judge had already fully discussed that subject, and he had distinctly called the attention of the jury not only to the effect of contributory negligence upon the plaintiffs’ rights, but as to what conduct on the part of his driver would constitute such negligence. The subject was exhausted by the charge as made, and the instruction asked for could have answered no useful purpose.

The defendant’s counsel also asked the judge to charge the jury as follows : “If you are satisfied from the evidence that the injuries complained of were aggravated by the subsequent negligence of the plaintiffs’ driver in driving his horse after he was aware of the injury, this fact must be considered in mitigation of plaintiffs’ damages.” This request was properly refused by the court. The injury to the horse by the passage of the heavy wheel of the ice cart over its foot, was the destruction of the “ os corona.” It was impossible for the horse to recover, and the question suggested by the request is therefore immaterial. It was necessary that the horse, although injured, but to an extent not at once discovered, should be driven to its stable. There could be no apportionment of the damage under such conditions, even if the fact was that the plaintiffs’ servant drove faster than he should have done after the injury. The damages recoverable could only be for the value of the horse, with the surgeon, and stable bills, and as the real injury which rendered the horse valueless was received through the negligence of the defendant’s servants, it was entirely proper that it should compensate the plaintiffs for their loss.

As examination of the whole case discloses no error upon the trial which should lead to the reversal of the judgment. The result reached was correct, and it should not be disturbed.-

The judgment and order are affirmed with costs.

Sedgwick, Oh. J., concurred.


text:
    JAMES KENNY, Respondent, v. THE CUNARD S. S. Co., Appellant.

      Ffeyligence—Employer and employee—Fellow servant—when foreman is— Suitable appliances.

    The plaintiff was in the hold of one of defendant’s steamships, assisting in loading cargo. There were being shipped, under the direction of a foreman, some boards which, when over the hatch became loosened in the chain holding them on the tackle, and fell down the hatch and injured plaintiff, who was directly thereunder. It appearing that safe and suitable machinery had been furnished by the defendant, and that its non-use, or improper use, causing the accident, was owing to the negligence of the plaintiff’s fellow servants,—Held, that defendant was not liable, and that the motion to dismiss the complaint should, have been granted.
    Where all the needed appliances in the work have been furnished by the • employer through an appropriate head, ho should not be made liable for mistake or error made by any workman selecting one out of two or more of such appliances, to be used in a service in which all were engaged, and in the use of which One of them may be injured.
    A master is not responsible to an employee for the negligence‘of a competent foreman to whom there has been no delegation of power and control of the business, or a branch thereof, but who is simply charged with special duties.
    With respect to corporations, which must necessarily act through agents, the rule is subject to modifications ; but in all cases it makes no difference in the" application of the rule, exempting the master from liability for injuries to his servants, through the acts of co-servants, that the one receiving the injury is inferior in grade, and is subject to the orders of the one by whose negligence the injury is caused, if both are engaged in the same general business, accomplishing one and same general purpose. /
    Before Sedgwick, Oh. J., Van Yorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal from the judgment. entered on a verdict in favor of plaintiff, and from the order denying defendant’s motion on the minutes for a new trial.
    The action was to recover damages for injuries sustained by plaintiff while in the employment of defendant as a longshoreman, on November 27, 1882, on the steamship Catalonia.
    The facts are fully stated in the opinion.

      Frank D. Sturges, for appellant.

      Herman H. Shook, for respondent.
   By the Court.—Van Vorst, J.

The plaintiff, while in the defendant’s employment, assisting in loading cargo upon their vessel the Catalonia, and while in the hold of the vessel, was injured by the fall of some boards, which were being lowered by servants of the defendant down the hatchway, by means of a derrick rigged with ropes and chains, furnished by the defendant. Some of the boards, colliding with the combing of the hatchway, slipped from the fastenings while being lowered, and struck and injured the plaintiff, who was, at the time, under the hatchway.

The jury before whom the trial was had, rendered a. verdict for the plaintiff, and from the judgment entered upon the verdict, this appeal is brought by the defendant, which also appeals from the order made at the close of the trial, denying the defendant’s motion for a new trial.

At the close of the plaintiff’s case, the defendant’s counsel moved the court to dismiss the plaintiff’s complaint, upon the grounds, in substance, that the plaintiff’s injury “was the fault of his fellow servants,” and that there was no proof of “ any absence of the proper appliances for the work” in which the defendant’s servants were, at the time, engaged. The motion was renewed, at the close of the case, and was denied.

The disposition of these questions must determine whether the judgment from which this appeal is taken can stand. And first, with regard to the apparatus. The learned judge, in denying the defendant’s motion, properly said, “that it is the duty of the master to supply the servants appliances for the performance of the master’s work which should be adequate for the immediate occasion in question, and that, in the performance of that duty, he is' bound to exercise reasonable care.” In regard to the apparatus necessary to be used in the work upon which the defendant’s servants were engaged upon the “immediate occasion in question,” whether there should have been used “a chain nippers ” in slinging and lowering the boards, or a “ chain with a hook,” the defendant had, beforehand, supplied both.

Both were at hand, ready for use. Wright, a witness for the plaintiff, testified as follows : “ Mr. Graham was on the dock acting as foreman in regard to taking the boards in ; he was at the ship’s rail; he fold me to hurry up and let the boards come in as quick as possible. I said to him that I wanted, when we were slinging a draft of boards, to put the chain nippers on, and he would not allow me ; he told me to put the hook around. The chain nippers was the proper thing to be used for boards ; there was a chain nippers on the dock at the Ume.n So that whether a chain nippers having a ring at the end, or a chain with a hook, was the proper apparatus for the work in question, there was no omission on the defendant’s part, for both were supplied, and either could have been then used.

The other question remains to be considered : was the plaintiff’s injury occasioned by the negligence of his “fellow-servants ?” If it was, he could nob recover, and the defendant’s motion to dismiss the complaint should have been granted. On the occasion in question, the chain with the hook, and not the nippers, was used by Wright. He is not absolutely certain that the fall of the boards proceeded simply from the use of a chain with a hook instead of a ring. Wright himself testified: “I placed the hook around the chain ; that is not the way it is generally done ; it is not hooked in one of the slings ; when used, that hook is placed around the chain and pushed up towards the load. When I placed this around the draft of boards, I did not push it up tight to the hoards; I went away from it as soon as it went ahead, and looked out for myself. Graham did not say to leave it loose ; he said it would do, go ahead; when he said that, I did not make any attempt to push the hook over towards the -boards.”

We need go no further in search for a cause of the slipping of the boards from the sling, as it struck the combing of the hatchway.

The action of Wright in omitting all effort to push the hook down to the boards, sufficiently accounts for the injury to the plaintiff. For the negligence of Wright in the management of the chain and hook, the defendant is not liable to the plaintiff. Wright was a fellow workman with plaintiff, engaged in the same service.

But Graham,- as well as Wright, was a fellow-servant with the plaintiff. Although called a foreman, he was one of a separate gang of men distinctly engaged in the work in question. He was directing, it is true' but he was acting under a general foreman. Graham had nothing to do with supplying the apparatus or machinery for the work in question. The discharge and loading of the vessel were under the general direction of one Craven, the head stevedore, and foreman of the defendant. He had been in the defendant’s service for thirty years and upwards. It was his duty to give directions with respect to the apparatus and machinery to be used in loading the vessel. In this instance, he gave directions for the rigging of the derricks, to haul the boards taken on the vessel, and through the hatch. He, and not Graham, one of the gang of workmen in question, represented the defendant distinctly in the work in which these men were engaged.

The plaintiff had been employed by Craven, and was one of this separate gang in and about this hatch. There were other gangs in other parts of the vessel.

All the needed appliances having been furnished by the defendant, through an appropriate head, it is difficult to see how they could be made liable for any mistake or error made by any workman in selecting one out of two or more slings, to be used in a service in which all were engaged, and in the use of which one of them should be injured. The rule is that a master is not responsible to an employee for the negligence of a competent foreman, to whom there has been no delegation of power and control of the business, or a branch thereof, but who is simply charged with special duties (Malone v. Hathaway, 64 N. Y. 5).

With respect to corporations, which must necessarily act through agents and representatives, the rule is subject to modifications. But in all cases, it makes no difference, in the application of the rule exempting the master from liability for injuries to his servants, through the acts of co-servants, that the one receiving the injury is inferior in grade, and is subject to the orders of the one by whose negligence the injury is caused, if both are engaged in the same general business, accomplishing one and the same general purpose (Feltman v. England, L. R. 2 Q. B. 33 ; Lovegrove v. The London, Brighton & S. C. Ry. Co., 16 C. B. [N. S.] 669).

In the case before us, Graham, although called a foreman of one of several gangs, was in fact a fellow-servant of the plaintiff, under the direction of the chief stevedore Craven, and there was nothing to show that he was not a fit person for the place (Hart v. Floating Dry Dock, 48 Super. Ct. 460 ; Slater v. Jewett, 85 N. Y. 61; Barringer v. Del. & Hudson Co., 19 Hun, 216 ; Crispin v. Babbitt, 81 N. Y. 516).

An examination of the entire evidence leads us to the conclusion that the defendant’s motion to dismiss the complaint should have been granted.

The judgment appealed from is reversed, and a new trial is ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    WILLIAM A. DOUGLASS, et al., Appellants, v. EDWARD F. WINSLOW, CHARLES BARD, STEPHEN A. LATHROP, and the N. Y., ONTARIO & WEST’N R. R. CO., Respondents.

      Demurrer.—Conspiracy—money had and received—conversion—what not sufficient allegations of.—Issue on demurrer—what is.

    The complaint alleged that the railway company, defendant, was indebted to plaintiffs in the sum of $85,000, subsequently reduced by payment to $75,000 ; that plaintiffs were persuaded by defendant Winslow, president of the company, to confide negotiations for a settlement thereof to defendant Bard; that Bard informed plaintiffs that the company would only pay $55,000, advising plaintiffs to accept the same or they would lose the whole claim; that Winslow corroborated Bard’s statements and advice, relying upon all which, etc., plaintiffs accepted the offer and gave the company a general release ; that said statements of Winslow and Bard were willfully false, and made in pursuance of a conspiracy theretofore formed among defendants to defraud plaintiffs of their balance of $20,000, and to convert it to the use of defendants ; that the company in fact allowed plaintiffs’ claim in full, defendants Winslow and Bard concealing such facts from plaintiffs ; that after the release was given, a voucher for said balance of $20,000, purporting to warrant the payment thereof to plaintiffs, was prepared or caused to be prepared by defendants, was signed, approved and audited by Winslow as president, and by defendant Lathrop as auditor of the company, for their individual purposes and in pursuance of said conspiracy, etc., and its amount was by said company paid or credited to, or divided among these defendants, or some of them, without plaintiffs’ knowledge or consent, and in fraud of their rights ; that defendants still retain the whole of said $20,000 ; that defendant corporation is insolvent, and a judgment against it worthless; and that plaintiffs have suffered damage by reason of said wrongful acts in the sum of $20,000, for which they pray judgment.

      Held, on separate demurrers by each of the defendants, that the charge of conspiracy must fail for want of an averment in a competent form, that the conspiracy or the acts done in furtherance thereof, resulted in a damage to plaintiffs.

      Farther held, that the complaint sets forth neither an action for money had and received for plaintiffs’ use, nor one for conversion, nor an action against any particular defendant.
    Whether a demurrer to the complaint should be sustained if the facts pleaded do not entitle the plaintilf to the -relief demanded, irrespective of his right thereon to other relief, queere.

    Before Van Vokst and Fbeedman, JJ.

      Decided December 7, 1885.
    Appeal from final judgment entered on an interlocutory judgment sustaining demurrers, and from said interlocutory judgment.
    The substance of the allegations of the complaint is as follows :
    The New York, Ontario and Western Bailway Oo. was indebted to plaintiffs in the sum of $85,000 ; plaintiffs, having wholly failed to procure the settlement and payment of this indebtedness, after protracted and persistent efforts to that end, were persuaded by the defendant Winslow (president of said company), to confide all negotiations for such settlement to defendant Bard. After some time (plaintiffs’ claim having been, by a payment on account, meanwhile reduced to $75,000), Bard informed plaintiffs that the utmost the company would pay was $55,000; and he emphasized his advice that plaintiffs should accept such settlement, by a threat that the alternative would be the probable loss of the entire claim ; thereupon plaintiffs made specific inquiry of defendant Winslow, and he corroborated Bard’s statements and advice ; plaintiffs believed, and acted upon the faith of these statements and this advice ; they accepted $55,000 of the company’s notes in full settlement of their claim, and executed and delivered a general release to their debtor, the company ; that the said statements of Winslow and Bard were willfully false, and were made in pursuance of a conspiracy theretofore formed . among the defendants, the ultimate object of which was to defraud plaintiffs out of this very balance of $20,000, and to convert it to the use of the defendants ; the company did, in fact, allow plaintiffs’ claim at its full amount, but the knowledge of such allowance was suppressed and concealed from plaintiffs by Winslow and Bard, and plaintiffs were given the false information aforesaid ; and, after plaintiffs had executed and delivered the general release above mentioned, a voucher for the unpaid balance of $20,000, purporting to warrant the payment thereof to plaintiffs, was prepared by the defendants, or at their instance, was signed, approved and audited by Winslow, as president, and by Lathrop, as auditor of the company, for their individual purposes, and in pursuance of said conspiracy, &c., and its amount was, by said company, paid, or credited to, or divided among, these defendants, or some of them ; that all this was done without plaintiffs’ knowledge or consent, and in fraud of their rights ; that defendants still retain the whole of the $20,000, and plaintiffs have received none of it; that the corporation defendant is insolvent, and a judgment against it would be worthless ; and that by reason of the wrongful acts of the defendants in the premises, plaintiffs have suffered damages in the sum of $20,000, for which they pray judgment.
    The defendants severally demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    These demurrers were sustained, under the decision and opinion of Sedgwick, Oh. J., as follows :
    “ On demurrers to a complaint, the issue is not whether there are stated in the allegations of the complaint facts sufficient to make some cause of action. It is whether the complaint alleges facts sufficient to sustain the judgment demanded by the complaint. If such a demurrer be overruled, and judgment for plaintiff directed, the plaintiff can have no other kind of judgment than such as the complaint demands.
    “The complaint demands a money judgment, following the averments ‘ that, by reason of the wrongful and fraudulent acts of defendants in the premises, plaintiffs have sustained loss and injury, to their damage,- $20,000.’ The learned counsel for plaintiffs, on this argument, concedes that the plaintiffs are not entitled to recover as upon a breach of contract.

      “ The complaint avers that the defendants combined and conspired, and did certain acts in furtherance of that combination and conspiracy. To sustain the action it was necessary to aver in a competent form that the consequence of the conspiracy, or of the acts, was a damage to the plaintiffs. The complaint avers that, on, etc., ‘ a conspiracy or combination had been formed, and then existed, between these defendants, the ultimate end and object of which was fraudulently to obtain possession of said sum of $20¿ 000, the property of the plaintiffs, and to convert the same to the use of the defendants or some of them.’ Let us assume that the complaint alleges that the defendants did certain acts in futherance of the conspiracy, which tended to the accomplishment of the object of the conspiracy. There would still remain to be averred that some or all of the defendants, the conspirators, did obtain possession of plaintiffs’ money, and did convert it to their, the defendants’, use. If they did not, there was no damage.
    “On this subject, the averments are, that, ‘after the execution and delivery by plaintiffs of the receipt and general release aforesaid, and on, etc., these defendants or some of them, made, or caused or procured to be made, a voucher in the form required by said company, for the payments of money to contractors and others, purporting to warrant and justify the payment to plaintiffs of the sum of $20,000 on account of one million yards of cubic hard-pan excavation on the line of said (Middletown Branch;’ that defendants Winslow and Lathrop, using their respective official positions aforesaid for their individual purposes, and in aid and furtherance of the ends and objects of the conspiracy or combination aforesaid, affixed their respective official signatures to the said voucher, as approving and auditing the same, and thereupon the- said sum of $20,000 was, by said company, paid or credited to, or divided among these defendants or some of them.’
    “ It is very doubtful that the complaint shows that the plaintiff was the party defrauded in this transaction and that the company was not; but the immediate and not doubtful point is that the complaint does not show that the company ever parted with any money, or that any of the defendants received money from the company for the use of the plaintiffs. It is not said that the company paid over money for the use of the plaintiffs, or even gave a credit to their use. It is consistent with the complaint that the company gave the defendants, or some of them, a certain credit; that is, have become debtors to the defendants or some of them. That fact is not damage, or cause of damage, to the plaintiffs. Ifc has not lessened or impaired any property right of plaintiffs, or affected any cause of action that the plaintiffs might have had before the alleged crediting.
    “ It is conceivable that, at the time of the transaction, the company was solvent, and it may be assumed that practically the acts of the individual defendants have led to the plaintiffs being kept without knowledge of the real fact, until the company has become insolvent. The matter involved in such a supposition cannot be examined here, for the complaint does not make such a case. There is nothing equivalent to an averment, as a matter of existing fact, that the plaintiff could have collected his claim at the time when the fraudulent voucher was made, and the company credited the defendants, or some of them, with its amount. There is no room for inference from the fact of the company having $20,000, because that amount may have been only credited. The averment on the subject is, that at the time of making the complaint, the company ‘is insolvent.’ This prevents an inference of an earlier insolvency—especially one extending back indefinitely.
    “Of course, I do not intend to pass upon the sufficiency of allegations that would make the supposed case to constitute a cause of action.
    “ The demurrer is sustained, with leave to amend upon payment of costs of demurrer, and in case of no amendment, judgment is ordered, dismissing complaint, with costs.”

      W. R. Beach, for appellants.
    I. This action is maintainable under the present pleading, as an action on the case for damages resulting from a conspiracy to defraud.
    II. As matter of law, we are not limited to the form of action which the pleader apparently contemplated, but may maintain the suit under any other name or form, to which the facts pleaded are appropriate, and in which we can properly claim a money judgment. A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever (Marie v. Garrison, 83 N. Y. 14 ; Pierson v. McCurdy, 61 How. Pr. 134; Graham v. Camman, 13 Ib. 360 ; People v. Mayor, 17 Ib. 56 ; Spear v. Downing, 22 Ib. 30; Mackey v. Auer, 8 Hun, 180; Emery v. Pease, 20 N. Y. 62 ; Hale v. Omaha Nat. Bank, 49 Ib. 626).
    III. The complaint states facts sufficient to constitute causes of action other than for damages for a conspiracy to defraud, and in which the plaintiffs are entitled to a money judgment as prayed. (1.) A cause of action for conversion may undoubtedly be maintained under the allegations of the complaint (Gordon v. Hostetter, 31 N. Y. 99 ; Heine v. Anderson, 2 Duer, 318 ; Farrington v. Payne, 15 Johns. 431; Zabriskie v. Smith, 13 N. Y. 330 ; Marie v. Garrison, 83 Ib. 14, 23; Ward v. Forrest, 20 How. Pr. 465 ; Ladd v. Moore, 3 Sand. 589 ; Moses v. Walker, 2 Hilt. 536 ; Ward v. Forrest, 20 How. Pr. 465). (2.) The complaint contains facts sufficient to constitute a cause of action for money had and received (Long v. Russell, 13 J. & S. 434; National Trust Co. v. Gleason, 77 N. Y. 400 ; Horn v. Town of New Lots, 83 Ib. 100).

      That the complaint sounds in tort, is no obstacle to the maintenance of the action. Plaintiffs may, if they, so elect, waive the tort and amend their prayer for relief,.! at the trial (Gordon v. Hostetter, 37 N. Y. 99 ; Byxbie v. Wood, 24 Ib. 607 ; Wright v. Hooker, 10 Ib. 51).

      Shearman & Sterling, for respondents Bard & Wins-low ; John B. Kerr, for respondent Lathrop ; P. B. McLean, for the railway company, respondent, and Thomas Q. Shearman and Everett P. Wheeler, of counsel.
    —I. <£ Where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint ” {Code, § 1207). Upon the argument of this appeal, therefore, the question is not whether the plaintiffs might be entitled to some relief upon the allegations of the complaint, but whether they are entitled to the relief demanded or any portion of it.
    II. The only injury which the plaintiffs claim to have suffered is in their being induced by fraud to execute a release of a claim for $85,000, in consideration of a payment of $65,000. But a release obtained by fraud is void, as a matter of course ; and as it is distinctly charged that the railway company was a party to the scheme of fraud by which this alleged release was obtained, it is no release ; and the plaintiffs can, upon their own showing, bring an ordinary action of contract against the railway company, and recover the full amount due them, without regard to the release. A release thus utterly void cannot be made the ground of a claim for damages. No injury has been suffered; and, therefore, no damages can be recovered (Dung v. Parker, 52 N. Y. 494; Wemple v. Hildreth, 10 Daly, 481; Schwenk v. Naylor, 50 Super. Ct. 57; Post v. Lyke, 18 Week. Dig. 385 ; Taylor v. Guest, 58 N. Y. 262 ; De Graw v. Elmore, 50 Ib. 1). Even if the release had been valid, yet the subsequent act of the company in making out a voucher in favor of the plaintiffs for the amount, was equivalent to a waiver of this release, and entitled them to recover upon that voucher. The act of the defendants Winslow and Lathrop, therefore, in making out that voucher, was a favor to the plaintiffs, instead of an injury, and cannot possibly constitute any ground for this action.. The allegation that the railway company has paid to “ some of the defendants ” $20,000, which it owed to the plaintiffs, is entirely immaterial. For all that appears by the complaint, the railway company has paid this money to itself ; and this does not in the slightest degree bar the plaintiffs from recovering the amount. But even if the money had been paid to the other individual defendants, the case would not be altered. If A. owes B. $20,000, he can never cancel the debt by paying it to O. ; B. can sue and recover without the slightest regard to this pretended payment.
    III. The complaint does not sufficiently connect the defendant Lathrop with any of the acts of the other defendants to justify his being made a defendant.
    TV. The plaintiffs cannot sustain this action against the railway company upon the ground of the original debt. This action is not founded upon contract. It is expressly put upon the sole ground of fraud. The contract is stated only as matter of inducement. Even if all the facts were set forth in the complaint which would have entitled the plaintiffs to a recovery under the contract, yet they could not be allowed so to recover in this action, because the two forms of action are entirely inconsistent with each other; and the plaintiffs have elected to rely on the fraud and not on the contract (Walter v. Bennett, 16 N. Y. 250 ; Barnes v. Quigley, 59 Ib. 265 ; Ross v. Mather, 51 Ib. 108 ; De Graw v. Elmore, 50 Ib. 1). Even if the action could bo treated as one founded upon contract, yet the complaint does not allege facts sufficient to sustain any claim on contract. All that it alleges is that the railway company was justly indebted to the plaintiffs in the sum of $93,000, on account of work performed by the plaintiffs for the company, under a contract between the plaintiffs and the company in and about the construction of the company’s railway. These are mere conclusions of law, and do not constitute a cause of action.

       Willis v. Fairchild, 51 Super. Ct. 405.

   By the Court.—Freedman, J.

Although, in the opinion of the court below, the rule applicable to the determination of such demurrers as were interposed in this action, was stated perhaps in terms too broad, yet in fact the demurrers were correctly disposed of.

The charge of conspiracy must fail for want of an averment in a competent form, that the conspiracy, or the acts done in furtherance thereof, resulted in a damage to the plaintiffs.

And there being no allegation that the company paid over money for the use of the plaintiffs, or even gave a credit to their use, and the allegation that “the sum of $20,000 was, by said company, paid or credited to, or divided among these defendants, or some of them,” being in the disjunctive and alternative, thus including the company as a defendant in the charge of having received the money or credit, or part thereof, the complaint, especially in view of the separate demurrers filed by the defendants, sets forth neither an action for money had and received for plaintiffs’ use, nor one for a conversion of plaintiffs’ money or property, nor an action against any particular defendant.

. The judgments appealed from should be affirmed, with costs.

Van Vorst, J., concurred.


text:
    GEORGE D. BAREMORE, Respondent, v. FREDERICK B. TAYLOR, Appellant.

      Bill of particulars—when ordered.

    The complaint contained three claims, viz.: for work, labor and service of plaintiff’s assignor; for money had and received of plaintiff’s assignor; for money paid, laid out, and expended by plaintiff’s assignor. The answer consisted of a general denial as to each claim, and affirmative defenses; 1st. payment to plaintiff’s assignor for services rendered and moneys paid out; and, 2nd, that defendant had fully accounted for any moneys had and received for plaintiff’s assignor. It appeared without contradiction, that plaintiff, upon demand, had furnished defendant with a bill of particulars, and therein had given him credit for every payment known to plaintiff to exist, and that, without a bill of particulars from defendant, the plaintiff would be in complete ignorance of the sums of money,, items, dates, &c., by which defendant will attempt to prove his payments to, and accountings with plaintiff’s assignor. Held, that a case was presented which called for the discretionary power of the court within the rule laid down in Witkowski v. Paramore (93 W. Y. 467); Dwight v. Germania Ins. Co. (84 H. Y. 493); 'Diossy v. Rust (46 Super. Gt. 374) ; and the order requiring the defendant to furnish a hill of particulars was a proper exercise of the power conferred by § 631 of the Code of Civil Procedure.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided December 7, 1885.
    Appeal from, order requiring defendant to furnish a bill of particulars.

      Shipman, Barlow, Larocque c& Choate, and Sol. Han-ford, for appellant.
    The granting of the order appealed from was not a proper exercise of discretion. There is no authority for such an order in precedent or principle. A defendant is permitted to plead payment in connection with the general issue. The naked plea of payment is one which sufficiently informs the plaintiff. To require the extended amplification of this plea would be to unjustly require the defendant, notwithstanding his general denial, to lay before the plaintiff all the evidence upon which he may intend to rely to defeat the plaintiff’s claim, and that, in a case where, as to all this evidence, the plaintiff must necessarily be informed equally ivith the defendant (Watt v. Watt, 2 Robt. 684). It is believed that no case can be-found where it has been held that a defendant will be-required to furnish a bill of particulars of his naked allegation of full payment. There are no particulars of such, a defense.

      Jolmes, Benner & Willcox, and Henry C. Willcox, of' counsel, for respondent.
   By the Court.—Freedman, J.

The complaint alleges, three causes of action, viz.: 1st. Work, labor and services, of plaintiff’s assignor of the value of $1,800. 2d. Money had and received for -the use of plaintiff’s assignor,. $1,945.42. 3d. Money paid, laid out and expended by-plaintiff’s assignor at defendant’s request, to the amount, of $590.92.

The answer consists of a general denial as to each of' the causes of action, and the defense that the plaintiff’s-assignor has been fully paid for any services rendered or moneys paid, laid out or expended, and that the defendant has fully accounted for any moneys at any time-received by him for account of the plaintiff’s assignor.

Upon plaintiff’s motion for a bill of particulars concerning the alleged payments to, and accounting had. with plaintiff’s assignor, it was made to appear by the-affidavit of the plaintiff, that upon demand, he had furnished the defendant with a bill of particulars containing-the items and details of the causes of action set out in the complaint; that in such bill he had given to the defendant credit for every payment known to him to exist; that he has no knowledge or information as to the defendant having ever paid anything further than what he had been given credit for ; and that without a bill of particulars he will be in complete ignorance of the sums of money, items, dates, &c., by which the defendant will undertake-to prove his alleged payments to, and accounting had with, plaintiff’s assignor.

These matters were not denied by any counter affidavit, and as it was apparent that the plaintiff could have no personal knowledge concerning the defendant’s alleged payments to, or the accounting had with, plaintiff’s assignor, a case was presented which called for the exercise of the discretionary power of the court within tho rule as laid down in Witkowski v. Paramore (93 N. Y. 467); Dwight v. Germania Ins. Co. (84 Ib. 493); Diossy v. Rust (46 Super. Ct. 374).

Under the circumstances as they appeared, the order requiring the defendant to give to the plaintiff a bill of particulars concerning the alleged payments to, and the accounting had with, plaintiff’s assignor, was a proper exercise of the power conferred, by section 531 of the Code of Civil Procedure.

The order appealed from should be affirmed, with ■costs, &c.

Sedgwick, Ch. J., concurred.


text:
    JOHN B. IRELAND, Respondent, v. THE METROPOLITAN ELEVATED R. Co. Appellant.

      Elevated railways—total damage recoverable—loss of rent and total damage cannot both be recovered.—Noise, smolce, ashes, dust, cinders, steam, gas, vibration, damages recoverable for injuries by—cases approved and disapproved.

    Total damage to fee for permanent injury amounting to the taking of private property may he recovered in an action against an elevated railroad company, upon an oiler at the trial to convey the property alleged to have been taken.
    Total damage for taking easement attached to real estate, must bo limited to the value of the easement taken, in ascertaining which the diminution in tho value of the property to which such easement is attached, by the taking thereof is to be considered. This value the abutting owner may have determined at a -particular time, and the jury may by their verdict either •assess the value as of the time of the original taking and award interest thereon, or give a corresponding gross sum including both principal and interest. But such owner cannot in addition recover for loss of rents, either in the place of interest or otherwise.
    Damages may he awarded as compensation for injuries to easement caused by the noise, smolce, ashes, dust, steam, gas, or cinders, or even the vibration of the building resulting from the .operation of an elevated railroad (as well as for those caused by the structure itself and the obstruction of the passage and circulation of light and air occasioned by the running of the trains), upon its appearing that the manner of running, and the physical effects proceeding therefrom, constitute a use of the street in fact other than, or beyond an ordinary and legitimate use thereof, which is a question of fact to be determined in each case upon all the circumstances surrounding it.
    The doctrine on this question of the cases in this court of Taylor®. Metropolitan Elevated R. R., 50 Super. Gt. 811, and Drucker ®. Manhattan R. R. Go., 51 lb. 429, approved and followed. The decisions in the Story and Peyser cases in other courts disapproved.

      Resume of cases as to rights, duties, and remedies, decided on questions arising out of the construction and operation of elevated railroads.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided December 7, 1885.
    Appeal by defendant from a judgment of $14,402.95, entered against it upon the verdict of a jury, and from the order denying defendant’s motion upon the minutes for a new trial.
    The facts appear in the opinion.

      Davies & Rapallo, attorneys, and Julien T. Davies, and Edward S. Rapallo, of counsel for appellant,
    on the questions considered in the opinion, argued :—I. No recovery should have been allowed for loss of rent. The plaintiff cannot recover, upon any theory, the total damage to the property and at the same time loss of rent. A permanent interference with an easement may form the foundation of an action for damages, and the rule of damage might, under some circumstances, be the injury occasioned to the land by the permanent interference with the right or easement appurtenant to the same (Wilson v. Wilson, 2 Vt. 68 ; Bryan v. Whistler, 8 Barn. & Cress. 288 ; Applegate v. Morse, 7 Lans. 59 ; Mainwaring v. Giles, 5 Barn. & Ald. 361; Clark v. School Board,
      L. R. 9 Ch. Ap. 120 ; Cumberland & Ox. Co. v. Hitchings, 65 Maine, 140). Hence the recovery by plaintiff of the total damage to his property, once for all, can only be upon the theory that his rights to light, air and access attached to his ownership of that property were by some presumably permanent ■ structure interfered with or partially destroyed, and that the property taken from him or appropriated for the railroad was not land itself. But the same theory would preclude his recovery for loss of rents, which might, perhaps, be the proper damages recoverable in an action for a continuing trespass upon land.: (Nicklin v. Williams, 10 Exchq. Rep. 259).
    II. No recovery should have been had for damage, if any, produced by. such noise as may be incidental to the running of the trains, and that, too, whether or not such noise occasioned any deterioration in the value of the property by abridgment of any supposed easement. Plaintiff has no property, right or easement, by reason of the street having been opened under the act of 1813, appurtenant to his land, as the dominant tenement, over the street, as the servient tenement, that the same shall be quiet, or that the air shall not vibrate, or that the air shall be pure and free from pollution. He did not own the fee in the street, the same having been opened under the act of 1813. Hence, at most, his only property in the street could be such easement as is created by the trust to keep the street open, specified in that act. That trust could only create the easements of fight, air and access as they are recognized'by the law (Hill v. Nipper, 2 H. & C. 121 ; Keppe v. Bailey, 2 Myl. & K. 535). The recognized easement of air, consists in a right to the circulation of ' air in and about the land and premises constituting the dominant tenement, irrespective of its purity or defilement. .No such easement is known to the law as a right appurtenant to a dominant tenement of fresh or pure air, over a servient tenement. There is a distinction between an easement of air, and the natural right to have the air which would naturally flow from any direction over his land, pure and undefiled—a right which is his in common with the rest of mankind. For the taking of the first he may require compensation, but for an interference with the latter as an individual, can maintain no action against a defendant to recover damages for creating a nuisance in the absence of negligence, if the’ defendant has the authority of the state for the acts which it performs (Goddard’s Law Easements, Bennett’s Ed. p. 28 ; Simpson v. Savage, 1 C. B. N. S. 347 ; Metropolitan Assocn. v. Petch, 5 C. B. N. S. 504; Kadgill v. Moor, 9 C. B. 364; Hewlins v. Shippam, 5 B. & C. 229 ; Rangeley v. Midland, &c., L. R. 3 Ch. App. 310 ; Bliss v. Hall, 4 Bing. N. C. 186). The court of common pleas has at length decided, in the case of Peyser, that damage by noise is not a proper element of recovery. And yet, upon principle, what distinction can be drawn between noise {i. e., an unusual vibration of the air, but not an obstruction to circulation), and odors (i. e., a pollution or defilement of the air) ? Any unlawful noise or unlawful pollution would give a cause of action for damages by nuisance at most. There is no distinction whatever between noise and odors, &c., if unlawfully produced (Crump v. Lambert, L. R. 3 Eq. 413).

      Anderson & Man, attorneys, and E. Ellery Anderson, of counsel for respondent, argued:
    I. The only question raised by this appeal is as to the admissibility of the plaintiff’s evidence of the loss sustained by him in rent, and in the selling value of his property. The general proposition that the abridgment by the erection and maintenance of the elevated railway structure, and by the operation of the road, of the plaintiff’s easement in Amity street to light, air and access, rendered the defendant liable to the plaintiff to the extent of the loss directly resulting from such abridgment, has been determined by the court of appeals in the Story case (Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122 ; Taylor v. Metropolitan Elevated R. R. Co., 50 Super. Ct. 311).

      II. The exceptions to the plaintiff’s evidence relating to rent of the premises with and without the railroad are not well taken (Taylor v. Metropolitan Elevated R. R. Co., supra).

    III. The exceptions to the plaintiff’s evidence of the selling value of the premises with and without the railroad are not well taken. It has been often held that when the property taken constitutes part of a larger parcel the damages are measured by the diminution in value of the remaining parcel (Henderson v. N. Y. C. & H. R. R. Co., 78 N. Y. 423 ; Matter N. Y. C. & H. R. R. Co., 6 Hun, 149 ; Taylor v. Metropolitan Elevated R. R. Co., supra).

    IV. There is no distinction between the liability of the defendants for constructing their structure, and their liability for operating their railway. In either case they are liable if they abridge or impair the plaintiff’s easement in light, air and access (People v. Kerr, 27 N. Y. 188; Story v. N. Y. E. R. R., 90 Ib. 122 ; Taylor v. Metropolitan Elevated R. R. Co., supra; Drucker v. Manhattan Ry. Co., 51 Super. Ct. 429).
   By the Court.—Freedman, J.

This action was brought to recover the total damage occasioned, to the premises Nos. 67 and 88.West Third street (also known as Amity street), and No. 2 South Fifth avenue (being the northwesterly corner of South Fifth avenue and Amity street), by the abridgment of the easement of light, air and access appurtenant to said premises in consequence of the construction, maintenance and operation of defendant’s railroad through West Third or Amity street, and in front of said premises.

The plaintiff proved title and possession of these three parcels of property in his father, John L. Ireland ; the death of his father in 1879 ; the devise of the three parcels to himself by his father’s will; and occupation by himself, through his tenants, since his father’s death. He also proved an assignment from himself, as executor of liis father’s will, to E. Ellery Anderson, and an assignment from E. Ellery Anderson to himself, the plaintiff, of any claim which his father’s estate might have for the said damages, or any part thereof. The buildings on the premises are three-story brick dwellings, and they were built before the railroad was commenced or authorized.

The construction of defendant’s railway was commenced in April, 1816. It was completed in April, 1818, and has been operated since June, 1818. Amity street was opened under the act of 1813.

In such a case an abutting owner, as such, though he owns no part of the street, has an easement in the street to the extent of light and air, and free access to, and egress from, his premises, and any abridgment of such easement by the construction, maintenance or use of an elevated railway, in a manner inconsistent with the ordinary uses of a street, although pursuant to public consent, constitutes, if damage is occasioned thereby, a taking of private property within the meaning of the constitution, and entitles the owner to compensation (Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122 ; Taylor v. Metropolitan Elevated Ry. Co., 50 Super. Ct. 311).

Such compensation may be ascertained and determined on application of the company, in proceedings instituted for the condemnation of so much of the abutting owner’s interest as has been taken, or is to be taken. The proceedings finally result in a transfer of the title of the property condemned upon payment or deposit of the sum awarded therefor, and such transfer of title, when completed, is conclusive upon subsequent grantees of the abutting owner, and all persons subsequently deriving any title or interest from or through him. If the company neglects to commence such proceedings, the abutting owners may elect how to proceed. He may invoke the powers of a court of equity, and have the construction or the operation of the railway enjoined, from and after such lapse of time as under all the circumstances is found to be a reasonable one for the company to make compensation, and the compensation may be determined by the judgment, as in Henderson v. N. Y. C. & H. R. R. R. Co. (78 N. Y. 423), or left by the judgment to be determined subsequently, either by agreement, or by proceedings of condemnation, as in Story v. N. Y. Elevated R. R. Co. (90 N. Y. 122), and Glover v. Manhattan R. Co. (51 Super. Ct. 1).

It may also be deemed to have been well settled that, so long as no compensation has been had for the permanent injury, an abutting owner may bring successive actions at law for the loss, from time to time, of rent caused by the abridgment of the easement, as in the case of a continuing nuisance. In these cases there is no transfer of title, and the payment of one judgment is no bar to a subsequent action for a different period. From this, it follows that successive owners of the same premises, or even tenants under certain circumstances, may maintain actions for the injury to their respective interests.

The right of an abutting owner to maintain an action at law to recover the total damage • to his fee upon the theory that the injury is a permanent one, is not so firmly established, although such recoveries have taken place. The difficulty in such a case arises from the following considerations, viz.: In the case of personal property wrongfully taken, the true owner may elect not to pursue his property, but to hold the wrongdoer for the full value thereof. In such a case, the title becomes vested in the wrongdoer upon payment. But land cannot be taken like personal property. There may be wrongful use and occupation, trespass and continued trespass, but there can be no conversion in the sense in which personal property may be converted. The moment the wrongful use or occupation, or the trespass ceases, the owner has his land as before. No title to land can be acquired by wrongful use and occupation or trespass. A deed is necessary to pass the title. The consequence is, that in an action at law against an elevated railway company, to recover the total damage to the market value of the fee, the company may insist that upon payment of such damage it is entitled to a proper conveyance so as to be protected against the claims of subsequent owners of the premises. But the difficulty may be overcome by the offer of the plaintiff to make such a conveyance. If, therefore, the complaint charges a taking of a permanent character, of property within the constitutional provision, and the answer, substantially admitting the taking and the permanent character thereof, creates an issue as to the-liability of the company to make compensation, an offer by the plaintiff at the trial to deliver a proper conveyance is sufficient, and the action may then be treated as one on the case. In the case at bar all this has substantially been clone, and consequently the right of the plaintiff to maintain the action as one for the total damage to the three parcels of property must be sustained, if otherwise made out.

The verdict rendered by the jury in favor of the plaintiff, presents, however, important questions as to the measure of damages. The verdict assesses the total damage to each of the three properties, and in addition, under the charge of the court authorizing the jury to do so, which was duly excepted to, allows compensation for loss of rents, viz.: ,

Rentals of No. 2 South Fifth Ave. . $3,600
“ 67 West Third street . 2,700
. 2,250
Damages on property No. 2 South Fifth Ave. '
“ 67 West Third St. 2,500
“ 88 “ “ “ . 2,500
Total verdict, $13,550

I do not see how this can be sustained, even if it be assumed that the plaintiff showed such a union of rights in his person as to entitle himself to a recovery of the total damage.

In the case of the actual taking of land for the use of a railroad company, the measure of damages is a fair and full compensation for what was taken. In such a case the owner was always held entitled to the value of the land taken, estimated in view of the purposes for which it was intended to be used, and, where the land taken constituted part of a larger parcel, he was also held entitled to damages for the consequential diminution in the value of the residue of his property, restricted within certain limits (Henderson v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 423; Matter of N. Y. C. & H. R. R. R. Co., 6 Hun, 149).

In the case of the abridgment by an elevated railway company of the easement which an abutting owner has in a street opened under the Act of 1813, which abridgment injuriously affects the property to which the easement is attached, the abridgment constitutes a taking of private property only to the extent that the erection and maintenance of the structure and the operation of the road are inconsistent with, and consequently in excess of, the ordinary uses for which the street was set apart, and the company is liable only to the extent of such taking (Taylor v. Metropolitan Elevated R. Co., 50 Super. Ct. 311).

In determining, once for all time, the value of what was thus taken, it must be borne in mind that no increased liability exists on the part of the company in consequence of its failure to institute proceedings of condemnation. This has also been in effect determined by this court in the case of Taylor already referred to. The question, therefore, in every such case is, what is the total value of that which was taken ? Such value the abutting owner has a right to have determined as of a particular time, as for instance the time of the taking. From such-time the owner, as a general rule, is also entitled to interest on the value so determined. So long, therefore, as the jury in a given case received proper instructions upon this point, and the question was duly considered in the assessment of the amount, it can make no difference whether their verdict in form assesses the value as of the time of the original taking, and then awards interest thereon, or whether it is for a corresponding gross sum, including both principal and interest. But, beyond all that, the complaining owner cannot recover for specific items of damage alleged to have been sustained during certain limited periods of time, because all such items must be deemed to be covered by the award of total damage for all time. So I have been unable to find in our jurisprudence any principle upon which such owner can recover his total damage, and, in addition, loss of rents in the place of interest. The theory of the action, as I have repeatedly shown, always is, and always must be, to recover compensation for property taken. If such property were personal property, the measure of damages would undoubtedly be the value of the property taken at the time of the taking, with interest from such time. This was discussed in the case of Taylor v. The Metropolitan Elevated Bailway Co., supra, and a bare reference to what was there said, is all that is necessary here. Why a different rule should be applied to the taking of an easement, and a fluctuating measure preferred to a constant one, I cannot conceive. The mere fact that the easement has been taken in part only, and that a common law action to recover the permanent depreciation of the fee value of certain premises caused by such partial taking of the easement appurtenant thereto, is to a large extent a novelty, does not warrant such a wide departure from settled principles as would be involved in the promulgation of the rule that in such an action a recovery may be had for loss of rents in lieu of interest, and in connection with a recovery of the permanent damage. True, a recovery for loss of rent pure and simple in one action, is no bar to a subsequent action for a permanent taking. But in such a case, which can only arise in consequence of the continued neglect of the railway company to institute proceedings for. condemnation, the company would still have the right to insist that the recovery in the first action for loss of rent should, in the subsequent action, take the place of interest for the period of time for which the recovery was had, or should otherwise be duly considered in the assessment of the total permanent damage.

In the case at bar the verdict, upon its face, presents inconsistencies. The jury found that the fee value of premises No. 2 South Fifth Avenue was not depreciated at all, and yet $3,600 were awarded for loss of rents. As to premises No. 67 West Third street, the loss of rents was fixed at $2,700, and the damage to the fee value at only $2,500. As to premises No. 88 West Third street, the disproportion is not quite so great, but still large enough to show that the proper measure of damages was not observed.

The charge and the verdict in this case were, therefore, erroneous in the particulars mentioned, and cannot be sustained ; and as the case is one in which the court at general term cannot make the proper computation, because it does not appear how the jury arrived at their conclusions, there must be a new trial.

There are some other exceptions which it is well to consider in this connection, because the questions covered by them will again present themselves upon the new trial. They relate to the refusals of the learned judge who presided at the trial, to charge unqualifiedly several requests made by defendant’s counsel, the object of which was to have the jury instructed to the effect that, in estimating the damages, they could consider neither the noise made by the running of the trains, nor the gas and cinders emitted by the engines, nor the diminution of light and air, or any other effects produced by the running of the trains. In other words, the damages, if any, were sought to be restricted to such as had been caused solely and exclusively by the erection and maintenance of the structure of the road. The use of the road, it was claimed, did not entitle the plaintiff to any damages whatever, because the operation of the road upon the surface of the street would not have entitled him to any, if the road had been built as a surface road pursuant to public consent.

It is true that the general term of the supreme court, in the case of Story, recently held, in substance, that, besides the depreciation in value directly caused by the structure of an elevated road, and the depreciation in value directly caused by the mere obstruction of the passage, and circulation of light and air occasioned by the running of the trains, an abutting owner is not entitled to claim compensation for injury to his property caused by noise,, smoke, ashes, dust, steam, gas or cinders, or even the vibration of the building, though they may all be occasioned by the operation of the road, because he could not claim such compensation from a surface road. And it is also true that, in the case of Peyser, the general term of the court of common pleas held, that noise caused by the passage of the trains on an elevated road, cannot be considered as an element of damage. But this court has already, after full consideration, laid down the rule to be that there may be an abridgment of the abutting owner’s easement by the running of locomotives and trains, and that a recovery for such abridgment may be had, provided it appears that the manner of the running, and the physical effects proceeding therefrom, constitute a use of the street in fact other than, or beyond, an ordinary and legitimate use of the street, and that this is a question of fact to be determined in each case upon all the circumstances surrounding it (Taylor v. Metropolitan Elevated Ry. Co., 50 Super. Ct. 311; Drucker v. Manhattan Ry. Co., 51 Ib. 429).

It has also been held that even a surface railroad; lawfully in existence and operation, may in fact be operated to an extent going so much beyond the ordinary and legitimate uses of the street, as to involve an abridgement of the ¿butting owner’s easement in the street, and to entitle him to a corresponding compensation (Green v. N. Y. C. & H. R. R. R. Co., 65 Bow. Pr. 154).

After a full and careful examination of these points of difference existing bet ween this court and the other courts named, we feel constrained to say, that although we entertain the highest respect for the opinions delivered by the learned judges who differ with us to some extent, we have been unable to discover any reason why we should not adhere to our former rulings, for it must be constantly borne in mind that the principle underlying all the decisions in the surface road cases is merely that the construction and operation of a surface road pursuant to public consent, whether it be a horse or a steam railroad, in a public street of a city, is not, per se, a use of such a street inconsistent with the ordinary and legitimate uses of the street.

We are, therefore, bound to hold, that, inasmuch as there was in this case testimony giren which was properly received, and which justified the submission to the jury of the question whether the running of the locomotives and trains, as they were run, involved a use of the street other than the ordinary and legitimate use, the refusals of the learned trial judge to charge unqualifiedly as requested, did not constitute error. Whether the qualifications which were made, in all respects conformed to the rule as laid down in the cases of Taylor and Drucker, it is not necessary to determine at present, especially as no corrections were asked for at the time.

There are other questions in the case which we pass in silence, as their determination is not necessary at present.

For the error resulting in the allowance of loss of rents in addition to the total diminution of the fee value, the judgment and order appealed from must be reversed, and a new trial ordered, ‘with costs to the appellant to abide the event.

Sedgwick, Oh. J., and Truax, J., concurred.


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    RICHARD LAVERY, et al., Respondents, v. PATRICK M. HANNIGAN, et al., Appellants.

      New Yorh city.—-Streets and highways, poioers and duties of city regarding.—Nuisance—injunction by private party against.—Special damage— what sufficient proof of.

    The paramount duty of the city authorities, except as they are otherwise expressly directed, or in cases of necessity otherwise empowered, is to keep the streets of the city, inclusive of the sidewalks, open and unobstructed for the benefit of the people of the entire state; and as a general rule, the public are entitled not only to a free passage along the streets, but to a free passage along each and every portion of every street.
    Under the “ Consolidation Act” of 1883, the power of the common council of New York city to regulate the use of sidewalks, is- subject to the limitation that the ordinance must not be inconsistent with law, and with the constitution of this state, and also to the further limitation that such common council shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof, during the erection or repair of a building on a lot opposite the same.
    An injunction will go against a person who creates, maintains and continues a nuisance, in favor of one who is injuriously and specially affected thereby.
    On a review of the evidence in this case, Held, that it appeared therefrom that defendant’s use of the sidewalk in front of his store, for display of goods, in connection with an awning structure, and the acts of his employees in such use thereof, deprived the adjoining building (occupied by plaintiffs in their business), of light, air and access, to such an extent as showed sufficient special damage to sustain an injunction.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal by defendants from a judgment enjoining and restraining them from using the sidewalk in front of their store for certain purposes.
    The injunction referred to in the opinion was as follows : “ It is adjudged and decreed, that the above-named defendants, Patrick M. Hannigan and Michael L. Bouillon, their agents and employees, be and they hereby are enjoined and restrained from placing any goods, wares or merchandise or other materials and articles upon the sidewalk in front of the stores and premises known as Mos. 243 and 245 Grand street, in the city of Mew York, and said defendants, their agents and employees, are hereby further enjoined and restrained from hanging or suspending any goods, wares, articles or materials in front of said premises or over said sidewalk, and from doing, causing, or permitting to be done, any act or thing to incumber or obstruct said sidewalk, or the area and space above the same.”
    The facts appear in the opinion.

      Cardozo & Newcombe, and Charles Blandy, for appellarth

      Kelly & Macrae, and Wm. F. Macrae, for respondents.
   By the Court.—Freedman, J.

The plaintiffs are retail dealers in white and ladies’ goods at Mo. 243 Grand street in the city of Mew York, and have been doing business there for over thirty years. They lease the whole building, and occupy the first and basement floors for the purposes of their business. The other portions of the building are in the occupation of their tenants.

The defendants occupy the building Mo. 245 Grand street, adjoining the building of the plaintiffs on the easterly side thereof, and there carry on a general dry goods business.

Both buildings stand upon the southerly side of Grand street, and their fronts are in the same line. A flagged sidewalk which extends along the fronts of both buildings, is about eighteen feet in width, and constitutes a part of Grand street, which is a public street.

For some time prior to the commencement of this action, the defendants used a large part of the sidewalk in front of their store as a sort of annex to their place of business, and for the purpose of displaying quite a variety of goods. Some of these goods were placed upon the sidewalk, and others were suspended from a permanent awning structure. This structure extended the full width of the store from the front of the store to the curbstone or outer edge of the sidewalk, where it rested on iron columns, and on the sides it had canvas wings, to be used on rainy days, and which, when used, reached from the top of the awning to the surface of the sidewalk. Each of these wings, when used, extended about seven and a half feet out from the front of the store. When not in actual use, the wings were reefed or drawn together against the building. The awning also had pivoted slats, which opened and closed in the same manner, as Venetian blinds or shutters do. In short, the arrangements were such as to enable the defendants, on wot days, to inclose the sidewalk in front of their store for a space of twenty-five feet (the width of the store) by seven and a half feet, and to use it as a part of their store, and they did so use it.

Upon the whole, the continuous regular use made by the defendants of the sidewalk in front of their store, deprived the building of the plaintiffs of light and air to a considerable extent at all times, and entirely cut off the view of their store from the east side. The plaintiffs were also annoyed by the defendants in this, that the goods so displayed were frequently projected and suspended over a part of the front of plaintiffs’ premises, and especially over a part of the space in front of the hall and doorway leading to the first loft of plaintiffs’ premises ; that, in the adjustment and arrangement of the display of the goods, a number of men in the employ of the defendants were engaged for a considerable time every morning, who placed and used boxes, ladders and poles directly in front of the said hall and doorway of the plaintiffs ; and that by these means the access to plaintiffs’ premises was interfered with.

Upon these facts, there can be no doubt that, as found by the learned judge below, the plaintiffs showed sufficient special damage.

The main .contention of the defendants is, however, that/ notwithstanding such damage, the plaintiffs have no cause of action, because the acts done by them, the defendants, were done under a permit granted to them by due public authority:

The permit in question appears to have been granted by the registrar of permits, and it purports to have been issued by virtue of a corporation ordinance, and to give permission to exhibit goods. It also provides, in express terms, that the privilege thereby granted must be exercised inside of the stoop line in front of thé premises, and must not be of such size and character as to be or become an obstruction to the rights of the neighbors, and that goods, when éxhibited, must not be placed more than three feet from the building line, and not to a greater height than five feet.

The permit, upon its face, therefore, authorized no such use of the sidewalk by the defendants as the proof showed they had made of it, for they went far beyond the stoop line.

Besides that, the ordinances of the city of Hew York, limit the- hanging or placing of any goods to twelve-inches from the front of the store or building {Corporation-Ordinances, in force Jan. 1, 1881, § 52), and no provision has been pointed out which confers upon the registrar of ■ permits, who by section 281 of the said ordinances, is authorized to grant permits in certain cases, any greater power.

Hot even the mayor, aldermen and commonalty of the city of Hew York, collectively, can authorize such a use of a sidewalk as the defendants made of the sidewalk in front of their premises. True, under subd. 3 of section • 86 of the Consolidation Act of 1882, the common council has power to regulate, by ordinance, the use of sidewalks, and to prevent in like manner the extension of building fronts and house fronts within stoop lines. But this power is expressly made subject to the provision contained in the beginning of the section, that the ordinance must not be inconsistent with law and the constitution of this state, and is also subject to the further provision contained in subd. 4 of the same section, that they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof, during the erection or repair of a building on a lot opposite the same.

The paramount duty of the city authorities, except as they are expressly otherwise directed, or in cases of necessity otherwise empowered, is to keep the streets of the city, inclusive of the sidewalks, open and unobstructed for the. benefit of the people of the entire state. As a general rule, the public are entitled not only to a free passage along the streets, but to a free passage over each and every portion of every street. These propositions have been laid down and reiterated so often that it would be a waste of time to collect all the authorities that could be cited in their support. The cases of People ex rel. O’Reilly v. Mayor, &c. (59 How. Pr. 277), and Ely v. Campbell (59 Ib. 333), are quite sufficient for the purpose.

The examination so far made sufficiently shows that the acts of the defendants in displaying their goods in the manner they did, were wholly unauthorized. The necessary tendency of these acts was to impair the usefulness of the sidewalk as a public thoroughfare, as well as to cause damage to the plaintiffs. Public and private rights were alike violated. The defendants were therefore guilty of having created, maintained and continued a nuisance which injuriously and specially affected the plaintiffs, and upon the authorities, the plaintiffs were entitled to an injunction, especially as the defendants refused to discontinue their practices unless restrained by the court (Trenor v. Jackson, 15 Abb. N. S. 115 ; Hallock v. Schreyer, 33 Hun, 111).

The findings of fact signed by the learned judge below are not accurate as to the height of the awning, and they may be inaccurate as to a few other particulars, but these inaccuracies do not affect the merits. In all essential things the findings as made are sustained by the evidence, and in turn they support the conclusions of law based thereon.

The injunction, as granted by the judgment, does not enjoin and restrain the defendants from carrying goods across the sidewalk out of or into their store, nor from temporarily placing them thereon during the process of loading or unloading carts or wagons, nor does it deprive the defendants of any right to use the sidewalk in the same manner in which it may be used by any other person. "When reasonably and properly construed, it only enjoins and restrains practices resulting, or having a tendency to result, in what are commonly denominated street obstructions.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., and Van Vorst, J., concurred.