text:
    KETTCHEN PUTZEL, Plaintiff and Appellant, v. ELLEN M. VAN BRUNT, Defendant and Respondent.
    i. deeds.
    1. Description, construction of.
    (as) Intention of parties to be ascertained.
    1. Sow ascertained.

      (a) Not only by the language of the description in the deed itself, but by reference to extrinsic facts, which may consist qf cotemporaneous writings relating to the same subject, or prior deeds through which the title has come down and writings cotemporaneous therewith and circumstances relating to the premises described in them, and of the facts of undisturbed use on the one hand, and unqualified acquiescence on the other.

      (¥). Running to the centre, although bounded along the side of a highway,

    1. Eastern Post Road in the city of New York.
    («) “Thence 1,009 feet to a monumental stone marked K, ’ placed in the easterly side of the Eastern Post Road aforesaid, thence along the easterly side of said, road," contained in a deed of a part of the Turtle Bay Farm.
    HELD,
    upon above principles, that under the facts appearing in the evidence the deed carried the grantee to the centre of the Eastern Post Road.

    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    This action was brought to recover the sum of five hundred and fifty-one dollars and fifty cents, the amount paid to the defendant, and an attorney for professional services m searching the title to premises, under a contract for the purchase of a house and lot in Forty-eighth Street, in the city of New York, by the plaintiff of the defendant, upon the ground that defendant had no title to a portion of the premises agreed to be conveyed.
    The making of the agreement is admitted, and the payment of the money. A good and sufficient deed of the premises was executed and tendered, which was refused for the alleged reason that the title to a portion of the premises was defective. The case was referred. The referee dismissed the complaint, and gave judgment for the defendant.
    The plaintiff appeals from the judgment.

      Nelson Smith, attorney, and of counsel for appellant, on the questions discussed by the court, urged :
    I. While we do not admit that the deed from William H. Winthrop to Barclay conveyed that part of the premises in question lying in the Old Post Boad, we refrain from making any point that it did not. We will venture to say that if the defendant could have made as good title to the premises as Henry Barclay had we never should have troubled the court with this suit. What we dispute in defendant’s alleged title is, that the- deed from Henry Barclay to Samuel Thompson did not convey any part of the premises which were formerly within the limits of the Old Post Boad. This deed conveys a piece of land lying on the easterly side of the Old Post Boad, and by its express limitation to the easterly side did not embrace the road to its centre, upon the well-settled and long-recognized principle that where a deed conveys land lying upon a road, and by its terms the land conveyed is described as being upon the side of the road, and the boundary is limited to the side and along the side, instead of running to the road and along the road. then, and in such case, no part of the land within the road is embraced in the conveyance. This principle is well settled, and is decisive of this case (Jones v. Cowman, 2 Sandf. 234 ; Van Amrige v. Barnett, 8 Bosw. 357 ; Whitman v. Law, 34 Barb. 515 ; Anderson v. James, 4 Robt. 35; Child v. Starr, 4 Hill, 369 ; Halsey v. McCormack, 13 N. Y. 296). In such a case there is no distinction between city and county roads (Hammond v. McLoughlin, 1 Sandf. 323 ; Anderson v. James, 4 Robt. 35). STor does the grant 66 of all the right, title, and interest,” “appurtenances, &c.,” pass the title to the road. These only pass an easement ; no title to land can pass except that expressly described (Jackson v. Hathaway, 15 Johns. 447). The deed from Thompson to Lawrence is open to the same objection, and does not embrace any part of the road.
    II. The defendant does not pretend to have any record or paper title to that part of the premises in question lying within the limits of the Old Post Road unless the easterly side of the road was covered by the deed from Barclay to Thompson, and from Thompson to Lawrence. For it is conceded that a portion of the premises in question are situate on what is known as the Old Post Road.
    III. There is no evidence that either Barclay or Thompson or Lawrence ever entered into posesssion, or claimed to enter, or have ever taken possession, of any part of the land situate within the limits of the Old Post Road; and their deeds not embracing the road, even if there were evidence—which there is not—that they entered into possession of the land conveyed to them, still that possession could not avail them or the defendant anything, because of the well-known presumption of law that when a person enters into the possession of land under a deed, his claim of title is limited to the premises described in thv deed (Bowie v. Brake, 3 Duer, 35).

      IV. The only evidence from which the defendants’ counsel could pretend a title to be established is that which tends to show that in 1859 one Fox was in possession of the premises, living in a small shanty built thereon. If this could be relied on, it only shows possession for about fourteen years. Possession for that length, even though under a claim of title, being short of that prescribed by statute, is of no effect whatever. The rightful owner—as appears by the evidence—of that part of the premises in question located in the Old Post Road, is Henry Barclay. And if Fox were actually, as Mr. Sexton states, in possession of the premises, the presumption would be, in the absence of proof, that he, Fox, was in under Barclay, and not under any person who was not the owner of the premises (Fosgate v. Herkimer Man. Co., 9 Barb. 287; Jackson v. Thomas, 16 Johns. 293). But there is no evidence when Fox entered, nor how he entered. The presumption would be that he was a mere squatter, not entering or claiming under anybody.
    V. We confess that we do not comprehend the force of reasoning by which the referee makes the reservation of the piece conveyed by Barclay to Gates a ground for holding that, such deed, on account of such reservation, is to be enlarged or extended so as to convey to Thompson any part of the easterly half of the Old Post Road. It is the first time that we have ever heard it suggested that the reservation of any part of land embraced in a description could be said to operate to enlarge the description. Had the description in this deed from Barclay to Thompson stopped where the reservation began, it is difficult to see, upon the authorities, how it could be said to embrace any part of the Old Post Road, it being expressly limited to a line wholly on the easterly side of the road. The authorities cited by the referee, viz., Luce v. Carley (24 Wend. 451), and Bissell v. N. Y. Central R. R. Co. (23 N. Y., 61), do not sustain any such proposition. In Luce v. Carley (24 Wend. 451), the premises were bounded by a monument standing on the easterly bank of the river, from which the course was given as running ££ along the river as it winds and turns ” to.another monument, and the court held that the grantee took usque ad filum aquee, but had the deed given the course from the monument as running along the easterly side of the river as it winds and turns, instead of along the river, the grantee would not have taken to the middle of the stream. The case is an authority in favor of the plaintiff, and shows the converse of what it was cited by the referee to show (Child v. Starr, 4 Hill, 269 ; Van Amrige v. Barnett, 8 Bosw. 357).

      George W. Palmer, attorney, and of counsel for respondent, among other things, urged:
    I. 1st. The presumption of law is that every owner of land bordering upon a road, owns to the centre thereof, unless the language of the deed under which said owner claims the title, by precise language, excludes the road (Child v. Stair, 4 Hill, 382; Hammond v. Mc Lachlan, 1 Sandf. S. C. R. 341; Herring v. Fisher, Id. 344; Dunham v. Williams, 36 Barb. 136; Gredney v. Earl, 12 Wend. 98; Woolrych on Ways, 5, 6 ; Bissell v. N. Y. Central R. R., 23 N. Y. 61). 2d. ££ Thp construction ought to be made on the entire deed, not on any particular part of it; and such construction should be given that, if possible, every part of the deed may be operative. If a deed can not operate in the manner intended by the parties, such a construction should be given that it may operate in some other manner so as to effectuate the intention ” (Angell on Highways, 298; Moore v. Jackson, 4 Wend. 58 ; Jackson v. Blodget, 16 Johns. 172 ; Long Island R. R. Co. v. Conklin, 32 Barb. 381). 3d. “ Also, where it appears to be the intention of the parties that the land shall pass, the form or mode of conveyance is not material, but the intent should be effectuated by every legal means” (Jackson v. Myers, 3 Johns. 388 ; French v. Carhardt, 1 N. Y. (Comst.) 96). 4th. Again: “ Every uncertainty is to be taken in favor of the grantee, and every presumption. The burden is on the plaintiff to show the road was excluded.” (Bissell v. N. Y. Central R. R., 23 N. Y. 61; Adams v. Saratoga R. R. Co., 11 Barb. 414; Luce v. Carnley, 24 Wend. 451; Lozier v. N. Y. Central R. R., 42 Barb. 465). 5th. Again: “The terms of every written instrument are to be understood in their plain, ordinary, and popular sense, unless they have, generally, in respect to the subject-matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words ; or unless the context evidently points out that in the particular instance, and in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense.” “ This rule does not restrict the court to the perusal of a single instrument or paper; for while the controversy is between the original parties, or their representatives, all their contemporaneous writings relating to the same subject are admissible in evidence” (Greenleaf on Evidence, vol. 1, secs. 278 and 283). The main question in this case is to ascertain the intent of Henry-Barclay at the time of making the transfer to Thompson, in respect to the ponveyance and alienation of his interest in the old Eastern Post Road. This intent is to be gathered not only from the language of the deed itself from Barclay to Thompson, but also by reference to those deeds, and the circumstances attending them, which brought the title of the land to Barclay, and the deed to which reference is made in the conveyance from Barclay to Thompson, which conveyed a portion of the premises to Gates.
    II. This intention is further shown in that portion of the description in the deed from Barclay to Thompson, which makes an exception of a certain portion of the land before described, which had been previously deeded by Barclay to George Gates. ‘c An exception is something reserved by grantor out of that which he has before granted. It is indispensable to a good exception that the thing excepted, should be part of the thing previously granted, and not of any other thing” (Cook v. Haight, 3 Wend. 632; Craig v. Wells, 11 N. Y. 321). A grantor may except lands either because he does not own and can not convey them, or because he does not intend to convey them if he is the owner ” (People, &c., v. Rector, &c., 22 N. Y. 53). It therefore must follow that the line bounding the property deeded to Gates and that bounding the property deeded to Thompson by Barclay, must be a continuous one, and hence it must have been the intention of Barclay to alien his entire interest in the Eastern Post road aforesaid adjacent to said premises.
    III. Besides all this, the acts done under these deeds serve to show that the foregoing views are correct. There is no pretense that any claim of any kind, from any source whatever, has ever been made for any part of the eastern half of the old post road in question, in opposition to that of those in possession and holding title under the aforesaid deeds. Houses have been erected upon, and titles passed, by good lawyers, for many years past to this portion of the old post road, without question or doubt, until this sale by the defendant to the plaintiff of the premises in question.
   By the Court.—Speir, J.

The portion of the premises alleged to be defective in the title was formerly included in the easterly half of the old post road adjoining the Turtle Bay Farm, and included in subdivision Wo. 6 of the farm belonging to Francis B. Winthrop, and known as the Turtle Bay Farm.

In 1820, the co-heirs of Francis B. Winthrop, excepting William H. Winthrop, executed a deed to the latter, and in the recitals it is stated that the parties to the deed caused the farm to be surveyed and divided by Mr. Randall, a surveyor, into six different farms or subdivisions. This deed was made for the purpose of conveying to the grantee in severalty his proportionate share of the entire farm. The subdivisions were numbered one, two, three, four, five, and six, and William H. Winthrop took Wo. 6, which includes the premises in question. It follows from the declaration in the deed, that the Turtle Bay Farm, without any reservation, had been, by the Randall survey and division, included in the sixth parcel or subdivision. The fact being thus established by the parties themselves furnishes the best evidence of intention.

Moreover, the above conveyance being a friendly partition of the whole farm among the heirs, and the land conveyed, being described not alone by metes and bounds, but also as “subdivision or farm Wo. 6 of the said Turtle Bay Farm,” it may be assumed that the portion of the old post road belonging to the farm, and adjoining Wo. 6, was included in the conveyance. Besides, it is a familiar rule that the grantee of a lot bounded on a street prima facie takes to the centre of the street, and there must be language expressly excluding the street to prevent the grant having this effect. Henry Barclay, by deed dated 1826, became the owner in fee, by boundaries identical in the deed, to William H. Winthrop, and is referred to as being the same premises. This deed, therefore, carries all the interest of the grantors, whatever it may have been, to the centre of the road.

In tracing the title down thus far, there seems to be no controversy, and the plaintiff's counsel, although admitting the effect of the above conveyances, at this point, interposes his objection to the title. His claim is that the deed of 1832, from Barclay to Samuel Thompson did not convey any part of the premises which were formerly within the eastern post road, that the land conveyed is described as being upon the side of the road and the boundary is, limited to the side and along the side, instead of running to the road and along the road.

The importance of examining the foregoing deduction of title and the character of the several transfers is plainly manifest. The intention of the several parties is to be ascertained not only from the language in the description of the deed itself, but must ever have reference to relative extrinsic facts. These facts may consist of co-temporaneous writings, relating to the same subject; by reference in this case to the deeds and circumstances relating to the premises described in them, which brought the title down to Barclay. As a clue to this intention and the import or effect of conveyances, we are permitted to look to the undisturbed use of the right contested, on the one side, and the unqualified acquiescence, on the other, down to the time of the purchase of the premises by the defendant.

When the survey of the Turtle Bay Farm was made, this eastern post road was in public and common use. The intention was to convert the entire Turtle Bay Farm into six holdings in severalty, which should iüelude the entire area of the farm. In this amicable partition Ho. 6 had for a portion of its boundaries this road, and it was impracticable and unusual to place the monuments “K” and “nineteen” elsewhere than on the side of the road ; while it is apparent that the measurement of land extended to the centre. This results from the fact that the division Ho. 6 starts at the most northerly corner of subdivision Ho. 5, which corner is in the centre of the old post road, and then runs to the monumental stone “ K.” It is well-known that in the rural districts it is the custom in the survey of lands to mark courses and distances by artificial monuments, and in case the boundary is made by the highway these monuments are placed on the side of the road between the exterior line enclosing the street and the road-bed, while the quantity of land conveyed extends to the centre. Where, therefore, the road is the limit and boundary the expression is both natural and common “to the side and along the side,” thereby defining in common parlance that portion of the road lying between the exterior limit and the centre.

Intention is further manifest in the description in the deed from Barclay to Thompson, which contains an exception of a certain portion of the land before described which had previously been deeded by Barclay to Grates. The excepted portion is situated on the post road directly north of the land in question, and on the same continuous line with it. Barclay's deed to Grates uses words which carry the land in the road to its centre. As Barclay therefore conveys a parcel of land in the road to Gfates, with the land adjoining thereto, and also in the deed to Thompson conveys a large parcel of land which, in terms, includes land sold to Grates, it seems to follow that Barclay intended to convey to Thompson his right to the land in the road adjacent to the tract in question.

The rules which govern the interpretation of grants of land in the country are- strictly applicable to the present case. This was a public highway at the time, and the -reasons for the construction of the deeds are based upon principles of great public convenience, and do not permit that one should be the owner of a farm and another of a road or stream running through it.

Although the road has been closed for twenty-five years, it does not appear that either Thompson or his representatives have since the date of his deed claimed the right to be in possession of any portion of the land in controversy, and have never made any claim or demand upon any one who has held the same since that time. The question, then, is simply in whom is the fee in the soil vested to which this easement of a public highway was attached ?

The fee must rest somewhere, or be in abeyance. If the views above expressed are correct, it follows that these several conveyances commencing with the partition of the co-heirs of Francis B. Winthrop carries the fee of the premises in dispute to the centre of the road down to the defendants.

An abstract of a decision referred to in the present number of the Albany Law Journal, p. 145, February 26, 1876, in the case of White’s Bank of Buffalo v. Mchols, has just come to my notice. The opinion is by Mr. Justice Allen, of the court of appeals. That experienced and learned judge has so fully and pointedly stated the doctrines relating to boundary upon a highway, construction of grants, &c., that I can not do better than refer to the case as authority. He says: ‘ ‘ Whether a grant of lands bounded by a street, highway, or running stream extends to the centre of such street, highway, or stream, or is limited to the exterior line or margin thereof, depends upon the intent of the parties to the grant as manifest by its terms; and while the presumption is in every case that the grantor does not intend to retain the fee of the soil within the lines of the street or under the water, no particular word or form of expression is necessary to overcome such presumption. It is not sufficient to exclude from the operation of the grant the soil of a highway usque ademedium ftlum that the grant is made with reference to the plan annexed, the measuring or coloring of which would exclude it; or by lines and measurements, which would bring the premises only to the exterior line of the highway; or that they are bounded generally by the line of the highway, or along the highway ; or by any similar expression.”

The judgment should be affirmed with costs.

Sanford, J., concurred.


source: Caselaw Access Project

author: Speir, J. Sanford, J.

license: Public Domain

text:
    ELISE MAGNIN, et al., Plaintiffs and Respondents, v. WILLIAM B. DINSMORE, as President of the Adams Express Company, Defendant and Appellant.
    COMMON CARRIERS.
    Their duties and liabilities.
    Concealment of the value of packages as affecting the CONTRACT WITH CARRIER.
    The case at bar has been tried four times in the court below, and has been reviewed three times by the court of appeals (3 Jones & Spencer, 188; 53 N. Y. 652; 56 Id. 168; 6 Jones & Spencer, 348; 60 N. Y).

    On the last trial, now in review, the judge submitted to the jury the question as to whether the defendant was guilty of gross negligence or misfeasance or abandonment, in the' course of its duties as carriers, and charged, that if the jury found it was so guilty, that the plaintiffs were entitled to recover the value, with interest, of the goods shipped.

      Held by the court, that the evidence did not warrant this submission as to gross negligence, &c.
    See the opinions on the review of this and the former questions before this court and the court of appeals.
    Before Speir and Sanford, JJ„

      Decided March 20, 1876.

      The action was brought by the plaintiffs who compose the firm, VVe J. Magnin, Gruedin & Go., against the Adams Express Company, to recover the value of a package entrusted to its care, for transportation to Memphis, Tennessee, and alleged not to have been delivered there to the consignees thereof.
    The jury, under the charge of the court, found a verdict for the plaintiffs for the full value of the package, with interest, amounting to two thousand eighj: hundred and thirteen dollars and ninety-six cents, and judgment was entered thereon.
    The defendants appeal from the judgment and the order denying a motion for a new trial. The facts appear in the opinion of the court

      Mr. Da Costa, for appellant.

      C Bainbridge Smith, for respondent.
   Speir, J.

This case has been tried four times. It has been carried to the court of appeals three times, and we. are now again called upon to review the questions arising on the fourth trial.

The history of the case, and the several stages of judicial investigations it has passed through, may be found recorded in 3 Jones & Spencer's R. 182; 53 N. Y. 652; 56 Id. 168 ; 6 Jones & Spencer, 248 ; and 62 N. Y.

It is not necessary, nor will it serve any good purpose, to review the foregoing decisions, as they may be easily referred to, and are not now important further, than to briefly state the result of the decision in the case last reported by the court of appeals. The very able and learned opinion by Mr. Justice Folger has so fully and precisely stated the points upon which a right decision of the case depends, that our duty will be sufficiently discharged by ascertaining whether this ' last trial has been conducted in accordance with that decision.

By the last two decisions of, the court of appeals it was decided that the contract between the plaintiffs and defendant did not per se excuse the defendant for liability for a loss arising from its negligence. This contract was that if the plaintiffs did not state to the defendant the value of the property entrusted to its care for transportation, they could not demand in case of loss a sum exceeding fifty dollars for the loss or de • tention thereof. The question whether the package had been delivered to the consignees at Memphis had been before submitted to the jury, and they found for the plaintiffs. The defendant had given no explanation of the nondelivery. But it was shown on the part of the plaintiffs that some- months after the shipment, ’ and within a year, the box containing the goods which had been shipped was picked up near Go wan us, on the East River shore, empty. And the court held, these facts thus shown would have warranted the submission to the jury of the question of negligence, if that was a material inquiry in determining the rights of the parties.

The appellate court, in its last decision, points out the distinction between the case then presented for adjudication and the case decided in 56 W. T., and says: “But the judgment of the court then given was only upon the questions then presented. Other questions now arise.” And the court, by its last decision upon the questions then presented, decided that the plaintiffs were not entitled to recover for the actual value of the contents of the package, by reason of their concealment and fraud in not disclosing to the carrier the contents thereof. The question of the concealment of the value of the goods contained in the box had been passed upon on the former trial as one of fact, and the jury found that there was not upon the part of the plaintiffs either active fraud or concealment, neither in the manner in which the box was delivered to the carrier nor in what was said or left unsaid at the time of the delivery, nor in the character of the package in the way in which it was enclosed and sealed.

The defendant urged at the former trial, and on the argument of the last appeal, that the question was not one of fact for a jury, but of law for a court, and that the plaintiffs should be nonsuited for concealment of the true value of the package ; that when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run, and the care needed, and holds out the package to him as an ordinary article which he would have no objection to take as a matter of course. The carrier is thereby put off his guard. This puts upon the carrier the duty of inquiry. It is a concealment of an important fact entering into the bargain to be made ; that such a concealment amounts to a fraud in law upon the carrier, and where there is no dispute as to the material facts, as there is none in this case, it is a question of law for the court, and not of fact for-the jury.

The court has sustained this position of the defendant, and recorded the decision as follows : “ That the question of concealment of value upon the undisputed facts of the agreement, and of the silence of the plaintiffs, was one of law for the court, and not of fact for the jury, and that silence only as to value amounted to such an imposition upon. the defendant as would relieve it from a liability for the total value of the goods, unless something more in its conduct is shown than negligence to carry safely and deliver promptly.’

It is not claimed by the court that although in such a case the carrier is relieved from liability for a loss occurring from ordinary negligence, that he will thereby be relieved when his acts and those of his servants have amounted to misfeasance or abandonment of his character as carrier.

The evidence before the court below did not differ in any material degree from that before the court of review last decided. The learned judge charged the jury that if they found that the goods were not delivered in Memphis, and that the defendant was guilty of gross negligence or misfeasance or abandonment in the course of its duties as carriers in the transportation of the goods, then the plaintiffs were entitled to recover their value, with interest. The defendant’s counsel requested the court to charge that if the jury found that the package was not delivered in' Memphis, on the undisputed facts of the case, as matter of law, the plaintiffs are not entitled to recover the total value of the goods, but only the limited sum of fifty dollars, with interest. This request was declined, and an exception taken. This, we think, was error, and therefore the judgment and order appealed from should .be reversed, and a new trial ordered, costs of the appeal to abide the event.

Sanford, J.

I concur in the result arrived at by my learned associate, but solely upon the ground that the evidence in the case did not, in my opinion, warrant the submission to the jury of the question whether the defendant had been guilty of gross negligence or of misfeasance or of abandonment in the performance of his duties as a carrier in respect to the transportation of the merchandise, or of a conversion thereof. These several degrees of culpability are correctly defined by the learned judge in his charge to the jury, and I am of opinion that there is no evidence in the case that any or either of the acts or omissions comprised within such definitions respectively were •either committed or omitted by the defendant. If the evidence is insufficient to sustain a finding in the affirmative of either of the several questions thus submitted to the jury, there was error in the charge of the learned judge, and the verdict of the jury should accordingly be set aside.

It has been twice held by the general term of this court, that evidence substantially the same as that now before the court ought not to go to the jury, upon the question of simple negligence (3 Jones & Spencer, 182 ; 6 Id. 248). In the case last cited it is stated that “the judge who presided at the second trial felt himself bound by the decision of the general term as to the insufficiency of the evidence to establish negligence, and consequently, the proof being the same, he withdrew this branch of the case from the consideration of the jury,” and that, “the general term sustained the rulings of the trial judge.” The court of appeals thereupon held that this ruling was erroneous, and that “ there was evidence which would have warranted the submission to the jury of the question of negligence” (6 J. & S. 251; 56 N. Y. 173). But it does not necessarily follow that the same evidence which would warrant the submission to the jury of the question of simple negligence will also warrant the like submission of the question of gross negligence, much less that of misfeasance or abandonment, or conversion (Riley v. Horne, 5 Bingh. 217). The ruling of the general term on each of the occasions referred to necessarily involved the proposition that the evidence was insufficient to warrant such submission upon either of these questions, inasmuch as that evidence which is insufficient to sustain a finding of the lower degree of culpability is a portion insufficient to sustain a finding of the higher. That ruling still stands as the law of the case, except in so far as it has been questioned by the court of appeals, and that court has only decided that the ruling was erroneous with respect to the minimum of fault, without intimating any opinion as to the sufficiency or insufficiency of the evidence, as applicable to the question of any other grade of misconduct whatever. On the last appeal to the court of appeals it was held that in consequence of a concealment by the plaintiff of the true value of the goods the defendants were relieved of liability for a loss occurring from ordinary negligence, but the court expressly declined to hold that his exoneration extended to the case of a misfeasance or abandonment of his character as a carrier. That question, thus left open, was in my opinion correctly decided by the learned judge at the trial, when he charged, in effect, that if the loss occurred through gross negligence or misfeasance or by reason of abandonment, or of a conversion of the property, the defendant must be held liable. But the mere discovery of the box in which the goods were originally packed, at the time, and under the circumstances, and in the manner disclosed by the evidence, seems to me insufficient to inculpate the defendant to the extent implied by the definition of either one of the several offenses or grades of offense imputed to him by the verdict, as laid down by the learned judge in his charge ; 'and this notwithstanding the absence of any explanation of the omission to deliver the goods to their consignee. Under the ruling of the court of appeals, in its last decision, it seems to me that the onus probandi with respect to something more than simple negligence, is upon the plaintiff, and that there should therefore be made apparent something more than a mere conjectural probability of the commission of the wrong imputed: £! there must be some element of moral certainty and exclusion of reasonable doubt ” (Payne v. Forty-second Street R. R. Co., 8 J. & S. 13).

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


author: By the Court.—Speir, J.

text:
    PIERSON S. HALSTEAD, et al., Respondents, v. JACOB H. V. COCKCROFT, Impleaded, &c., Appellant.
    practice.
    Parties to action.
    Revival of action in favor or against executors and representatives.
    In an equity action against several defendants for an accounting, on the death of one of the defendants the action survives, and his executors and representatives should be made parties.
    The executors or representatives may be brought in as parties by a motion in the action made by them or any other parties interested in the revival.
    “If the power to direct the continuation of the action does not exist, no relief can be afforded; but if it does exist, the circumstances which will justify its exercise rests in the legal discretion of the court ” (Livermore v. Bainbridge, 49 N. Y. 125).
    In the case at bar a referee had reported that the plaintiffs were entitled to an account from both of the defendants. In the meantime one of the defendants died. After his death, on application of plaintiff, an order was made discontinuing the action as to the deceased. The surviving defendant appeals from that order, claiming that the executrix of the deceased defendant should be made a party to the action. Held, that the order should be revseerd, on the ground that the executrix was a necessary party to the action, and should be brought in.
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    This is an appeal from an order discontinuing the action as to one of the defendants.
    The action is brought to compel the defendants to account for a cargo of merchandise.

      The defendant Cockcroft made and concluded a charter party in his own name, and on his own account and risk, and fitted out a vessel with a cargo to the amount of five thousand one hundred and fourteen dollars and forty-seven cents, and sold tojthe plaintiffs an interest in the cargo and merchandise shipped to the amount of one thousand two hundred and ninety-seven dollars and five cents. By agreement, the interest of the plaintiffs was limited to the proportion which this latter sum bears to the costs of the whole cargo, they participating in the profits.and.losses to the amount of their purchase. The defendant Cockcroft was also by agreement to appoint the defendant Lomelino supercargo, which was done, with the consent and knowledge of the plaintiffs, who was to receive one-half of the net profits realized on the adventure.
    The cause was referred, before the death of Lomelino, to a referee, on whose report an order was entered that the plaintiffs were entitled to an account from each of the defendants. Lomelino died in 1855. After his death an order was made, on the application of the plaintiffs, discontinuing the action as to Lomelino, from which the defendant Cockcroft appeals, claiming that Mrs. Lomelino, his executrix, should be made a party to the action.

      Charles H. Black, for appellant.

      Daniel B. Ames, for respondent.
   By the Court.—Speir, J.

Although the defendant Lomelino, by his .answer, claims that he never made any contract with the plaintiffs, and is not accountable to them, and is improperly joined as defendant, it clearly appears that he claims a lien on the property in dispute, and sets up a counter-claim to the plaintiffs’ claim. If Lomelino was appointed supercargo by the defendant Cockcroft upon terms entitling him to share in the profits and losses, with the knowledge of the plaintiffs, then he should account; then the referee has properly decided that the plaintiffs are entitled to an account with each of the defendants. There is no evidence in the case showing he was not interested as a partner. This being so, it is difficult to see how a ■final determination of the action can be had without bringing the representatives of Lomelino before the court. It is still more difficult to see how in the present stage of the action it is possible to proceed against the defendant as surviving defendant alone, and properly adjust the conflicting interests of these several parties.

It is not the case of a joint contract, where, if one of the parties die, his executor or administrator is at law discharged, and the survivor alone can be sued, but it is a proceeding in equity, where Lomelino has an interest in the property, holding by adverse claim, and being in possession. The executors of the deceased party are liable, and his personal representatives, as well as survivors, must be made parties to a suit in equity (Story's Equity Pleadings, § 169). The plaintiffs have made both Cockcroft and Lomelino parties defendant, and call upon them for an account, and an interlocutory order has been made that the plaintiffs are entitled to an account against both.

The important question before me is, how can this relief be obtained ? Whether it can be obtained on motion is not free from difficulty. The learned judge in the opinion delivered by him in Livermore v. Bainbridge (49 N. Y. 125), has come to the conclusion, after an able and elaborate examination, that the Code does not in terms authorize such a motion on the part of the defendant. He proceeds to show that the former practice in the court of chancery permitted it to be done on motion when the defendant had acquired some rights in the litigation, and that, under section 469 of the Oode, former rules and practices not inconsistent with these provisions of the Code were still in force, and that it was allowable under those former rules. It was the well-established practice in the court of chancery, independent of any statutory provisions, if there had been any decretal order in the suit from which the defendant could derive any advantage where he had obtained an interest in the prosecution of the suit, where a counter-claim had been interposed, and an issue joined on it for trial, it could be revived at the instance of a defendant or his representatives, in case the plaintiff or his representatives neglected to revive it (Story's Equity Pleadings, §§ 372, 373 ; Souillard v. Dias, 9 Paige, 395). The Lord Chancellor, in Harwood v. Schmedes (12 Vesey, 316), says : ‘6 One of the cases in which a defendant may revive is confined to matter of account, and where the defendant has an interest in the further prosecution of the suit.”

It is plain, if the court has not the power to direct an action to be continued on the application of the defendant or his representatives, where a counter-claim has been interposed, it might be productive of great injustice ; an action founded on the subject-matter of the counter-claim might be barred by the statute of limitations. Under section 121 of 2 R. S.. marginal page 185, the action has not abated, but is still in court; no revivor is necessary, and it is a mere question of bringing in parties. How, sections 121 and 122 R. S. allow parties to be brought in on motion, when formerly a supplemental bill or a bill of revivor would have been necessary. The learned judge in Livermore v. Bainbridge (supra) forcibly observes : “If the power to direct the continuation of the action does not exist, no relief can be afforded in such a case. If the power does exist, the circumstances which will justify its exercise rest in the legal discretion of the court.”

The defendant Lomelino has interposed his counter claim, an issue has been joined upon it, and an interlocutory order has been made that both defendants account with the plaintiff. I think the defendant Lomelino’s representatives, as well as the surviving defendant, have acquired such an interest in persecuting the action as entitles both to have it prosecuted.

It follows by analogy to the provisions of the above sections 121 and 122 that the relief required in this case, though not specially provided for, may be obtained in the same manner. I think the order appealed from must be reversed, with costs.

Sanford, J., concurred.


author: Sanford, J.

text:
    CONRAD BOLLER, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants and Respondents.
    BOARD OF SUPERVISORS, THEIR POWER AND AUTHORITY. ULTRA VIRES. ESTOPPEL CREATED BY A FORMER AD JUDICATION, ITS CHARACTER, EFFECT, AND CONDITIONS.
    The Board of Supervisors had no power to execute a lease for an armory, for any portion of the National Guard, of the state of New York organized and existing within the limits of the city and county of New York, without a prior demand for the same, m conformity with section 130 of the act of the legislature of the state of New York, entitled “The Military Code; ” and a lease, executed by said Board without any prior demand having been made in conformity with said section 130, is wholly null and void. The doctrine of “ ulPt'a vires ” applies to such action of the Board of Supervisors.

      A demand from the proper military authorities, duly made and countersigned, and a certificate from the Adjutant-General of the state (pursuant to said act) were conditions precedent to any action whatever on the part of the Board of Supervisors towards leasing premises for an armory. The indispensable conditions upon which rested any power or authority of the Board of Supervisors to enter into such a lease were wanting, and in their absence no valid lease could be made. The rent for such premises could not and never did become a county charge, and any covenant on the part of said board to pay rent was null and void on the principle of '■'■ultra vires.”

    Neither the county nor the corporation of the city of New York was bound by this lease, nor could the appropriation of the premises to the use of, the Eighth Regiment of The National Guard by a resolution of the Board of Supervisors, and the subsequent occupation and use by said regiment pursuant to the resolution, be deemed a ratification of the lease such as would render it obligatory upon said county or corporation (Fallon v. The Mayor, &c., 4 Hun, 583; Ford v. The Mayor, Ibid. 587).
    In the case at bar, it appears that the plaintiff, in August, 1874, made complaint before the civil justice of the eighth district of the city of New York against the Board of Supervisors and the defendants in summary proceedings under the statute relating to landlord and tenant to recover the possession of said premises. That a summons was issued against said Board and these defendants, and duly served, but no appearance was ever made in said proceedings by these defendants or said Board. That judgment was finally rendered in said proceeding in favor of said plaintiff, and against said board, and these defendants, in substance and effect, that the plaintiff should have possession of said premises because of the non-payment of the rent.
    Were the defendants estopped by this judgment from denying their indebtedness to the plaintiff for the use, occupation, and rent of said premises, claimed by him, and adjudicated upon in said proceedings, and also claimed by him in this action, and can the defendants in this action claim and assert the invalidity of this lease, after such judgment ? In brief, Does that judgment operate as an estoppel ?

      Held, that the defendants were not estopped by that judgment, from pleading and establishing and resting their defense upon the invalidity of the lease.

      The doctrine, rules, and principles of, and the cases affecting, estoppel, created, by a former adjudication reviewed and considered by the court. Bolton v. Jacks (6 Robt. 166) reviewed and approved. Roderigas v. East River Savings Institution (court of appeals, unreported at date) does not ■ call in question the principles upon which Bolton v. Jacks was decided.
    In summary proceedings to recover possession of premises under the statute (2 R. S. 515, §41), no adjournment can be made except upon the request of a party to the proceedings, and for the purpose of enabling such party to procure his witnesses.
    The statute, in authorizing adjournments for a specified purpose, and upon a specified request, impliedly prohibits all adjournments except such as are so expressly authorized.
    The officer or magistrate before whom the proceeding is pending exceeds his jurisdiction by an unauthorized and illegal adjournment, and he is precluded from the further hearing or the exercise of jurisdiction in the case, and all his future acts and proceedings in the case are void. (Many cases cited in the opinion of the court on this point.)
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    This action was brought to recover of the defendants the sum of eighty-one thousand dollars and interest, alleged to be due the plaintiff as the rent of the third and fourth floors of certain buildings in the city of New York, leased by him to the Board of Supervisors of the county of New York, to be used and occupied as armories and drill-rooms, for a term of ten years, from May 1, 1871, at a rental of thirty-six thousand dollars per annum.
    The complaint avers that the tenants, the Board of Supervisors, &c., entered into possession on April 1, 1872, and thereupon appropriated and have ever since occupied the premises as an armory for the Eighth Regiment of the National Guard of the state of New York, and that the rent from that day to July 1,1874, is due and unpaid.

      The consolidation of the county of New York with the defendants, by act of the legislature, and the consequent liability of defendants to pay such rent, are averred in the complaint.
    The answer denies the authority of the Board of Supervisors to execute the alleged lease, except under the provisions of the act of May 17, 1870, entitled “The Military Code,” and avers that it was executed in violation of the provisions of that act, and without any prior demand having been made in conformity with section 120 thereof; and that, by reason of the absence of such prior demand, the alleged lease was and is wholly null and void.
    Upon the trial, William J. Kane was called as a witness for plaintiff, who testified that since January 1, 1870, he had held the official position of justice of the eighth district court, in the city of New York; that proceedings were had before him, as such justice, in September, 1874, in regard to the premises described in the complaint; that on August 28, 1874, he issued a summons returnable on September 1, following; that on that day, some (me appeared and filed a counter-affidavit; and that the matter was adjourned from time to time, thereafter, until February 16, 1875, when proofs were taken by him, and judgment rendered in favor of the landlord.
    The record or roll of the judgment thus rendered was then produced and read in evidence, on the part of the plaintiff; from which it appeared that on August 19, 1874, the plaintiff made oath in writing, before a notary public, to the effect that on June 1, 1870, by a written lease bearing date on that day, he let and rented the premises above-mentioned unto the Board of Supervisors of the county of New York, for the term of ten years, from May 1, 1871, at the annual rent above stated; that on April 1,1872, the said Board of Supervisors entered into possession, and have ever since occupied said premises ; that the said Board of Supervisors and the mayor, &c., of the city and county of New York, with whom the county of New York had beci >me consolidated, were indebted to him in the sum of eighty-one thousand dollars for the rent of said premises pursuant to said lease ; that the relation of landlord and tenant existed between himself and the said Board of Supervisors, and the said mayor, &c., in respect to said premises ; and that the said premises were in the occupation of the said Board of Supervisors and of the said mayor, &c., as tenants, and of the Eighth Regiment of the National Guard of the state of New York as their under-tenant; that the said regiment continued to occupy the premises, and that the said county, and the said mayor, &c„, held over and continued in possession, after default in the payment of such rent, without his permission. It further appeared from such record that this affidavit was presented to the said justice, and that an application was made to him thereon on August 28, 1874, for process and proceedings to remove the Board of Supervisors, the mayor, aldermen, and commonalty of the city of New York, George D. Scott, and the said Eighth Regiment of the National Guard from the said premises, on the ground set forth in said affidavit. That a summons in due form was thereupon issued, directed to the said Board of Supervisors, to these defendants, to Colonel George D. Scott, commanding the Eighth Regiment of the National Guard of the state of New York, and to the said Regiment as tenants, returnable on September 1, 1874, requiring them and each of them to remove from the premises, or to show cause on that day why possession thereof should not be delivered to the landlord. That the summons was duly served on the Board of Supervisors, these defendants, George D. Scott, and the said Regiment; that on September 1, 1874, the landlord appeared and demanded the rent and possession ; that “the tenant” appeared and filed counter-affidavits, viz., the affidavit of George D. Scott, colonel commanding the Eighth Regiment of the Rational Guard, denying any knowledge or information sufficient to form a belief as to the indebtedness of the Board of Supervisors or of the Mayor, &c., to the plaintiff for rent, and denying that the said Eighth Regiment were under-tenants of the premises. The record shows no appearance by or on behalf of the Board of Supervisors, or by or on behalf of the defendants herein. It further appeared by such record that the matter was thereupon adjourned as follows : from September 1 to September 22 ; thence to October IB ; thence to October 27 ; thence to November 10; thence to December 8; thence to December 15 ; thence to January 5, 1875 ; thence to January 19 ; thence to February 2; thence to February 16; on which day, after hearing the allegations and proof of the landlord, judgment was rendered in his favor, that he have possession of the premises by reason of the non-payment of said rent.
    Upon this proof, together with evidence showing a proper demand for the rent upon the comptroller of the city of New York, the plaintiff rested his case.
    It was thereupon admitted, for the purposes of the trial, that the lease in question was executed without any demand having been made upon the Board of Supervisors, such as is required by section 120 of the Military Code of 1870 ; but objection was duly taken to the materiality of this fact, and to its admissibility in evidence, on the ground of an estoppel claimed to have been created by the adjudication in the district court: and exception was duly taken by the plaintiff to the ruling of the court, thereupon, made directing a verdict for defendant. The said exception was ordered to be heard at the general term in the first instance, judgment in the meantime being suspended, and the case is now before the court for decision accordingly.

      Mr. Wingate, for plaintiff, in support of his exception.

      Mr. Carter, for defendant, in opposition.
   Sanford, J.

The Board of Supervisors of the county of New York acted without authority of law in hiring the premises mentioned in the complaint, and in accepting from the plaintiff the lease upon which this action is brought. By section 130 of the Military Code (Laws of 1870, ch. 80), they were authorized, in certain cases, and upon certain contingencies, to erect or rent armories and drill rooms ; but this could only be done under the particular circumstances prescribed by the act, and in accordance with its provisions. A demand from the proper military authorities, duly made and countersigned, together with a certificate from the Adjutant-General of the state, was a condition precedent to any action whatever on their part in this direction. No such demand for an armory to be used by the Eighth Regiment of the National Guard of the state of New York, or by any of the companies composing such regiment, was ever made by any one. In short, the indispensable conditions, upon which depended the power and authority of the Supervisors to enter into the lease, were never complied with, and, in the absence of any compliance with these indispensable conditions, no valid lease could be made. The rent reserved by the plaintiff’s lease never became a county charge, and any covenant on the part of the Supervisors to pay such rent was null and void, on the principle of ultra vires. It is suggested, on behalf of the plaintiff, that the provision of the statute with respect to a demand and certificate is applicable only to the case of armories provided for the use of separate companies, and that, by the terms of the act, the procurement of regimental armories, to be used by several companies, is made discretionary with the Supervisors and the Inspector General; but such discretion is accorded and can be exercised only as an alternative to the erection or hiring of a company, troop, or battery armory, in compliance with a demand therefor, duly made by a captain, or commandant of a troop, battery, or company, countersigned by the commandant of a regiment, battalion, brigade, or division. The conditions of the statute must be complied with, and it must be made to appear, in the manner thereby prescribed, that the exigency has arisen with respect to at least one company, troop, or battery, before the Supervisors and the Inspector General are at liberty to consider the expediency of procuring suitable accommodations for several. When it has been made to appear, in the manner pointed out by the act, that the conditions exist, upon which an armory for the use of a single troop, battery, or company may be erected or rented, then, and not till then, may the supervisors either erect or rent such armory, or provide a regimental or battalion armory, to be used by several troops, batteries, or companies, as the Inspector General and the Board of Supervisors of the county shall deem expedient. This language readily admits of a construction which would make the approval of the Inspector General essential to the adoption of either alternative ; but it would be absurd to suppose that the legislature intended to prohibit the Supervisors from procuring the armory accommodations required by a single company, troop, or battery, unless and until the necessity therefor should be made to appear by a demand from the proper company and regimental authorities, corroborated by a certificate from the Adjutant General of the state, and, by the very same enactment, authorize and empower them, in their discretion, with the assent of the Inspector General, but without any demand therefor whatever, and without any certificate from any one, to incur the expense of procuring the much more expensive, and perhaps less needed, accommodations of like character that, would suffice for several companies, or even a whole regiment or battalion. Neither the county nor the corporation of the city was bound by the lease, nor can the appropriation of the premises to the use of the Eighth Regiment, by a resolution of the Board of Supervisors, for the use and occupation thereof by the Eighth Regiment, pursuant to such resolution, be deemed a ratification of the lease such as will render it obligatory upon the defendants (Fallon v. The Mayor, 4 Hun, 583 ; Ford v. The Mayor, Ibid. 587).

The defendants were therefore entitled to a verdict upon the admitted facts of the case, unless, by the judgment of the justice of the district court, they were estopped from denying their indebtedness to the '■ plaintiff for the rent claimed by him in such proceedings, and in this action, to be in arrear, and from asserting the invalidity of the said lease.

Does the judgment in such summary proceedings operate as such estoppel 1

There are many cases in which estoppels are sanctioned and sustained on equitable grounds. But the estoppel created by a former adjudication is not generally of this character, though it maybe, when its interposition is necessary for the protection of the officers of the tribunal before which it was rendered, or for that of innocent third persons who have taken action to their detriment on the faith of it. In general it is merely a “technical estoppel,5’ without other sanction or support than that of public policy. The maxim “ interest reipublicce,ut sit finis litium'1'’ discloses its origin and the ground on which it rests. It discourages litigation, to the advantage of the community, but like all other technical estoppels, it sometimes shuts out the truth, to the detriment of the individual. It is.for this reason that technical estoppels are deemed ' “odious,” and are not favored in law.

In the present case no particular equity in favor of the plaintiff excludes the defense upon which the defendants rely, and it remains to be seen whether this summary judgment will have the effect of a technical estoppel.

To operate as an estoppel, a former adjudication must have been rendered by a tribunal having a complete jurisdiction over both the parties and the subject-matter involved. Unless these conditions exist the judgment is not conclusive, either in evidence or as a plea. With respect to courts having general jurisdiction, the intendment of law is always in favor of the validity of their judgments. In regard to tribunals of limited and special jurisdiction there is -no such intendment. Every fact necessary to uphold the jurisdiction of inferior courts must either appear by the record or be affirmatively shown by evidence aliunde. But whatever be the extent of the powers of the court, whether general or limited, if it proceed without jurisdiction, its judgment will be a nullity;' and the record thereof is never conclusive as to the recital or statement of a jurisdictional fact, unless it be to the extent of protecting its- officers or other innocent persons who have taken action to their detriment on the faith of it.

These general observations express the settled and established doctrine on this subject. Any apparent conflict with, or exceptiona.1 departure from it, is traceable to the difficulties encountered in its application' to particular cases. The authorities on the subject were compiled and examined by this court with great fulness and particularity in Bolton v. Jacks (6 Robt. 166); and although the soundness of the judgment rendered in that case, which was to the effect that in admitting to probate the will of a testator not at the time of his death an inhabitant of New York, the surrogate of this county exceeded his jurisdiction, and that his proceedings were void, and could be attacked collaterally, has been recently questioned in the prevailing opinion of the court of appeals, in the unreported case of Boderigas, administratrix, &c. v. East Biver Savings Institution, to which more particular reference will be made hereafter. I am not aware that the general doctrine there laid down by this court has been repudiated or impugned. The doctrine was stated in that case in the following terms : “ Want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited, or local jurisdiction, or of record or not; and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only prima facie evidence of the facts recited; and the party against whom a judgment is offered is not, by the bare fact of such recitals, estopped from showing by affirmative facts that they were untrue.” Judge Allen’s opinion, in Dobson v. Pierce (12 N. Y., 164), and Judge Mullin’s, in Potter v. Merchants’ Bank (28 N. Y. 654), were cited, among many others, as directly in point.

Applying this general doctrine to the record of the judgment now relied upon as a conclusive estoppel, we find, in the first place, that it was rendered by an officer of local and limited jurisdiction, in special statutory proceedings of a summary character ; secondly, that, by virtue of the statute, the jurisdiction of such officer depends upon the existence as between the parties, of the particular relation of landlord and tenant, under an agreement whereby the premises in question are held (2 R. S. 513, § 281; Benjamin v. Benjamin, 1 Seld. 383, 387). I am of opinion that the existence of the relation of landlord and tenant between the parties under an agreement is a jurisdictional fact, the absence or non-existence of which renders a judgment in summary proceedings on the recovery of demised premises null and void ; and that it was therefore competent for the defendants to show, as they have shown by the admission of the plaintiff, that no such relation existed, inasmuch as the lease recited in the record as establishing that relation was executed by the supervisors without legal authority. The recitals as to such a lease contained in the record made the judgment prima facie evidence of its existence and validity, but that evidence was effectually rebutted, as it well might be, by the plaintiff’s admission, and the judgment was thus shown to be null and void for want of jurisdiction of the subject matter. Had the lease been valid the relation of landlord and tenant would have existed, the jurisdiction of the justice would have attached, and the judgment, in so far as it held that the tenant remained in possession after default in the payment of rent, pursuant thereto, without the permission of the landlord, would have been conclusive in this suit of the defendants’ liability to pay such rent, unless the jurisdiction of the justice was assailable on other grounds.

I should have no hestitation in directing judgment for defendants upon the verdict in this case, upon this ground alone, were it not for the recent decision of the court of appeals, in the case of Roderigas v. East River Savings Institution, above referred to. But for that decision, the case of Bolton v. Jacks would not only warrant such a direction, but, as a controlling authority, would imperatively require it. In Birck head v. Brown (5 Sandf. 134) it was remarked that, “under a system of jurisprudence which clothes those by whom the law is to be declared with so large a discretion as our own, it is only.by their scrupulous adherence to the decisions of their predecessors that even a resemblance of stability and certainty in the administration of justice can be attained or preserved, and hence it is only where the error in prior decisions is manifest and grave, the violation of principle plain and undeniable, that the obligation of judges '•stare decisis ’ ceases.” In examining the prevailing opinion adopted by the court of appeals in the case referred to, the conclusions of which were sustained by a bare majority of one, three of the learned judges of the court, including the chief justice, dissenting therefrom, I find nothing that calls in question the principles upon which the case of Bolton -o. Jacks was decided. It is true that the soundness of the decision in that case was questioned, in so far as it proceeded upon the assumption that the habitation of a testator, at the time of his death, was a jurisdictional fact, which, if erroneously decided by the surrogate in admitting a will to probate, might be collaterally attacked. But the learned judge who questions the correctness of that decision admits that the case before him, which is closely analogous, is not free from doubt, and that its decision either way would be confronted with some authority, and meet with some logical difficulties; and he is careful to declare that his own conclusions aie “based upon the construction of the statutes of this state regulating the jurisdiction and proceedings of surrogate’s courts.” Moreover, he asserts the same general principles which were laid down and relied on in Bolton v. Jacks, and which I have but reiterated above. Thus he remarks that “no court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in the particular case, can make a valid record or confer any rights. When a statute prescribes that some fact must exist before jurisdiction can attach in any court, such fací must exist before there can be jurisdiction, and the court can not acquire jurisdiction by erroneously deciding that the fact exists and that it has jurisdiction.” “But where general jurisdiction is given to any court over any subject, and that jurisdiction depends in the particular case upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until reversed, revoked, or vacated, so far as to protect its officers and all other innocent persons who act upon the faith of iV I find nothing in this language inconsistent with the general doctrine of Bolton v. Jacks, or which must needs be construed as prohibiting its application to the case now under consideration. Nor does it seem to me that the conclusion at which I have arrived in this case is in conflict with that which was reached 'by the court of appeals in Roderigas v. East River Savings Institution. I may add that in the recent case of Evans, Ex’r, v. Post (5 Hun, 338), the supreme court in the fourth department, held that in an action for the recovery of the rent of premises from which the defendant had been removed by summary proceedings to recover possession, instituted by the plaintiff pursuant to a notice terminating the tenancy, the record of such proceedings was held to be “evidence only of the fact that the right of the defendant to continue in possession had ceased, and that the plaintiff was entitled to. possession, and was not legal evidence of the lease.” I therefore hold that the record is not a conclusive estoppel; that the plaintiff’s exceptions should be overruled, and that the defendants should have judgment on the verdict.

But the record in question discloses on its face another ground, on which, in my opinion, the validity of the judgment may be successfully assailed. The statute provides (2 R. S. 515, § 41) that the hearing in summary proceedings for the recovery of demised premises may be adjourned, upon the request of either party, for the purpose of enabling such party to procure his witnesses, whenever it shall appear to be necessary. It does not appear by the record that such an adjournment ever was, or appeared to be, necessary for the purpose specified, or for any purpose, nor does it appear that either party ever requested any adjournment. There is no recital to that effect, and yet it does appear that on the return day of the summons the hearing was adjourned, and that, subsequently, several successive adjournments were had. In purely statutory proceedings before tribunals of special and limited jurisdiction the provisions of the statute must be strictly complied with, and strict compliance therewith must be affirmatively shown, either by the record or otherwise. ISTo intendment in favor either of the acquirement or retention of jurisdiction is warranted. By expressly authorizing adjournments for a specified purpose, and on a specified condition, the statute impliedly prohibits all adjournments except such as are expressly authorized.

By an unauthorized adjournment the magistrate or officer before whom the proceeding is pending exceeds his jurisdiction, and his future proceedings are void. It has been repeatedly held that unauthorized adjournments preclude the further exercise of jurisdiction in ordinary suits at law in justices’ courts, and that such suits are thereby discontinued (Proudfit v. Humman, 8 J. R. 391 ; Hogan v. Baker, 2 E. D. Smith, 22; Wight v. McClave, 3 Id. 316).

Here the adjournments in question were not only unauthorized but expressly prohibited. The statute expressly declares (section 41) that an adjournment shall in no case exceed ten days. The record shows that the very first adjournment was in palpable violation of this provision, inasmuch as it was for a period of three weeks. The second adjournment was for the same period. The third, fourth, fifth, and sixth were each for two weeks; the seventh for one week, the eighth for three weeks; the ninth, tenth, and eleventh were each for two weeks. No authority for such an excess of jurisdictional power has been cited, and I have been able to find none. There seems to be no alternative to holding the judgment in excess of jurisdiction, and therefore null and void upon this ground ; certainly as' against ■ these defendants, who never appeared, and who could therefore neither have requested or assented to such adjournments. Indeed, it is not easy to perceive how their request or assent, if made or given, could have operated to warrant what the statute expressly forbids.

I am therefore of opinion that the judgment in question is void on its face.

As the views I have adopted dispose of the case, I deem it unnecessary to consider the other objections to the validity of the judgment which were urged on “ the argument by the learned counsel for the defendants.

The plaintiff’s exceptions are accordingly overruled, and judgment is ordered for the defendants upon the verdict.

Speir, J., concurred.

       Affirmed in court of appeals, December 21, 1875.


author: Curtis, J.,

text:
    THE AMERICAN DOCK AND IMPROVEMENT COMPANY, Plaintiff and Respondent, v. ROBERT H. STALEY, Defendant and APELLANT.
    ELECTION BETWEEN CAUSES OF ACTION^-
    Motion for should be made before the cause is called on for trial.
    COUNTER-CLAIM—
    When answer will not be regarded as pleading it.
    When it asks that the sum therein mentioned may be set-off against any sum that may be allowed to the plaintiff.
    SET-OFF—
    Defense of needs no reply.
    Before Curtis and Sedgwick, JJ.

      Heard June, 1875 ;

      Decided August 3, 1875.

      George L. Ingraham, for appellant.

      R. N. De Forest, for respondent.
    The action was to recover wharfage for sundry canal boats and vessels.
    The complaint contained two causes of action—one alleging an agreement by defendant to pay for wharf-age certain specified prices, the other alleging an agreement by defendant to pay for wharfage so much as the same should be reasonably worth.
    The answer, after putting in issue some of the allegations contained in the first cause of action, proceeded thus:

      Second. And this defendant further answering the said complaint alleges (it then set out an agreement between the plaintiff and defendant, and a breach of such agreement) and then concluded thus : “And that in consequence of the said refusal of the said plaintiffs to perform the said agreement, this defendant suffered damage, amounting to the sum of three hundred dollars, and which sum this defendant asks may be set off against any sum' that may be'allowed the plaintiff in this adtion. And, excepting as hereinbefore admitted, this defendant denies each and every allegation contained in the said complaint constituting the first cause of action.
    “ Third. And this defendant, in answer to the second cause of action in the said complaint, denies each and every allegation therein contained.
    “ Wherefore, defendant demands judgment that the complaint of the plaintiffs herein be dismissed, with costs.”
    On the trial defendant moved that plaintiff be compelled to elect between the two causes of‘action.
    The motion was denied, and defendant accepted. Plaintiff had a verdict.
    On appeal it was urged that defendant was entitled to judgment, on the ground that the answer set up a counter-claim to which there was no reply.
   Curtis, J.,

wrote for affirmance, holding the proposition stated in the head-note.

Sedgwick, J., concurred.


text:
    WILLIAM WADE, Paintiff and Respondent, v. ANTHONY DE LEYER, Defendant and Appellant.
    d opening judgment—
    1. Laches.
    Where fourteen years had elapsed since the entry of judgment, and defendant had been examined on supplementary proceedings more than four prior to the motion, and no satisfactory excuse or reason for the delay was shown, held that the motion to-open the judgment was properly denied on the ground of laches.

      (a) Suit pending for an accounting.

    That a suit is pending by the defendant in the judgment against the plaintiff therein for an accounting, and the judgment sought to be opened is claimed to be simply the reduction into that form of collateral securities, constitutes no ground for opening the judgment, but on the contrary shows that there is no ground on which to sustain the motion; as the court in which the accounting suit is pending, can give all the protection which the equities of the case call for.
    ID EXECUTION—
    1. When lecme of court to issue not required.

    When an execution has been issued within five years after entry of the judgment, and returned unsatisfied in whole or in part, a second execution can be issued without leave of the court.
    Before Curtis and Sedgwick, JJ.

      Heard June, 1875;

      Decided August 3, 1875.

      D. McMahon and F. Byrne, for appellant.

      Charles Blandy, for respondent.
   Curtis, J.,

wrote for affirmance, holding above propositions.

Sedgwick, J., concurred.


text:
    JOHN LEHMAIER, et al., Plaintiffs and Appellants, v. ALMON W. GRISWOLD, Defendant and Respondent.
    I. INQUEST TAKEN FOR WANT OF AN AFFIDAVIT OF MERITS, WHERE ONE IS REQUIRED—
    1. Discretion.—The setting aside of such an inquest on terms is in the discretion of the Court at Special Term.
    H. ORDER RESTING IN DISCRETION—
    1. Can be reviewed only when it appears that there was an abuse of discretion.
    Before Curtis and Sedgwick, JJ.

      Heard June, 1875;

      Decided August 3, 1875.

      Lewis Sanders, for appellant.

      Charles Lee Clarke, for respondent.


text:
    LOUIS HAAS, Assignee, etc., Plaintiff and Respondent, v. THOMAS O’BRIEN, Defendant and Appellant.
    Appeal from judgment entered on the report of a referee.
    Before Curtis and Sedgwick, JJ„

      Decided August 3, 1875.

      Francis C. Devlin, for appellant.

      Jacob & Koch, for respondent.
   No opinion.

Judgment affirmed.


text:
    CHARLES W. HANCK, Plaintiff and Respondent, v. VERNON K. STEPHENSON, Jr., Defendant and Appellant.
    verdict on conflicting evidence.

      One of the reasons for the vulefhat the court will not disturb.

    Though the court may draw a different conclusion from the evidence submitted upon the printed papers than what the jury did, yet it must be considered that the latter had the advantage of seeing the manner and a/ppea/rance of the witnesses as well as of hearing their statement?, and that is a circumstance to which the law attaches importance.

      Before Curtis and Sedgwick, JJ.

      Heard June, 1875;

      Decided August 3, 1875.

      James A. Hudson, for appellant.

      William C. Traphagen, for respondent.
    Appeal from a judgment entered on a verdict, and from an order denying a motion to set aside the verdict, and for a new trial, made on the minutes.
    The only question involved was whether the verdict should be set aside on the evidence.
   Curtis, J.,

wrote for affirmance, laying down above proposition.

Sedgwick, J., concurred.


author: Freedman, J.,

text:
    HENRY G. HARRISON, Plaintiff and Appellant, v. EDWARD S. TINKER, Defendant and Respondent.
    VALUE OF SERVIOES.
    Architect.—Action by to recover the value of services. Plaintiff claimed that there was an usual and customary rate of compensation for the services of an architect, and introduced evidence to show that such rate was five per cent, on the cost of the building.

      Wvidence in rebuttal.—Held, that defendant, for the' purpose of showing that the rates weie not uniform, might prove the highest price Tie had ever paid for the same kind of work performed by the plaintiff, the highest as well as the lowest cost of any house built by him, and what the services of an architect paid for by him included.

      Before Freedman and Speir, JJ.

      Heard August 6, 1875;

      Decided December 6, 1875.
   Freedman, J.,

wrote for affirmance, laying down above proposition.

Speir, J., concurred.


author: Per Curiam,

text:
    ROBERT SEAMAN, Plaintiff and Respondent, v. ANTHONY McREYNOLDS, Impleaded, etc., Defendant and Appellant.
    I. CAUSE RESERVED GENERALLY ON TRIAL CALENDAR.
    1. What necessary to place it on a day calendar.
    (a) Two days’ notice to place it on a day calendar for trial must be given to all defendants who answer separately by different attorneys.
    1. Default taken against one of such defendants without notice to his attorney is irregular, and must be set aside.

    H. APPEAL.
    An order denying a motion to set aside a default so taken will be reversed on appeal. The court below should have exercised its discretion in opening the default.
    Notice of appeal—amendment of.
    A notice signed “ of counsel ” is irregular; but the General Term map correct it by substituting “ attorney ” for “ counsel.”
    Before Monell, Ch. J., and Sedgwick, J.

      Heard November, 1875;

      Decided December 6, 1875.

      Daniel T. Robertson, for appellant.

      H. M. Whitehead, for respondent.
   Per Curiam,

holding above propositions, and reversing order below.


text:
    GEORGE ETTLINGER, Plaintiff and Respondent, v. HENRIETTA SILBERSTEIN, Defendant and Appellant.
    APPEAL DOES NOT LIE,
    From a judgment entered upon a referee’s report made in conformity with a stipulation entered into by the parties and their attorneys, after evidence adduced on both sides, and rulings made to which exceptions had been taken.

      Violation of stipulation.—Remedy for must be sought at Special Term.
    Before Monell, Ch. J., and Sedgwick, J.

      Heard November, 1875;

      Decided December 6, 1875.

      Philip Levy, for appellant.

      D. S. Riddle, for respondent.
   Per Curiam,

holding above propositions.


author: Per Curiam.

text:
    MAGDALENA MAYORGA, Plaintiff and Appellant, v. JOSIE de la ROSA MAYORGA, Defendant and Respondent.
    Before Monell, Ch. J., and Sedgwick, J.

      Heard November, 1875;

      Decided December 6, 1875.
    Appeal from j adgment on verdict, and from order denying motion to set aside verdict as against the weight of evidence.

      Ethan Allen, for plaintiff and appellant.

      E. T. Rice, for defendant and respondent.
   Per Curiam.

On examining the testimony it appears that the evidence of the defendant supports the verdict and his credibility was fairly and properly submitted to the decision of the jury.

Judgment and order appealed from are affirmed, with costs.


text:
    JEREMIAH J. COLEMAN and others, Plaintiffs and Respondents, v. SAMUEL CRUMP, Defendant and Appelant.
    Appeal from judgment.
    Before Monell, Ch. J., and Sedgwick, J.

      Heard November, 1875;

      Decided December 6, 1875.

      William Henry Arnoux, for appellant.

      Andrew Boardman, for respondent.
   Per Curiam.

Judgment affirmed, with costs.

No opinion was delivered.


text:
    HARVEY S. NETTLETON, Plaintiff and Respondent, v. EDWARD MATHEWS, Defendant and Appellant.
    ASSIGNMENT OF CLAIM SUED ON.

      Date of, when immaterial.

    When the evidence clearly shows that it was made after the rendition of the services, the claim for which was assigned
    Before Freedman and Speir, JJ.

      Heard October, 1875;

      Decided December 6, 1875.

      C. Delafield Smith, for appellant.

      S. E. Church, for respondent.
   Freedman, J.,

wrote for affirmance, laying down above proposition.

Speir, J., concurred.


text:
    FAYETTE W. PIERCE, et al., Plaintiffs and Appellants, v. PAUL S. BROWN, et al., Defendants and Respondents.
    Before Curtis and Sedgwick, JJ.

      Heard January, 1876 ;

      Decided February 7, 1876.

      M. Compton, for appellant.

      Le Roy S. Gove, for respondent M. S. Brown.

      Mortimore Sanford,, for respondent P. S. Brown.
    The complaint was dismissed in the court below, and judgment was recovered by defendants.
   Curtis, J.,

wrote for affirmance, holding that the evidence failed to sustain the cause of action alleged in the complaint.

Sedgwick, J., concurred.


text:
    JONAS FISCHER, Plaintiff and Respondent, v. THE HOPE MUTUAL LIFE INS. CO. OF NEW YORK, Defendant and Appellant.
    LEAVE TO APPEAL TO THE COURT OF APPEALS
    Will be granted where there are numerous other claims against the defendant involving the same questions.
    Before Curtis and Sedgwick, JJ.

      Heard January, 1876;

      Decided February 7, 1876.

      Samuel A. Noyes, for the motion.

      D. S. Riddle, opposed.
   Curtis, J.,

wrote in favor of the motion,'laying down the above proposition, and holding that the case came within the rule indicated in Radde v. Butterfield, 38 Supr. Ct. R., p. 44.

Sedgwick, J., concurred.


author: Speir, J.,

text:
    EDER V. HAUGHWOUT, and another, Plaintiffs and Respondents, v. CORNELIUS K. GARRISON AND ANOTHER, DEFENDANTS AND APPELLANTS.
    Before Speir and Sanford, JJ.

      Heard February, 1876;

      Decided March 20, 1876.

      C. Bainbridge Smith, for appellants.

      Sullivan, Kobbe and Fowler, for respondents.
    Appeal by defendants from a judgment entered on the report of a referee. The only question involved was whether the findings of fact were sustained by the evidence.
   Speir, J.,

wrote for affirmance.

Sanford, J., concurred.


text:
    GEORGE CARPENTER, Plaintiff and Respondent, v. CHRISTIAN BRAND, Defendant and Appellant.
    INTEREST, FROM WHAT TIME ALLOWED.

      Services rendered; interest is allowable from the time the ascertained amount became due.
    Before Monell, Ch. J., and Curtis, J.

      Heard December, 1875;

      Decided February 7, 1876.
    Appeal by defendant from a judgment entered on the report of a referee. Two questions involved: One, that stated in the head-note ; the other, whether, under the evidence, the report should not be set aside on the facts.

      Benjamin T. Kissam., for appellant.

      S. Jones, for respondent.
   Curtis, J.,

wrote for affirmance.

Monell, Ch. J.. concurred.


text:
    ANNIE E. BELL, Adm’x., &c., Plaintiff and Appellant, also Respondent, v. JANE P. SPOTTS, Adm’x., &c., Defendant and Appellant, and also Respondent.
    equitable action. .
    Defense that Plaintiff has a perfect Remedy at Law,
    WHERE IT MUST BE INTERPOSED.
    Must be presented by the answer,
    otherwise not available at the hearing.
    Before Speir and Sanford, JJ.

      Heard February, 1876;

      Decided March 20, 1876.

      John E. Parsons, for plaintiff.

      F. R. Coudert, for defendant.
    This case, in addition to the proposition stated in the head-note, merely involved a question of fact. The cause was tried before a referee; both parties appealed from the judgment. The general term laid down the proposition in the head-note, and held that the referee had correctly decided the question of fact.
   Speir, J.,

wrote for affirmance.

Sanford, J., concurred.