author: By the Court. Bosworth, J.

text:
    Benjamin F. Hunt, Jr., Respondent & Plaintiff, v. William Moultrie & Jane P. his Wife, Appellants.
    In an action, to recover the possession of family portraits, by one having a paper title from the original owner (the plaintiff's paternal grandmother); it appearing that the plaintiff had permitted his father to have the possession of them for several years, and that the latter took them to the residence of the defendants, and left them there temporarily, (one defendant being his daughter, and the other the husband of such daughter,) the plaintiff does not forfeit his right of property, because the defendants, to bis knowledge, and without objection from. him, repaired the pictures while in their possession, at their own expense, they not then claiming title, and the plaintiff not having disclaimed it.
    Declarations, made by the plaintiff, tending to show that he was not the owner, though competent as evidence against him on the question of title, cannot operate as an estoppel to his claim of property, when it does not appear that such declarations ever came to the knowledge of the defendants, or have been acted upon by them.
    The facts that; the father, in his lifetime, brought an action against the defendants, and which was pending when he died, to recover possession of the portraits, and made an affidavit that he was the owner of them, and that the plaintiff signed an undertaking in that action as surety for his father, is no bar to an action by the son, to recover the property, after his father’s death, it not appearing that the son ever saw such affidavit, and it also appearing that the father was advised when he commenced such suit, that it should be brought by his son as owner, but could be maintained by the father as bailee; nor do such facts estop the plaintiff from claiming title as owner, as against defendants who have no claim of title, or right of possession conferred, or attempted to be conferred on them, by any one claiming to own them, or the right to have the possession of them.
    (Before Bosworth & Woodruff, J.J.)
    Argued, June 16;
    decided, July 11, 1857.
    The defendants appeal from a judgment rendered against them on the trial of the action, by the Court, without a Jury.
    This action was brought, to recover the possession of seven family portraits, and of another painting, which, the plaintiff alleges, his paternal grandmother sold, and conveyed to him, by a written transfer, signed, and acknowledged by her, and in these words, viz.:
    . State of Massachusetts,
    Watertown.
    Know all men by these presents that I, Jane Hunt, widow, for and in consideration of good causes me thereunto moving, and also for and in consideration of the sum of ten dollars to me in hand paid, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto my grandson, Benjamin Faneuil Hunt, junior, all the family paintings, and also the set of prints now in my house at Watertown, of every kind and nature, to have and to hold the same to him and his assigns for ever, upon the trust nevertheless, and to and for the uses following, and for no other.
    First.—For my use during my life.
    Second.—At my death, for the sole use and behoof, and at the disposal of my said grandson, in the confidence that he will keep and dispose of them as family memorials in his discretion, and so use and dispose of them that they may never be sold or disposed of out of his family. Witness my hand and seal, this twenty-seventh day of September, one thousand eight hundred and forty-three.
    Jake Hunt. [l. s.]
    The complaint further averred, that Jane Hunt died at Water-town, on the 5th of July, 1854. The paintings were soon removed to Col. B. Hunt’s residence in South Carolina, he being plaintiff’s father, and left in his possession and control, till after he removed to the city of New York in 1853, and until March, 1854, when he removed them to New York, and having then no residence of his own, he left them temporarily with William Moultrie for safe keeping, his wife being a sister of the , plaintiff. Moultrie refused to give up the paintings, and kept them concealed. It also alleged, that no recovery in damages would be a compensation, and prayed for a restoration of them, and for the appointment of a receiver to take possession, pendente Me.

    The defendants, by their answer, put the material allegations of the complaint at issue, and also alleged that B. F. Hunt, senior, in and before 1843, owned the portraits, and in consideration of natural love and affection, and for a valuable consideration, gave and presented them, as a free and voluntary donation, to the defendant, Jane B. his daughter, and the wife of William Moultrie, and that the plaintiff, until about the time of bringing this suit, never claimed any title, but on the contrary disclaimed it.
    The action was tried in Juno, 1856, before Mr. Justice Hoffman, without a Jury.
    On the trial the execution and delivery of the instrument of the 27th of September, 1843, its acknowledgment, and the identity of the portraits in question, were proved.
    Witnesses were examined, in relation to the portraits, by whom they had been controlled, and where they had been kept before and after the death of Jane Hunt; and as to acts, and declarations of the plaintiff, in respect to his ownership, and their testimony, so far as it is material, is noticed in the opinion of the Court.
    It appeared by evidence given by the defendants, that in June, 1854, B. F. Hunt, Senior, brought an action in the Supreme Court against William Moultrie & Francis L. Bechet, to recover possession of these portraits. To obtain the possession of the portraits in that action, B. F, Hunt, Senior, made the following affidavit:
    SUPREME COURT.
    Benjamin F. Hunt, Senior, against

    William Mootry & Francis L. Bechet.
    Affidavit on claim of delivery of personal property.
    City and Cdunty of Hew York, ss.:
    Benjamin F. Hunt, senior, plaintiff in this action, being duly sworn, says, that he is the owner of the following personal property claimed in this action, that is to say: six family pictures, being the portraits of the ancestors of the plaintiff, by her last will and testament, to Benjamin F. Hunt, Junior, and son of the said plaintiff, for the use of the plaintiff, and who has held the possession of the same for twenty years; that the said property is Wrongfully detained from the plaintiff by William Mootry and Francis L. Bechet, the defendants herein. That the alleged cause of the detention thereof according to this deponent’s best knowledge, information and belief, is as follows: The said William Mootry was the bailee of the said pictures, the same having been recently left in Ms possession to keep for the plaintiff until called for; and the said Mootry delivered the possession thereof, or some of them, without the knowledge or consent of the plaintiff, to the said Francis L. Bechet, upholsterer, Ho. 420 Broome street, Hew York, to clean for him; that the said property has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, and that the actual value of said property, according to the best knowledge and belief of this deponent, is five thousand dollars
    Benjamin F. Hunt.
    Sworn this 24th day of j June, 1854. j J. M. Baldwin,
    Commr. of Deeds.
    It did not appear that the plaintiff ever saw this affidavit, or knew its actual contents. But it appeared that he signed an undertaking in that action, as surety for his father, which recites that his father, the plaintiff therein, “ has made an affidavit that the defendants wrongfully detain certain personal property, &c., and the plaintiff claims the immediate delivery of such property, as provided for,” in chap. 2 of the 7th title of the Code.
    The defendants in the present action, put that affidavit, and undertaking, and the complaint in that action in evidence.
    That action was at issue and on the calendar, when B. F. Hunt, Senr., died.
    It was proved by the attorney who brought that action, that he “ advised the suit to be brought by his son,” (the plaintiff), “as owner of that property,” and that Col. Hunt, the father, insisted “he would bring it as bailee,” and the attorney “advised him he could do so.”
    The defendants objected and excepted to the admission of this evidence.
    Justice Hoffman decided as follows:
    This action having been brought to trial at the Special Term without a jury, it is now found and declared that the plaintiff is the owner of the eight several pictures, mentioned or intended in the complaint, being: 1. Portrait of Madame Ann Bureau; 2. Portrait of Andrew Faneuil; 3. Portrait of wife of Andrew Faneuil,' 4. Portrait of Peter Faneuil; 5. Portrait of Benjamin Faneuil; 6. Portrait of wife of Benjamin Faneuil; 7. Portrait of Col. Benjamin F. Hunt by Stuart; painting representing firearms and shooting tackle; and is entitled to the immediate possession thereof, and that neither of the defendants has any title to, or interest in the said pictures, or any of them; and it is therefore ordered and adjudged, that the said defendants, and each of them, do forthwith deliver to the said plaintiff, or to his attorney, each of the said eight pictures to be held by the said plaintiff, as his property, under the bill of sale set forth in the complaint; and that the said defendant William Moultrie pay to the plaintiff, or his attorney, &c.
    There was no evidence that J. B. Hunt, Senr., ever attempted to give or sell to Jane B. Moultrie, the portraits, or any interest therein.
    From the judgment entered, the defendants appealed to the General Term.

      E. W. Stoughton, for appellants.

      D. D. Field, for respondent.
   By the Court. Bosworth, J.

By an instrument in writing signed by Jane Hunt, and sealed with her seal, dated the 27th of September, 1843, acknowledged before a proper officer and delivered, and for a pecuniary consideration; Jane Hunt, sold and conveyed the paintings in question to the plaintiff.

The only respect in which the sale and transfer came short of a sale absolute in all respects, in presentí, is, that by the terms of the instrument, the defendant was to hold them for the use of the grantor during her life. She died on the 5th of February, 1844. The title passed at the time, but the purchaser’s possession of them during her life, was to be such that she might have such use and enjoyment of them during that time, as the nature of the property could, when thus owned and held, be made to furnish.

The defendants claim that the paintings are the property of Jane B. Moultrie, one of the defendants. They claim title from Col. Hunt, the father of said Jane B. and of the plaintiff.

There is not the slightest evidence, that Col. Hunt ever attempted to give or sell the paintings to Jane B. Moultrie, or convey to her any right to, or interest in them, or that he claimed to be competent to do so.

The defendants show no title, and the plaintiff, if he fails to recover, notwithstanding he shows a good paper title, must fail by reason of bis being a party to an undertaking, as surety for bis father, in an action brought by the latter in June, 1854, to recover these paintings.

The undertaking itself does not recite that Ool. Hunt was owner of them, but merely “that the defendants wrongfully detained” them, and that, he claimed “the immediate delivery of such property.”

There is no evidence that the plaintiff in this action, read the affidavit refered to in that undertaking. The counsel under whose advice Col. Hunt commenced that action, “advised the suit to be brought by his son as owner of the property.” “ Col. Hunt was vexed With Moultrie; and insisted he would not bring the suit in his son’s name. That he would bring it as bailee.” The counsel “ advised him he could do so."

After the plaintiff’s grantor had died, he went to her then late residence for the paintings, and took them away.

I should conclude, from the whole evidence, that the plaintiff, after the death of his grandmother, had the paintings taken to his father’s. That, for his gratification, the latter was allowed to retain possession of them; and that, in this way, they were placed in the house of the defendants, who commenced housekeeping in the fall of 1853.

In February, 1854, or about that time, Col. Hunt went to the defendants, to reside with them, and continued there ■until April.

It is during this time, as the defendants claim, that Col. Hunt gave the paintings to his daughter, Jane B. Moultrie.

Col. Hunt left the defendants in or about April, 1854, and1 went to the residence of John A. Weisse, where he staid about six weeks. He went from that place to the plaintiff’s house, and staid there until he died.

The papers in the replevin suit commenced by Col. Hunt were put in evidence by the defendants.

Those papers bear date the 24th of June, 1854, and contain a sworn statement of Col. Hunt, that he left them with William Moultrie, as his trustee, to be kept for the plaintiff until he called for them.

The complaint in that suit, which is verified, states that Moultrie and Bechet wrongfully detained these portraits from Col. Hunt.

On a careful consideration of the whole evidence, we think the finding of the Court at Special Term, that “the plaintiff is the owner of the eight several pictures mentioned,” in the complaint, should not be disturbed by us.

It having been found that the plaintiff was the owner of the property, and the defendants showing no right to the possession of them, the plaintiff had a right to insist that they should be delivered into his possession.

But it is urged in behalf of the defendants, that the plaintiff is estopped from claiming title, for the reasons—first, that he has asserted- the title to be in another; second, because he has stood by’in silencé and seen a third person mdfcing repairs to and expending money, on the pictures; and third, because he allowed such repairs to go, on without asserting his own title.

A declaration that the property belonged to another, would be strong evidence against the plaintiff, but would not of itself conclude him. (Wallis v. Truesdel, 6 Pick. 457; Maybee v. Sniffen, 2 E. D. Smith, 1.)

Palmer does not testify, that in the conversation of which he spoke, Moultrie claimed title or ownership, or that the plaintiff disclaimed it. The remark, that “ Moultrie was foolish in spending money on the pictures in repairing them,” in the absence of any claim of right by Moultrie, and of all evidence of title on his part, should not bar the plaintiff from asserting title.

The statement of the plaintiff, testified to by George H. Moultrie, was not communicated to the defendant, and cannot, therefore, be said to have influenced his conduct.

It is not operating to his prejudice, or as a fraud upon him, to allow the plaintiff to prove that, in truth, he was the sole, absolute owner.

If there was any evidence that Col. Hunt had sold or given the paintings to either of the defendants, and that the plaintiff knowing this, or that the defendants believing themselves to be owners, were expending moneys to repair them, and that, knowing this, the plaintiff had suffered such expenses to be incurred, without interposing a claim of title, a different case would be presented.

But there is an entire absence of any evidence to show that the defendants ever supposed they had any title, or that the plaintiff, to their knowledge, ever disclaimed ownership, or asserted the title to be in another. -

We think that nothing was proved by the defendants which estopped the plaintiff from asserting and proving the title to be in himself, and that the finding by the Court, that he was the actual owner, is not so clearly against evidence as to justify us in granting a new trial on that ground. Mr. and Mrs. Weisse prove satisfactorily that there were eight'pictures, and sufficiently identify them.

The judgment should be affirmed.


source: Caselaw Access Project

author: By the Court. Slossoh, J.

license: Public Domain

text:
    Robert J. Murray v. Jacob Sharp, The Mayor, &c., of the City of New York, and Others.
    When, hy an ordinance of the Corporation of the City of Hew York a pier is directed ' to be built or extended, the payment, by the Corporation of one-third of the expense is, under the statute, a condition precedent to the acquisition by the Corporation of a right to receive half of the wharfage, and the burthen of proving the payment rests upon the Corporation. The statute does not contemplate that the Corporation shall pay one-third of the expense in advance of the improvement, but it does require that its election, to make such payment, shall be made before the work is begun, and that the payment shall be made within a reasonable time after the work is completed. Hence, if the whole expense of the improvement has been borne by private owners who, for years, have received the whole wharf-age, the Corporation cannot, by offering to pay one-third of the original expense and interest, place itself in the same position, and acquire the same rights, as if such payment had been made in due season. Its right, by making the payment, to acquire a share of the wharfage, is extinguished.
    When the private owners of a pier have an exclusive right to the wharfage, the Corporation cannot legally deprive them of this right, by appropriating the slip, adjoining the pier, to the purposes of a public ferry.
    If such a power may be exercised by the Corporation, it can be so only upon the payment to the owners of a just compensation.
    Judgment for plaintiff affirmed with costs.
    (Before Dder, Bosworth & Siossoir, J. J.)
    Heard, March 11;
    decided, July 11, 1857.
    Appeal by defendants from a judgment in favor of the plaintiff. The action was brought to restrain the defendants from interfering with the exclusive rights of the plaintiff as owner of pier ISTo. 16, in the city of ¡New York. The defence was, that the slip adjoining the pier had been lawfully granted, and was lawfully used as a public ferry, and that there was no other interference than was thus occasioned.
    The judgment of the Court at Special Term contains a recital of the facts found by the Judge, and his conclusions of law therefrom. It is in the words following:
    “ At a Special Term, held at ¡New York, on the twenty-third day of January, 1855:
    “ Present,—The Hon. John Dues, Justice. •
    “ This cause coming on to be tried at a Special Term, without a Jury, and on hearing Messrs. John Sherwood and Samuel Sherwood, of counsel for the plaintiff, and Mr. R. J. Dillon, of counsel for the defendants the Mayor, Aldermen, and Commonalty of the city of ¡New York, and Mr. D. D. Field, of counsel for the defendants Jacob Sharp, Freeman Campbell, and Rutherford Moody; and it appearing to the Court that John Murray, Jr., the father of the plaintiff, acquired, by virtue of the grant of May 10th, 1797, to said John Murray, Jr., the right of wharfage to the wharf fronting on the East River, constructed by him, in front of his premises, and in front of the side wharf, at the foot of Wall street, being the wharfage of 98 feet; that under the ordinances of the Corporation of the city of ¡New York, set forth in the case, he constructed the original pier, now known as pier ¡No. 16 East River; that, in like manner, he constructed the first extension of said pier in or about 1816.
    “ That the plaintiff, in like manner, constructed the second extension in 1840, and that in like manner he constructed the third extension in 1850; and that no portion of the expenses of constructing the said wharf, or the successive extensions thereof, has ever been paid or tendered to be paid by the said Mayor, Aldermen, and Commonalty previous to the commencement of this action. That the plaintiff has, by devise and purchase, become the sole successor to the rights of his father, the said John Murray, Jr., and that the said John Murray, Jr., in his lifetime, and the plaintiff, as his successor, always received the wharfage, and exercised acts of ownership of said pier. That the Mayor, Aldermen, and Commonalty of the city of New York, have acquiesced in the possession and ownership of the said John Murray, Jr., and the plaintiff, as his successor; that on the 1st of July, 1852, the defendant Sharp received from the said Mayor, Aldermen, and Commonalty of the city of New York, a lease of the slip at the foot of Wall street, or so much thereof as belonged to the said The Mayor, Aldermen, and Commonalty of the city of New York, together with the northerly side of pier 15, and the privilege of establishing and running a ferry from Wall street aforesaid to Brooklyn, a copy of which is annexed to the answer, and that the said defendants Campbell and Moody afterwards acquired one-half the interest of the said Sharp; and the said Sharp, Campbell and Moody thereupon proceeded to take possession, and use said slip for ferry purposes, entirely destroying the wharfage of said pier No. 16, on the southerly side, and outer end thereof. And it appearing to the Court to be a just conclusion of law, from the facts above stated, that the plaintiff is entitled to the relief demanded in his complaint:
    “ Now, on motion of J. and R. H. Sherwood, attorneys for the plaintiff, it is hereby ordered and adjudged, and this Court doth order and adjudge, that the right and title of the said plaintiff, Robert J. Murray, is hereby fully and absolutely established to the wharfage of the whole pier No. 16 East River, in the city of New York, together with all and all manner of cranage, slip-age, profits, benefits, advantages, and emoluments growing, arising or accruing from said pier, or from any part thereof, or by or from the northerly side of the slip, at the foot of Wall street, between piers Nos. fifteen and sixteen, and adjacent to said pier No. sixteen. And it is further ordered and adjudged, that the defendants Jacob.Sharp, Freeman Campbell and Rutherford Moody, their agents, servants, and all others acting through or under them, be, and they are hereby perpetually enjoined from constructing, building or erecting any bridge, fenders, or other erections or obstructions, in or upon the northerly side of the slip aforesaid, adjacent to said pier No. 16, and from taking possession of, or occupying the same, or from doing any other act by means whereof vessels may be prevented from having uninterrupted and free passage to and from pier No. 16 on the southerly side or the end thereof, or from having the free and uninterrupted use and occupation of the berths on said southerly side and end of the said pier.
    “ And it is further ordered, adjudged and decreed, that the said plaintiff have judgment against the said defendants Jacob Sharp, Freeman Campbell, and Rutherford Moody, for the sum of two hundred and seventy-three T9T%- dollars for his costs and charges, and that he have judgment against the said The Mayor, Aldermen, and Commonalty of the city of New York, for the sum of seventy-seven TW dollars for such of the aforesaid costs and charges as have accrued to the plaintiffs since the eighth day of April, 1854, when the said The Mayor, Aldermen, and Commonalty of the city of New York were made parties defendants.”
    All the material parts of the evidence given on the trial are stated in the opinion of the Court at General Term,

      D. D. Field, for defendants, Sharp, Campbell, and Moody, appellants,
    denied that the plaintiff had made out any title, by prescription or otherwise, to the pier in question or its extensions. The ordinances of the Common Council under which the extensions were made, he insisted, were all made with the evident design, apparent on their face, that the city should contribute to the expense, and thus acquire a right to the side wharfage, and that it must be presumed that these ordinances were conformed to; and if so, they were a full defence. He further insisted that even if the resolutions had not been conformed to, the city was not concluded, by the negligence of its agents, from now asserting its rights. An account may be taken as between the plaintiff and the city, of the expenses and receipts, and the city be charged with its share of the expenses. And that if it had been shown that the plaintiff, or his predecessor, had become entitled to the exclusive right to the inside wharfage, that must be deemed to be held in subordination to the rights of the city to fill the slip, or use it for the purposes of the city,
    The grant or license to him would, in that case, be construed as a grant or license to receive the wharfage of the slip, so long as it was not wanted for city purposes and no longer. (The Mayor, &c., v. Whiting, 7 Barb. 485.)

      B. Busteed and M.V.B. Wilcoxson, for the Corporation, made it a point, that the Superior Court has no general or special equity jurisdiction, and that it is beyond the power of the legislature, under the Constitution, to confer such jurisdiction.—Constitution, 1846, Art. 14, § 12; Art. 6, §§ 3, 5, 10, 14; Reubens v. Joel, 3 Kern. 488.
    The other points argued by the counsel were substantially the same as those for the other appellants.

      John Sherwood, for the plaintiff,
    contended, upon the proofs which he examined in detail, that the plaintiff had made out a clear and full title to the pier and its extensions, and the wharf-age arising therefrom; and that, if any grant was necessary, the Court was bound to presume that a grant had been made (3 Kent’s Com. 442, and cases there cited), and that the rights of the plaintiff could not be abrogated or infringed by a ferry license from the Corporation to the other defendants, nor was it probably the intention of the Corporation to infringe them, as the lease to Sharp was only for so much of the slip as belonged to the Corporation, thus showing that the Corporation did not claim the whole, and giving full notice to Sharp of the plaintiff’s rights. The counsel also insisted that, if the Corporation has, by its charters, the right of granting and establishing ferries, it is in subserviency to the right of eminent domain, which the State may regulate by statute; and land for ferry uses, whether belonging to the State or private individuals, can only be obtained by just compensation.—Pipkin v. Winns, 2 Dev. N. C. Rep. 403.
    The lessee of the ferry cannot use it, without being the owner of the land, or obtaining a right of “ way, public or private.”'—■ Peter v. Kendall, 6 Barnwell & Cress. 703; 3 Kent’s Corns. 420, note d.
    And, in conclusion, that the construction of South street, the grant of wharfage for 98 feet of bulkhead, the construction of the entire pier, at the times and in the manner directed by the Corporation, wholly at the plaintiff’s expense, and the use and possession of the pier, as made for fifty years, under claim of right acquiesced in by the Corporation, with full notice to Sharp, conclude and estop both the Corporation and Sharp from denying the plaintiff’s right to the pier, and a range of berths upon the southerly side.—3 Kent’s Corns. 442-445; Corning v. Gould,
      16 Wend. 531-585; 17 Wend. 564, and cases cited; Embury v. Connor, 3 Coms. 518; 5 Sandford, 17.
   By the Court. Slossoh, J.

The action is brought to establish the ownership and possession of the plaintiff in the pier Ho. 16, East River, at the foot of Wall street, and to restrain the defendants, Sharp, Campbell, and Moody, in making the necessary erections for the purposes of the ferry recently granted to Sharp by the Corporation, from so approaching the pier as to interfere with the access of vessels to the berths usually occupied by them alongside the pier, and thus deprive the plaintiff of his rights of wharfage.

The plaintiff claims title to the pier, as devisee under the will of his father, • John Muriay, Jr., in respect to one-third, and as purchaser from the devisees of the other two-thirds.

The defendants, Sharp, Campbell, and Moody, claim title to the use of the entire slip between piers number 16 and 15, for the purposes of a ferry, under a lease from the Corporation to Sharp, dated the first day of July, 1852, for a term of ten years, whereby the slip at the foot of Wall street, with the northerly side of pier number 15, is demised to him for the term aforesaid, with the right to establish a ferry from that point to Brooklyn.

In the granting clause of the lease is this qualification: “ or so much thereof (the slip) as belongs to the parties of the first part” (the Corporation); and while the “northerly side of number 15 ” is granted in terms, no reference whatever is made to the pier in dispute, number. 16, which forms the corresponding northerly boundary of the slip.

On the 10th day of May, 1797, the Corporation made a grant to John Murray, Jr., as proprietor of the upland, of a water lot in front of his land, at the north-easterly corner of Wall street, and what is now South street. By the terms of his grant he was to construct South street, of 70 feet in width, and a wharf in Wall street of 25 feet in width, fronting the basin or slip which at that place ran up into the town. The lot granted, exclusive of the street, was 73 feet in width, fronting on South street, and the whole bulkhead in South street, including the wharf to be built by him on Wall street, was 98 feet in extent, and the Corporation covenanted that on his building said streets and wharfs he should be for ever entitled to the wharfage from the wharf fronting the Bast River, which would be 98 feet as aforesaid.

Pier Number 16 was originally constructed by John Murray, Junior, at Ms own expense, under an ordinance of the Corporation, passed on the first day of June, 1801, under authority of the Act of the Legislature of April the 3d, 1798, entitled “An Act concermng certain Streets, Wharves, and Piers,” &c.; reenacted the 3d day of April, 1801. It was constructed at a point of the bulkhead 22 feet 11 inches northerly from the junction of Wall street and South street.

By the act in question, the Corporation were authorized to direct piers to be sunk, &c., at the expense of the proprietors of the opposite lots; and it was provided, that if the said proprietors should refuge or neglect to construct the piers, according to the directions of the Corporation, that body might itself com struct them at their own expense, and would then be entitled to receive the wharfage to accrue therefrom, to their own use, by way of compensation.

An additional section was added to the act, as re-enacted in 1801 (section 7), by wMch it was provided, that it should be lawful for the Corporation to grant to the owners of the lots fróntmg on the streets, &c., “ a common interest in the piers to be sunk in front of each street, in proportion to the breadth of their respective lots, under such restrictions and regulations, and within such limits,” as to the Corporation should seem just.

By the ordinance of the first day of June, 1801, the owners of lots fronting on South street, between Wall street slip and Ely Market slip, were ordered to make and complete a pier on the northeast side of Wall street, witMn a certain time, “on doing which the Corporation would grant the piers to the owners of said lots, reserving in the said grant the exclusive right in the Corporation of wharfage and slippage on the side of each pier adjoining a public slip.”

The pier was constructed by Murray, but no grant was in fact ever made of it to him.

In 1804 the Corporation brought an action for money had and received against one Richard Scott, who had received the wharfage from the pier under a right derived from Murray, to recover the proportion of it derived from the southerly side of the slip; but the Supreme Court, without deciding the question of the defendant’s title, held that the Corporation had made no title in themselves, as from the form of the action they were bound to have done; that the Corporation could not establish any right to the wharfage in themselves, inasmuch as the land on which the pier was erected, had never been granted to them by the Legislature, (it lying outside of the 400 feet granted to the Corporation by the Montgomery Charter,) nor was the soil under water, over which the vessels lay, in the Corporation; and that no grant could be implied from the terms of the Act (1798-1801); that the Corporation could only grant as attorneys for the public, in case piers were sunk, and that the authority given them by the Act, to impose restrictions and regulations in making the piers, did not give them the right “ to reserve the wharfage to themselves, which was to be theirs only in case of default in the owners of the lots in sinking the piers,” and that the reservation of that right in the Ordinance of the first day of June, 1801, made no difference, and was not binding on the defendant —no grant containing such a reservation having been in fact made to Murray; that the right to' sink piers was a right secured to the owners of the opposite lots by the acts in question, and which could not be impaired by mere resolutions of the Corporation, to which such owners were not parties; and judgment was given for the defendant. (1 Caine’s R. 543.)

The pier, as originally constructed, was about 180 feet in length.

In 1806, the Legislature passed an Act, in relation to wharves, slips, &c., by which it was, among other things, enacted (section 2), that in all cases where the Corporation should think it for the public good to enlarge any of the slips in the city, they should have power to do so, and upon paying one-third of the expense of building the necessary piers and bridges, shall be entitled not only to the slippage of that side of the said piers which shall be adjacent to such slips, but also to one half of the wharfage to arise from the outermost end of the said piers.”

In Marshall v. Vultee, 1 E. D. Smith’s Common Pleas Rep. 306, it was held that the expression, “ enlarge any of the slips,” &c., applied as well to their extension into the river as to thejr widening, and the same construction was given to the expression, in Thompson v. The City, &c., of New York, (3 Sandford R. 487).

In 1816 the pier was extended 70 feet, under an act of the Common Council. In the Eeport of the Committee of the Board, on the subject of this extension, it is added, “ one-third of the expense will of course be borne by the Corporation.”

The case does not show by whom the expense of this extension was paid; but it is certain that the Corporation paid no part of it, and every presumption is in favor of the whole having been paid by Murray,

In 1840 the pier was further extended 77 feet by resolution of the Common Council, which also embraced the extension of six other piers on the East Eiver.

In the Eeport of the Committee of the Board of Aldermen on the subject of this extension, it is said that “two of the aforesaid piers (numbers 16 to 23 inclusive) are private property. Three are owned by individuals and the Corporation jointly, and two are the property of the City exclusively,” but does not designate which are thus distinctly owned,

It appears that in the fall of 1850, about two years before the commencement of this suit, the maps in the Street Commissioner’s office, on which these piers are designated, one of which is that of Daniel Ewen, of January the 1st, 1849, were colored, so as to distinguish between those which were owned by individuals, and those owned, in whole or in part, by the Corporation ; the private piers were colored blue, and those in which the Corporation were interested, brown. Pier Ho. 16 was colored blue. The coloring was done by order of the Street Commissioner.

This fact would not in itself be conclusive as a recognition by the Corporation of Murray’s title in the pier in question; but, in connection with other facts, it is important in showing what was the general understanding in respect to the nature of the ownership.

In a map of Dougherty, made in 1828, on file in the Street Commissioner’s office, and, of course, made long after the first extension, a space of 22 feet 11 inches is reserved along the southerly side of pier Humber 16, and marked “one range of berths, private.”

In the bills for taxes for piers Numbers 16, 17, and 18, for the years 1851 and 1852, made out against Murray and others, they are charged for the whole tax on Nos. 16 and 17, and for only one half of that on No. 18, in which latter pier confessedly the Corporation are interested to that extent.

The pier was again, and for the last time, extended, with ten others, in 1850, by order of the Common Council, and $12,000 appropriated “to defray the proportion of the expense to be borne by the Corporation.”

In the Report of the Committee of the Board of Assistants on the subject of this extension, it is stated that the Corporation are interested only to the extent of a half interest in four of thes.e piers, and the appropriation of $12,000 must be held to have been applicable to those piers only.

By the Resolution of the Common Council referred to, this last extension was directed to be made “by the proprietors” of the piers, under the direction of the Street Commissioner.

Both of these extensions of Pier Number 16 were made by Murray. The contract for the extension of 1840 appears to have been made with the Street Commissioner, and that for 1850, with Murray. Murray paid for both extensions.

Dubois, one of the contractors for both extensions, says, he thinks the Corporation did not pay for any part of the contract for 1850, and he does not know that they paid for any part of the extension of 1840, though he says they did pay for a part of Number 18.

The evidence of Hussey is very conclusive, that the contracts for the extension of 1850 were made with the proprietors, and that they paid all the expense, and the Corporation none of it.

There is no evidence to show that the Corporation ever paid or offered to pay one-third or any portion of either of these extensions.

From the time the pier was first built up to 1811, the entire wharfage was received by Murray—it was collected and paid to him by Thompson, the wharfinger.

Thompson was succeeded as wharfinger by Jacob Frost, who died in May, 1833. William Frost succeeded Jacob, and acted as wharfinger until 1850, when he was succeeded by Stephen A. Frost. Stephen acted under Jacob one year before his death, and under William during the whole of his period, and since 1850 has acted as sole wharfinger; and he swears that during the whole of that time the wharfage of one tier of berths had been collected and paid to the proprietors.

It does not, it is true, appear to whom Jacob Frost paid the wharfage during the period up to one year anterior to his death, but the Corporation never made any claim to the wharfage after-his death, and none of it was ever paid to them during Thompson’s time; and the inference, as one of fact, is, I think, irresistible, that the wharfage during that period was paid to Murray, as owner.

The expense of dredging the slip, made by order of the Corporation, was on one occasion at least, before 1850, paid for by Frost, and the taxes for the whole pier have been paid for out of the collections of wharfage, at least since 1833.

The wharfage was collected from all sides of the wharf, and on the outer end.

The ordinance for filling up Old Coffee House Slip (which ran up into the town), was passed in 1833, and by Map of Ewen of January the 1st, 1849, before referred to, it appears that the filling up extended to a considerable distance outwardly beyond the eastwardly line or bulkhead of South street, into the space between the piers, except as to a strip of some feet in breadth, next to the Pier Ho. 16, which is left open from the said outward line or bulkhead of the street.

This is the space, undoubtedly, which is marked 22 feet 11 inches, being the portion of the bulkhead of South street, built by Murray, which lay south of the pier originally constructed by-him.

As the bulkhead on the old slip in Wall street was to be 25 feet in width, the commencement of the pier at 22 feet 11 inches from the southerly line of that bulkhead, would make the southerly line of the pier to be opposite the bulkhead in Wall street, and not opposite to the lot conveyed to Murray by the grant of 1797, at the point where it abuts on South street; and the counsel for the defendants claim that the Corporation could not give authority to erect the pier at such a point, their authority under the Act of 1798 extending only to the giving of a license to erect a pier opposite to the lots of the proprietors at whose expense it is to be built.

The counsel for the plaintiff, in reply, says, that though this may be literally true in respect to the portion of Murray’s lot at the corner of South and Wall street, it does not follow that the southerly line of the pier is not opposite the lot, since the line of Wall street tends outwardly, or widens as it approaches the river, and that a line drawn perpendicularly from the rear of the lot would include or strike the southerly line of the pier.

If this be so, it puts an end to this objection. It is, moreover, an objection which is not entitled to much favor, after an undisturbed possession of the pier by Murray and his descendants of over fifty years.

On a review of all the facts, it is clear that the plaintiff has a good title to the pier with its extensions, as against the Corporation.

He and those under whom he claims have been in the exclusive possession of the original pier, receiving to their own use its entire emoluments, from the period of its first construction in 1802, to the time when this suit was commenced, being all of 50 years, and -claiming all the time to be, and acting as, the sole owners thereof—they have also been in the exclusive possession of the first extension, and in the receipt of its wharfage, under like claim of exclusive ownership, since 1816, a period of 36 years before the commencement of this action.

In respect to the two last extensions, it is true that the possession is not yet of sufficient duration to constitute a title by prescription, but I do not think the plaintiff’s rights depend on establishing a prescription; the pier with its extensions was lawfully constructed by the plaintiff and those under whom he claims, under an authority of an Act of the Legislature, which gave them the right so to construct it, and under the sanction and licence of an ordinance of the Corporation made in pursuance of sijch Act The Corporation have no title in the lands on which the pier is built, and it is not necessary for the plaintiff to establish an adverse possession as against them. The length of time during which the plaintiff has enjoyed the original pier and the first extension, is not referred to as showing he has a good prescriptive right to the pier, but as showing that his claim of exclusive ownership has never been disputed by the Corporation, and that after such a lapse of time there is no equity in allowing them now to set up a hostile one.

A like equity in favor of the plaintiff, though not strengthened by so long a possession, exists in respect to the two last extensions. The Corporation not only did not offer to contribute any portion of the expense of their erection, but allowed the plaintiff to construct them both at his sole expense, and to enter into possession as exclusive owner, and take to Ms own use exclusively the entire wharfage—the extensions from the time they were made became part and parcel of the origmal pier, and the Corporation, well knowing the plaintiff’s rights in the latter, allowed Mm to eontinue in the exercise of the same rights of ownership in respect to the extensions, wMch he had exercised in respect to the original pier.

The Corporation, unless they had built the pier exclusively at their own expense, on a refusal by Murray to umte in its construction, could never have acquired a right to any portion of the wharfage, except on the condition of paying one-third of the expense of its construction. They have never either paid or tendered payment of one-third or any portion of the expense of either extension.

They now, however, claim the right to make such payment, and to have an account from the plaintiff in respect to the wharfage to wMch they would have been entitled, had they made the payments in time. TMs claim is wholly untenable.

The Acts of 1798, 1801, and 1806, admit of no such construction.

The Act of 1806 plainly contemplates an election both on the part of the Corporation and the individual owners of the lots, at whose expense the piers are to- be constructed or extended, and that such election should be made at the time the improvement is to be made—not afterwards; and it makes the payment of one-third of the expense of the improvement by the Corporation a condition precedent to the right to any portion of the wharfage, if the private owners actually consent to build it.

The Corporation have the election to pay one-third of the expense, and on such payment to take to their own use one-half the wharfage.

The private owners have an election to unite or to refuse to unite in the construction. If they elect to unite, but the Corporation does not elect to pay the one-third of the expense, the private owners may construct the whole at their own expense, and take the entire emoluments. If they so elect, and the Corporation also elects to pay its one-third, each takes one-half of the wharfage. If the private owners refuse altogether to contribute to the expense, the Corporation may build the whole, and take the whole wharfage, cutting off all previous rights of wharfage which the private owners may have had, or perhaps under Section 3 of the Act of 1806 may grant the right to construct the pier, and receive the profits thereof, to others.

If a portion of the owners consent to unite, and others do not, the Corporation may, under Section 4 of the Act of 1806, unite with those who do consent, and entitle themselves to the proportion of the wharfage which would otherwise have gone to the parties refusing.

The whole policy of the Act requires this election to be made in reference to the improvement, as one to be made, and before it is made.

The statute does not, we think, contemplate that the Corporation should pay the one-third of the expense in advance of the improvement, but rather that the whole expense is in the first instance to be borne by the private owners; but it clearly contemplates that the election should be made before the work is begun, and if made that the payment should follow within a reasonable time after it is completed. That it contemplates such an election to be made before the work is entered upon is clear from this, that the private owners may be wholly or greatly influenced in making their own election, according as they are assured that the Corporation will or will not bear any portion of the expense.

How it is claimed in respect to the first extension, that of 1816, there was a declared election on the part of the Corporation contained in the report of the Committee, upon which the ordinance which directed the work to be done was passed, and to be found in these words, “ one-third of the expense will of course be borne by the Corporation.”

The report having been adopted, this was undoubtedly a declaration on the part of the Corporation, of an intention to pay their proportion of the expense; but nearly forty years have elapsed since it was made, and no tender has ever been made of it, or of any part of it, and no claim interposed under or by virtue of it; and it must be assumed after a forty years’ acquiescence in Murray’s receipt of the wharfage, without claim on their part, that the election has been wholly abandoned.

The statute contemplates an effective election—an election to be followed up by payment, and it is not until the payment is actually made, or tendered, that the right to the wharfage accrues. Moreover, the Corporation, by making the lease to Sharp, have precluded themselves from any benefit, if they had any, to be derived from this bygone election, and from any benefit of an election which-they might now make, if entitled to make it. The object of the statute in giving the election to the Corporation at all, was to entitle them, in case of its exercise, to half the wharfage; but the whole slip having been let to Sharp for the purpose of a ferry, all right to receive wharfage from the pier, and all ability to earn it, would be gone.

Sharp, by his grant from the Corporation, acquired no better title than the Corporation possessed. The terms of his grant are significant—the grant is of so much of the slip as belongs to the •Corporation, together with the northerly side of pier No. 15.

Nothing could be a stronger disclaimer on the part of the Corporation, so far as Sharp’s rights are concerned, of any right to the opposite pier No. 16. He took with full notice that the Corporation made no claim to any portion of the latter pier, and he acquired only such a right in the slip as his grantors had the right to convey. If, as against the plaintiff, the Corporation had no right, they could give none to Sharp.

Judge -Hoffman, in his valuable “ Treatise upon the Estate and Rights of the Corporation of the city of New York as Proprietors,” at page 129, states it as a valuable rule in the construction of the terms of a Ferry Grant, supported by authority, that “ in ascertaining the limits of the grant and in construing the grant, the rule applicable to grants by individuals is reversed, and the implication is against the grantee. The language is to be strictly construed, so that nothing shall pass unless clearly intended, and by language plainly competent to pass it.”

The defendants, however, contend that even if Murray had an exclusive property in the pier and the wharfage incident thereto, he held it in subordination to a paramount right in the Corporation to appropriate the slip at any time to the purposes of a public ferry. They, the Corporation, allege in their answer, that it has hitherto been the invariable practice in the city of Hew York for the grantees and owners of piers, whenever they have received wharfage for the sides of such piers, to do so in subordination to the rights of the Corporation at pleasure to control, occupy, use, or fill up the adjoining slips, and thus to cut off the future receipt of the wharfage—that in such cases the receipt of the wharfage has been permitted by them only while the slips were not used or taken by them, or granted to others, and that so soon as the slips were used, taken, or granted by the Corporation, the authority or permission to receive such wharfage ceased.

If this is an allegation of a custom acted upon by other grantees of piers, &c., we can only say, it is a custom which does not bind or conclude the plaintiff.

If it is an allegation of the relative legal rights of the parties, that is the question which we are now to consider.

That the absolute and exclusive right of establishing, maintaining, and regulating public ferries from the Island of Hew York to adjacent places, is, under the several charters of the city and the laws of the State, vested in the Corporation of the city, is beyond all doubt.

They hold this right in trust for the public convenience and benefit.

So also the authority given by the Legislature to the Corporation to erect wharves and piers (Act of April the 3d, 1793), is one given for the public benefit, and to be exercised by the Corporation as trustees for the public. Among other objects specified in the preamble of the Act of 1798, is this; that the erection of streets fronting the river, with bulkheads and piers, would conduce to the improvement and health of the city, and “ to the safety of such ships or vessels as may be employed in the trade and commerce thereof.”

The right, in both cases, is one having a great public accommodation and benefit in view.

Is the right to create a ferry of so much higher or greater importance to the public than the authority to license the erection of a wharf or pier, that the latter must be held in subordination to the first?

If the Corporation, deeming it necessary for the convenience of commerce that a new slip should be constructed, or an old one enlarged, should pass an ordinance for the erection of the necessary piers by the owners of the adjoining or opposite property, and preferring to be at no expense themselves, do not elect to bear one-third of the cost, but permit the piers to be constructed at the sole cost of the private owners, can they, the day after the completion of the piers, make a grant to other individuals of the entire basin or slip, for the purposes of a ferry ? Or if they can, can they do it without making just compensation ?

The rights of a grantee of a ferry franchise constitute property, and cannot be taken for public use without just compensation. (Hoffman’s Treatise, pp. 129-30, and note in Appendix.)

In what respect does the right or property in a pier differ in this respect?

It is said the Corporation have power to fill up a public slip, and thus take away all wharfage from the bulkheads or piers. This is undoubtedly true, but the cases are not analogous. The power to fill up a public slip is conferred upon the Corporation by express statute, for the preservation of the public health— Act of April the 2d, 1803, Davies’ Laws, 413—and its execution necessarily carries with it a destruction of the wharfage.

The right claimed in the present instance in favor of the ferry franchise, is, solely, that it is one of paramount importance to the public, and, therefore, to override the right acquired by the construction of a pier,—the right to grant the franchise in the one case, or direct the erection of a pier in the other, being equally vested in the Corporation.

It is that which I dispute. Undoubtedly the right to grant ferry privileges should receive the largest and most liberal construction, but the defendants claim too much in this case. They claim that the grant of a ferry franchise in the same slip absolutely puts an end to all rights of wharfage in the owners of the enclosing or boundary piers, no matter at what expense they were erected, nor how long enjoyed, nor whether the Corporation have any interest in them or not.

To have contended that the ferry right was so far paramount, as that it entitled the Corporation to deprive the owners of the piers, of their property in the wharfage, on making them a just compensation, might have presented a different and a more easily manageable question; but to contend, as is now done, that the one species of property must absolutely cease and disappear without compensation or equivalent, when the right to the other is granted, is at war with the first principles of justice, and not sanctioned by any proper construction, as we conceive, of the rights of the Corporation under their charter and the laws of the State.

It is said that if this judgment is sustained, the Wall street ferry can never be run. That may be true, but it is wholly unimportant whether it can or cannot be run, when the question is one affecting the legal rights of the parties. But, strictly, it is not true, because it yet remains to be seen whether Murray cannot be compelled to yield his rights on receiving compensation.

If by reason of the nature of the ownership in pier Humber 16, the Corporation have no control over it, it is their fault. By electing to pay, and paying one-third of the expense of the extension, they would have secured absolutely the control of the southerly side, and half the exterior end of the pier, which would have answered all their purposes. _ This they appear to have done in respect to pier Humber 15, on the opposite side of the slip; and hence they convey the inner side of that slip in express terms to Sharp.

The defendants’ counsel treat the ownership or property of Murray as a mere private right, and the ferry franchise in Sharp as one for a public use. We think there is a confusion of terms in this; both rights are held by individuals, and enure to the private benefit of-individuals; but both, and one not more or less than the other, are held for public objects, and tend to the great advantage, comfort, and prosperity of the city, its inhabitants, and commerce.

It is in our minds a question of very serious doubt, whether, in respect to the 22 feet 11 inches of the 98 feet of bulkhead in South street, which is left on the south side of pier Humber 16, the Corporation can lawfully make a grant of a ferry right in the slip, which shall interfere with the plaintiff’s right of wharf-age. Such right is secured by the covenant of the Corporation in the grant to Murray, the ancestor, in 1797.

In Furman’s case (5 Sandf. Rep. 16), it was held that, by the extension of the water line of the city, the right of wharfage in the plaintiff was for ever gone, notwithstanding a similar covenant in a grant to him; but that decision was put on the express ground that Furman’s lot extended only to Front street, which was within the 400 feet granted to the Corporation by the charter, and that both parties had contracted in reference to the future extension of the city to the outer limits of that space. In the present case, the 400 feet were exhausted before reaching the bulkhead on South street, and the pier stands wholly on land owned by the State.

In every view we are able to take of the case, the judgment at Special Term should be affirmed.


author: By the Court. Woodruff, J

text:
    William Sharp v. Augustus W. Whipple.
    An insurance broker has a lien for the premiums paid by him and bis commissions upon the policies which he effects, even when it is known to him that the person who employs him is merely an agent for the party assured; and when it is not known to him that his employer is merely an agent, he has probably a similar lien as against such employer, for the general balance of his account.
    But the lien of the broker, whether special or general, is extinguished, when he parts with the possession of the policies, by their delivery to the assured or his agent.
    The lien, however, again attaches, or, in the language of the books, is revived, if the policies come again into his possession from the person against whom the right in its origin existed. It is not revived, if they come into his hands from a person not known to him as his employer, or the assured, when the insurance was effected.
    If there is no lien when the insurance is effected, no subsequent transaction between the broker and the agent who employed him can create such a Hen as against the owner assured.
    An insurance “for whom it may concern" does not necessarily embrace all who may at the time have an insurable interest in the property insured, but the general words are restricted to those for whose benefit the insurance was in fact made, whose rights and interests were then meant to be protected.
    Hence, when an insurance by general words is made for the exclusive benefit of one partner, or part-owner, he is entitled, in the event of a loss, to recover the whole sum insured, when it does not exceed the value of his interest. Hence, also, as the policy belongs to him exclusively, he is entitled to demand its possession from the broker who effected it, and, when necessary, to maintain an action in his own name against such broker for its wrongful conversion.
    In order to maintain such an action, a demand and refusal are not necessary to be proved, when it appears that before the action was commenced the broker, in violation of his duty, had surrendered to the insurers, or otherwise parted with the possession of the policy.
    A broker who has compromised with insurers liable for a total loss, for a less sum than the amount then recoverable, and has given up the policy, is answerable to the owner assured for the whole sum insured, and not merely for that which he received, when it does not appear that he had any authority, express or implied, to make the compromise.
    So an insurance broker is also guilty of a wrongful conversion, who, having obtained a judgment upon a policy in his own name, uses the judgment for his own benefit, or deprives the assured, by any means, of the power of enforcing its collection. Judgment for plaintiff, with costs.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, April 7;
    decided, June 11, 1857.
    Case upon a general verdict for the plaintiff, subject to the opinion of the Court on the questions of law arising at the trial, and there ordered to be heard, in the first instance, at the General Term.
    The following is a statement of the pleadings, and of the proceedings had, and facts proved upon the trial.
    The complaint is of a somewhat equivocal character. In part it would appear to proceed upon a claim that the defendant had received money upon a policy of insurance belonging to the plaintiff, which he refuses to pay over, and in part it proceeds upon allegations that the defendant has converted a policy of insurance, belonging to the plaintiff, to his own use, appropriating it to the satisfaction of his own debts. It however states the plaintiff’s ola.im and the defendant’s refusal in terms sufficiently comprehem sive to embrace the facts developed on the trial, and raise the general questions whether, and to what amount, the plaintiff is entitled to recover.
    The defendant’s answer denies the facts alleged by the plaintiff, and sets up a lien upon the policies of insurance, as insurance broker, for the payment of a balance of account due to him from the party by whose request he effected the insurance.
    It appeared on the trial that, prior to April, 1853, the plaintiffi was the owner of $fths of a vessel called the Jenny Lind, and was sole owner of another vessel called the Joseph Porter.
    That the plaintiff had dealings with James De W. Spurr, in which the latter made advances to the plaintiff upon cargoes or freight, and as the agent of the plaintiff, but in order to protect Spurr for his advances, the latter employed the defendant, an insurance broker, to procure insurance.
    Under that employment, the defendant, in April, 1853, effected an insurance for $5,000, upon the vessel called the “ Jenny Lind,” by a valued policy, with the Merchants’ Insurance Company, of Louisville; and for $2,000 upon the freight of the “Joseph Porter,” by a valued policy, with the General Mutual Insurance Company, of New York.
    The Companies, by the terms of their policies, insured “ A. W. Whipple, on account of whom it may concern (loss, if any, payable to J. De W. Spurr).”
    The defendant, having effected the insurance, sent the policies to Mr. Spurr, in Liverpool, Eng., by whom they were retained until after the loss of the two vessels, when the policies were respectively returned to the defendant, by Mr. Spurr, for collection.
    One of the policies, with various papers accompanying the same, was received for this purpose by the defendant on the 10th of January, 1854, and the other, with similar papers, was so received by the defendant February 20th, 1854. These accompanying papers showed that the plaintiff was the owner of the vessels, i. e. ffths of the Jenny Lind, and the whole of the Joseph Porter. One of those papers states, in terms, that the insurance was effected at the plaintiff’s request, by the defendant, through and in the name of Spurr, &c. Although the date of this statement appears in the printed case as of a later date, there is an admission that it was received by the defendant on the 20th of February, 1854, and we therefore conclude that the date has been erroneously printed.
    It does not appear that, when the insurance was effected by the defendant, he was aware of the plaintiff’s ownership; but the papers accompanying the policies, on their being returned to him, fully disclose it.
    By letter of May 31st, 1854, received by the defendant June 15th, 1854, the plaintiff farther and distinctly notified the defendant that the ships were his, and that, although the policies are in the name of Mr. Spurr, the interest is altogether the plaintiff’s.
    Other letters show that the defendant did not give the plaintiff the information he desired, and even that he declined corresponding with him on the subject; and on the 16th November, 1854, the plaintiff caused a formal notice to be served on the defendant, apprising him that the insurances were effected for his account and benefit, and that he was solely interested, &c.
    In April, 1855, the plaintiff procured from Mr. Spurr a formal order upon the defendant for these policies, requesting him to deliver them to the plaintiff, or to his agent, and the plaintiff drew an order requiring the defendant to deliver the policies to his agents, DeWolf, Starr, & Co., of New York. The order was given to the defendant in April or May, 1855, and Mr. Starr, of the firm of DeWolf, Starr, & Co., who had also a power of attorney from the plaintiff, saw the defendant on the subject, and he testifies thus: “I could get no information from him; he would make no explanations or admissions; I demanded the policies, and he refused to give them to me; he said that Spurr owed him, and that he held them for his indebtedness; he would not give me the account between himself and Spurr; he would give me none of the items and none of the particulars of that account.” On cross-examination, the witness repeats his statement of his demand of these two policies, and the defendant’s refusal. To this evidence there is no contradiction.
    After the 15th of July, 1855 (but at what precise date the printed case before us does not show), this action was brought ; and on the trial it further appeared, that on or about the first of June, 1855, and after the demand made of him, as above stated, the defendant surrendered the policy for $5,000 upon the Jenny Lind to the agent of the Merchants’ Insurance Company, and received therefor $2,500; but that he, at the same time, took from the agent a writing in the words following, viz:
    “ The Merchants’ Louisville Insurance Company, having this day paid to Mr. A. W. Whipple, a settlement by compromise, of fifty per cent, on policy No. 2,022, issued on the first day of March, 1858, on ship ‘Jenny Lind,’ for five thousand dollars, payable in case of loss to J, De W- Spurr, and by the said J, De

      W. Spurr assigned, on the tenth day of February, 1854, to the said A. W. Whipple, the said compromise this day paid amounting to the sum of twenty-five hundred dollars; now, in considerar tion of the said settlement by compromise, and of the possible contingency that it may be wished by the said A. W. Whipple at a future time to pay back to the said Company the said sum of twenty-five hundred dollars, and receive in lieu thereof the said policy No 2,022, The Merchants’ Louisville Insurance Company hereby promises and agrees with the said A. W. Whipple, upon receiving from him the said sum of twenty-five hundred dollars, together with interest thereon from this day, to return to him the said policy uncancelled, and also uncancelled all papers pertaining to the loss under said policy that have been received by the said Company from him, the said A. W. Whipple.
    Merchants’ Louisville Insurance Company,
    By Wm. Peathey, Agent.”
    It further appeared, that on or about the 10th of August, 1854, the defendant had recovered a judgment upon the policy on the Joseph Porter, against the General Mutual Insurance Company for $2,046.25. That said Company had afterwards been dissolved and a receiver of its property appointed. That a stipulation had been made by the attorney for the defendant, in the suit in which he had recovered judgment, by which it was agreed, that no process, execution, or other action should be had on such judgment, but that it should be adjusted with other claims by the receiver. That in 1856, the receiver brought an action against this defendant upon notes, held by him as such receiver, made by the defendant, and delivered by him to the Company, amounting to over $4,000, and in such action the defendant by way of defence among other things, set up the judgment above mentioned, and claimed the right to have the same set off against the claim of the plaintiff therein.
    The Judge at the trial having charged the jury, they rendered a general verdict for the plaintiff, for $6,075.66 (being ffths of the amount of the policy which the defendant had surrendered, with interest, from the 1st June, 1855, $3,704.10 and the amount of the judgment recovered by the defendant against the General Mutual Insurance Company, (exclusive of costs) and the interest thereon $2,371.56), which verdict was taken subject to the opinion of the Court at General Term, on the questions of law arising in the case!
    The jury also found specially—
    That the plaintiff owned ffth parts of the Jenny Lind, and that ffth parts of the $2,500 received by the defendant on the 1st of June, 1855, on the compromise of the policy on that vessel, with interest, is $1,852.5.
    That ffth parts of the $5,000 insured by that policy and interest thereon is $3,704.10.
    That the plaintiff was sole owner of the Joseph Porter, and the amount of the judgment recovered by the defendant on that policy against the Company issuing it, with interest, (excluding that part of the judgment consisting of costs) is $2,371.56.
    That said Spurr was indebted to the defendant on the 17th of November, 1854, in the sum of $1,782.15 on account of the previous dealings between them, and that no part of that sum is paid.
    The parties consented that the Court may modify the verdict as shall be just, and according to the rights of the parties, and with power to deduct from the amount the plaintiff would otherwise be entitled to recover, the said $1,782.15, and interest thereon, if of opinion that the defendant is entitled to have such deduction made—and the Court thereupon ordered that the case be heard in the first instance at the General Term, and that the judgment be there first applied for,’'and that the entry of judgment in the mean time be suspended.

      Edwards Pierrepont, for the plaintiff,
    cited, 1 East. 335; 2 Caines, 299; 5 Hill. 421; 6 Paige, 583; 3 John. Cases, 130.

      Jno. Graham, for the defendant,
    cited 4 Comst. 497; Story on Agency, §§ 352, 368, 379, 389, 386, 390, 370; 3 Seld. 288; 2 Kern. 313; 1 Comst. 522; 10 John. 172.
   By the Court. Woodruff, J

The charge of the Judge given to the jury on the trial, does not appear in the case submitted, and no exceptions were taken by the defendant to such charge. It must therefore be assumed that correct instructions were given to the jury, in respect to all questions of law which were material as a guide to their deliberations, and as to the legal effect of the facts which they might find to be established by the evidence.

The jury having rendered a general verdict for the plaintiff, must be deemed to have found in his favor under those instructions every material fact in issue, so that if there is upon the evidence, any matter of doubt or conflict, it must be deemed settled by the general verdict. The verdict being taken subject to the opinion of the Court on the questions of law only, we are not called upon to consider on this hearing any other questions, than such as were raised on the trial, and such as arise upon the special finding which so far as it is inconsistent with the general verdict, must control the latter. (Code, § 262.) The issues therefore made by these parties by their pleadings, must be taken to have been found under proper directions "in favor of the plaintiff, except so far as the facts specially found should control that result.

The only questions of law appearing to have been formally raised and submitted to the Judge on the trial, were those suggested by the defendant’s motion for a nonsuit, which being denied, he excepted to the ruling. No other exception appears in the case. And the questions of law, subject to which the verdict was taken, are those presented by the motion for a non-suit, and those which arise upon the special findings of .the jury which accompanied their verdict.

The grounds upon which a nonsuit was urged were, that at the time the insurances were effected the defendant had no notice that the plaintiff had any interest in the policies, and that the evidence showed that the defendant had a lien upon them for his general balance against Spurr, the person by whose employment the defendant as insurance broker effected the insurance.

The special finding of the jury establishes the interest of the plaintiff in the subject of the insurance. The insurance was in terms for account of whom it might concern, the agent Spurr being only interested in the policies as a protection to him for his advances.

The finding also determines that Spurr, on whose employment the defendant acted,. was on the 17th of November, 1854, indebted to the defendant in the sum.of $1,782 15 on account of the previous dealings between them, and'that no part of that sum is paid.

¡ We do not, therefore, perceive that there is regularly before us any question of law, except the single one whether upon the evidence the nonsuit should have been ordered on the ground upon which.it was moved by the defendant’s counsel, and whether the amount of the debt due to him by Spurr should be deducted Rom the verdict.

These were the questions of law raised at the trial. Where a defendant moves for a nonsuit, and takes his ground at the trial, he ought not to .be permitted on the review to assign other reasons, .if they are in their nature such as, had they been then called to the attention of the plaintiff and the Court, might have been obviated by other or further proofs.

I repeat, that this question, whether the defendant had such a lien as defeats the plaintiff’s claim to the policies in question, or if not, whether upon the special finding the sum due to. him by Spurr should be deducted from the verdict, appear to. be the only questions now regularly before us, for the reason above stated, and' because also, there is obviously no inconsistency between the general verdict and the special findings, except so far as the latter exhibit a claim to such deduction from the general verdict.

Practically the question is single. Had the defendant at the time this action was brought a hen upon the policies as against the plaintiff? H not, then he clearly is not, entitled either to defeat the action by insisting on a right to detain them, nor to deduct his account from the verdict.

It undoubtedly appeared that the defendant, as insurance broker, had dealings with Spurr, by whose direction he effected the insurance; and it did not affirmatively appear that when these insurances were effected he was apprised that the plaintiff was interested therein. Some of the testimony of the witness Spurr might indicate that the defendant knew that the plaintiff was the owner of the subject of the insurance. He says that he wrote to the defendant that the plaintiff was the owner, but his cross-examination leaves the matter in so great doubt, at least, whether that communication was made at or before the insurance was effected, that we ought to assume that he had at that time no such knowledge.

It also appeared that the dealings between Spurr and the defendant were in the defendant’s capacity of insurance broker, and related to insurance transactions.

It is entirely clear, as matter of law, that if the defendant paid the premiums on effecting these two insurances now in question, he had a lien upon the policies as security for his reimbursement and his commissions. And it is probably not less clear that he had also a lien for the general balance of his insurance account against Spurr, who, at that time, was the only principal known to him in the transaction.

This general doctrine, declared by Lord Hardwicke, in equity, in Kruger v. Wlcox, (Ambler 252) in 1755, and since then well settled at law, we do not understand to be controverted by the plaintiff’s counsel. (Man v. Shiffner, 2 East. 523; Mann v. Forrester, 4 Camp. 60; Westwood v. Bell, ib. 352; Story on Agency, p. 354; and cases cited in notes. Cross on Lien, 277, and onward. 2 Kent Com. 634, &c.; 2 Duer on Ins. 280, &c., § 1, 2.)

It does not, however, appear in the case, that down to the time when these policies were sent to Liverpool, any sum whatever was due to the defendant from Spurr. The insurance was effected in or about April, 1853. Prior to December in that year, the defendant sent the policies to Spurr in Liverpool. The proof and the finding of the jury is, that in November, 1854, there was a balance due to the defendant, but when it arose does not appear. Spurr testifies that he and the defendant in their dealings kept their accounts as nearly square as possible. That the defendant was always authorized to draw for anything he might be called upon to pay on Spurr’s account here. And also, that he thinks nothing was due to the defendant for the premiums on these policies.

So that it does not appear that when the defendant sent the policies to Spurr, he had any lien thereon.

But however that may have been, when the defendant parted with the possession of the policies, and they came into the hands of Spurr, they were not subject to any lien in favor of the defendant; if any had existed it was gone. (See the authorities above cited, and Story on Agency, § 367.)

.After the loss occurred, the policies were returned to the defendant for collection. It may be conceded that the general rule is, that where an insurance broker, having a lien, parts with the possession of the policies and so loses his lien, his lien will, in the language of the books, be revived, if the policies come again to his possession.—Amb. 254; Cross, p. 280; and cases above and below cited Levy v. Barnard, 8 Taunt. 149.

But in regard to this revival of the lien it is to be observed, that it is not, in strictness, a revival of a pre-existing lien. The doctrine is this: when the policies come again into the broker’s possession, a lien attaches, as it would upon new policies coming into his hands. Hot, therefore, because he once had a lien, which was temporarily suspended, but because, by the general rule, he has a lien upon the securities in his possession for advances made upon account thereof, or as the case may be, for his general balance. This distinction is important, because from it results this qualification—that his lien will not attach if, when they are so returned to him, circumstances have so occurred that no lien for his general balance would attach if they then for the first time came to his hands. In the language of Mr. Justice Story, in substance, his lien will not re-attach to the property, unless when it comes again into his possession, it comes as the property of the same owner against whom his right exists, and no new intermediate equities have affected it.—§ 470, and cases referred to.

If, therefore, the defendant received the policies for collection, and was then apprised that the present plaintiff was the owner, no lien in favor of the defendant would attach for a prior balance against Spurr, if any existed at that time, which, as before observed, does not appear. And it is equally, if not more clearly true, ‘that he could acquire no lien, as against the plaintiff, for a general balance subsequently arising between him and Spurr. This principle will be found stated in the elementary works above referred to, and in Paley on Agency, 145, and note 15, p. 148; Law Library edition, pp. 63-4; Houghton v. Matthews, 3 Bos. and Pul. 485; Mann v. Shiffner, 2 East. 523; Jarvis v. Rogers, 15 Mass. 396; Foster v. Hoyt, 2 Johns. Ca. 327; 2 Duer on Ins. 282, § 3.

We are therefore of opinion that in this case no lien in favor of the defendant attached to these policies when they were returned to him for collection, not only because it was not shown that anything was then due to him, but also because that when so returned, the ownership of the plaintiff was disclosed. And for that reason, also, no subsequent transactions with Spurr, creating a balance, would create a lien on the policies to the prejudice of the plaintiff.

So, also, on the 15th June, 1854, by letter of May 31st, the defendant was distinctly notified by the plaintiff that he was owner, and that although the policies were in the name of Spurr, the interest is altogether in the plaintiff. It is not shown that at this time anything was due by Spurr to the defendant, and of course the above observations apply to this date, and to the notice then given.

The defendant, therefore, had no lien upon these policies for the balance of his account with Spurr on the 17th of November, 1854, and is therefore not entitled to have that balance deducted from the verdict.

As before observed, this seems to dispose of the only questions of law which appear by the case to have been raised on the trial, and the questions subject to which the verdict was taken.

The case was argued before us as if every question of fact and ■ law which can now be raised upon the case, as made up for argument, might be considered; and notwithstanding we think that in strictness the case is to be disposed of, as above intimated, we have considered the other points and arguments, ingeniously and ably urged upon our attention.

At the time of the demand made upon the defendant, the plaintiff was entitled to the policies. The fact that he owned only ffths of the Jenny Lind did not affect his title to the policy. The policy protected his interest. The case does not show that his co-owner was in any wise protected. The insurance was for account of whom it may concern, but those terms are always controlled by proof of the parties for whose benefit the insurance was in fact intended, and it in no wise appears that the co-owner was interested in the policy, or was in any wise intended to be protected by it Indeed, we do not fully understand upon what principle it is that the recovery here was claimed by the complaint, and so on the trial taken to be limited to ff-ths of the amount of the policy. If the interest of the plaintiff and his loss amounted to the whole sum insured, the reason for supposing that he could not have recovered the whole amount of the policy in his own name is not apparent. In The Pacific Insurance Co. v. Catlett (1 Wend. 561, and S. C. in Error, 4 Wend. 75), where an insurance was expressed to be “on account of the owners,” the plaintiff, by whose orders and for whose benefit the insurance was effected, was held entitled to recover the full sum insured, although it appeared that, in truth, he only owned five-sixths of the vessel. (See S. C. 1 Paine’s U. S. Dist. Ct. Rep.) At all events, the plaintiff had a clear right to demand possession of the policy. But as to this particular policy, there is a conclusive answer to the alleged defect in the demand. ‘ The defendant, before this suit was brought, had wrongfully surrendered the policy, and no demand was necessary. He had violated his duty as agent, or broker. He had done what the plaintiff had a right to regard as an actual conversion of the policy. And this meets another suggestion, viz. that the plaintiff was only entitled to recover the amount at which the defendant compromised' with the Company. He had no authority, either express or implied, to make the compromise. The act was not only without authority, but was a tortious act, done in defiance of the plaintiff and with knowledge of his claims.

And as to the other policy, which appeared on the trial to have been sued upon and judgment recovered, it may be that if on the demand being made the defendant had disclosed the fact, the form of the present action would have required amendment.. But we think that the evidence shows an actual conversion of this policy to the defendant’s use. He sued it in his own name. He refused to give any account of it to the agent of the plaintiff—would give no explanations—concealed the fact that he had recovered a judgment—and finally treats that judgment as his own, and after a stipulation by his attorney not to enforce it, save by adjusting it with other claims by the receiver, sets it up as a set-off against such claims. Under such circumstances we think the demand sufficient, and the conversion proved. We could not, we think, hold that the plaintiff, under the circumstances stated, had npt done all which he was bound to do to sustain the action.

It is true that the answer setting up this judgment as a set-off against claims upon the defendant personally, was put in after this action was commenced, but it was read without objection, and it showed how fully the defendant was exercising acts of ownership over the claim, in defiance of the plaintiff, and gives character to the acts, concealments, and refusals of the defendant, which were prior to the bringing of this action.

To this suggestion may be further added, on the subject of the defendant’s claim to a lien, and that its amount should have been tendered—that his refusal to furnish any account, or give any information, may well be taken to have rendered a tender impossible, and so to have waived any tender.

And we have no doubt that the amount of the policies being upon the evidence prima facie due, that amount is, in the absence of countervailing testimony, to be taken as the measure of damages. They had bec'ome, in substance, securities for the payment of a definite sum of money, and were presumptively of that value. The defendant had no right, by unauthorized compromise, or by setting off against what he himself owed, to deprive the plaintiff of his whole opportunity to collect them.

Our conclusion is, that judgment should be ordered for the plaintiff upon the verdict.