author: Mayham, J.:

text:
       CATHARINE E. VAN CORTLANDT, Sole Surviving Plaintiff, Respondent, v. MARY A. LAIDLEY, Appellant, Impleaded, etc. EWEN McGILLIS and Others, Respondents, v. MARY A. LAIDLEY and Others, Appellants, Impleaded, etc.

      Aliens — the children not torn at the time of the death of a testator a/re not covered by 2 Revised Statutes, 57, section 4— what interest they take in case of a devise to all the children as a class — action for the construction of a will — who is concluded by the judgment therein.

    A testator, by his will, gave certain property to his daughter, Eliza McGillis, for life, and after her decease to her husband, John McGillis, for life, if he should survive her, and further provided as follows: “ And from and after the decease of both my said daughter and her said husband, I give, devise and bequeath the remainder, or fee simple in said property, to the lawful issue of my said daughter then living, in such relative proportions (if such issue consist of more than one person) as they would, by the laws of the State of New York, have then inherited or taken the same from her, in case she and they were then native-born citizens of said State,' and she had then died intestate, lawfully seized of said property in fee simple ”
    At the time of the death of the testator the daughter resided in Canada with her husband, who was a citizen of Canada.
    Thereafter an action was brought in the Supreme Court of the State of New York by the executor under the will against the daughter, her husband and the children then born of their marriage, which children were all aliens and residents of Canada, and against the other parties in interest, for the purpose of obtaining a construction of the will.
    In this action it was decreed “ that the provisions in said will and codicil in favor of the said John McGillis, the husband of the said Eliza, and of the said Charlotte McGillis, Elizabeth McGillis and Reginald McGillis, infant children of the said Eliza McGillis, * * * so far as they relate to the real estate thereby attempted to be devised to them, the same are void by reason of the alienage of the said John McGillis and the said infant children.”
    Subsequently an action for the partition of certain of said real estate was brought, to which, in addition to the above-mentioned parties, there were made parties defendant four children of said Eliza and John McGillis, who were born subsequently to the death of the testator.
    The statute (2 R. S., 57, § 4), provides that “ every devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void. The interest so devised sliall descend to the heirs of the testator; if there he no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there he, competent to take such interest.”

      Meld, that this statute did not apply to the case of the children horn subsequent to the death of the testator, but only to those who were in existence at the time of his death.
    That such children, horn subsequent to the death of the testator, took not one-half of the real estate so devised to Eliza McGillis for life, but the whole thereof. That the provisions of the decree, in the action brought by the executor to. obtain a construction of the will, were not binding upon those children of Eliza McGillis who were not made parties to that action and were born subsequent to such decree.

      Qucere, whether, in an action brought for the construction of a will, where the ■ court declares one of its provisions void, and, in effect, that the deceased died intestate as to the real property intended to be devised by such void provision, the court can adjudicate in regard to the rights of the lieirs-at-law in such property, as to which the deceased is adjudged to have died intestate.
    Appeal by the defendants, Mary A. Laidley and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 14th day of January, 1890, after a trial at Special Term, which adjudged and decreed, among other things, as follows:
    That the said fee or remainder in said property, partitioned and set apart therein to said Eliza McGillis for life, is vested in and owned by the lawful issue of the said Eliza McGillis, born subsequent to the death of William Caldwell, and their assigns, in the proportions provided and as specified by the said William Caldwell, deceased, in his said will and codicil,- and the said heirs-at-law of William Caldwell, deceased, and their heirs, devisees and assigns, are hereby forever barred of all title or claim of title thereto of every name and nature.
    The first of the above-entitled actions was commenced in the year 1851, by Pierre Yan Cortlandt and Catharine E., his wife, and William Parmalee and Helen Louisa, his wife, against John McGillis and Eliza, his wife, John Dunford and Charlotte, his wife, Charles Jones and Mary, his wife, Philip Dunford and Augusta, his wife, Alexander Campbell and Jane Ann (late Jane Ann Jameson), his wife, Stephen Charles Sewell, Edward Quincey Sewell and James Caldwell Low, for the partition of the lands devised in common to Mrs. Yan Cortlandt, Mrs. Parmalee and Mrs. McGillis, situated ¿at Caldwell, Warren county, N. Y. None of the children of Mrs. McGillis were originally made parties to the suit, and the share nf Mrs. McGillis was, by the commissioners in partition and the •order of the court, set apart to her for life, with remainder to the heirs of William Caldwell. Catharine E. Van Cortland is the only surviving plaintiff. No judgment was then entered in the action. John McGillis thereafter died, and, on application to the court, all parties interested in any way (including the children of Eliza McGillis) were made parties defendant.
    On May 12, 1887, the legislature of this State passed an act to release the interest of the people of the State to the lawful issue of Eliza McGillis in and to the real estate devised to them by William Caldwell, deceased. Ewen McGillis, Margaret Louisa McGillis, Robert Andrew McGillis and Mary Sophia McDonald, having acquired by deed the interest of Mary Charlotte Harwood, William Hugh Caldwell McGillis, John McGillis and Elizabeth McGillis, were made parties defendant in the said partition suit, and directed to bring the cross-action, which is the second of the above-entitled actions.
    The testator, by his will, among other things, gave, bequeathed and devised certain property to his daughter Eliza, “ to have and to hold all and singular the property, both real and personal, above described, to my said daughter Eliza, during her natural life, for her sole and separate use, as is hereinafter more particularly provided ; and from and after her decease, I give, devise and bequeath said property to her husband, the said John McGillis, if he shall survive her, for and during his natural life; and from and after the decease of both my said daughter and her said husband, I give, devise and bequeath the remainder or fee simple in said property to the lawful issue of my said daughter then living, in such relative proportions (if such issue consist of more than one person) as they would by the laws of the State of New York have then inherited or taken the same from hex’, in case she and they were then native-born citizens of said State, and she had then died intestate, lawfully seized of said property in fee simple. To have and to hold the said remainder in said propei’ty to the said issue. of my said daughter, if such issue consist of one pei'son only, to him or hex’, his or her heirs and assigns forever; but if such issue consist of sevei’al persons, to have and to hold the same to them, their heirs and assigns forevei’, in the proportions above provided for.”

      Matthew Hale, for the appellants.

      Henry W. Ha/yden and Ma/reus T. Hun, for the respondents.

       Decided at July Term, 1890.

   Mayham, J.:

This is an appeal from a judgment of actual partition, and a judgment in a cross-action adjudging and determining who is entitled to the interest of Eliza McGillis, a life tenant, after her death and the death of her husband, John McGillis.

The questions arise out of the provisions of the will of William Caldwell, late of Albany, deceased, upon facts agreed upon by the parties.

William Caldwell, a citizen of the United States, residing at Albany, N. Y., made his will and codicil, dated, respectively, March 29 and December 29, 1841, which were admitted to probate as a will of real and personal estate in August, 1884. The will named four executors, none of whom qualified but Theodoric Bomeyn Beck.

The testator was a bachelor, and his heirs-at-law were his three sisters, Jane, Harriet and Ann Maria, and their three children.

Jane married Stephen Sewell, of Montreal, Canada, and their children were aliens. But, in 1830, the legislature of New York passed an act removing their disability to inherit as aliens, and conferring upon them the capacity to inherit William Caldwell’s property. Harriet married Theodoric Bomeyn Beck, of the city of Albany, and Ann Maria married James Low, also of Albany. All of the sisters above named died before- the testator, each leaving children surviving.

The testator, by his will, devised to Eliza McGillis certain real estate for life, and after her death to John McGillis for life, and after his death or the death of both the life tenants, the remainder in fee simple to the lawful issue of Eliza McGillis, then living, in the same proportion as they would inherit from her under the laws, of New York if she were an inhabitant, if she and they were native-born citizens of that State, and she had died intestate, lawfully seized of such property in' fee simple.

Eliza McGillis was a native-born citizen of New York, but on the 24th of September, 1820, was married in Canada to John McGillis, who was a native-born subject of Great Britain, and. all of the children born of such marriage were born in Canada.

Shortly after "William Caldwell’s death and the probate of his will, a suit was brought by the only acting executor to obtain a construction of the will. All of the testator’s heirs, and Mrs. McGrillis and her husband, and all of her children then living, were made parties to that action.

On the trial at Special Term, Harris, J., held that Mrs. McGillis had not forfeited her citizenship by marrying an alien and residing abroad, but that her children could not take the remainder devised to them because, they being aliens at the time of the testator’s death, the devise to them was void, and that the remainder devised to them vested in the heirs-at-law of the testator on his death; each of the three sisters, if they had survived the testator, would have taken one-third, and the children of the deceased sister one-third of such remainder per stirpes.

Upon the authority of this decree some of the heirs-at-law of the testator brought an action against Mrs. McGillis, as devisee, and the other heirs-at-law of the testator, for the partition of the real estate devised to Mrs. McGillis for life, but none of her children were made parties to that action. By the commissioners’ report, the life estate devised to Mrs. McGillis was set apart to her, and the remainder was, by the interlocutory judgment, partitioned between the heirs-at-law of the testator, and the report of the commissioners was confirmed by the order of the court. But no final judgment or decree was ever entered on that report. Four of the children of Eliza McGillis were born before the death of the testator, and four others were born after his death. The four children born prior to the testator’s death, by deed, dated June 20, 1887, conveyed to the four children born after his death all the right, title and interest which they then had, or might thereafter acquire in the lands devised to them in and by the will of William Caldwell, deceased.

The said after-born children and grantees in that conveyance bring this cross-action.

On the 12th of May, 1887, by chapter 310, Laws of 1887, it was enacted as follows: “A!ll the estate, right, title and interest which the people of the State of New York now have or may hereafter acquire in and to the lands devised by William Caldwell, of the city of Albany in this said State of New York, to his daughter Eliza McGillis for life and then to her husband John McGillis for life, should he survive her, and from and after their decease, to the lawful issue of the said Eliza McGillis then surviving, by reason of the alienage of such issue, is hereby granted, released, conveyed and quit-claimed to the said lawful issue of said Eliza McGillis, now or hereafter born, and their heirs and assigns forever ; and they are hereby authorized to take hold, sell and convey said lands and premises, or any interest they or either of them may have therein in the same manner and with the same effect as if they were citizens of the United States, and had been such citizens at the time of the death of said "William Caldwell.

“Nothing in this act contained shall be held or construed to affect, the right, title, interest, claim or demand of any heir-at-law, devisee, grantee or vendee.” * * *

On the 9th of March, 1888, on the petition of Mrs. McGillis and her children born after the death of the testator, and other proof from which it appeared that no final decree had been made in the action for partition, an order was made, under section 160 of the Code of Civil Procedure, allowing the after-born children to commence a cross action against all the other parties plaintiff and defendant to said partition suit, limiting the questions triable in the cross-action to the question whether the remainder in the property devised and partitioned to McGillis (Mrs.) for life passed as decided in the construction suit, and followed by the report of the commissioners in the partition action, to William Caldwell’s heirs or to the' lawful issue of Eliza McGillis, for whom the plaintiffs in the cross-action prosecute as a class as well as for themselves.

The learned judge, at the trial, directed that the interlocutory order or judgment in the partition action, and the report of the-commissioners and order confirming the same be so modified, that it be ordered, adjudged and decreed that the remainder in fee belonged to the lawful issue of Eliza McGillis, who were born subsequent to the death of William Caldwell, the testator, and not to his heirs, and allotting the same to her lawful issue her surviving, and their assigns, as provided in the will and codicil in fee. Judgment was entered accordingly, and the appellants appeal.

It is insisted, on the part of the appellants, that the judgment in the action of Beck, Executor, v. McGillis (reported in 9 Barb., 35),, construing the will of Whham Caldwell, is conclusive upon all the parties to that action, and vested the title to the remainder of the lands devised to Mrs. McGillis after her death absolutely in the heirs-at-law of the testator, and that that vested estate, thus fixed by the decree of a court of competent jurisdiction, cannot in another action be divested, or the regularity or validity of that decree attacked collaterally in this action. The language of that decree is as follows:

It is now adjudged and decreed, and this court, by virtue of the-power and authority in it vested, doth adjudge and decree that the devises and bequests contained in the first clause of the last will and testament of William Caldwell, late of the city of Albany deceased, dated the 29th day of March, 1841, and the codicil thereto, dated December twenty-ninth, in the same year (which said will and codicil are set out at length in the complaint herein), in favor of his daughter, the defendant Eliza, wife of John McGillis, and whereby an estate for life is given and bequeathed to the said Ann Eliza McGillis in certain real and personal estate therein mentioned, is valid, and that the provisions in said will and codicil in favor of the said John McGillis, the husband of the said Eliza, and of the said Charlotte McGillis, Elizabeth McGillis and Reginald McGillis, infant children of the said Eliza McGillis, so far as they relate to the personal estate thereby bequeathed to them after the death of the said Eliza McGillis, are valid; and so far as they relate to the real estate thereby attempted to be devised to them the same are void by reason of the alienage of the said John McGillis and the said infant children, and of no effect or validity whatever; and that the said real estate in which an estate for life is devised by the said will and testament, and the codicil thereto, to the said Eliza McGillis, vested in the heirs-at-law of the said William Caldwell, deceased, on his death, subject only to the life estate of the said Eliza therein, and the defendants, Catharine Eliza, wife of Peter Yan Cortlandt, Helen Louisa, wife of William Parmelee, being each entitled to an undivided one-sixth part thereof; the defendant James Caldwell Low, to the undivided third part thereof ; the plaintiff Edward Quincey Sewell, and the defendants, Charlotte, wife of John Humford, Mary, wife of Charles Jones, Augusta, wife of Philip Dunford, Jane Ann Jameson and Stephen Charles Sewell, each to an undivided one-sixth part of the'remaining one-third part thereof, subject to the life estate of the said Eliza McGillis therein as aforesaid.”

It will be seen from the decree above quoted, that Judge IT Am?ta) the learned justice who was called upon in an action brought for that purpose to give a judicial construction to this will, not only declared the invalidity of the provisions thereof, so far as it assumed to devise the remainder in fee of the real estate in controversy in this action, but in the same decision and decree settled, if a decree in that action could settle, the ultimate right of the parties to the remainder in said lands as to which, by his decision, the testator died intestate by reason of the alienage of the devisees of such remainder.

The doctrine is quite elementary that the judgment of a court .of competent jurisdiction is conclusive between the parties to it, who had their day in court, and, as to them, it cannot be attacked collaterally in another action- as to matters in issue or properly tried in the former action.

And even where some doubt may exist as to the right to maintain an action in a given ease, yet, when a judgment has been rendered ■in a court having general jurisdiction of the subject-matter and the parties, they are concluded by the decree pronounced and unreversed upon the issues in which they were parties to-the action. (Blakeley v. Calder, 15 N. Y., 617.)

Nor can the right of an executor to come into a court of equity and ask for and receive a judicial construction of a doubtful or obscure provision of a will be questioned (Bailey v. Briggs, 56 N. Y., 407), especially where the answer to the inquiry propounded involves the correct administration of the powers in the will, or the construction of a doubtful and disputed clause in it.

But whether, in an action for the construction of a will, the court after declaring one of its provisions void, and in eftect that the deceased died intestate as to the property intended to be devised by the void provisions, can follow the property so left out and dispose of the same between the heirs-at-law, is a question admitting of more doubt.

There are no allegations in the complaint, in the action for the judicial construction of this will, setting up the respective rights or interests of the heirs-at-law of William Caldwell, and asking any adjudication of their rights as between themselves in that action; and while it is obvious that, on the failure of the testator by his will to dispose of all his property, the part so undisposed of would fall back into his estate and descend to his heirs-at-law, that result would follow, not by virtue of the decree of the court, but rather by operation of the law of descent.

The estate of the lieirs-at-law of the testator in this remainder was, therefore, if it existed at all, created by the death of the testator intestate as to this remainder in fee. (1 it. S., 726, § 41.) But if it be conceded that this decree was effectual and binding as between the parties to it, still it is admitted by the appellants that .as to after-born children, not parties to that action, it is wholly inoperative. (Monarque v. Monarque, 80 N. Y., 320.) But it is insisted by the appellants that, at the death of the testator, the remaindermen named in the will not being eligible to take under the devise, the fee of the real estate devised to Eliza for life became a vested remainder in the heirs-at-law of the testator, subject to be defeated only by the death of the remaindermen, or by death without issue before the termination of the life estate. In Moore v. Littel (41 N. Y. [2 Hand], 66), relied upon by the appellants in support of this contention, it was held that, under the Revised Statutes, a grant to A for life, and after his death to his heirs and their assigns forever, gives to the children of the latter a vested interest in the land, although liable to open and let in after-born children of A. In Van Axte v. Fisher et al. (117 N. Y., 401; 27 N. Y. St. Rep., 257), also referred to by appellant upon this point, where a testator devised his residuary estate to his executor, with power to sell and invest the proceeds and apply the income to D during his life, and after D’s death gave the balance to J, who died before D, it was held that J took, upon the death of the testator, a vested remainder, and his interest on the expiration of the trust descended to his heirs.

In Shipman v. Rollins et al. (98 N. Y., 311), where the testator’s will provided for the sale of enough of his real estate, and the investment of the proceeds to furnish an income to- be applied to the support of his wife during her life, and after her death directed the sale of the balance of his real estate, the addition of the proceeds to the sums already invested, and after paying certain specified sums, the division of the balance between certain religious societies not then incorporated, it was held that the legacies so given did not vest until after the death of his widow; but I think this case is distinguishable from the ones above cited, and that the rule is stated in Moore v. Littel (supra): If there is a person in being wlm would have an immediate right to the possession of the lands upon the ceasing of the precedent estate, then that remainder is vested.”

But it must be conceded in this case that, as to after-born children of Mrs. McGillis, the decision in the action for the construction of the will can have no application; their rights must be determined under the will and the law as it is found when they appear upon the scene claiming under the will. If, by the will, they are then the object of the testator’s bounty, their rights must be protected and enforced by the court.

Let us assume, for the purpose of testing the.rights of these after-born children, that at the time of the testator’s death Mrs. McGillis had no children, and that she and her husband were both citizens of the United States, and that the will gave her a life estate, and after her death devised the remainder to her children her surviving, is there any doubt but that her after-born children living at the time of her death would take the remainder devised to them ? And yet a. technical vested estate in remainder would have devolved upon the heirs-at-law of the testator, the same as in this case; but it would be subject to be defeated by the happening during the life of the life-tenant of an event which would furnish one competent to take under the provisions of the will.

It is conceded by the appellant that after-born children may take under this will, if competent to take and hold lands by devise under the law.

If, therefore, after-born children can take in the case supposed, what can prevent them from taking in the case at bar, if all their disabilities under the statute relating to aliens have been removed ?

The testator in this case, as in all cases, had a right to dispose of his property by will in any manner agreeable to himself so long as he violated no law of the country.

It was competent for him to provide in it that the children of Mrs. McGillis, living at the time of her death, should take his-property; and any child, and the descendant, if any, living at tha't time and competent to take real estate by devise, could take under that provision; and this brings us to the question, are the plaintiff and other after-born children of Mrs. McGillis competent to taka and hold real estate by devise ?

The statute seems to apply only to persons who are aliens at the-time of the death of the testator; the disability is created purely by statute and should not be extended so as to defeat the will and wishes of the testator to carry out the provisions of the statute.. The language of the statute is (2 R. S., 57, § 4): “Every devise of any interest in real property to a person who at the time of the death of the testator shall be an alien, not authorized by statute to hold real estate, shall be void; the interest so devised shall pass-to the heirs,” or, failing in heirs, pass into his residuary estate.

In Wadsworth v. Wadsworth (12 N. Y., 376), this section of the statute was construed, and the court held that at common law an alien could také real estate by devise, but cannot hold it as against the State.

That the disability created by the statute above quoted did not apply to alien devisees born after the death of the testator, and that, accordingly the son of a British subject, who was born in Egypt,, where his father "had been sent as British minister, could take lands situate in this State devised to him by the will of his father, and hold the same as against the heirs-at-law of the testator; and this, case has been cited with approval in Wright v. Sadler (20 N. Y., 324); Munro v. Merchant (28 id., 15); Goodrich v. Russell (42 id., 181).

It would seem to follow, therefore, that the devisees of the testator, to whom was devised the remainder of the real estate devised to Mrs. McGillis for life, could take under such devise and hold as against the heirs-at-law of the testator, independent of the provisions of the statute under which it is claimed all the disabilities of the plaintiff and other after-born children of Mrs. McGillis were .removed. Chapter 120 of the Laws of 1872 provides that the real estate of a female citizen of the United States, notwithstanding her marriage to an alien and residence in a foreign country, shall descend to her lawful’children, etc.

This statute, however, does not in terms apply to this case, as-Mrs. McGillis was not the owner in fee of the real estate in question. Chapter 42 of the Laws of 1889 goes farther, and provides: “ Nor shall the title to any such real estate which has descended or which shall descend, or which has been or shall be devised or conveyed. to such woman, or to such foreign-born children or descendants, be impaired or affected by reason of her marriage with an alien or the .alienage of such children or their descendants.”

By chapter 310 of the Laws of 1887, to which we have before referred, all the disabilities of the heirs of Eliza McGillis are removed, and the interest of the State released to the children and devisees in the will of William Caldwell, deceased.

While the right of the after-born children does not appear to be strenuously resisted by the appellants, it is insisted, if they have any rights under this will, it is only to the one-half, and does not include the half which the children of Mrs. McGillis living at the time of the death of the testator would have taken under said will, if not ineligible.

The will in this case devises the remainder to a class, viz., the-•children, of Eliza McGillis living at the time of her death, and the rule seems to be that where some of the devisees of a class are incompetent to take, either by death, alienage or other disability, the remainder of the class takes what was intended for' all.

In Downing v. Marshall (23 N. Y., 366) it was held that where, "by reason of legal incapacity, but one of a class' can take,- that one takes all of the estate which the devise, by its terms, gives to the whole class. This case has been cited with approval in a large number of cases down to as late as Crittenden v. Fairchild (41 N. Y., 292); White v. Howard (52 Barb., 307).

We think, on the whole case, that the judgment of the Special Term was correct and should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

■ Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    SAMUEL McELROY, Respondent, v. HENRY MUNFORD and JOHN FRENCH, Appellants.

      Undertaking on, appeal to the Court of Appeals — the recowry thereon, limited to the amount of the judgment recited therein.

    An undertaking given upon an appeal to the Court of Appeals, from a judgment of affirmance at General Term of a judgment in favor of the plaintiff, after reciting the recovery of “a judgment against the Brooklyn Underground Railroad Company, the appellants, for the sum of $122.97, being costs of affirmance, and with interest thereon from that date,” provided, “that the appellant will pay all costs and damages which may be awarded against it on said appeal, not exceeding five hundred dollars; ” it also undertook that “ if the said judgment so appealed from, or any part thereof, is affirmed or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment, or the part thereof, as to which judgment is affirmed. ”
    The judgment of the General Term was subsequently affirmed by the Court of Appeals, with costs, and an action was brought upon the undertaking to recover the amount of the original judgment entered in the trial court, together with the subsequent judgments for costs at the General Term and in the Court of Appeals.

      Held, that the sureties upon such undertaking were liable only for the amount of the judgment at the General Term, and of the judgment in the Court of Appeals, and not for the amount of the original judgment in favor of the plaintiff, as the undertaking recited the recovery of a judgment in the Supreme Court by the plaintiff against the defendant for $122.97, costs of affirmance, with interest, and did not recite the original judgment. ■

      Appeal by tbe defendants from a judgment of tbe Supreme Court entered in tbe office of tbe clerk of tbe county of Kings, ■on tbe 20th day of November, 1890, in favor of the plaintiff and against tbe defendants, for tbe sum of $4,693.34, damages and costs, with notice of an intention to review upon such appeal an order dated October 10,1890, directing judgment against tbe defendants for the amount claimed in tbe complaint, with costs and an extra allowance of five per cent.
    Tbe action was brought against tbe defendants as sureties upon an undertaking, given upon an apjieal to tbe court of appeals from a judgment of tbe Supreme Court entered in favor of tbe plaintiff.
    Judgment was demanded for tbe recovery of tbe sum of $3,659 and interest from June 30, 1887, and $122.97, and interest from December 12, 1887, and $121.72, and interest from April 29, 1890

      Welton Percy, for tbe appellants.

      T. O. Cronin, for tbe respondent.
   Dykman, J.:

The plaintiff in this action recovered a judgment against tbe Brooklyn Underground Railroad Company in the Supreme Court in June, 1887, for tbe sum of $3,659.08, which was affirmed in the General Term, and judgment was entered upon such affirmance for $122.97 costs.

Upon appeal to tbe Court of Appeals tbe following undertaking was executed by tbe defendants in this action:

“ Whereas, on tbe twelfth day of December, 1887, in tbe New York Supreme Court, county of Kings, Samuel McElroy, tbe above-named respondent, recovered a judgment against tbe Brooklyn Underground Railroad Company, tbe appellants, for tbe sum of $122.97, being costs of affirmance, and with interest thereon from that date.

“And tbe said appellant, feeling aggrieved thereby, intends to appeal therefrom to tbe Court of Appeals.

“Now, therefore, we, Henry Munford, residing at No. 218 Quincy street, in tbe city of Brooklyn, and John French, residing at N o. 469 Clinton avenue, in Brooklyn city, do hereby, pursuant to tbe statute in such case made and provided, jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against it on said appeal not exceeding five hundred dollars, and do also undertake that if the said judgment so appealed from, or any part thereof, is affirmed or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment or the part thereof as to which judgment is affirmed.

“ Dated Decembev 21, 1889. t( FRENCH
“HENRY MUNFORD.”

The judgment of the General Term was affirmed by the Court of Appeals, and a judgment was entered upon such affirmance for $121.72 for costs in that court in favor of the plaintiff against the ■defendants.

This action was commenced upon the undertaking so given upon the appeal to the Court of Appeals, and the plaintiff obtained a judgment for the amount of the original judgment, together with the subsequent judgments for costs on the appeals, and the defendants have now appealed Ji’om such judgment.

The question presented is, whether the plaintiff can hold these defendants, who were the sureties in the undertaking on the appeal to the Court of Appeals, for the amount of the original judgment in his favor, or only for the amount of the judgments of the Genei’al 'Term and the Court of Appeals. ■

As the order appealed from affirmed a judgment which directed and required the payment of a sum of money, the form of the undertaking on such appeal is prescribed by section .1332 of the Code of Civil Procedure as follows : “ Where the judgment or order, from which an appeal is taken to the Court of Appeals, affirms a judgment or order, to the effect specified in either of the last five sections, the undertaking must be the same, as if the judgment or ■ order from which the appeal is so taken was to the same effect as the judgment or order so affirmed.” That is, it must be in the same form as if the judgment appealed from rendered a judgment, or was a judgment similar to, or to the same effect as, the one which ■it affirmed.

The undertaking must be so drawn as to secure the payment of the judgment affirmed by the judgment from which the appeal is taken to the Court of Appeals, or, in other words, the sureties in an undertaking upon an appeal to the Court of Appeals must be-made liable for the payment of the original judgment, and such liability must be imposed by the terms of the instrument.

This undertaking, as we have already seen, recites the recovery of a judgment in the Supreme Court by the plaintiff against the Brooklyn Underground Railroad Company for $122.97, being costs of affirmance with interest, and the grievance of the defendant thereby, and its intention to appeal therefrom to the Court of Appeals; and that, therefore, the defendants, pursuant to the statute, undertake that, the appellant will pay all costs and damages which may be awarded against it on such appeal, not exceeding five hundred dollars, and also undertake that if the said judgment, so appealed from, or any part thereof is affirmed, or the appeal is dismissed, the appellant, will pay the sum recovered or directed to be paid, or the part, thereof as to which judgment is affirmed.

There was but one judgment mentioned, which the defendants undertook to pay in the event of affirmance, and that was the judgment for costs of the General Term of $122.97, and there is no principle upon which their liability can be extended beyond the terms of the instrument which they signed. That instrument in no way mentions or refers to the original judgment, and they never undertook its payment. These views are in accordance with the expressions in the case of Morss v. Hasbrouck (10 Abb. N. C., 407), and Briggs v. Brown (13 id., 481), and are not hostile to the case of Goodwin v. Bunzl (102 N. Y., 224).

The judgment should be reversed with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.


text:
    IRA PORTER, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Railroad — personal injury to one riding on a free pass and in the employment of a, shipper who has contracted to release the company from liability.

    In an action brought to recover for injuries sustained by the plaintiff while traveling upon the defendant’s railroad, it appeared that the plaintiff was riding on a freight train in charge of a car-load of cattle belonging to one Schoonmaker, who, in consideration of a reduced rate for transportation and a free pass, . entered into a written contract releasing the railroad company from all damages attending the transportation, custody and delivery of the stock, except such as might arise from the fraud or willful misconduct of the company.
    The plaintiff was employed by Schoonmaker to go in charge of the stock, and was designated by name in the contract and in the way-bill as in charge free.

      Held, that, conceding that the contract was broad enough to cover personal injuries, it could have no binding force or effect upon the plaintiff, who neither made it nor assented to it.
    That the plaintiff was a passenger with all the rights which that relation towards the company gave him.
    Appeal by tbe defendant from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of the county of Orange on tbe 7th day of July, 1890, in favor of the plaintiff, after a trial at. tbe Orange County Circuit before tbe court and a jury, at which a. verdict was rendered in favor of tlie plaintiff for tbe sum of $2,500 ;■ and also from an order denying a motion to set aside the verdict and for a new trial made on tbe minutes of tbe court.
    Tbe action was brought by tbe plaintiff to recover for injuries received while riding on a train on tbe defendant’s railroad in charge of a car-load of cattle belonging to one Schoonmaker.

      Leíais F. Cass, for tbe appellant.

      W. F. O’Neill, for tbe respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon a verdict in favor of tbe plaintiff against the defendant, and from tbe order denying a motion for a new trial in an action for damages sustained by tbe plaintiff on tbe defendant’s railroad.

The plaintiff was riding on a freight train in charge of a car-load of cattle belonging to James Schoonmaker, who shipped the cattle ■over the defendant’s railroad from Coehecton to Newburgh. In ■consideration of a reduced rate for transportation and a free pass, Schoonmaker entered into a written contract in which he released the railroad company from all damages attending the transportation, ■custody and delivery of the- stock, except such as might arise from the fraud or willful misconduct of the company. The plaintiff was ■employed by Schoonmaker to go in charge of the stock, and he was ■designated by name in the contract and in the way bill as in charge, free. At Otisville, on a descending grade, the train was detached from the caboose to take in some other cars, and the plaintiff remained in the caboose. "When the other cars were attached the caboose car was permitted to run down to the train, and the defendant claims that the concussion caused by the impingement of the two cars when they came together to be coupled was the cause of the plaintiff’s injury, and that such shock was not severe or unusual and was not the result of negligence, but of the ordinary operation of the train; and that the brakeman made the coupling in the usual way and the train proceeded on its way. On the other hand, the plaintiff claims there was then, or immediately afterwards, a collision ■of some kind which threw him from his seat and caused his injuries. It did not appear with much precision how the shock was caused which resulted in the injury to the plaintiff, but the jury must have found negligence against the defendant in the management of the train. It is not important for us to decide between the two theories of the parties, for if the shock resulted from the rapidity with which the caboose car was permitted to move and the severity with which it struck the car to which it was to be coupled, that fact would be sufficient to justify the verdict.

The serious question in the case has relation to the effect of the contract of Schoonmaker with the company; and it is to be observed that such contract relates exclusively to the transportation of the liv,e stock, and in consideration of reduced rates and the issuance of a free pass to accompany the same, the corporation is released from all damage to the stock which shall not result from fraud or willful miscon duct. But the contract contains no release for personal injuries, and all the way-bill contains on the subject is a statement that Ira Porter is in charge, free, and yet Porter was not, in the eye of the law, a gratuitous passenger. The contract stipulated for a pass .and reduced rates, and as a consideration for those the company received a release from certain legal liabilities.

The plaintiff was, therefore, a passenger with all the rights which that relation towards the company under the law gave him. Waiving that view, however, for a moment, and conceding to the contract the scope for which the defendant contends, it can have no binding force or legal effect upon the plaintiff. He neither made the contract nor assented to it, and he made no agreement to assume any risk, and the defendant could not avoid responsibility to him by any contract with Schoonmaker. Such a contract to be ■obligatory upon him must have been made by him or some one on his behalf. We have examined the exceptions and find no error, and we cannot say the damages are excessive.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.:

text:
    ABRAM BLAUVELT, Respondent, v. CALVIN C. POWELL, Appellant.

      Landlord and tenant — trespass by a stranger does not constipate emotion.

    The fact that parties, other than the lessor, and their workmen, make noises and commit trespasses, while erecting houses in the neighborhood of the house in which leased apartments are let, does not constitute an eviction, by his landlord, of the tenant in occupation of such demised apartments.
    Appeal by the defendant, Calvin C. Powell, from a judgment of the Boekland County Court, entered in the office of the clerk of the county of Boekland on the 24th day of February, 1890, which affirmed a judgment rendered before a Justice’s Court on December 24,1889, in favor of the plaintiff for the sum of forty-five dollars damages.

      Garret Z. Snicler, for the appellant

      William JS. Gowdey, for the respondent.
   Barnard, P. J.:

This action was originally commenced before a justice of the peace. The complaint stated the cause of action to be for rent of rooms in Nyack for three months, being the months of September,. October and November, 1889. The leasing was admitted as stated at fifteen dollars per month, and that the rent was unpaid for three months. The defense stated in the answer was a former suit pending and eviction.

The action was commenced on the 23d of November, 1888. There-was offered in evidence a copy judgment-roll of the County Court, showing an action brought for rent of December, 1888, and January, February and March, 1889. This record was rejected because not duly certified. The paper is not returned and it is impossible to say whether it was or was not certified so as to justify its introduction in evidence. It was proven that an action had been commenced for the latter months of the year, but the time of its commencement was not disclosed. The defense of a former action pending, therefore, fails. All the installments due upon a contract must be included in an action, but separate actions are legal for each installment, and it is-manifest that this action was first commenced; and after all the installments became due for the remainder of the year, the action in the County Court was commenced.

The defense of eviction also failed. The plaintiff’s lease only permitted the use of apartments in a house, and the eviction consisted in the fact that independent parties and their workmen made noises and committed trespasses while erecting houses east and west of the house in which the demised premises were situated. A trespass by strangers is not an eviction. There must be-dispossession by a paramount title or -by the act of the landlord,, or he or his servants must make the occupancy so annoying and uncomfortable as to justify a tenant in removing from the same. The proof showed nothing to justify a conclusion of an'eviction.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    ABRAM M. ROOS, Respondent, v. ISAAC LOCKWOOD, Appellant.

      Specific performance — not proper where a wife refuses to join in the deed.

    Where an owner of property executes a written agreement to give a deed thereof, and his wife subsequently refuses to join in the deed as a party thereto, in order to release her dower interest in the premises, and it does not appear that the refusal of the wife is in any way attributable to the husband, it is not proper to decree a specific performance of the contract either deducting from the purchase-price the actual cash value of such dower interest or leaving one-third of the purchase-money on mortgage at five per cent interest, the principal payable only after the wife’s death, as an indemnity against the wife’s right of dower.
    Appeal by the defendant, Isaac Lockwood, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 5th day of November, 1890, by which judgment it was ordered and adjudged, pursuant to the said decision, that the defendant, Isaac Lockwood, receive the balance of the purchase-money from the plaintiff and execute and deliver to the plaintiff a good and sufficient deed of the premises described in the complaint herein, free and clear of all incumbrances ; and in case the defendant’s wife refuses to join in said deed, then that the actual cash value of her dower interest therein be deducted from the purchase-money to be paid by the plaintiff. Or, in case the defendant elects within twenty days after entry of judgment herein, he may leave one-third of the purchase-money on bond and mortgage at five per cent interest per annum, principal payable to the plaintiff one month after the death of the defendant’s said wife, as indemnity to the plaintiff against the said wife’s dower .right. It is also further decreed that the plaintiff herein recover of the defendant the sum •of one hundred dollars per month, the rental value of the said premises from April 1, 1890, until plaintiff obtains possession of .said premises, less the interest on the purchase-money and any taxes paid on the premises, to be stated by Henry Bacon, to whom this account between the parties is referred, together with the costs and disbursements of this action, which said costs and disbursements amount to the sum of $286.32, and that the said plaintiff have ■execution therefor.

      B. B. Champion’for tlie appellant.

      Lewis LLasbroudk and W. F. O’Neill, for the respondent.
   Barnard, P. J.:

The defendant, by an agreement in writing, undertook to give a deed of a hotel property, in Orange county, to the plaintiff for the sum of $8,500, all to be payable at or before the delivery of the deed. The defendant’s wife refused to join in the deed. The evidence does not show that this refusal by the wife is in any way attributable to the husband. The court ordered a specific performance of the contract, and if the wife persisted in her refusal the plaintiff was permitted to deduct one-third of the purchase-money, or, if the plaintiff so elected, to leave one-third of the purchase-money on mortgage, at five per cent interest, the principal payable,- after the wife’s death, as indemnity against the wife’s right of dower. The power of a court of equity to decree 'a specific performance in such a case as this cannot be doubted. A contract made by a husband may be enforced against him if the purchaser elects, even if the dower right of the wife be left outstanding. The present case is not one where such specific performance should be granted. The wife holds an estate which the husband cannot sell, and if he does he subjects himself to an action for damages and also to one for specific performance, but there is nothing in the case which shows that one-third of the purchase-money should be rendered valueless to him during his wife’s life. Such an arrangement, moreover, renders the title exceedingly unmerchantable for an indefinite period. Specific performance is not a right absolute under all circumstances. (Hubbel v. Von Schoening, 49 N. Y., 326.) The wife has not signed the contract of sale, and, therefore, cannot be compelled to accept in lieu of dower a gross sum, and no greater sum than a gross sum in lieu of dower is proper. (Bostwick v. Beach, 103 N. Y., 414.)

We think, therefore, that the judgment should be reversed and a new trial granted, to the end that the plaintiff may prove his damages, as in an action at law, costs to abide event.

Pratt, J., concurred.

Judgment reversed and new trial granted, costs to abide event.


text:
    CHARLES S. HIGGINSON, Plaintiff, v. THE SECOND NATIONAL BANK OF THE CITY OF NEW YORK, Defendant.

      Discontinuance of an action and release of a disputed claim, valid — consideration necessary to sustain the release if the claim is not disputed.

    A release, where tlie subject-matter thereof is a disputed claim, will be sustained, although a release without consideration will not discharge a claim not ia dispute.
    An administratrix is not bound to go to trial in an action brought by her, if she ascertains that she has no real claim, and the rule is the same where a party makes or defends a disputed claim as trustee or as an individual only; and a release executed by the plaintiff, at the time of the discontinuance of the action, of the claim in dispute, will be enforced as having a good and valuable consideration.
    Exceptions ordered, to be heard at the General Term in the first instance, after a trial at the Kings County Circuit before the court and a jury, at which a verdict was rendered in favor of the defendant.
    The action was brought to recover the sum of $1,710, with interest, which was on deposit with the Second National Bank to the credit of one J. B. Fuller, who, after the making of such deposit and about the 15th day of February, 1879, died intestate. Letters of administration upon his estate were granted to Sarah H. Burgess, who duly qualified as administratrix thereof, and thereafter, on the 10th day of September, 1886, assigned, transferred and set over to the above-named plaintiff the said sum of $1,710 on deposit with the defendant, together with all the right, title and interest of said estate and of said Sarah II. Burgess, as such administratrix, in and to the same.
    The answer admitted that the money had been so deposited, but alleged, by way of affirmative defense that, about the 18th day of February, 1879, the defendant had paid out the said sum upon a check drawn upon it by said J. B. Fuller to the order of one H. B. Crosby, which was dated February 13, 1879, and was duly indorsed by said Crosby, at which time the defendant had no knowledge or information that the said J. B. Fuller was dead; and the further defense that an action had been commenced in the Superior Court of the city of New York by said Sarah H. Burgess, as such administratrix, against the defendant for the recovery of said money, and that the controversy in said action, so commenced by said Sarah L. Fuller as administratrix as aforesaid, was thereafter, and on or about the 12th day of October, 1883, at said city of New York, in good faith fully settled and compromised by and between said Sarah L. Fuller, as such administratrix, and this defendant for a good and valuable consideration; and that said last-mentioned administratrix then and there made and executed under her hand and seal, and delivered for good and valuable consideration, moving from the defendant to said last-mentioned administratrix, a release by which she, for herself, as such administratrix, and her successors, remised, released and forever discharged the defendant and its successors from any and all claim, cause'or causes of action which said Jim Billings Fuller in his lifetime, or she as his administratrix, ever had, then had, or which her successor or successors ever should have, against the defendant, including any such alleged cause of action as is set up in the complaint in this action, all of which will more fully and at large appear by reference to said release, a,copy of which is hereto annexed as a part hereof, marked “ B; and the defendant further alleges that said action in the Superior Court was thereupon discontinued.

      Edwin W. Sanborn, for the plaintiff.

      John Eoimcm, for the defendant.
   Barnard, P. J.:

J. B. Fuller gave a check on the defendant’s bank where he had a deposit just before his death, or some one forged his check on this bank for $1,710. The check was not presented at the bank until after Fuller’s death. The check was presented in regular course of business and was paid by the bank in ignorance of the fact that Fuller was then dead. The payee of the check was IT. B. Crosby. The check was dated February 13,1879, and was paid February 15, 1879, by a deposit to Crosby on that day. Crosby had been in some sort of business relation with Mrs. Fuller after her husband’s death. On the 24th of April, 1883, Mrs. Fuller, as administratrix of the deceased, brought an action to recover the $1,710 of the defendant. 'The defendant denied the claim and the action was referred on the eve of trial. The plaintiff then discontinued the action and executed a general release designed to extinguish the right of action. This arrangement was perfected by an order discontinuing the action upon payment of costs to the plaintiff’s attorney and referee. This order was entered the 10th of October, 1883. In the early part of that year the attorney for the bank had found out Mr. Crosby. He was a confidential adviser in some way of the administratrix, but ■claimed to have a demand against her for services and money paid. Mrs. Fuller had an individual claim also against Crosby. Under this state of the facts the administratrix discontinued the suit and relinquished the claim against the bank. Is the release good? There is no proof of fraud in procuring the release. It is evident that the whole facts in respect to the check, as between the deceased, his widow and Crosby, are not known. There seems to be no reasonable ground for a belief in the forgery of the check. It was honorably given and paid in good faith in ignorance of the death of the giver of the check. No doubt the family had the money, for the widow was late in bringing her action if it was a forgery. At any rate the question of the bank’s liability was an open one and was represented thus by Mrs. Fuller, who, with her daughter, was then supposed to be next of kin. The release is good. A disputed claim is the subject of a release. (Home Ins. Co. v. Watson, 59 N. Y., 390.) The administratrix was not bound to go to trial in her action if she knew that she had no real claim and put the estate to the costs of the defense. The rule is the same where the party makes or defends a disputed claim as a trustee or an individual only. In no case will a mere release, without consideration, discharge the claim, but a dispute as to the validity of the claim is both a good and valuable consideration to support a release. (Palmerton v. Huxford, 4 Denio, 161; Pierce v. Pierce, 25 Barb., 243 ; Wehrum v. Kuhn, 36 Supr. Ct. 336; affirmed, 61 N. Y., 623.)

The exception should, therefore, be overruled and judgment given for the defendant upon the verdict, with costs.

Pratt, J., concurred.

Exceptions overruled and judgment for defendant on the verdict. ’


author: Pratt, J. : Barnard, P. J.:

text:
    GUSTAV A. KIRCHNER, Appellant, v. THE NEW HOME SEWING MACHINE COMPANY, Respondent.

      JRelease — not extended by its general words beyond the scope of its particular provisions— does not cover damage of which the releasor was ignorant — mutuality of the error.

    In an action brought to recover for the damage done to certain machinery in premises from which the defendant had unlawfully ejected the plaintiff, it appeared that after the plaintiff was ejected from the premises the defendant continued ■ in possession thereof and allowed the machinery to be damaged through neglect ; that thereafter, the plaintiff having applied for the restoration of his. property, the defendant required, as a condition thereof, that he execute a release of a certain claim made by him against the defendant for malicious, prosecution, and of a claim for $1,500, for which he had already brought suit.
    The plaintiff consented to this and the defendant caused a general release to be prepared, in which was inserted a particular clause and agreement that the plaintiff would not interfere in any manner with any sales of machines theretofore made by him for said company, nor with the collection by the company of the moneys due for said machines sold.
    After its execution the possession of the premises was delivered to-the plaintiff,, and he discovered, what he had been before ignorant of, namely, that his machinery had been damaged by neglect and through exposure to the elements.

      Held, that the release did not discharge the defendant from liability for such damage.
    That the general words of the instrument would not he allowed to extend the operation of the particular provisions thereof.
    That the release would not discharge rights of which the party executing it was ignorant.
    That the rule that to render a release inoperative the error must he mutual, did not apply where one party sought to use it for a purpose not intended by the maker.
    Appeal bv tbe plaintiff Gustav A. Kirchner from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Kings, in favor of tbe defendant, on tbe 17th day of June, 1890, dismissing tbe plaintiff’s complaint after a trial at tbe Kings County Circuit before tbe court and a jury.
    Tbe action was brought to recover tbe damages resulting from tbe threats, promises and intimidations practiced by tbe defendant and its agent against certain customers of tbe jffaintiff, and from tbe slandering of tbe plaintiff, and from tbe further act of tbe defendant in opening and entering tbe plaintiff’s store by its agent with force, against tbe plaintiff’s will and protest, and taking possession thereof, with its stock, contents and fixtures, and holding possession thereof for several months and allowing the property of the plaintiff therein to be damaged and destroying the good will of the business.
    The defendant offered in evidence, among other things, the following release executed by the plaintiff:
    “ To all to whom these presents shall come or may concern, Greeting
    “ Know ye that I, Gustave A. Kirchner, of the city of Brooklyn, in the county of Kings and State of New York, for and in consideration of the sum of one dollar lawful money of the United States, to me in hand paid by the New Home Sewing Machine-Company, the receipt whereof is hereby acknowledged, have remised, released and forever discharged, and by these presents do for myself, my heirs, executors and administrators, remise, release, and forever-discharge the said The New Home Sewing Machine Company, its-agents, servants, successors and assigns, of and from all and all manner of action and actions, cause and causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law or in equity, which against it or its-agents or servants I ever had, now have, or which my heirs, executors or administrators hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents,, and it is distinctly understood that I will not interfere in any manner with any sales of sewing machines heretofore made by me-for said company, nor with the collection of any amounts due on said machines.
    “In witness whereof, I have hereunto set my hand and seal, the-8th of February, in the year one thousand eight hundred and eightv-eight.
    “ G. A. KIRCHNER. [seal.] ”
    Sealed and delivered in 1 the presence of i

      M. L. Towns, for the appellant.

      Osborn E. Bright, for the respondent.
   Pratt, J. :

The plaintiff appeals from a judgment of nonsuit. The testimony showed that plaintiff had, for some years, occupied a shop and store where he was engaged in the business of selling and repairing sewing machines, and where he also carried on other branches of business. Among other machines he sold those of defendant. The retail price was fifty-five dollars, of which twenty dollars went to defendant and the remainder to plaintiff.

The plaintiff testified that he considered the machines his “ after he signed for them,” and some support is given to that opinion by the fact that on one occasion defendant sued him and entered judgment in its favor for sewing machines sold and delivered.” As early as 1885 a dispute existed between the parties, plaintiff claiming that defendant owed him $1,000 on account. He kept back $604 of money collected, claiming to hold it as an offset to his claim. Being arrested, he executed to defendant a bill of sale of eight sewing machines and other property as security for any balance that should be found due it. He was then set free and restored to the possession of his goods. But no accounting took place, and it does not appear that the bill of sale was again referred to till it was produced on the trial of this action.

In 1881 plaintiff claimed that the balance due him was as much as fifteen hundred dollars, and brought a suit to enforce his claim. It appears that in the course of that litigation a motion was made to punish defendant for contempt, and a reference to take proofs was pending. While affairs were in that position a conference was had in the office of defendant between its president, city manager and other employees, where it was resolved to eject plaintiff from his store and take and hold possession. That was done by defendant’s agents without legal authority, a policeman attending, as he expressed it, “ to prevent a breach of the peace.”

Numerous witnesses were examined. None of them testify that any claim of right was asserted on the part of defendant or its agents. After, plaintiff was ejected, which required some violence, defendant continued in possession of the store, and, as subsequently appeared, allowed the steam engines and other property to be destroyed by neglect. The plaintiff then began proceedings against Steele and Irving, agents of defendant, who expelled him from his store, which resulted in a warrant for its restoration. Before the warrant was obtained the landlord gave a lease to another agent of defendant, so that possession could not be delivered under the warrant. And various unfounded criminal charges were instituted against plaintiff by the company’s agents, and clearly at the instigation and for the benefit of the company.

The result evidently aimed at by these various proceedings was at last produced, namely, to reduce the plaintiff to such distress that he could no longer contend against the company, and to compel him to make his peace with it at its terms. When he applied to it to restore his property, saying he could resist it no longer, it required, as the only conditions, that he execute a release of his claim against the company for malicious prosecution, and of' his claim of $1,500. He consented, and the company caused a general release to be prepared, in which was inserted a particular clause and agreement not to interfere with the collection by the company of the moneys due for machines sold by plaintiff. It contained ím other special clause, and in that form it was executed by plaintiff,, whereupon defendant directed its agent in charge of the place to deliver possession to the plaintiff, which was done.

An examination then disclosed to plaintiff, what he had up to that time been ignorant of, viz., that his machinery had been damaged by neglect and by the elements, and a large part of his tools and other property, including sixteen machines, and a valuable recipe for decorating tin, removed, inflicting injuries to the amount of several thousand dollars.

Upon proof of these facts at circuit, the judge being of opinion that the claim was extinguished by the general release, directed a nonsuit, from which an appeal is brought.

There can be no question that tlie original taking was wrongful. Tlie only suggested justification was under the “ bill of sale ” executed two years before; being for certain specific articles, that clearly could give no right to take property not included therein. Nor would that justify tlie personal assault. A further answer is that it was given as security for any balance that should be found •due on an accounting which defendant afterwards refused to permit. From the time of such refusal the “ bill of sale ” could have no •effect. Moreover, the judgment against Steele and Irving, agents •of defendant, is conclusive evidence in this action that the taking was wrongful. They were'acting for the company for its benefit, and in the line of duty. The principal is bound by an adjudication •against the agent. (Castle v. Noyes, 14 N. Y., 329, 334.)

The scope of a release has been well settled. Numerous adjudications are to the effect that the general words will not be allowed to extend the operation of the particular wrords. This was held so long ago as 2 Bolle’s Abridgment (409). It is so stated in 7 Comyns’ Digest (m. p. 235); release of personal things (3, 5). Henn v. Hanson (1 Lev., 100); Lyman v. Clark (9 Mass., 235); Millar v. Craig (6 Beav., 433) are to the same effect. The rule is the same in law as in equity. If that rule be applied to the present case the release would extinguish only plaintiff’s claim to the money due on machines sold by him.

Another well-éstablished rule is that a general release will not be allowed to operate beyond the intention of the releasor.

As to matters not in contemplation, the minds of the parties have not met. (Kirby v. Taylor, 6 Johns. Ch., 252; Mumford v. Murray, 6 id., 452; Parsons v. Hughes, 9 Paige, 591.)

In Post v. Etna Insurance Company (43 Barb., 353, 371, 388) parol evidence of the previous negotiations was admitted to show what the releasor intended to cut off. It is also a well-settled rule that a release will not cut off rights of which the releasor was ignorant. Farewell v. Coker (cited in Cholmondeley v. Clinton, 2 Merivale, 354) is an ancient case in equity where a release of “ all lands under my father’s will” was held not to cut off lands to which the releasor did not know she was entitled. Lyall v. Edwards (6 H. & N., 337) was at law, and a replication that at the time of executing the release the plaintiff did not know of the grievances now sued for, was held good. Broderick v. Broderick (1 P. Williams, 240); Pusey v. Desbouvrie (3 id., 316); Ramsden v. Hylton (2 Ves., Sr. 305) ; Cholmondeley v. Clinton (2 Merivale, 333), are to the same effect.

The suggestion that to render a release inoperative the error must be “ mutual ” is discussed in Welles v. Yates (44 N. Y., 528), and shown not to apply where one party seeks to use an instrument for a purpose not intended by the maker. Such contract is declared fraudulent. The fact that defendant is a corporation does not relieve it from liability for the acts of its agents. (Morton v. Met. Life Ins. Company, 34 Hun, 366.) It was suggested at Circuit that as plaintiff; knew he had been deprived of his goods by defendant, his ignorance of the fact that they had been removed or destroyed was not important. He did not know the deprivation was permanent. He was not bound to credit defendant with any wrong-doing of which he did not know. He had a right to suppose his property would be restored to him and in good order.

It is clear that the plaintiff’s action is not barred for such injuries as he was ignorant, of at the time he signed the release. The general terms of that instrument will not be allowed to operate upon any rights of action which are not covered by the particular clause and were not mentioned in the preliminary discussion.

The judgment must be reversed and a new trial granted. The defendant is not entitled to favor and the costs of the appeal must be paid by defendant to plaintiff.

Barnard, P. J.:

This case should have gone to the jury. The defendant is a manufacturer of sewing machines. The plaintiff sold machines for the defendant. The precise nature of the arrrangement is not very clear, but whether the plaintiff was a purchaser of the machines or was merely an agent to sell them, it seems clear that the price of the machines was not payable by plaintiff to defendant until after they were sold. Kirchner hired the store and had property of his own in it. The defendant arrested the plaintiff for misappropriation of moneys collected, and the plaintiff was put in jail. The plaintiff made a bill of sale of his property in the store, or of some of it, and was released. This bill of sale was given as security for any claim which the defendant might have against the plaintiff. The plaintiff after his release from jail began suit against the defendant to recover $1,500, which he claimed to be due him. If he was right in his claim, then the plaintiff has not misappropriated the defendant’s money, for the claim he made was much larger than the amount which the defendant claimed to have been misappropriated. The plaintiff commenced proceedings to pnnisli the defendant for a contempt of court, the particulars of which do not clearly appear. The defendant then forcibly took possession of the plaintiff’s store under the bill of sale, and of all the property in it, and kept it some three months. There were other legal proceedings taken in the meanwhile. On the 27th of February, 1888, the plaintiff applied to have his property restored. The defendant agreed to give the store and contents back, upon receiving a release of the plaintiff’s claim for the $1,500, and from the action for false imprisonment pending, for there had been arrests made beside the arrest for misappropriation of money. The release drawn was a general release. There were circumstances surrounding the transaction which tended to show duress and oppression, and, also, that it was not intended to cover any right outside of certain specified claims. It did not cover a refusal to give back the property taken from the plaintiff, for that was the sole consideration of the papers, whatever was, in fact, intended to be released by it. The complaint alleges that this was not done and that certain property which was delivered back was in an injured condition.

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

■ Judgment reversed and new trial granted, costs to abide event.


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    JOHN H. VAN BRUNT and Others, Appellants, v. THE TOWN OF FLATBUSH and Others, Respondents.

      Highway through country towns — when subject to the same servitudes of drainage, eta., as a city street— sufficiency of the title of an act relating to a local improvement.

    Where a public highway commences in the heart of a city, and extends thence through the neighboring towns which have been laid out into streets under legislative authority, and contain a lai’ge population, the portion of the highway in the towns must be regarded as having the same character as a city street, and may be appropriated to any use dictated by the demands of the public.
    The extent of the servitudes to which such a highway is subject is co-extensive with the necessities of the people, including the right to build large trunk-sewers to discharge the sewage of the towns through them.

      Semble, that in a country highway, running through a rural district, the public has only a right to pass over its surface, with no right to interfere with the soil except for the reparation of the road itself.
    It is not necessary to specify, in the title of an act relating to a local improvement, the different steps to he taken and measures to he adopted in making the improvement.
    Appeal by tbe plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 8th day of December, 1890, dismissing the plaintiffs’ complaint.
    The action was brought to enjoin the defendants from constructing a sewer through what was known as Flatbush avenue, in the town of Flatlands, by the owners of certain premises abutting upon said avenue. The defendants, other than the Town of Flatbush, were commissioners created under an act of the legislature (chap. 161 of the Laws of 1889), and were by that act empowered and directed to devise, establish and construct a system of sewers for said town.

      Treadwell Olevelcmd and William V. Howe, for the appellants.

      William J. Qcmjnor, for the respondents.
   Dykman, J.:

It is the object of this action to obtain a judgment which sba.1T restrain the construction of a sewer in Flatbush avenue where it, runs through the lands of the plaintiffs. The defendants, other than the town, are the street and sewer commissioners of the town of Flatbush, and the plaintiffs are the owners in fee of the land described in the complaint over which Flatbush avenue is constructed, but such ownership is subject and subordinate to the rights of the public in the avenue, and those rights embrace all the purposes to which the avenue may be lawfully appropriated.

The powers and duties of the street and sewer commissioners are specified in chapter 161 of the Laws of 1889, under which they were created. That law contemplated many improvements in the town of Flatbush through the instrumentality of the commissioners, and, among other things, they were authorized and required to devise and make a plan for building one or more trunk-sewers to take and discharge the sewage matter in such town into the tide-water.

And for the purpose of building sewers in the town to connect with the trunk-sewer or sewers, they may divide the town into as many districts as they may see fit, and devise a plan for building the sewers in the streets of each district, so as to connect with such trunk-sewer or sewers, and they were required to make and file maps showing such plans, and all sewers provided for other than trunk-sewers and surface-drains are to be designated as lateral sewers. (Sec. 4.)

“And for the purpose of building such trunk and lateral sewers they shall have the right to enter into or upon any street required for such sewers, and there to build and maintain the same. The right hereby given shall be deemed to include the right to acquire the necessary lands and rights to build the trunk and lateral sewers and branches in the said town of Flatbush, and also to build so much of said trunk-sewer as may be necessary in the town of Flat-lands.” (Sec. 5.)

By the provisions of the statute thus extracted the commissioners were clothed with power to design and construct a trunk-sewer in Flatbush avenue through the towns of Flatbush and Flatlands to the ocean, and thus they possessed the power and authority to do what they have done in that direction, and also what they propose to do, so long as they conduct tlieir operations with proper care and prudence.

It is the claim of the plaintiffs in this action, however, that the ■construction of the sewer is the imposition of an,additional burden upon their ultimate fee in the land, for which they are entitled to compensation, and, therefore, the building of the sewer through their land is unlawful.

The tenability of the position assumed by the plaintiffs depends upon the character of the avenue. If it be a country highway through a rural district, -then the jrablic have in it only a right to pass over its surface, with no right to interfere with the soil except for the reparation of the road itself. Such limitation upon the public right in a country road is based upon the theory of an appropriation of the land for a particular purpose, with no anticipation of any use except for public travel, because the necessities of the public required no other, and none further was deemed to have been anticipated when the land was acquired for public use.

Far other and different, however, are the rights of the public in a street in a populous community. Such a street may be appropriated to any use dictated by tlie demands of the public, and the extent of the servitude is measured and limited by the necessities of the people. Their rights are co-extensive with their wants.

In respect to the character of Flatbush avenue, we think it must be deemed a city street throughout its whole extent. It commences in the heart of the city of Brooklyn and extends through the towns of Flatbush and Flatlands to the ocean, and it is not divested of its original character when it enters those towns. Their proximity to a large city and their lax-ge population deprives thexn of the character of a x-ux-al community, and the time has gone by when they can lay claim to rurality. All the towns ixi Kings county have been laid out in stx-eets under legislative authority. The city of Brooklyn is spreading oxxt towards the outlying towns. The town of Flatlands is on the confines of a large city and contains a lax-ge population, and the time has coxxxe when its people x-equire much greater x-ights ixx its streets than a mere x-ight of passage over their surface. It xrxust be borixe in mind that the portion of Flatbush avenue which is in the town of Flatlands was constructed under chapter 822 of the Laws of 1872, which made ample provision fox-compensation for damages resulting to any land-owner whose property was taken, and we must now assuxne'tkat compensation was made for all the burdens which might be lawfully inxposed upon the land. Moreover, in the vex-y law under which these commissioners are conducting their operations, provision is made for the acquisition of the x-ight to construct this sewer in arxy streets or other laxxds not belonging to the public; axxd as Flatbush avenxxe does belong to the public, it seems to follow that no further right is necessax-y to justify the construction of the sewer therein. Upon this branch of the case our conclusion is that the sewer may be lawfxxlly constructed through the lands of the plaintiffs without further compensation.

In our view the act is not violative of the Constitution. Its title is, “ An act in relation to local impx-ovements iix the town of Flat-bush and the acquisition of the rights of a plaixk-road company in said town,” axxd tlxex-e is no prevision in the law which does not relate either to local improvements in the town or the acquisition of the plank-road. If it became necessary to extend the sewer beyond the bounds of the town to consummate the improvemeixt, the wox-k relates to local improvement. It was not necessary to' specify tbe different steps to be taken and tbe different measures to be adopted in making tbe local improvement. They were but different portions of one general subject, which was expressed in the title of the act. We think the title sufficiently broad to answer the requirements of the Constitution. (Brewster v. Syracuse, 19 N. Y., 116.)

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.


author: Pratt, J.:

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    DAVID PARRY, Respondent, v. THE CITIZENS’ WATERWORKS COMPANY, Appellant.

      Hiparían rights — right of an upper riparian owner, a water-worlcs compamy, to-divert the waters of a brook.

    In an action brought to restrain a water-works company, organized under chapter 737 of the Laws of 1873, from diverting the water' of a brook which ran. through the land of the plaintiff, by the construction of a reservoir above plaintiff’s land, from which the water was to be carried in pipes to supply the owners or occupants of lands which did not abut upon the brook, the defendant claimed the right, as a riparian owner upon the brook, to divert therefrom the-surplus water not then required by the plaintiff.

      Held, that the right of the plaintiff to the water was not limited by the use to which he has thus far devoted the waters of the brook.
    That while the defendant might lawfully use the water of the brook, to a reasonable extent, on its own land abutting upon the stream, for irrigation or domestic or even manufacturing purposes, it could not make use of its own land simply for the purpose of storing these waters and leading them away to the land of others who could not otherwise obtain them at all.

      Semble, that the mere storage of water in a reservoir by means of a dam is not. per se an unreasonable use of the water of a stream by an upper riparian owner; but a diversion of the water for the permanent establishment of a business, and to create a reasonable water supply for a “ thickly-settled hamlet,” is a violation of the rights of abutting owners upon the stream below the point at which such, diversion takes place.
    Appeal by the defendant, the Citizens’ 'Water-Works Company, from an order of the Supreme Court, entered in the office of the clerk of the county of Orange on August 16, 1890, enjoining the defendant, the Citizens’ Water-Works Company, from diverting the waters of a certain stream of water running over and through the lands of plaintiff, and known as the Buttermilk Falls brook, from their natural course and channel through the pipes laid by them from their dam, and from laying and connecting any other pipes with their various dams for the purpose of diverting the waters of said brook.

      Galvin Frost and C. F. Traoy, for the appellant.

      A. S. F. Seeger, for the respondent.
   Pratt, J.:

This is an appeal by defendant from an order made at the Dutchess .Special Term, August 9,1890, after a hearing on the merits, restraining defendant, during the pendency of the action, from using any of the water of Buttermilk Falls brook, in the town of Highlands, in •Orange county, for the purpose of supplying water to the village of Highland Falls, on the ground that such use would be a diversion. The defendant is a water-works company organized under chapter 737 of the Laws of 1873.

Section 3 of that act provides that these companies shall have power to take and hold real estate for the purpose of their corporation, and may have, hold and occupy any of the waters of this State; provided, however, that nothing herein contained shall be deemed to infringe upon any private right which shall not have been the subject of an agreement and lease or purchase by said corporation,” etc.

The defendant does not justify its taking of the water upon the ground of any agreement, lease or purchase from the plaintiff, who is a lower riparian owner on this brook. The plan of defendant’s works is to store the water of this brook in reservoirs above plaintiff’s land, and thence conduct it through its pipes to supply the owners ■or occupants of lands which do not abut upon the brook, and to discharge a part thereof into the brook below plaintiff’s land, and a part thereof is not to be returned to the brook at all. It is, therefore, ■obvious that a part of the waters of the brook are to be diverted ■from following in their natural course through plaintiff’s property. In the absence of any agreement, lease or purchase, defendant’s claim of right to such use of the water must rest solely on the ground that it does not “ infringe upon any private right of the plaintiff; ” and such we understand to be the defendants’ contention, i. e., that being a riparian owner upon this brook and its tributaries at points above plaintiff’s lands, it has the right thus to divert some of its waters and run a part thereof wholly around, and the other part wholly away from, the plaintiff’s land. The theory seems to be that it may do this with what it calls the surplus. But what is the surplus % Obviously it does not depend upon the present use to which plaintiff has devoted the water of this brook. Non constat his place may be rendered far more valuable than it is at present esteemed, by uses of these waters to their utmost capacity; certainly no man has the right to deprive him of these advantages by diverting them or any material part thereof from his premises.

It should be noted, in the first place, that defendant does not propose to utilize the water thus taken upon any land of which it is a riparian owner. It proposes to make use of. its own lands only for the purpose of storing these waters and leading them away to the lands of others, there to be sold to others who could not otherwise obtain them at all. Hence it cannot be said that the water thus diverted is to be used upon or for the benefit of defendant’s land. Indeed, it may well be doubted if defendant would have any power to make use of the water, even on its own lands, except for fairly incidental pmposes.

This view of the case, as it seems to us, fully justified the learned judge at Special Term in holding that the proposed use of the water was a diversion within the legal meaning of that term as applied to riparian rights. We think this view fully sustained by the reasoning of Bankorth, J., in Garwood v. New York Central and Hudson River Railroad Company (83 N. Y., 405, 406).

The defendant, if a natural person, might use the water of this stream to a reasonable extent on its own land abirtting upon the stream, for irrigation, or domestic, or even manufacturing, purposes. And the fact that some of it was thus permanently lost to the stream would not be regarded as a diversion, provided it was not material to the lower riparian owner. But how can such diversion be held immaterial in this case, where it is plainly regarded by this company and the town authorities of this village as sufficient for the permanent establishment of a business, and a reasonable water supply for a “ thickly settled liamlet.” More than this, the waters of this stream in their natural flow seem to have been hitherto sufficient to carry away the drainage, which naturally settled into it from houses, stables, etc., when, as it now seems, the accumulations from this cause are becoming offensive. Again, the waters of the brook seem to have been hitherto sufficient to enable, plaintiff to run a hydraulic ram by which he supplied his own premises with water from the brook; and defendant’s affidavit indicates that the ram has ceased to force water by reason of insufficient supply.. It is not to the purpose to say that the plaintiff’s dam is insufficient. Such an appliance may be and often is made to work successfully by merely turning the nose of a supply pipe into a pool in a brook without any dam at ail. Defendant certainly has no right to predicate any property in these waters upon the fact that plaintiff has built a dam to aid in operating his ram. It should be observed that the mere storage of water in reservoirs by means of dams is not, per se, an unreasonable use of the water of a stream by an upper riparian owner. Indeed, it would require a very strong case of such use of water to constitute diversion, even though there might be some temporary obstruction while- the reservoir was being filled. The trouble here is not from that cause. It lies rather in the tendency of the defendant’s use of the waters of this stream, which have been already felt by plaintiff. Hence, since the use of the water by the defendant is not within the limitations of its riparian proprietor’s right, it follows that that use is a wrong. It is a wrong which lias already resulted in inconvenience and some injury to plaintiff. The success of defendant’s business scheme will inevitably increase that injury. .Its extent is something which we cannot foresee. The chief trouble is that it cannot be measured with accuracy either by hindsight or foresight. It will be a continuing injury; hence a multiplicity of suits will result before redress can be'given.

It is, therefore, plain upon the points submitted that plaintiff’s bill was properly filed for preventive relief, and hence that the injunction was justified, at least until the court, by means of a trial, could more carefully inquire into the extent of the in jury, and either permanently restrain the diversion or prescribe some conditions which will protect plaintiff against future injury.

The order appealed from should, therefore, be affirmed, with costs and disbursements of this appeal to the plaintiff.

Dykman, J., concurred ; Barnard, P. J\, not sitting.

Order granting injunction affirmed, with costs and disbursements.


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    In the Matter of the Estate of ADOLPHUS F. OCKERSHAUSEN, Deceased. GEORGE P. OCKERSHAUSEN, Executor, etc., Appellant, v. HENRY A. OCKERSHAUSEN, Respondent.

      Executor indebted to the estate — when not liable to be punished for contempt.

    An executor who is indebted to the estate of his testator, upon a claim not resting in tort, and who is insolvent and unable to pay the amount in which he has been adjudged to be thus indebted, is not liable to punishment, as for a contempt, because of his not paying it.
    Appeal by George P. Ockershausen from an order, entered in the office of the clerk of the county of Richmond, in the above-entitled proceeding, adjudging him to be guilty of contempt of court and fining him the sum of $812.10.
    The proceeding was instituted for the purpose of punishing George P. Ockershausen, who was the executor and testamentary trustee under the last will and testament of Adolphus F. Ockershausen, deceased, because of his inability to pay the sum of $812.10, in which amount he was adjudged to be indebted to one Henry A. Ockershausen for a loss incurred by said executor, as surviving • partner of the firm of Ockershausen & Bros., on the sale of real estate belonging to said firm, and which sum he was ordered by the surrogate of the county of Richmond to pay to said Henry A. Ockershausen, as the amount due to said Henry A. Ockershausen from said executor, for his proportion of the loss on real estate ' incurred by said executor as surviving partner of the firm of Ockershausen & Bros.

      Charles P. Buchley, for the appellant.

      William M. Mullen, for the respondent.
   Pratt, J.:

The moving papers do not show a demand upon the executor for payment, which has been held to be necessary before a proceeding in contempt can be maintained. (McComb v. Weaver, 11 Hun, 271.) There is no allegation showing absence or concealment of the debtor, or any other reason why a demand would be impossible or difficult. We see no reason why the general rule requiring a demand should be departed from in this case.

The indebtedness in the present case has none of the features of a tort. It is not for money which the executor has received and for which he fails to account. It is for a debt allowed to be owing from him to the estate. If the debt is due, and the set-off claimed •does not exist, it might support a decree against him upon which an execution could issue.

After the return of the execution, if defendant had money in his hands which, after an order duly made, he unjustly refused to apply upon the debt, an order punishing him for contempt maybe made. That is not this proceeding. The papers show that appellant is insolvent and unable to pay the amount decreed. Where the debt is not fiduciary in its origin, does not rest in tort, inability to pay the sum demanded is an answer to the motion to punish for contempt in not paying.

Order reversed, with costs of both courts to appellant.

' Barnard, P. J., and Dykman, J., concurred.

Decree of surrogate reversed, with costs in Surrogate’s Court and in this court.


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    In the Matter of the Application of the CITIZENS’ WATER-WORKS COMPANY, Appellant, v. DAVID PARRY and MARY PARRY, Respondents.

      Water - Works Oompamy — when it may acquire the title to land by the exercise of the right of eminent domain.

    A company, incorporated for the purpose of furnishing pure and wholesome water, in the absence of the consent of the town or village in which it is located, required by chapter 737 of the Laws of 1873, and of evidence that a contract has been made for the furnishing of hydrants for public sanitary purposes, cannot maintain proceedings for the condemnation of land for the purposes of acquiring the title thereto under the exercise of the right of eminent domain.

      Semble, that where the water is furnished for public purposes, as in the case of its supply to public hydrants, and must be paid for by taxation, a contract for the supply of the water having been entered into between the company and the town or village, the case is different and condemnation proceedings may be maintained for the acquirement of the necessary land.
    Appeal by tbe Citizens’Water-Works Company from a judgment, entered in tbe office of tbe clerk of tbe county of Orange on tbe 1st day of October, 1890, after a trial before tbe court at tbe Dutchess County Special Term, at wbicb it was adjudged tbat tbe plaintiff bad no right to tbe appointment of a commission to condemn certain land sought to be acquired by it belonging to tbe defendants.
    • Tbe Citizens’ Water-Works Company was a corporation created and organized under chapter 737 of tbe Laws of 1873; and tbe acts amendatory thereof, for the purpose of providing water for tbe use of tbe town of Highlands and its inhabitants, and instituted this proceeding for tbe condemnation of certain property rights alleged to be necessary in tbe conduct of its business.

      Galvin Frost and G. E. Traoy, for tbe appellant.

      A. II. F. Seeger, for tbe respondents.
   Pratt, J.:

The petition sets out that the plaintiff- is a duly incorporated company for tbe purpose of furnishing pure and wholesome water to tbe town of Highlands, in Orange county. That it requires the land described in tbe petition for tbe purposes of tbe corporation, and that they cannot agree with the owners upon a price to be paid therefor. There are other allegations not necessary to be mentioned,, bnt there is no allegation that the consent of the town or village was obtained before the filing of the articles of incorporation, as-required by chapter 737 of the Laws of 1873, and no allegation that they have ever entered into a contract with the authorities of any town or village to furnish water for hydrants for sanitary purposes.

The appellant claims that by the admission of the defendants that the appellant was duly incorporated, it must be presumed that the consent required under the act of 1873 was given, and that a contract, express or implied, was entered into as required by the statute, to wit, chapter 415 of Laws of 1876, and chapters 422 and 423 of Laws of 1885, but the question whether a contract had been made was pirt in issue by the defendants, and it was conceded by the petitioner that no contract had been made.

There has been so much legislation upon this subject and the acts, have been so inartificially drawn that it is difficult to determine the legislative intent. It may well be that the legislature intended to make a distinction between towns and villages and the inhabitants thereof, and between furnishing pure and wholesome water for the inhabitants and furnishing water for hydrants and sanitary purposes-under a contract to be made with the authorities of such towns and villages.

. Under the act of 1873, with the consent of the authorities, a corporation could be formed for the purpose of furnishing pure and wholesome water to individual inhabitants, but such corporation could not condemn land. Merely furnishing water to inhabitants was, in its nature, a private enterprise; but when it comes to the question of furnishing water for public purposes like hydrants, which must be paid for by taxation, the case is different, and before condemnation proceedings can be instituted there must be a contract with the authorities.

It is to be noted that the first act that authorizes such a corporation to acquire land by condemnation was passed in 1876 (chap. 415); that act expressly provides that there must be such a contract, and the same requirement is contained in chapter 422 of Laws of 1885. I cannot see that the decision in the case of the Stamford Water Company v. Stanley (103 N. Y., 650), helps the appellant out of the difficulty.

It does not appear from the report of this case that the plaintiff had not made a contract with the authorities of the village, and besides, the question there decided was that the act authorizing condemnation proceedings was constitutional. I can find nothing in this case that authorizes a presumption that any contract has been entered into with the town authorities, as the contrary is proved. The respondent had the right to insist, before his lands were taken, that the statutes in that regard should be strictly complied with.

The fact that in every one of the statutes that confer upon such ■corporations the right to condemn property, there is a clause making a contract with public authorities a condition precedent to the exercise of such right, constrains me to hold that the legislature intended to make a distinction between furnishing water to individuals and to the village and town for public use, which was to be paid for by taxation.

If these views are correct, the judgment must be affirmed, with ■costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.