Volume 14 — E.H. Smith

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 14, 1898, affirming a judgment in favor of defendant entered upon a dismissal of the complaint upon the merits at a Trial Term.</p> <p>This action was brought to recover moneys alleged to be due under a contract between the plaintiff and defendant, and also to recover for the performance of work in connection therewith at an increased cost.</p> <p>In October, 1894, the defendant entered into a contract with one Murphy by which the latter agreed to erect a court house and prison for the use of certain police and district courts in the city of Hew York. Before that contract could be fully performed, it became necessary to do additional work in order to properly complete the building, and accordingly the defendant caused a plan and specifications for the same to be prepared by its engineer, advertised for proposals, and the supplementary contract was awarded to the plaintiff as the lowest bidder. By this contract the plaintiff agreed to furnish “ all the materials and labor for the purpose and make water tight the boiler room, coal room, cellar, etc., of the court, house and prison * * * in the manner and under the conditions prescribed and set forth in the annexed specifications, which are hereby made part of this contract.” It was agreed that the commissioner of public works might appoint an inspector to inspect the materials furnished and the work done under the agreement and to see that the same corresponded with the specifications and the terms of the contract. The plaintiff agreed to forthwith remove all materials “ whether worked or unworked, which the said foreman or inspector ” should “ adjudge unsound, improper or not corresponding with the said specifications and the terms of this contract, and will within a reasonable time furnish proper materials in lieu thereof; and in case any work shall be condemned by the said foreman or inspector as defective or improperly' done, such defective work will be remedied as he shall direct; and if said contractor refuse or neglect to remove such materials and furnish proper materials in lieu thereof, or remove such defective work as aforesaid, said commissioner may proceed to remove said materials or remove said work and complete the same in the proper manner at said contractor’s expense.”</p> <p>The cellar floor was twelve feet below the curb line and the floor of the boiler room was about twenty-six feet below, so that owing to the depth and to the probability that the floor was below tide level, it wa.s expected that in this room there would be water pressure from below. The specifications required the contractor to place in the boiler room a four-inch layer of Portland cement concrete, made of specified materials mixed in designated proportions, and to place over the floors and up the sides of the walls to a certain height “ a water-proof lining, composed of six layers of roofing felt, solidly cemented together and coated with hot asphaltic cement.”</p> <p>“ In order to protect the iron columns in the cellar * * * this water-proof lining ” was to be carried “ up around them seven feet above the finished floor,” and “ three-sixteenth-inch boiler iron sleeves four inches larger than the columns ” were to be placed outside the water proofing, and the space between the iron and water proofing filled with Portland cement mortar. Over the four-inch floor twelve inches of Portland cement was to he placed, “inclosing a sufficient.framing of twelve-inch steel beams, each weighing forty pounds per root, to resist the upward pressure of the water.” The top finish was to be made of “ one course of Haverstraw brick, edged and grouted, * * * with mortar formed of one half Portland cement and one-half clean, sharp sand.”</p> <p>For the protection of the water proofing on the walls other brick walls were to be constructed, “ laid in Portland cement mortar, the first thirty inches, sixteen inches thick; the next three feet, twelve inches thick; the next three feet, eight inches thick, and the remainder, to within eighteen inches of the iron beams, four inches thick.” The specifications further stated that “ the balance of the cellar is supposed to be above water pressure; and if such ” were “ found to be the case ” a less expensive method of construction was authorized as to that part of the work.</p> <p>The materials were to be subject “ to inspection and approval of any inspector appointed by the department of public works and the architect and engineer in charge, and any work or material deemed unsatisfactory by any or all of them will be removed and replaced with such as will meet with their approval.”</p> <p>The specifications also contained the following: “ The entire cellar, areas, etc., are to be protected after the work is done, in such manner that the other mechanics will not injure them ; but if such injury should occur the work must be made good by the contractor, and at the entire completion of the building all of the work must be gone over by the contractor and turned over to the city by him in perfect order and guaranteed absolutely water and damp proof for five years from the date of the acceptance of the work. Any dampness or water breakage within that time must be made good by the contractor without any cost or expense to the city.”</p> <p>The right was reserved to the commissioner “ to alter the specifications in a manner not materially affecting their substance, nor increasing the amount to be paid, * * * in order to more fully carry out the work contemplated.”</p> <p>Upon performance of .the contract, in accordance with the specifications, the superintendent ivas to give the contractor a certificate to that effect as a condition precedent to his right to receive the contract price of $8,366.</p> <p>. The work was done under the superintendence of the engineer who drew the specifications and the superintendent of public works, both of whom were officers of the defendant. An inspector was also appointed, who examined the work every day as it progressed and passed on the materials that were used. No objection was ever made by any representative of the city to the method of doing the work or to the materials used, and no request was made to remove any of the materials or to do any part of the work in a different manner. Evidence was given tending to show that every requirement of the plans and specifications as to materials furnished and work d-one had been literally complied with, except that more work was done and more materials used in some places than the contract called for.</p> <p>When the plaintiff commenced performance of the contract there was an ejector or automatic pump in the boiler room, which had been placed there by Mr. Murphy, the contractor who erected the building. Upon the completion of the work by the plaintiff this ejector, which had been used by him to pump out the.water from the cellar, was removed from the floor, and on the 11th of November, 1895, a week after the completion of the work, the cellar was found dry and in good' condition. Thereupon the plaintiff demanded of the superintendent and architect the certificate necessary to obtain payment for performance of the contract, but it was not given him. About the 15th of November there was a heavy rain, and the cellar of the boiler room, which was outside of the main building, had not then been covered with a roof by the general contractor. The conductors to carry the water from the roof of the building had not been completed, and the result was that the 'rain from the entire building poured through the conductors into the boiler room. Much water thus accumulated in the cellar and remained there until the brick walls became thoroughly saturated, and ice was formed to the depth of two or three feet on the floor. On the 11th of December the plaintiff was requested by the architect to pump the water out, so that the cellar could be tested. Permission was thereupon asked by the plaintiff to replace the old Murphy ejector in order to remove the water, and a permit was given accordingly. The ejector was put in, but after .the water had been partly pumped out it did not work well, and was replaced by a new one with the knowledge of the inspector. After the removal of the water the walls and floors were dried by stoves; the places where any dampness appeared were pointed up and the whole surface covered with Portland cement. There was evidence tending to show that the cellar was then left “ in a first-class, dry condition.” Soon, however, there was dampness in the boiler room, but the cause did not appear. Water was seen to ooze through by two jackets around columns in that room early in February, but after the 24th of February it was absolutely dry. The ejector, however, which was operated by Croton water, was left in operation by the plaintiff. It was not in sight and was controlled by a faucet, so that it could be set in motion or kept quiet, as was desired.</p> <p>The certificate was still refused, and the plaintiff submitted a plan for additional work in the boiler room, which it claimed, although not required by the specifications, would put it in an absolutely water-proof condition, but the defendant did not permit such work to be done. The defendant finally took possession of the building, put in its boilers, coal bins, electric apparatus, etc., and has used the premises, including the work done by the plaintiff, since the summer of 1896. The cellar and coal room, which have a surface of 7,100 square feet, are admitted to be water proof, but the boiler room, with a surface of 1,900 square feet, is not, as claimed by defendant, entirely water proof, but it is claimed by plaintiff that owing to the water pressure from below, it cannot be made absolutely water proof without adopting a new method of construction. Substantially the only place where any leakage is apparent when the ejector is not at work is around the jackets.</p> <p>The evidence tended to show that the materials and construction complied with the contract and specifications in every respect. The cellar is now perfectly dry, but the ejector is there, and there was evidence that the cellar would not be'dry if the ejector were removed. There was some evidence tending to show that a part of the materials required by the specifications were of an improper pattern, and the inference was permissible that a water-proof condition could not be produced by following the specifications.</p> <p>At the close of the evidence the complaint was dismissed, although the plaintiff asked to go to the jury upon the question of substantial performance, waiver of the conditions of the contract, and on the whole case, but the request was denied and the plaintiff excepted. After affirmance by the Appellate Division the plaintiff appealed to this court.</p> <p>The defendant warranted that the plans and specifications were suitable and efficient for the purpose for which they were designed, and the plaintiff having contracted to do the work according to those plans and specifications, and having done its work in exact accordance therewith, is entitled to recover the full contract price, whether or not the purpose designed was accomplished; the plaintiff was not a guarantor of the efficiency of the plans and specifications. (Hoe v. Sanborn, 2l N. Y. 552; Cunningham v. Hall, 86 Mass. 268; Bancroft v. S. F. T. Co., 120 Cal. 228 ; Bentley v. State, 73 Wis. 416 ; Byron v. Mayor, etc., 22 J. & S. 411; Doll v. Noble, 116 N. Y. 230 ; City of Brooklyn v. B. C. R. R. Co., 47 N. Y. 475; Smith v. C. C. O. Co., 86 Fed. Rep. 359 ; Weld v. Goldberg, 65 Fed. Rep. 466 ; Murphy v. L. Nat. Bank, 184 Penn. St. 208.) The plaintiff having performed its work in good faith according to the plans and specifications, the demand for and unreasonable refusal of the certificate called for under the contract obviated the necessity of its production, and the plaintiff was entitled to recover without it. (B. Nat. Bank v. Mayor, etc., 63 N. Y. 336; Thomas v. Flewry, 26 N. Y. 26; Nolan v. Whitney, 88 N. Y. 648; Byron v. Low, 109 N. Y. 295 ; Smith v. Alker, 102 N. Y. 87; Woodward v. Fuller, 80 N. Y. 312.) Even conceding that the obligation was upon the plaintiff to make the' cellar water tight at all events, it was error to dismiss the complaint, because the evidence showed full compliance by the plaintiff in good faith with the plans and specifications in the doing of the work, and it was entitled to the verdict of the jury on the question of substantial performance of the terms and conditions of the contract under the facts and circumstances shown in this case. (Nolan v. Whitney, 88 N. Y. 648; Woodward v. Fuller, 80 N. Y. 312; Philip v. Gallant, 62 N. Y. 256; Flaherty v. Miner, 123 N. Y. 382; Heckmann v. Pinkney, 81 N. Y. 211; Oberlies v. Bullinger, 132 N. Y. 598; Desmond Co. v. Friedman Co., 16 App. Div. 141; Murphy v. S. S. Co., 82 Hun, 158; D’ Andre v. Zimmermann, 17 Misc. Rep. 357; Monteverde v. Bd. Suprs., 78 Hun, 267.) It was error to refuse to submit the case to the jury, because the taking possession and user by the city of the completed work was of itself sufficient evidence to justify a finding by the jury that the defendant accepted the work as complete under the contract, or at least such performance of the contract as would preclude the defendant from claiming that the plaintiff had not substantially performed so as to entitle it to recover the contract price less any damages which the defendant might have suffered by reason of the lack of full performance. (Smith v. Alker, 102 N. Y. 87; Brown v. Foster, 108 N. Y. 388; O. I. Co. v. Roach, 117 N. Y. 528; Chambers v. Lancaster, 3 App. Div. 215 ; Wiles v. Provost, 6 App. Div. 1; Ellison v. Creed, 34 App. Div. 15 ; Brady v. Cassidy, 145 N. Y. 171; Parke v. F. A. T. Co., 120 N. Y. 51; Avery v. Willson, 81 N. Y. 341.) The covenant upon the part of the contractor to keep the cellar water tight for a period of five years was predicated upon the fact that it was possible to make the cellar water tight according to the plans and specifications, but even if it was a covenant to keep it water tight at all events, the performance of that covenant was not a condition precedent which would prevent recovery for the work done, but simply a condition subsequent which would entitle the defendant to damages sustained by reason of the breach. (Gilligan v. Brown, 116 Cal. 554.)</p> <p>The burden was upon the plaintiff to prove, or to make out a prima facie ease to the effect that it had completed the work in substantial accordance with the plans, specifications and conditions of the contract. The plaintiff’s testimony shows beyond possibility of doubt, that it did not complete the work in accordance with the same, either substantially or otherwise, but substituted a construction of its own for that specified in the contract. (Woodward v. Fuller, 80 N. Y. 312; Miller v. Benjamin, 142 N. Y. 613; L. 1882, ch. 410, § 64; Bonesteel v. Mayor, etc., 22 N. Y. 162; M. F. S. Co. v. Mayor, etc., 13 App. Div. 235 ; Thorn v. Mayor, etc., L. R. [1 App. Cas.] 120; La Chicotte v. R. R. & L. Co., 15 App. Div. 380; Wiley v. Athol, 150 Mass. 426; 2 Chitty on Cont. 1074; Paradine v. Jane, Aleyn, 26 ; Dauchey v. Drake, 85 N. Y. 407 ; Lake v. McElfatrick, 139 N. Y. 349.) The city did not waive performance of the contract, or completion in accordance with the specifications, nor did it accept the work in the condition in which it was delivered by the plaintiff as a performance of the contract. (L. 1882, ch. 410, § 64; Bonesteel v. Mayor, etc., 22 N. Y. 162; Stuart v. Cambridge, 125 Mass. 102; Bennecke v. C. M. L. Ins. Co., 105 U. S. 359; Balfour v. Parkinson, 84 Fed. Rep. 855 ; Sumpter v. Hedges, L. R. [1 Q. B. 1898] 673; Elliott v. Caldwell, 43 Minn. 357; Woodward v. Fuller, 80 N. Y. 312; Wildey v. School Dist., 25 Mich. 419; Crane v. Knubel, 43 How. Pr. 389 ; Reed v. Board, etc., 3 Keyes, 105.) The contract measured the rights of the parties, and the plaintiff could not vary its terms without the consent of the defendant. Ho such consent was given. (Smith v. Brady, 17 N. Y. 173; Anderson v. Petereit, 86 Hun, 600; Flannery v. Sahagian, 83 Hun, 109; United States v. Robeson, 9 Pet. 319, 327; Chu Pawn v. Irwin, 82 Hun, 607.) The complaint was rightly dismissed. (M. F. S. Co. v. Mayor, etc., 13 App. Div. 235.) That affirmance of the judgment may result in hardship to the plaintiff, is no reason why it should not be affirmed. (Donovan v. Mayor, etc., 33 N. Y. 291; Laidlaw v. Sage, 158 N. Y. 73.)</p>

Division of the Supreme Court in the first judicial department, entered May 27, 1899, affirming an order of Special Term denying a. motion for a peremptory writ of mandamus. The facts, so far as material, are stated in the opinions Chapter 184 of the Laws of 1898 applies to the city of New York,, and veterans in the employ of that municipality when the amendment was enacted are entitled to its benefits.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 17, 1899, reversing an brder of the Erie county judge awarding to the petitioners a warrant in summary proceedings for the removal of the respondents from certain premises in the city of Buffalo. The facts, so far as material, and the questions certified are stated in the opinion.

■ Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 1, 1897, upon an order reversing a judgment in favor of plaintiffs entered upon a verdict and an order denying a motion for a new trial, and dismissing the complaint. The nature of the action and the facts, so far as material, are stated in the opinions.

This action was to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in not keeping its sidewalks in a safe and proper state of repair. Upon the trial, at the close of the plaintiff’s evidence, on motion of the defendant, the court dismissed the complaint and ordered the plaintiff’s exceptions to be heard in the first instance at the Appellate Division.

<p>1. City of New York — Invalidity of Contract Made by Annexed Town after Enactment and before Taking Effect of Greater New York Charter, and Intended to Affect Territory after Merger of Town. The contract made December 17, 1897, by the town of Jamaica with the Jamaica Electric Light Company, regulating for ten years the lighting of territory that would on January 1, 1898, become a part of the city of New York under the Greater New York charter (L. 1897, ch. 378), is void for the reasons that it was not entered into in good faith by the town, but was intended to embarrass and control the greater city of New York in lighting its streets in the territory covered by the town for ten years after its execution; that under the provisions of the Greater New York charter the town of Jamaica had no power to enter into the contract; and that the legislative scheme, as contained in the Greater New York charter, discloses a public policy that was violated by the execution of the contract.</p> <p>2. Taxpayer’s Action — Status of Defendant Municipality. Quaere, whether the municipality, coming in as a defendant in a taxpayer’s action and asking affirmative relief, stands in the same position as the plaintiff himself. •</p> <p>3. Appeal — Judgment Absolute by Appellate Division on Reversal. A complaint in a taxpayer’s action, properly pleading the execution and delivery of an annexed street lighting contract, made by a town included in the Greater New York charter, subsequent to the enactment and just prior to the taking effect of the charter, and alleging that the contract is void under the charter, raises the points of good faith, power and public policy as questions of law, growing out of the contract on its face and the charter; and if the Appellate Division, in reversing the trial court, determines that the contract is void on those grounds, it is proper for it to award judgment absolute against the defeated party.</p>

The nature of the action and the facts, so far as material, are stated .in the opinion. Held: used and enjoyed by him during his life.” His right is, therefore, expressly limited to a life estate. The gift over to Abraham Snider, • upon the death of Michael G. Snider “ without issue,” was a valid bequest.

The nature of the action and facts, so far as material, are stated in the opinion. An action to recover real property cannot be maintained by a party unless plaintiff in such action or his ancestors was seized or possessed thereof within twenty years before the commencement of the action. (Code Civ. Pro. §§ 365, 375.) The law presumes every man innocent, and this legal presumption is to be regarded by the jury in every case.

<p>1. Municipal Corporations — Public Improvement — Common Council of City of Rochester Cannot Arbitrarily Set Aside Report of Commissioners of Appraisal and Have a New Appraisal. Section 179 of the charter of the city of Rochester (L. 1880, ch. 14), providing that upon the filing of the report of commissioners of appraisal in a proceeding to take private property for a public improvement, “the common council shall assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time to time, and shall confirm the said report, or may set the same aside and refer the matter to the same or to new commissioners,” implies that an investigation is to be had where the objections of persons interested are to be determined upon proof, and does not empower the common council to set aside the report and have a new commission appointed upon its own motion and without any proof or allegation other than the bare statements of one of its members and the city attorney that the award was excessive.</p> <p>2. No Inference of Arbitrary Right to Successive Appraisals. It is not inferable that the legislature intended to authorize the common council to arbitrarily set aside the report of a commission and have a new commission appointed because it or some officer of the city might assert that the compensation was too great, or to confer upon it the right to have as many successive appraisals in the same proceeding as it thought advantageous to the city, and thus compel the property owner to defend as many proceedings for appraisal as it saw fit to order.</p> <p>3. No Adequate Remedy at Law against Unauthorized Reappraisal. The fact that the charter (§ 183) gives a right of appeal to the Supreme Court to an)r person aggrieved by the report of the commission of appraisal, after its confirmation, does not constitute such an adequate remedy at law as prevents a property owner from invoking the aid of equity to secure his just rights by enjoining proceedings by the city for a new appraisal on the unauthorized setting aside of a report of commissioners of appraisal by the common council.</p>

The nature of the action ana the facts, so far as material, are stated in the opinion. Negligence in not duly collecting a check was the gravamen of this action, and the burden was on plaintiff to establish a collection agreement, negligence and the resulting damages. (S. & R. on Neg. chap. 30; Kirkham v. Bank of America, 26 App. Div. 110; First Nat. Bank v. F. Nat.

the third judicial department, entered May 4, 1898, which reversed a judgment of the Court of Claims of the state of New York awarding to the appellant the sum of $7,500. This amount was for damages which he claims’ to have sustained by reason of his conviction and imprisonment for the crime of burglary, for which offense he was subsequently pardoned. The amount of the claim as presented was $138,976.54.

<p>1. Appeal — Presumption as to Pacts. When, on appeal from a reversal hy the Appellate Division of a judgment in an action tried by the court, it appears that the decision of the trial court did not separately state the facts found, and the decision of the Appellate Division does not state that the reversal was upon a question of fact, it must be presumed that all the facts warranted by the evidence and necessary to support the judgment were found by the trial court, and that the reversal* by the Appellate Division was based wholly upon errors of law, the facts standing approved by that court.</p> <p>2. Adirondack Park — Forest Preserve — Acquisition op Land by State to Exclusion of Railroad. Where the special condemnation proceedings prescribed hy the Adirondack Park Act of 1897 (Oh. 220), instituted, under that act, hy the forest preserve board, against lands of a private owner within the territory of the Adirondack park, were fully completed, by service of the certificate of condemnation on the owner, before the Adirondack Railway Company, which had previously filed a map and profile for an extension of its road through the same lands, commenced condemnation proceedings on its part, the title to the strip of land designated for the route of the railroad passed to the state at the moment of the completion of its condemnation proceedings, the land then became a part of the forest preserve, and thereupon the provision of the Constitution (Art. 7, § 7), that lands constituting the forest preserve shall not he “taken by any corporation, public or private,” intervened against the railway company, the act of 1897 being a valid and binding law.</p> <p>8. Eminent Domain — Direct Exercise of Right by State — Constitutionality of Adirondack Park Act — Due Process of Law — Compensation. The Adirondack Park Act, which provides that the forest preserve board may take possession of any land within the territory of the Adirondack park which it deems advisable for the interests of the state, and that such land shall he acquired by the making of a certificate of condemnation hy the board, to be followed by payment to the owner, with a provision for a hearing in the Court of Claims as to the amount of compensation, satisfies the constitutional requirements of due process of law and compensation in the taking of property.</p> <p>4. No Lien Created, as against State, by Filing Map of Proposed Railroad. It seems, that no lien, or any right in the nature of a lien, upon private property, can be created, as against the state, by the simple filing of a map and service of notice upon occupants, by a corporation organized to construct a railroad; but if it be assumed that a lien is so acquired, it is a lien created by statute, which can be abolished by statute, without compensation, before any rights under it have become vested, and such an abolition is effected by a taking of the property by the state under the Adirondack Park Act, which provides for compensation to the landowner only.</p> <p>5. No Compensation for Taking Paper Railroad Route. There is no property in a naked railroad route, existing on paper only, which the state is obliged to pay for when it needs the land covered by that route for a great public improvement, and its officers are authorized to act by appropriate legislation.</p> <p>6. Public Use. The appropriation of land for the Adirondack park is for a public use.</p> <p>7.. Exclusion of Railroads. The command of the Constitution, that the lands of the forest preserve cannot be “taken by any corporation, public or private,” shows an unmistakable intention to keep railroads out of the Adirondack park.</p>

<p>Appeal from a judgment of the Appellate Division of the ■Supreme Court in the second judicial department, entered upon an order made April 26, 1898, affirming a judgment in favor of plaintiff entered upon a decision of the court'on trial at Special Term.</p> <p>This action was brought to restrain the defendant from maintaining, - and to compel him to remove, a bridge constructed by him over the waters of the Great South Bay, near the village of Westhampton Beach, Long Island.</p> <p>The facts, so far as material, are stated in the opinion</p> <p>The town of Southampton under the Andros and Dongan royal charters had lawful power to authorize the construction of the bridge. (Town of Southampton v. M. B. O. Co., 116 N. Y. 1; Lowndes v. Huntington, 153 U. S. 1; Brookhaven v. Strong, 60 N. Y. 56; Robins v. Ackerly, 91 N. Y. 98; Hand v. Newton, 92 N. Y. 88; Mayor of N. Y. v. Hart, 95 N. Y. 450; Matter of Sterling, 9 Misc. Rep. 226; Story on Const. 1, 136 ; Angell on Watercourses [5th ed.], § 543; Ex parte Jennings, 6 Cow. 518; People v. Tibbetts, 19 N. Y. 523; Hooker v. Cummings, 20 Johns. 90.) The waters in question over which the defendant’s bridge was constructed are not “ navigable waters,” within the meaning of the law. (16 Am. & Eng. Ency. of Law, 236, 241; Israel v. M. R. Co., 158 N. Y. 625 ; Burrows v. Whitman, 59 Mich. 279.) The state cannot cause the removal of the defendant’s bridge, as the structure is not an unreasonable obstruction to navigation. (C. B. Co. v. Paige, 83 N. Y. 178; D. & H. C. Co. v. Lawrence, 2 Hun, 163; L. 1894, ch. 317, §§ 70, 71; People v. Schermerhorn, 19 Barb. 541; Fry-tag v. Power, 1 Whart. 536.) The Special Term having found that the waters in question are “ the navigable waters of the United States ” within the meaning of the law, and the United States having assumed control and jurisdiction thereof, under the-provisions of the River and Harbor Act of September 19, 1890, it follows that the state of Hew York cannot maintain this action. (Gilman v. Philadelphia, 3 Wall. 713; State of Penn. v. W. B. Co., 13 How. [U. S.] 557; Bridge Co. v. U. S., 105 U. S. 470; People ex rel. v. Kelly, 76 N. Y. 475; 3 Wall. 713; Miller v. Mayor, etc., 13 Blatch. 469 ; South Carolina v. Georgia, 93 U. S. 4.)</p> <p>The findings of fact and conclusions of law submitted by the defendant cannot avail the appellant. (Code Civ. Pro. § 1023; Palmer v. P. Ins. Co., 22 Hun, 225.) Neither the Andros patent nor the Pongan patent conferred upon the town of Southampton sovereignty over navigable waters within the town or authority to limit or control the right of navigation therein. (Smith v. City of Rochester, 92 N. Y. 463.) The waters over which the defendant’s bridge was constructed are navigable. (Gould on Waters [2d ed.], § 86.) The courts can order the removal of defendant’s bridge as an obstruction to navigation. (Wood on Nuisances, § 478; F. P. B. Co. v. Smith, 30 N. Y. 44; Gould on Waters, § 139 ; People v. Vanderbilt, 26 N. Y. 287; 28 N. Y. 396 ; Blanchard v. W. U. T. Co., 60 N. Y. 513.) The authority of the United States over the waters of the Great South Bay or over this bridge is not exclusive. (Leon v. Galcerian, 11 Wall. 185; Schoonmaker v. Gilmore, 102 U. S. 118.)</p>

The action was brought by Mary E. Jacobs. She died after the trial, and her administrator was substituted as plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 11, 1897, affirming an interlocutory judgment in an action for partition, directing a sale of the premises described in the complaint. The facts, so far as material, and the question certified for review are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract in question is an executory contract of sale, and the title to the merchandise or produce was completely vested in Meierdiercks & Sons, upon its delivery at the Smithtown factory.

This action was brought to recover damages alleged to have been sustained by the plaintiff by the flagstones, composing the-sidewalk in front of his premises, having been broken by the piling of paving stones thereon by the defendant Baird. The facts, so far as material, are stated in the opinion.

<p>1. Appeal —• Judgment Absolute against Respondent on Reversal by Intermediate Court. To justify an intermediate court in rendering final judgment against the respondent upon the. reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial, but it must appear that he certainly cannot.</p> <p>2. Assignment of Interest in Real Estate as Security — Improper Recording — Question Whether Grantee of Subsequent Deed was a Bona Fide Purchaser — Judgment Absolute on Reversal by Appellate Division, On reversing a judgment in favor of the defendant, on determining that an assignment to the plaintiff by a third party, as security for a debt, of the assignor’s interest in certain real estate, improperly recorded as a conveyance instead of as a mortgage, was a superior lien to a claim of the defendant upon the same interest, based upon a deed subsequently executed to him by the assignor, for the reason that the defendant was not a bona fide purchaser, in that he had actual notice of the plaintiff’s assignment, it is not proper for the Appellate Division to render judgment absolute in favor of the plaintiff, where it is not certain, from the record, that the defendant cannot show on a new trial that he did not have actual notice of the plaintiff’s assignment, unless it appears, that for some other reason, based upon unchangeable facts in the case, the defendant was not a bona fide purchaser.</p> <p>3. Not a Bona Fide Purchaser. In such a case, the fact that the consideration for the defendant's deed was the satisfaction of a judgment which he had recovered against the grantor, for an existing indebtedness, and did not involve the surrender of any right or security on his part, establishes, as matter of law, that he was not a bona fide purchaser, even if he had notice of the plaintiff’s assignment, and entitles the plaintiff to judgment absolute on the reversal, by the Appellate Division, of a judgment in favor of the defendant.</p>

Y. 574. The appeal was from an order of the Appellate Division in the first department, reversing an order of the Special Term which vacated an execution against the person of the defendant, judgment debtor.

<p>1. Will — Construction — Suspension of Vesting. . If futurity is annexed to the substance of a gift, the vesting is suspended.</p> <p>2. Time of Essence of Gift. Where the gift is only found in a direction to pay at a future time, time will be deemed to be of the essence of the gift.</p> <p>3. Contingent Remainder — “Lawful Representatives.” The disclosure of an intention to make a remainder contingent and not vested, is strengthened by the presence of the words “ and to their lawful representatives,” following the designation of the remaindermen, where it is manifest that the testator used the words in the sense of “issue” and not in that of “ executors or administrators.”</p> <p>4. Partial Intestacy — Distribution op Personal Property. Intestacy exists as to everything not disposed of, or which turns out not to be disposed of by the will, whether by reason of the inability of an attempted disposition or other accident; and personal property not disposed of by the will must be distributed under the Statute of Distributions.</p> <p>5. Reversionary Interest not Disposed op by Will — Distribution among Next op Kin at Time op Death op Testator. Where a reversionary interest in personal property is not disposed of by the will, it does not' necessarily belong to those who may happen to be the testator’s next of kin at the termination of the particular estate, but, as an interest in the property undisposed of by will, it is to be distributed among those who answer to the legal definition of next of kin at the time of the death of the testator.</p> <p>6. Will Construed — Contingent Remainder. A will contained the following provision: “ From and immediately after the decease of my said wife I will and direct that as to §10,000 of the principal moneys to be invested as aforesaid, my said executors aud trustees shall stand possessed of the same in trust to apply the interest thereof to the use of my niece M. A., for and during her natural life so as she may not anticipate the same, and from and immediately after her decease, upon trust, to pay over and divide the said principal sum of §10,000 unto and among all her children, share and share alike, and to their lawful representatives forever, as tenants in common, per capita, the issue of any such child who may then be dead to take his or her deceased parent’s share.” M. A. had two children living at the time of the testator’s death, but they died before her, without issue, and she left no children at her death. Held, that the testator intended that the fund should go to the issue of the children of M. A. in case of the death of either during the existence of the life estate; that as no issue of those children were in being at the death of the testator, the remainder was contingent and not vested, for the reason that the persons to whom, or the event upon which the estate was limited to take effect, remained uncertain until the termination of the life estate. ' 7. Intestacy as to Fund through Lack op Remaindermen — Distribution among Next op Kin. Held, also, that as the children of M. A. died before the termination of the life estate created by the will, without issue, there were no persons who could take as remaindermen; that, consequently, intestacy existed as to the fund, and that the fund should he distributed, under the statute, among those who were next of kin to the testator at the time of his death.</p>

a judgment of the Appellate Division of the Supreme Court in the second judicial department, .entered July 2, 1897, which affirmed a judgment in favor of plaintiff entered upon the verdict of a jury.

<p>1. Vendee’s Election to Accept Machine Established by Retention after Discovery of Defect. The use of stone crushing machines by the vendee thereof, for the purposes of its business, for five months from their delivery, after a trial had shown that they were defective, may well be deemed to constitute a conclusive election to accept them, although the vendee would have been justified in promptly rejecting them.</p> <p>3. Action to Recover from Vendee for Machines Furnished by Sub-contractor — Right to Collect Installment of Contract Money Assigned by Contractor to Plaintiff — Immaterial Evidence as to Guaranty of Payment on Part of Vendee. On the review of a trial by the court of an action brought by the assignee for, the benefit of creditors of a sub contractor for furnishing crushing machines to a company, as part of a contract for constructing a stone crushing plant, to recover from the company the installment of the contract price stipulated to be paid on delivery of the machines, the right to collect which had been assigned by the principal contractor to the plaintiff, the admission of testimony by the sub-contractor that the president of the defendant company had told him that he would guarantee the money, is not to he deemed to have been prejudicial to the defendant, where the plaintiff’s recovery did not rest upon any guaranty by the defendant, but was allowed solely upon the ground that the contractor would have been entitled to recover the installment had he not assigned it, and that the plaintiff was entitled to recover thereon-as his assignee.</p> <p>3. Assignment of Part of an Entire Debt. A valid assignment of a part of an entire debt or obligation may he made, and can be enforced by the assignee through a suit on the equity side of the court, malting the assignor, as well as the debtor, a party.</p> <p>4. Corporation — Scope of President’s Authority. When the scope of the authority conferred by a corporation upon its president does not appear in terms, his authority may he implied from the power he was accustomed to exercise without the dissent of the company and with its acquiescence.</p> <p>. 5. Implied Authority to Consent to Division of Contractor’s Cause of Action on Contract with Corporation. The existence of power on the part of the president of a stone crushing company to consent to a division of the contractor’s cause of action upon a contract for constructing a crushing plant for the company, if the interests of the company in the matter of construction seemed to require it, and to an assignment of a portion thereof, hy the contractor to the general assignee of a sub-contractor, may be implied from a general exercise of authority by the president, with the acquiescence of the company, in relation to the construction of the plant.</p>

This action was brought by the attorney-general to enjoin the defendants from acting as officers of the alleged village of Pine Hill, and to procure a judgment that the proceedings for the… Held: whether the proposed territory shall be incorporated as a village.

Motion to prefer an appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 19,1897, modifying and, as modified, unanimously affirming a judgment in favor of plaintiff, entered upon a verdict, and an order denying a motion for a new trial in an action to recover damages for á personal injury.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 15, 1898, reversing an interlocutory judgment overruling a demurrer to the complaint entered upon a decision of the court at an Equity Term, and sustaining the demurrer.

The case agreed discloses the following facts : The plaintiff’s testator, Isaac F. Jones, died in December, 1870, seized of the premises known as Do. 331 West Twenty-second street, in the city of Dew York, and leaving him surviving his widow, a daughter (the plaintiff), and two children of a deceased son. Both the widow and the daughter were of full age, and the grandchildren, who were then minors, are now of full age.

The facts, so far as material, are stated in the opinion. By their continuous residence in the town of Newport for more than one year prior to coming to the. city of Little Falls, while wholly self-sustaining, John Sweet and family gained a settlement in the town of Newport within the provisions of the Poor Law (L. 1896, ch. 225, § 40).

The nature of the action and the facts, so far as material, are stated in the opinion. The conveyance from Henry D. Shear to his wife was founded upon a legal and sufficient consideration, was a Iona fide transfer of the legal title to the premises in suit, and cannot be set aside. The finding of the referee that it was made with intent to defraud is wholly unsupported by the facts in the case, and inconsistent with the other findings of the referee.

The nature of the action and the facts, so far as material, are stated in the opinion.

This action was brought to foreclose a purchase-money mortgage executed by the defendant Catharine McGuire to John Gannon, since deceased. The facts, so far as material, are stated in the opinion. The Appellate Division reversed the judgment upon the questions of law, and the facts as found by. the referee are conclusive upon this appeal. (Code Civ.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. A written instrument or contract will be treated in law according to its real nature and not according to its mere form. (Payne v. Gardiner, 29 N. Y. 146.) The judgment should be upheld on the ground that the evidence establishes a novation, even conceding that the notes originally represented a loan, or rested on some other proper consideration.

<p>Taxable Transfer — Trust Deed Disclosing Gift to Take Effect on Grantor’s Death. A trust deed did not constitute an absolute gift of the grantor’s property during his life, so as to exempt the transfer from taxation under the Taxable Transfer Act of 1892 (Oh. 899) as a gift intended to take effect at or after the grantor’s death, where, after the delivery of the deed to the trustee, the grantor not only was entitled at any time to revest himself with the ownership of the property, but he continued to be able to enjoy it or to manage and dispose of it as effectually as he might previously have done, by the reservation to himself of powers to alter or amend the trust by notice to the trustee, to withdraw or exchange any securities, and to control the acts of the trustee in selling or disposing of the securities, or with respect to investments.</p>

The appeal also brings up for review the order of .Special Term, affirmed by the Appellate Division, sustaining the demurrer. The nature of the action and the facts, so far as material, are stated in the opinion. The action is properly brought as an action to partition personal property. (Tinney v. Stebbins, 28 Barb. 290; Andrews v. Betts, 8 Hun, 325; Paget v. Melcher, 156 N. Y. 399.) The cardinal rule for construction is the ascertainment of the testamentary construction.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 3, 1899, reversing an order of the Special Term granting a motion… Held: as matter of law, that sureties upon a bond of indemnity to the sheriff, given before levy made or trespass committed by the sheriff, are liable for all damage, irrespective of the amount of bond, the motion was properly denied, and the ' order appealed from must be affirmed.

Motion to dismiss appeals from portions of a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 15, 1899, upon an order modifying and, as modified, affirming an order of Special Term confirming the report of a referee. The nature of the proceeding, the facts, so far as material, and the ground of the motion, are stated in the opinion. The appeal of the Manhattan. Company is not from a final order in a special proceeding.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff had a right to contract, and did contract, with reference to the existence, proximity and utility of the sewer. (Reilly v. Mayor, etc., 111 N. Y. 473 ; Metropolitan Bank v. N. F. Co., 73 Ill. App. 164; Guccione v. Scott, 21 Misc. Rep. 410 ; Gallup v. Sterling, 22 Misc.

This action was brought to recover from the defendants the sum of $1,083.18, with interest, for goods alleged to have been sold and delivered to the firm of P. Lenk & Co. The facts, so far as material, are stated in the opinion.

58. The nature of the action and the facts, so far as material, are stated in the opinion. The referee’s findings of fact are not open to review in this court, as they were based on conflicting testimony, and his decision has been affirmed by the Appellate Division. (Cook v. Whipple, 55 N. Y. 150; Quincey v. White, 63 N. Y. 370 Van Tuyl v. W. F. Ins.

The nature of the action and the facts, so far as' material, are stated in the opinion. The village was responsible for the acts of the board of water commissioners.

. This action was brought to recover damages for the wrongful conversion, by defendant, of certain securities alleged to belong to the plaintiff. The facts, so far as material, are stated in the opinion. The note signed by Dan Talmage’s Sons, being in the printed form prepared and used by the Bank of America, should, when its meaning or construction is in doubt, be interpreted most favorably to the makers. (Rickerson v. H. F. Ins.

The nature of the action and the facts, so far as material, are stated-in the opinion. The plaintiff established a cause of action against defendant, and. it was error to grant the nonsuit. (Hun v. Cary, 82 N. Y. 65; Hoyle v. P. & M. R. R. Co., 54 N. Y. 314; C. C. & I. Co. v. Sherman, 30 Barb. 553; Duncombe v. N. Y., H. & N. R. R. Co., 84 N. Y. 198; Hubbard v. Investment Co., 14 Fed.

The appeal below was heard in the first department, having been transferred from the second department. Letters testamentary upon the estate of John H. Prentice, deceased, were issued in March, 1881. The accounting, upon which the surrogate’s order or decree appealed from was made, was the third accounting of the executors. The proceeding therefor was instituted by their petition, filed May 4, 1895, and covered the period from April 1, 1893, to May 1, 1895.

Supreme Court in the fourth judicial department, entered June 7, 1898, affirming a judgment entered in Clinton county in favor of plaintiffs, upon a verdict directed by the court. The appeal below was transferred from the third. to the fourth department by reason of the disqualification of two justices of the third department. The nature of the action and the facts, so far as material, are stated in the opinion.

The accounts involved cover the period from the 14th day of August, 1894, to 14th day of August, 1895. On the 14th day of August, 1882, Jesse Hoyt, a resident of the city of Hew York, died possessed of a large estate. He left a last will and testament, dated the 26th day of June, 1882, the fourth and eleventh subdivisions of which are •particularly involved in this controversy. “ Fourth.

The nature of the action and the facts, far as material, are stated in the opinions. Ho negligence of the railroad company in caring for the right of way was established. (Clark v. Foot, 8 Johns. 421; Stuart v. Hawley, 22 Barb. 619 ; Calkins v. Barger, 44 Barb. 424; Frace v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182; Laidlaw v. Sage, 158 N. Y. 73 ; Kaplan v. N. Y. B. Co., 151 N. Y. 171; Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 358; Dwight v. G. L. Ins.

<p>1. Receiver in Supplementary Proceedings — Title to Judgment Debtor’s Life Insurance Policies. The title of a receiverin proceed-, ings supplementary to execution, to policies of insurance upon the life of the judgment debtor, payable to the debtor or his estate and owned by the debtor at the time of the appointment of the receiver, although their existence was then unknown to the latter, is superior to any right or interest in the policies, of a subsequently appointed receiver of a corporation controlled by the debtor, to whom the policies were fraudulently • assigned and who acquired no title in the policies by virtue of his appointment, although premiums thereon had been paid by his corporation, but before its insolvency and not in fraud of creditors.</p> <p>2. Receiver’s Title not Divested by Debtor's Death. The title of a receiver in supplementary proceedings to policies upon the life of the judgment debtor, payable to his estate and owned by the debtor at the time of the receiver’s appointment, is not divested or affected by the death of the debtor.</p> <p>3. Receiver’s Right in Policies not Limited to Surrender Value. The right acquired by a receiver in supplementary proceedings, in policies upon the debtor’s life, owned by the debtor, is not limited to their surrender value; and if the policies are kept in force by the insured, the receiver is entitled, on their becoming due, either by the expiration of their term or by the death of the insured, to the amount due upon them, not exceeding the amount of the judgment represented by him.</p> <p>4. Modification of Judgment by Appellate Division. Case presented where the Appellate Division was justified in modifying a judgment against a life insurance company, in an action brought by a receiver in supplementary proceedings against it and parties whom it had previously interpleaded, by providing that the insurance company should not, by reason of the order in the interpleader action and payment of money under it, be compelled to pay the amount of its policies in suit twice, without the right to recover the amount wrongfully received by the other defendants in the interpleader action.</p> <p>5. Res Adjudicata. A judgment is not conclusive in a second action unless the same question was material and at issue in a former suit of which the court had competent jurisdiction, and the subsequent action is between the same parties or their privies.</p> <p>6. Order on Petition of Receiver of Corporation as to Judgment Debtor’s Life Policies not Conclusive against Insurance Company or Receiver in Supplementary Proceedings. An order, made on the petition of the receiver of a corporation which had been controlled by a deceased intestate, settling all litigation with the widow of the deceased, directing her to deliver to such receiver policies held by her upon the life of the deceased, and directing the receiver to collect the policies and pay a portion of the proceeds to the widow, followed by a delivery of policies owned by the deceased at his death, and payable to his estate, is not conclusive as to the title to the policies and the right to their proceeds either as against the insurance company or against a receiver who had been appointed in supplementary proceedings against the insured, where neither the insurance company nor the receiver in supplementary proceedings was a party to the order, although the settlement covered thereby was submitted to the creditor on whose judgment the receiver in supplementary proceedings was appointed, and was approved by him, hut under the supposition that the policies were payable to the widow and not to the debtor’s estate.</p> <p>7. Order in Interpleader not a Bar against Insurance Company or Third Person in Action by Latter. Where the issue in an action of interpleader brought by the insurance company having a fund in its hands claimed by such corporation receiver and the widow of the insured, was as to which of the defendants should have the fund which was admitted to be due upon policies in the possession of one of them, with no issue or claim that the policies belonged to any other person, an order determining that as between the defendants one of them was entitled to the money does not constitute a bar as against the insurance company, or against a third person, such as the receiver of the insured in supplementary proceedings, in an action brought by such third person against the parties to the interpleader, in which subsequent action the question was whether the plaintiff owned the policies, and, if he did, whether the defendants • in the interpleader should refund the money which they had obtained wrongfully.</p> <p>8. Reimbursement of Insurance Company against Second Payment of Policies. Nor are such orders on the petition of the corporation receiver and in the action of interpleader a bar to the right of the court to adjudge, in the subsequent action brought by the receiver in supplementary proceedings, that the defendants who were parties to the interpleader should pay the amount wrongfully received by them to the insurance company in case it should be required to pay its policies a second time.</p>

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 11, 1899, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The motion was made upon the ground that the decision of the Appellate Division was unanimous.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 4, 1897, affirming a judgment in favor of defendants entered upon a verdict directed by the court.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 18, 1899, affirming so much of a decree of the Surrogate’s Court of Kings county as denied an application by a special guardian for an award to him out of the estate of the decedent of compensation for his services in addition to statutory costs.