Volume 157 — New York Reports

'Appeal, by permission, from an order of the Appellate Division of the Supreme Court'in the first judicial department, entered July 14, 1898, as resettled by an order made August 19, 1898, reversing an interlocutory judgment entered upon a decision of the Special Term sustaining separate demurrers to the complaint.

Appeal by Alfred Guibord and others from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 28, 1898, affirming an order made by a justice of the Supreme Court declaring certain acts of the appellants as officers of the village of Plattsburgh illegal, restraining the payment of certain claims against the village and imposing upon such officers the costs of the proceeding.

- The nature of the action and the facts, so far as material, •are stated in the opinion. The practice was proven by experts to secure more complete protection than rule 36, and the evidence ought not to have been submitted to the jury to determine if the defendant had exercised ordinary care in making rules. (Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; Kudik v. L. V. R. R. Co., 78 Hun, 492.) It should not have been submitted to the jury whether rule 36 applied.

The relator is a citizen of the state of New York and the United States, and immediately prior to his arrest, and for several years before that time, had been engaged in the city of New York in the business of selling, and offering for sale, and procuring tickets, giving, and purporting to give, the right to a passage and conveyance on vessels and railway trains.

The nature of the action and the facts, so far as material, are stated in the opinion. Upon the payment of the plaintiff’s claim in full his interest in this cause of action ceased and determined, and by the assignment of the claim to Clirehugh, and by Clirehugh’s discharge and release to certain of the defendants, including the defendants McDonald and Ottenberg, the cause of action itself was destroyed and the complaint was rightly dismissed. (Burt v. B. N. L. Ins.

This action was to set aside proceedings to mortgage certain real estate of the infant plaintiff, including the mortgage as a part of such proceeding. The mortgage was executed on behalf of the infant by his special guardian appointed in that proceeding, was payable to Gilman H. Perkins, and by him assigned to the Union Bank of Rochester. It was made to secure the smn of $25,000, and was upon the real property described in the complaint.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 1898, affirming a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material,, are stated in the opinion. The judgment is not appeal-able to this court. (Subd. 2, § 191, Code Civ. Pro., as. amended by ch. 574, L. 1898.) The judgment is appealable ■as a matter of right.

The relator is a citizen of this state and an honorably discharged soldier of the Union army, who served in the late war of the rebellion. He passed a civil service examination for the position of special agent in the excise department, was notified thereof by the civil service board, and that his name was on the eligible list for appointment.

Appeal, by permission, by the city of Hew York from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 22, 1898, affirming an order of the Special Term directing the commissioners of estimate and assessment, heretofore appointed in this proceeding, to acquire title to the lands required for the opening of One Hundred and Sixty-eighth street. The questions certified for review are as follows : “First.

<p>1. Equity — Trial of Special Issues by Jury. The trial of special issues before a jury in an equity action, in which the parties are not entitled as of right to a trial by jury, does not constitute a step in the trial of the action, but the verdict, while not conclusive upon the determination of the trial judge, is in the nature of evidence for his information.</p> <p>3. Verdict on Special Issues as Evidence on New Trial. Where the General Term orders a new trial of an equity action, in which the parties are not entitled as of right to a jury trial but in which special issues have been tried by a jury, without vacating the order settling the issues or the verdict thereon, the trial court has the right to receive in evidence upon the new trial the evidence taken before the jury and its verdict.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 11,1898, reversing an order of the surrogate of Kings county denying a motion to open a decree made on an intermediate accounting by an executor.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 14, 1898, affirming an order made by Air. Justice Lambert at the Erie Special Term, in a hearing upon an alternative writ of mandamus, determining that eight certain ballots cast at the general election in the third district of the first ward of the city of Buffalo in November, 1897, were marked for the purpose of identification, and directing that a peremptory writ of mandamus issue to the inspectors of election of such district, commanding them to convene and make a new return, excluding from such canvass said eight votes which had been counted as the law requires.</p> <p>The alternative mandamus was issued upon the petition of a candidate for alderman of the first ward of the city of Buffalo. Also upon the affidavit of two inspectors of election in the district and ward named.</p> <p>The substance of the petition is that, upon a canvass of the votes, eight ballots were objected to as marked for identification ; that the ballots were duly protested for that reason, but counted and marked by the inspectors as counted under protest, and the words “ objected to as marked for identification,” or words to that effect, placed upon the back of each of the ballots and signed by the inspectors.</p> <p>The petition prayed that a writ of alternative mandamus issue directing the inspectors to convene for the purpose of recounting the votes, and to exclude on the recount all ballots marked for the purpose of identification after determination by the court, etc.</p> <p>The affidavit of the two inspectors referred to alleged that, as the ballots were being counted, one was discussed which deponents and the Republican watcher claimed should be counted for John White, the Republican candidate for aider-man, as against John Sheehan, the Democratic candidate for the office; that the Democratic inspectors stated that they believed this ballot had been improperly marked for identification ; that it was finally agreed by the board of inspectors that the ballot should be marked as protested for identification and the canvass of the votes proceeded; that thereafter seven other ballots were objected to by one or more of the inspectors as marked for identification, and were protested for this reason and counted as prescribed by law for candidates appearing thereon; that the eight ballots so protested for identification were indorsed “counted under protest,” meaning that the same were counted as prescribed by law, but protested and placed in a sealed envelope pursuant to statute.</p> <p>The affidavit further avers that the inspectors caused the return to be made as prescribed by law, and that therein the eight ballots referred to were put by clerical error on the blank space as void ballots, when, in fact, they were counted, and it was intended to return them as counted under protest and marked for identification and returned in a sealed envelope as prescribed by law,</p> <p>(An inspection of tlie return discloses this error, but in another place the eight ballots are referred to as marked for identification.)</p> <p>Upon this petition and affidavit a writ of alternative mandamus issued in accordance with the prayer of the petition.</p> <p>John Barry, one of the inspectors of election, made a return to the alternative writ; he denies that the persons named are inspectors of election as alleged; that eight ballots were marked for identification and indorsed as the statute requires, but he does not deny that the ballots were counted as alleged; he avers that the board of inspectors of the election district — failing to name who they are — correctly canvassed the votes in that district and signed and returned to the proper officers correct statements and returns of the result of the canvass.</p> <p>James Coyle, another inspector in said district, made a similar return.</p> <p>The alternative writ came on for hearing before a Special Term, and the court, after due consideration and hearing counsel, decided that the eight ballots were marked for the purpose of identification and, therefore, void, and that a peremptory writ of mandamus issue directing the board of inspectors to convene on a day named and make and sign an original statement, as required by law, giving the true and correct result of the election in said election district, and that the said inspectors exclude in such canvass and return the said eight ballots so protested and declared by the court as marked for identification and adjudged void and count no vote thereon for any person, and that the inspectors file such original statement and copies as required by law.</p> <p>Thereupon the peremptory writ of mandamus was duly issued, and the defendants Barry and Coyle took an appeal to the Appellate Division, which resulted in an affirmance and an appeal to this court.</p> <p>The ballots, challenged on the theory that they were marked for the purpose of identification, were not sufficiently or legally objected to by the board of inspectors so as to enable the relator to maintain this proceeding. (L. 1896, ch. 909, §§ 110, 114; People ex rel. v. Shaw, 133 N. Y. 493; People ex rel. v. County Canvassers, 66 Hun, 265; People ex rel. v. Wood, 148 N. Y. 148; Hoey v. Gilroy, 129 N. Y. 138; Spofford v. Pearsall, 138 N. Y. 68; Wormser v. Brown, 149 N. Y. 163.) There is absolutely no proof that any one of the ballots, claimed to have been marked, was marked or written upon for the purpose of identification. (People ex rel. v. Morgan, 20 App. Div. 49; People ex rel. v. Supervisors, 135 N. Y. 522; People ex rel. v. Board of Canvassers, 129 N. Y. 407; People ex rel. v. Shaw, 64 Hun, 361.)</p> <p>The evidence of the observance of the technical requirements of the Election Law is ample and sufficient to sustain this .proceeding. The inspectors of election were purely ministerial officers. (People ex rel. v. Pease, 27 N. Y. 45; Goetcheus v. Matthewson, 61 N. Y. 420; People ex rel. v. Bell, 119 N. Y. 175; L. 1896, ch. 909, §§ 110, 111; People ex rel. v. Supervisors, 135 N. Y. 522.) Having the ballots properly before it, and finding them to be absolutely void, and. that they had in fact been counted, the court had the power to reject them, and it was, furthermore, under a duty to do so. (People ex rel. v. Supervisors, 142 N. Y. 271; Code Civ. Pro. §§ 2067, 2090; People ex rel. v. Nostrand, 46 N. Y. 375; People ex rel. v. D. & C. R. R. Co., 58 N. Y. 152; People ex rel. v. Wilson, 119 N. Y. 515; People ex rel. v. Suprs. of Greene, 12 Barb. 217; Dunklin Co. v. Dist. Co. Ct., 23 Mo. 449; Fiero Spec. Pro. 40, 41; People ex rel. v. Schiellein, 95 N. Y. 124, 133, 134; People ex rel. v. Richmond, 23 N. Y. Supp. 144-150.) The court having jurisdiction to try the case, and having come to the correct conclusion, this finding will not be disturbed, because it may have been based upon an erroneous theory. (People ex rel. v. Common Council, 154 N. Y. 750 ; L. 1896, ch. 909, § 105; People ex rel. v. Collin, 19 App. Div. 457.)</p>

Cross-appeals from a judgment of the late General Term -of the Supreme Court in the first judicial department, entered November 15, 1895, modifying and, as modified, affirming a judgment in favor of plaintiffs entered upon a verdict, and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

The defendant was charged with the crime of murder in the first degree, and, upon being arraigned, pleaded not guilty. Thereafter the people applied for a special jury to try the issue, under the provisions of chapter 378 of the Laws of 1896. The application was granted by the appellate division of the supreme court in the First department.

The nature of the action and the facts, so far as material, are stated in the opinion. If defendant’s condition was solely in consequence of his efforts to save the vessel during the storm, such disability would be a defense to the claim of the plaintiff in this action. (143 N. Y. 443.) There was no legal evidence that the master was sailing the vessel on shares.

<p>1. Appeal — Action to Recover Possession of Real Property under Form oe Action in Equity. When an action which has assumed the form of an action in equity to abate a nuisance is in every substantial respect an action at law to recover the possession of real property-, .and no question is raised as to the form of the action, it must be reviewed on appeal as an action to recover the possession of real property.</p> <p>3, Answer Alleging that Dependant was not in Possession. Where the answer as to a parcel of land, the possession of which is sought to be recovered, does not dispute the plaintiff’s title nor claim any title in the defendant, but simply alleges that the defendant was never in possession, and the-trial court finds, upon sufficient evidence, that the defendant was in possession of the parcel and exercising such acts of ownership over it as justified including it in the action, a judgment for the plaintiff as to such parcel, affirmed by the Appellate Division, cannot he disturbed in the Court of Appeals.</p> <p>3. Land under Wateb—Effect of Conveyance by State to Owner of Upland. When land under water has been conveyed by the state to the owner of the adjacent upland, it becomes appurtenant to the upland and will pass by a conveyance of the latter without specific description.</p> <p>4. Riparian Land in Hudson River — Title not Acquired by Railroad Company. The predecessor of the N. Y. C. & H. R. Railroad Company could not acquire title to land under water on the shore of the Hudson river by indicating the land on a map filed by it under the statute (L. 1848, ch. 30, § 5), and by talcing possession of the land and filling it up; and after such acts, a grant from the state to the owner of the adjoining upland would carry the title to him.</p> <p>5. State Grants to Upland Owner and to Railroad Company, When the state has granted its title to land under water on the shore of the Hudson river to the owner of the upland, a subsequent grant to the railroad company, possibly including the same land within a general - description, does not avail to convey title thereto to the company.</p> <p>6. Grant from State on Condition Subsequent — Non performance. The fact that an upland grantee from the state, of a grant of land under water on the shore of the river, conditioned upon the construction of docks within a specified time, has not performed the condition, does not entitle the railroad company, claiming under a subsequent grant, to treat the prior grant as void or to attack it, when it has not been avoided by the state.</p> <p>7. Adverse Possession —■ Champerty. The fact that a railroad company had filed a map and made a survey is not a sufficient basis for an adverse possession within the statute (1 R. S. 739, § 147) avoiding grants of land for champerty.</p> <p>8. Grant to Railroad Company after Grant to Owner of Upland. A grant by the state to a railroad company, of land under water, by a general description, should not be construed as a grant of land not necessarily included within the description, previously conveyed by the state to the owner of the adjoining upland, and does not of itself furnish a basis for an adverse possession claimed to avoid subsequent conveyances on the ground of champerty.</p> <p>9. Findings as to Adverse Possession—Attack upon Deeds for Champerty. When the trial court, in an action for the possession of real property, has found, upon sufficient evidence, all the facts with respect to adverse possession in the plaintiff’s favor/ it is not open to the defendant to attack any of the deeds in the plaintiff's chain of title for champerty.</p> <p>10. Failure of Proof of Adverse Possession of Riparian Land by Railroad Company. Where, in an action for the possession of a parcel of riparian land, the evidence shows that the land was scarcely susceptible of actual occupation and cultivation; that it was, in a sense, connected with the grounds surrounding the station of the defendant railroad company, and that passengers to and from the station passed over it, but that it was not until the defendant extended its track over the land and set up a derrick upon it about five years before the commencement of the action that there was any actual occupation or possession by any one, it is competent for the trial court to find that there was no adverse possession by the defendant sufficient to bar the plaintiff’s right of recovery under the presumption arising from possession of the legal title.</p> <p>11. Evidence — Payment of Taxes. Payment of taxes is no evidence of possession, either actual or constructive, and does not show a claim of possession.</p>

The nature of the action and the facts, so far as material, ■are stated in the opinion. By the ■conveyance of Louis B. Adams to the appellant, dated April 24, 1869, the title of the appellant’s lot, together with the lot that Adams conveyed to him, extinguished the dominant and servient estate if it ever had existed. The entire title merged in the appellant. (2 Washb. on Real Est. [4th ed.] 301, 373, § 3; Wolf v. Frost, 4 Sandf.

On the 10th of October, 1885, a quadripartite agreement was entered into between the Union Insurance Company, party of the first part, the Insurance Company of the State of Pennsylvania, party of the second part, the Continental Insurance Company, party of the third part, and Lorenzo Dimick, party of the fourth part, which, after reciting the existence of certain controversies between the parties of the first and second parts and the parties of the third and fourth parts,…

This action was brought to recover damages for a personal injury alleged to have been caused by the negligence of the ■defendant. The facts, so far as material, are stated in the opinion. This appeal is properly in this court. (Const. N. Y. art. 6, § 9; Code Civ. Pro. § 191; Kaplan v. N. Y. B. Co., 151 N. Y. 171.) The plaintiff wholly failed to show he was entitled to recover herein.

<p>Appeal from a judgment and order of the late General Term of the Supreme Court in the third judicial department, ■entered December 14, 1895, affirming a judgment in favor of plaintiffs entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment and order of the Appellate-Division of the Supreme Court in the fourth judicial department, entered June 23, 1898, affirming an order of Special Term dismissing a writ of certiorari brought to review an assessment of the property of the appellant in the town of Livonia..</p>

Appeal by permission from a judgment of the General Term of the late Court of Common Pleas for the city and county of New York, entered June 10, 1895, affirming a judgment of the General Term of the City Court of New York, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.

Cross-appeals from a judgment of the late General Term of the Supreme Court in the fifth judicial department, entered May 14, 1895, which reversed in part, and in other respects affirmed, a judgment in favor of defendants entered upon a decision of the court dismissing the complaint upon the merits, on trial at Special Term, and granted a new trial as to the part reversed.