Volume 169 — New York Reports

The nature of the action and the facts, so far as material) are stated in the opinion. The prohibition against the sale of dairy products containing a preservative is constitutional if enacted to protect the public health or to prevent fraud.

The nature of the action and the facts, so far as material, are stated in the opinion. The disposal of the dredged material complained of was not work undertaken by the government.

<p>Riparian Rights — Damages Caused by Increasing Flow op River Which Is a Public Highway por the Floating op Logs — Statutory Remedy Cumulative, not Exclusive. The owner of farms through which runs a river, on which he owns and maintains a dam and saw mill, and which river is, and for years has been, a public highway for the purpose of floating logs, timber and lumber, is not confined to the remedy by appraisal afforded by the statutes (L. 1880, ch. 533, as amd. by L. 1897, ch. 483; Navigation Law, L. 1897, ch. 592, art. V) for damages to his mill and farms caused by the increase of the natural volume and flow of the river by water collected and stored by a dam and discharged therefrom into the river in large quantities for the purpose of floating logs down the river, but can recover for such damages in an action at law, since the statutes, if considered as authorizing the condemnation of property rights, would he unconstitutional, 1 euause the security therein provided for the compensation of landowners is arbitrary, and no opportunity is afforded them to show that it is inadequate in amount or insufficient in character; and, also, because they do not provide that the rights and easements necessary for the use of rivers and streams as public highways for the purpose of floating logs, timber and lumber shall be acquired by the public for the use of the public, but that each person who uses any river or stream as such highway shall pay only for his own use thereof, thereby acquiring for a particular time merely a private easement in favor of a private person; they must, therefore, be construed as merely granting an additional, not an exclusive, remedy.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment entered January 11, 1898, is a complete bar to a recovery in this action.

The action is in equity in which the plaintiff seeks : 1. Judgment reforming a certain deed, forming part of the chain of title of the premises known as bios. 70, 72, 74 and 76 Church street in the city of blew York, in the particulars hereinafter referred to. 2.

On the 30th of June, 1873, the New York Life Insurance Company issued to one Moses Wallenstein a policy of insuranee upon his life for $10,000, payable upon his death to his legal representatives.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 25, 1900, upon an order which reversed an order of the trial court setting aside a verdict in favor of plaintiff and granting a new trial and directed judgment for plaintiff upon such verdict.</p> <p>Prior to September 3,1895, the defendant, an officer of the Hoffman Machine Company, tried to persuade the plaintiff to purchase stock in that company, but his efforts proving unsuccessful he finally said to plaintiff: “ Page, I want you to be in that company. I know it is a good thing. I am so anxious to have you that I will guarantee you against loss if you will take stock in that company and subscribe. I will do further, in fact. I will give you a bonus of my own shares in addition.” On these conditions plaintiff consented to purchase stock of the par value of $5,000, whereupon defendant delivered to him this writing, which was in accord with their oral agreement:</p> <p>“Hew York, Sept. 3¿ü, 1895.</p> <p>“ J. Sea ver Page, Esq., City :</p> <p>“Mr Dear Mr. Page.— In consideration of your having subscribed $5,000 to the proposed Hoffman Machine Co., I hereby agree, if requested so to do by you, on the first day of January, 1897, within ten days thereafter, to pay to you the amount paid by you upon such subscription, upon condition of your assigning and transferring to me all the shares of stock and rights and privileges you have received or are entitled to receive by virtue of said subscription, and also the stock of such company, viz., ($1,000 par value) which I have agreed to deliver to you out of- my own personal holdings when issued.</p> <p>“Very truly yours,</p> <p>“ RALPH L. SHAINWALD.”</p> <p>On November 5, 1896, this agreement was extended to the first day of January, 1898, so that thereafter the agreement between the parties was that the defendant agreed, if requested by the plaintiff on the first day of January, 1898, to pay the amount provided for in the original agreement.</p> <p>The plaintiff did not tender the stock to defendant and make a demand of him on the first day of January, 1898, nor did he until the third day of January, and one of his claims upon the trial and upon this review is that New Year’s day being a holiday it was not necessary for him to make the demand on that day, and that in the year 1898 the succeeding .day was Sunday, and, hence, his demand on the third was in time.</p> <p>On the third day of January plaintiff called upon the defendant at his office and tendered to him the stock which he held under the agreement, and at the same time handed to him a letter which read as follows :</p> <p>“ New York, Janxmry 3, 1898.</p> <p>“ Ralph L. Shainwald, Esq.:</p> <p>“ Dear Sir.— In accordance with your agreement with me, as set forth in your letters to me bearing date respectively September 3d, 1895, and November 5th, 1896, I do hereby tender you an assignment and transfer to you of all the shares of stock, rights and privileges which I have received or which I would be entitled to receive by virtue of my subscription to the stock of the Hoffman Machine Company, together with one thousand dollars par value of stock of the Hoffman Machine Company which you delivered to me out of your personal holdings, and I hereby respectfully demand the return and payment to me of the sum which I have subscribed and paid for all of such stock, namely, the sum of five thousand dollars, and this tender and demand is made as of the present date and as of the first day of January, 1898, as provided for in our contract.</p> <p>“Very respectfully,</p> <p>“ J. SEAVER PAGE.”</p> <p>The defendant read the letter and then said : “ Page, now I intend to do what is fair and just in this matter and you must give me a little time to consider it.” The next day the defendant wrote to plaintiff a letter reading as follows:</p> <p>“New York, Jan. ith, 1898.</p> <p>“ J. Seaver Page, Esq., City :</p> <p>“ Dear Sir.-—I return herewith the shares you left in my office yesterday, since I do not wish to be the custodian of property belonging to you.</p> <p>“Yours very truly,</p> <p>“RALPH L. SHAINWALD.”</p> <p>To this letter the plaintiff made the following reply :</p> <p>“ 101 Fulton Street, Jan. 5, ’98.</p> <p>“My Dear Mr. Shainwald.— I have received your favor returning me the stock of the Hoffman Machine Co. I am sorry you have taken this position, as 1 do not think it is a tenable one. I should very much prefer to come to some amicable decision with you before I am compelled to proceed further.</p> <p>“Yours truly,</p> <p>“J. SEAVER PAGE.”</p> <p>Sometime during that month the defendant called upon the plaintiff and' in a conversation with him offered to give him his note for $2,500, an offer prompted, as the defendant says, by his belief at the time that the stock investment was still good for fifty cents on a dollar.</p> <p>There was no evidence of anything amounting to a waiver, and it was error to admit or consider it. (Armstrong v. A. Ins. Co., 130 N. Y. 560.) Taking time to consider action upon a belated offer, before accepting, is not' a waiver of its lateness. (Friess v. Rider, 24 N. Y. 367; Titus v. G. F. Ins. Co., 81 N. Y. 410; Armstrong v. A. Ins. Co., 130 N. Y. 560; Devens v. M. & T. Ins. Co., 83 N. Y. 168; Trippe v. P. F Co., 140 N. Y. 23; Benninghoff v. A. Ins. Co., 93 N. Y. 495; Kelly v. Upton, 5 Duer, 336; Gould v. Banks, 8 Wend. 562.) The fact that January first was a holiday did not extend plaintiff’s option beyond that day. ( Walton v. Stafford, 162 N. Y. 558; T. R. Mfg. Co. v. K. H. St. Co., 50 N. Y. 121; Richardson v. Goddard, 23 How. [U. S.] 28; B. O. R. Co. v. Brown, 38 How. Pr. 444; Duffy v. Donovan, 46 N. Y. 223; Friess v. Rider, 24 N. Y. 367; Rutty v. C. F. J. Co., 52 Hun, 492; Pope v. T. H. C. Mfg. Co., 107 N. Y. 61; Britton v. Phillips, 24 How. Pr. 111; Wheeler v. C. M. Ins. Co., 82 N. Y. 543.) It was error to admit evidence of a demand later than January first. (Kelly v. Upton, 5 Duer,. 336; Ullman v. Jacobs, 86 Hun, 186.) Plaintiff’s evidence disproved all consideration for the second option. (Riley v. Riley, 83 Hun, 398.)</p> <p>Even if the tender of the stock and the demand made on January 3, 1898, were not a strict performance according to the contract, the defendant has waived his right to object to such tender and demand. (Trippe v. P. F. Society, 140 N. Y. 123; Brink v. H. F. Ins. Co., 80 N. Y. 108; Kiernan v. D. C. M. Ins. Co., 150 N. Y. 194; Titus v. G. F. Ins. Co., 81 N. Y. 419; Webb v. Hughes, L. R. [10 Eq. Cas.], 281.) The tender of the stock by the plaintiff and his demand from the defendant of the $5,000 paid on the 3d day of January, 1898, was valid and was sufficient to bind the defendant. (L. 1892, ch. 677, § 27; Lucia v. Omel, 61 N. Y. Supp. 659; Spaulding v. Burnhardt, 7 L. R. A. 425; Richardson v. Goddard, 23 How. [U. S.] 43; Disney v. Furness, 79 Fed. Rep. 814; Salter v. Burt, 20 Wend. 205; Avery v. Stewart, 2 Conn. 69; Sands v. Lyon, 18 Conn. 18; Duchemin v. Kendall, 3 L. R. A. 784; Walton v. Stafford, 162 N. Y. 558.) The evidence as to the tender and demand on the 3d day of January, 1898, and the action of the defendant relative to the contract on and after the said date was properly admitted, and could properly be taken into consideration by the court in reaching its •decision in this case. (Place v. Minster, 65 N. Y. 102; Lyons v. Miller, 10 Misc. Rep. 653; R. C. Mfg. Co. v. N. Y. B. N. Co., 98 N. Y. 463; Catlin v. Gunter, 11 N. Y. 368; Lefler v. Sherwood, 21 Hun, 573; Bergmann v. Jones, 94 N. Y. 58; Quinby v. Strauss, 90 N. Y. 664; Height v. People, 50 N. Y. 394; Marston v. Gould, 69 N. Y. 228; Ward v. Kilpatrick, 85 N. Y. 416.) The agreement by which the defendant gave to the plaintiff an extension of his time to make a tender of his stock and a demand for repayment of the §5,000 to January 1,1898, was valid and binding upon the defendant. (Clark v. Dales, 20 Barb. 64; Burt v. Saxton, 1 Hun, 553; Grange v. Palmer, 10 N. Y. Supp. 201; Schmidt v. Cowperthwait, 66 How. Pr. 480; Routledge v. Worthington Co., 119 N. Y. 597.) The facts as found by the Appellate Division are not reviewable by this court. (Adams v. R. L. Co., 159 N. Y. 180.)</p>

<p>1. Mortgage — After-acquired Property. A mortgage executed by a construction company conveying all property or rights of property acquired or to be acquired under a concession from a foreign government giving it the right to build a railroad and providing for the subsequent incorporation of a railroad company and for the issue of its securities, part of which were to be delivered to the construction company in payment for the work as it progressed, covers the securities to be thereafter issued and delivered to the mortgagor.</p> <p>3. Equitable Assignment. The right of the mortgagor to receive the securities, although they were not in existence at the time of the execution of the mortgage, is in equity subject to assignment to the same extent as though they had been issued, the work completed and the mortgagor had become entitled to receive them, the mortgage operating by way of a present contract tc give a lien which, as between the parties, took effect and attached to the securities as soon as they came into the hands of the mortgagor.</p> <p>3. Priority of Mortgage of Property to Be Acquired over Subsequent Conveyance of the Same Property to Grantee without ' Notice. Where certain of the bonds when issued were deposited with the government authorities as security to be returned to the mortgagor upon the satisfactory completion of the work, the lien of the mortgage upon them is superior to that subsequently acquired by a trustee without notice of the mortgage, under a deed purporting to transfer all the mortgagor’s right, title and interest in such bonds, which it agreed to deposit with the trustee when so returned, which deed was executed by the mortgagor to secure an issue of promissory notes ^certified-by.the trustee as secured thereby and which notes were discounted by parties with knowledge of its provisions before the delivery of the bonds, because the lien of the mortgage was prior in time and also because the right of the trustee to the bonds was subject not only to the equities between the parties to the deed but also to the equity in favor of the mortgagee, of which it was not necessary that the trustee should receive notice.</p> <p>4. When Title of Mortgagee Not Defeated by Subsequent Delivery of the Property to Grantee. The fact that the bonds were subsequently actually delivered to the trustee does not render the lien of the moitgage inferior to that of the trustee upon the ground that thereby the legal estate was acquired, because the instant the mortgagor received the bonds in negotiable form from the government authorities it held them in trust for the mortgagee and the latter acquired not only the equitable but the legal title thereto which could not he divested or defeated by the mortgagor’s wrongful act in delivering the bonds, and its title was valid as against every one except subsequent purchasers in good faith and for value, which the trustee aud the note-holders were not, the money being advanced, not on the faith of the bonds, but only upon the promise of the mortgagor to deliver them to the trustee when received.</p> <p>5. Injunction. Assuming that the noteholders were purchasers in good faith and for value, and as such were entitled to a lien upon the bonds superior to that of the mortgagee, in an action by the latter against them, the trustee and the mortgagor to establish its lien, the dismissal of the complaint against the mortgagor is erroneous where it appears that an unissued note is in its possession which it should be restrained from negotiating and thus further impairing the plaintiff’s security.</p>

Cross-appeals from two judgments of the Appellate Divis-. ion of the Supreme Court in the first judicial department, entered April 26, 1900, modifying, and affirming as modified, two judgments entered upon decisions of the court on trial at Special Term in actions to foreclose two mortgages. The defendant Carrie A. Lancaster appeals from that portion of the judgments of the Appellate Division which modify the judgments of the Special Term: 1.

The nature of the action, and the facts, so far as material, are stated in the opinion. The plaintiff’s claim is subject to the equities between her assignor and the defendants. (Pardee v. Steward, 37 Hun, 259; Guinzburg v. Claude, 28 Mo. App. 258; Tate v. Neary, 52 App. Div. 78; Moore v. Chase, 26 Misc. Rep. 9; Moore v. Higgins, 5 N. Y. Supp. 895; W. V. C. & P. R. Co. v. McIntyre, 28 S. E. Rep. 696; Lush v. Druse, 4 Wend. 313; Childs v. Clarke, 3 Barb.

Appeal, by permission, from an order of the Appellate Division of the Supreme ■ Court in the first judicial department, entered October 30, 1901, which reversed an order of Special Term quashing a writ of certiorari theretofore issued to review the action of the defendants in assessing the relator’s franchise. The facts, so far as material, and the questions certified are stated in the opinion. The assessment was made by the state board of tax commissioners.

The facts, so far as material, are stated in the opinion. An owner of unproductive property, taken in condemnation proceedings for public purposes, is not chargeable with taxes levied subsequent to the date of the making of the award by the commissioners. (Matter of Mayor, etc., 167 N. Y. 627; Matter of Mayor, etc., 59 App. Div. 603; Matter of Mayor, etc., 40 App.

<p>1. Larceny — False Pretenses. Threats made to the owner of a residence by a party who falsely represented that he owned lots in the vicinity and that he would erect a soap factory thereon, whereby such owner was coerced into buying the lots, do not constitute a false pretense within the meaning of section 528 of the Penal Code.</p> <p>2. False Representation as to Ownership oe Property. The fact that his representation as to ownership was false does not constitute him guilty of the crime of larceny by false pretenses where he subsequently acquired a good title to the lots and vested it in the purchaser at the time the consideration for them was paid.</p>

The facts, so far as material, are stated in the opinion. Section 208 of chapter 128 of the Laws of 1899 is unconstitutional and void in that said section arbitrarily fixes an assessment on the petitioner’s property without allowing the petitioner any opportunity to be heard as to the cost or value of the improvement provided for by said assessment, or the fairness or justness of said assessment, and that said assessment levied herein under that section is levied without due…

The facts, so far as material, are stated in the opinion. The order of the Appellate Division affirming the order of the Special Term refusing to cancel the judgment is appealable to this court as an order finally determining a special proceeding. (Const. of N. Y. art. 6, § 9; Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The capacity of Mrs. Chapman to make the note in question and to become a surety for her husband was governed by the law of Alabama. (Story on Conf. of Laws, 19, § 18; Lemon v. People, 20 N. Y. 562; 2 Pars. on Cont. [8th ed.] 569; 3 Am. & Eng.

<p>Equity — Conveyance in Consideration of Grantee’s Promise to Pay Specified Sum to Third Party — When Grantee a Trustee Ex Maleficio. Where a grantor in contemplation of death and for the purpose of making an equitable disposition of his property between those entitled to it, has conveyed it to his wife, who had no other property, upon her express promise, which was a part of the consideration of the conveyance, that she would pay a specified sum to his grandchild, while no express trust is created by the deed or her promise, upon her refusal to pay, equity will declare the grantee a trustee exmale teio for the protection of the intended beneficiary, the trust not affecting the deed but acting upon the gift as it reaches the possession of the grantee, and will compel payment out of the property conveyed.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 1, 1901, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 23,1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, made July 25, 1901, which affirmed an order of Special Term granting, upon conditions, plaintiff’s motion to set aside two certain orders, one directing the examination of the plaintiff as a party before trial and one dismissing the complaint.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 12, 1899, affirming an interlocutory judgment entered after a decision in favor of plaintiffs rendered by the court at an Equity Term. The following are the questions certified : Fvrst.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 24,1900, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>