Volume 176 — New York Reports

<p>County Courts — Jurisdiction or, over Counterclaims Exceeding §2,000 in Amount. While the jurisdiction of County Courts in actions for the recovery of money only is limited by section 14 of article "VI of the Constitution and section 340 of the Code of Civil Procedure to actions in which the complaint demands judgment for a sum not exceeding §2,000, such limitation is based wholly on the demand of the complaint, and, after jurisdiction of a cause of action has ■ once been acquired, a County Court has, under section 348 of the Codo of Civil Procedure, “the same jurisdiction, power and authority in and over the same and in the course of the proceedings therein, which the Supreme Court possesses in a like case; and it may render any judgment, or grant either party any relief, which the Supreme Court might render or grant in a like case; ” and so the general jurisdiction to entertain common-law actions, where the demand for judgment in the complaint does not exceed §2,000, carries with it the power to try and render any judgment upon any counterclaim irrespective of the amount that the defendant may plead in his answer to the cause of action stated in the complaint.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff’s charter does not permit it to do any business in the city of Rochester.

The nature of the action and the facts, so far as material, are stated in the opinion. The case was submitted to the jury without error. (Cromwell v. Benjamin, 41 Barb. 558; Reneaux v. Teakle, 20 Eng. L. & Eq. 345; Bergh v. Warner, 47 Minn. 250; Raynes v. Bennett, 114 Mass. 424; Compton v. Bates, 10 Ill. App. 78; Davis v. Caldwell, 12 Cush. 512; 2 Lawson on Personal Bel. § 726; Schouler on Dom. Eel. § 61; Burghart v. Angerstein, 6 C. & P. 690; Freestone v. Butcher, 9 C. &.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants being guilty of a breach of the duty which they owed to the plaintiff, which breach was followed by the destruction of the market value of the stock represented by him occasioning substantial damage, a cause of action in tort to recover such damages exists in liis favor against the defendants.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The certificate of membership and the constitution and laws constitute the contract of insurance, and the rights of all parties are to be determined thereby. (Collins v. Collins, 30 App. Div. 343; Matter of E. R. F. L. Assn., 131 N. Y. 369; Meyers v. Masonic Guild, 126 N. Y. 615; Syuchar v. W. C. Assn., 14 Misc. Rep. 11; Willison v. J. & T. Co., 30 Misc.

. The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing the testimony of Corey offered to show bias in witnesses called to impeach him. (People v. Brooks, 131 N. Y. 321; Lamb v. Lamb, 146 N. Y. 317; Schultz v. T. Ave. R. R. Co., 89 N. Y. 242; People v. Mather, 4 Wend. 229.) The question allowed as to Corey’s religious belief and the charge of the court upon that point were erroneous.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence fails to show any negligence on the part of defendant, and its motion for a nonsuit on that ground should have been granted.

Appeal ' from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 25, 1903, which reversed a judgment of the Westchester County Court entered upon a verdict convicting the defendant of a misdemeanor and granting a new trial. The facts, so far as material, are stated in the opinion. The indictment charges a crime and the appellate court erred in reversing the judgment of conviction on this ground.

<p>Costs — What Costs 3Iay Be Recovered' by Landowner Successfully Defending Condemnation Proceeding Instituted under Section 3372 of Code of Civil Procedure. Where the compensation awarded to the owner of real property, by the commissioners in a condemnation proceeding instituted under section 3372 of the Code of Civil Procedure, exceeds the amount offered by the corporation seeking to condemn the property, with interest from the time the offer was made, the landowner is entitled to recover the same amount of costs that a defendant may recover under section 3251 of the Code of Civil Procedure when he has prevailed in an action in the Supreme Court after a trial; ten dollars costs for proceedings before notice of trial and fifteen dollars after notice of trial, with thirty dollars costs for a trial of an issue of fact and ten dollars for a. trial occupying more than two days.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 26, 1903, which denied a motion to amend a judgment of that court on appeal. The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division has no power or authority to make the order it did make in this case. (Code Civ.

The facts, so far as material, are stated in the opinion Abutting property owners, in incorporated villages, are entitled to damages arising from change of grade of a street, there being statutes giving such right of compensation.

The cases cited by Keogh, J., in the preceding case of ex rel. Clark (supra), were cited upon the People’s brief in this Adams case, as was the additional ease of Dreyer v. Illinois, 187 IT. S. 71. So much of the opinion as touched the constitutionality of the indeterminate sentence is as follows:

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July-22, 1903, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Assuming the validity of the deed of 1852, according to its terms, the right of the plaintiff to equitable relief, based on the inadequacy of any remedy at law, cannot be seriously questioned, unless the rights of the plaintiff under the deed of 1852 be restricted by the covenants contained in the prior deeds of 1850. (Munn v. People, 94 U. S. 113; People v. N. Y. C. R. R. Co., 28 Hun, 543; Gardner v. Vil. of Newburg, 2 Johns. Ch. 162; Sage v. City of Brooklyn, 89 N. Y. 189; Langdon v. Mayor, etc., 93 N. Y. 129; Williams v. Mayor, etc., 105 N. Y. 419; Maxmilian v. Mayor, etc., 62 N. Y. 160; Ham v. Mayor, etc., 70 N. Y. 459; Smith v. City of Rochester, 76 N. Y. 506; id Ins. Co. v. Vil. of Keeseville, 148 N. Y. 46.) The city, under its different grants from the state, acquired in the first instance the ownership of the land under water in front of high-water mark, with the power to convey its property rights in that land under water, and any superstructure thereon, to private individuals, until the change in the policy as to the city water front, which was created by the act of 1871 establishing the dock department. (Langdon v. Mayor, etc., 93 N. Y. 129; Kingsland v. Mayor, etc., 110 N. Y. 569; Williams v. Mayor, etc., 105 N. Y. 419.) The power of the city to convey the “ pier ” by the deed of 1852 is free from doubt, and cannot be questioned under a contention that the “ pier,” either as. dry land or as land under water, was public property, or property affected by a right of use in “ the public.” (City of Cohoes v. D. & H. C. Co., 134 N. Y. 397; Pearsall v. Post, 20 Wend. 111; Post v. Pearsall, 22 Wend. 425; Wetmore v. A. L. Co., 37 Barb. 70; Wetmore v. B. G. L. Co., 42 N. Y. 384; Langdon v. Mayor, etc., 93 N. Y. 129; Williams v. Mayor, etc., 105 N. Y. 419; Kingsland v. Mayor, etc., 110 N. Y. 569; Mark v. Vil. of West Troy, 151 N. Y. 453; People v. Laimbeer, 5 Den. 9; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543.) The legal character of the “ pier ” in question, as land under water with a superstructure resting thereon, and not a public “ street,” is beyond question. (Matter of M. P. Ground, 60 N. Y. 319; Matter of Rhinelander, 68 N. Y. 105; Wagner v. Perry, 47 Hun, 516.) The contention of the defendants as to a want of power in the city to convey the “ pier ” in question to a private individual wholly ignores the well-recognized legal distinction between the private ownership of property and its public use. (Munn v. Illinois, 94 U. S. 113; People v. N. Y. C. R. R. Co., 28 Hun, 543; Langdon v. Mayor, etc., 93 N. Y. 129; Mayor, etc., v. Hart, 95 N. Y. 443; Williams v. Mayor, etc., 105 N. Y. 419; Kingsland v. Mayor, etc., 110 N. Y. 569.) The performance by Lindsley’s grantees of the covenants contained in the earlier deeds of 1850, providing for the construction of streets, bulkheads, piers and wharves, has now been made impossible by the acts of 1871, nor does the resolution of the dock department, which is set up as a justification of the intended destruction of plaintiff’s pier, call for such construction as was contemplated by those covenants, and agreed to be performed by the grantees. (Palmer v. Gould, 144 N. Y. 671; Benedict v. Lynch, 1 Johns. Ch. 370 ; Phillips v. Berger, 8 Barb. 527.) Even if, however, the performance of the covenants in the deeds of 1850 were still possible, or had been really required by any action of the dock department, the obligation of the covenants contained in the deeds of 1850 was, as to Forty-third street, essentially modified, if not wholly abrogated, by the subsequent conveyance of the “pier” itself by the deed of ¡November 11, 1852. (Langdon v. Mayor, etc., 93 N. Y. 129.)</p> <p>Assuming that the plaintiff has a good title to the pier and the ground upon which it stood when this action was begun, nevertheless its right to use the same was subject to the conditions and covenants contained in the grant of July 1, 1850, to Lindsley, the plaintiff’s predecessor in title, and the statutes then in force and subsequently made under which the city could lawfully require the railroad company to make such water-front improvements as the city might thereafter deem proper. Such improvements cannot be enjoined. (Cox v. State, 144 N. Y. 405; People v. Vanderbilt, 26 N. Y. 287; Whitney v. Mayor, etc., 6 Abb. [N. C.] 329; I. R. R. Co. v. Illinois, 146 U. S. 453; Slingerland v. I. C. Co., 169 N. Y. 60.) The plaintiff has no title to the pier in question or to the ground upon which it stood. It has nothing upon which to base a claim to equitable relief for any contemplated interference with property rights. (Bruen v. M. R. Co., 39 N. Y. S. R. 36; Deam, v. M. El. R. Co., 119 N. Y. 540; Hughes v. M. R. Co., 130 N. Y. 14; H. R. R. Co. v. Loeb, 7 Robt. 418; S. W. Co. v. City of Syracuse, 116 N. Y. 167; Tiedeman on Mun. Corp. § 169; Donovan v. City of New York, 33 N. Y. 291; Lyddy v. Long Island City, 104 N. Y. 218; McDonald v. Mayor, etc., 68 N. Y. 23; Parr v. Vil. of Greenbush, 72 N. Y. 463; Martin v. Mayor, etc., 1 Hill, 545.)</p> <p>The plaintiff has failed to prove any cause of action entitling it to equitable relief, and under the pleadings and evidence no other relief can be granted. (K. I. Co. v. F. S. S. R. R. Co., 16 J. & S. 499; Munson v. Reid, 46 Hun, 403; Wells v. Garbutt, 132 N. Y. 436.) Plaintiff had no title to the pier, to the land under it nor to the adjacent lands, and nothing less would support the action. (People v. Laimbeer, 5 Den. 9; Matter of City of Brooklyn, 73 N. Y. 179; 2 Dillon on Mun. Corp. [4th ed.] § 650; Brooklyn v. Armstrong, 45 N. Y. 234; S. V. O. Asylum v. City of Troy, 76 N. Y. 108; Kane v. N. Y. El. R. R. Co., 125 N. Y. 183; People v. Mallory, 46 How. Pr. 256; Taylor v. A. M. Ins. Co., 37 N. Y. 275; Marshall v. Guion, 11 N. Y. 461; Comrs. of Pilots v. Clark, 33 N. Y. 251; Radway v. Briggs, 37 N. Y. 256.) The city did not convey, nor attempt to convey, any land by the execution of the deed to the pier. (Wheeler v. Spinola, 54 N. Y. 388.)</p>

<p>■ 1. Pleading — Insufficiency of General Allegation of Fraud. General allegations of fraud are of no value in stating a cause of action; the facts or intent must be stated in such a manner that the court may see whether they were fraudulent or not.</p> <p>3. New York City—Power of New Bast River Bridge Commissioners—L. 1895, Ch. 789—Provisions in Specifications Limiting Competition Neither Illegal nor Fraudulent. General allegations in a taxpayer’s action to annul a contract made by the commissioners of the New Bast River bridge in the city of New York for the construction of the bridge, that the commissioners fraudulently prescribed iu their notices and specifications that proposals would be received from those bidders only who possessed plants requisite to do the work and whose plants had been in successful operation for at least one year, and that there would he excluded steel containing more than a specified percentage of foreign elements “with the purpose and intent of limiting competition and confining the same to a small class of bidders,” and also charging that the cost of the work was increased thereby, in the absence of any allegations of fact except the statement that their action was taken with the purpose and intent of limiting the class of bidders, are insufficient to support the charge of fraud, since under the act directing the construction of the bridge (L. 1895, ch. 789, § 3) the power of the commissioners, which was not limited or qualified by-subsequent charter provisions, was plenary and they were not limited to the performance of the work by contract or by competition, and, therefore, their intent to limit competition, both in the class of construction or as to character of material, was in itself neither illegal nor fraudulent.</p> <p>3. Insertion of Invalid Provisions of Labor Law Does Not Render Contract Void. The fact that the commissioners required the insertion of provisions of the Labor Law in the contract which were subsequently held invalid, even if their action was illegal, does not make it fraudulent, and the insertion of such provisions in the contract does not render it void assuming that they increased the cost of the work; the contract may be enforced, although but partially performed, especially as the commissioners, if the invalidity of such provisions avoided the contract, might have immediately, without competition or advertisement, entered into a new contract with the same contractor, and they, therefore, had power to waive illegal conditions and to continue the contract in force.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Where it is undisputed that a vault has been maintained and in constant actual use for upwards of forty years, the law will presume that it was originally constructed with the knowledge and assent of the public authorities. (People ex rel. Zeigler v. Collis, 17 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 12, 1901, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Motion to amend remittitur. (See 173 N. Y. 644.)</p>

<p>Appeal from a judgment, entered November 24, 1902, upon an order of the Appellate Division of the Supreme Court in the first judicial department, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal—When Appellate Court Mat Make Order Directing Trial by Jury of Questions of Fact. Under section 2588 of the Code of Civil Procedure an appellate court must “make an order directing the trial by a jury of the material questions of fact arising upon the issues between the parties,” where its reversal or modification of a decree is founded upon a question of fact, and it may do it in any other case where, in its opinion, it would seem that the ends of justice might be best promoted by such a course.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 24, 1903, which reversed a decree of the Kings County Surrogate’s Court construing the will of Ellen O’Reilly, deceased, and settling the accounts of D. McLeod Gawne, as surviving executor thereunder.</p>