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admission to the defendant's public seashore bathhouse. A dispute arose between the plaintiff and one of the defendant's servants, as a result of which the plaintiff was ejected from the premises. The plaintiff brought an action for breach of contract. Held, that the plaintiff may recover damages for the indignity as well as the price of the ticket. Aaron v. Ward, 46 N. Y. L. J. 963 (N. Y., Ct. App., Nov. 21, 1911).
Proprietors of bathhouses, as of other places of public resort, may be forbidden by statute to refuse admittance to any citizen properly applying. Cf. Greeneberg v. Western Turf Association, 140 Cal. 357, 73 Pac. 1050; People v. King, 110 N. Y. 418, 18 N. E. 245. But aside from statutory regulations the proprietor may serve whom he pleases. People ex rel. Burnham v. Flynn, 189 N. Y. 180, 82 N. E. 169. Though by selling a ticket the proprietor contracts to give the purchaser a license to enter his premises, he has the power to break the contract and revoke the license. Wood v. Leadbitter, 13 M. & W. 838; Horney v. Nixon, 213 Pa. St. 20, 61 Atl. 1088. Thereafter the ticket-holder enters or continues on the premises as a trespasser, and cannot maintain an action for assault if he is ejected with reasonable force. McCrea v. Marsh, 12 Gray (Mass.) 211; Burton v. Scher pf, 83 Mass. 133. But an action for breach of contract lies. Taylor v. Cohn, 47 Or. 538, 84 Pac. 388. Compensatory damages for breach of contract will not usually include a recovery for mental distress. Hamlin v. Great Northern Ry. Co., 1 H. & N. 408; Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S. W. 345. But when from the nature of the contract it can be foreseen that great mental anguish will result from the breach, for which a recovery of the consideration paid is utterly inadequate compensation, such suffering should be considered in estimating damages. Renihan v. Wright, 125 Ind. 536, 25 N. E. 822. On the same theory the principal decision is to be commended. Smith v. Leo, 92 Hun (N. Y.) 242, 36 N. Y. Supp. 949. Contra, Buenzle v. Newport Amusement Association, 29 R. I. 23, 68 Atl. 121. See 21 Harv. L. Rev. 541.
EMINENT DOMAIN COMPENSATION Costs. - A statute provided that 'costs shall not be taxed to any party” by the court of claims. Condemnation proceedings were brought in this court. Another statute provided that “costs, where not specially regulated, may be awarded.” Held, that costs may be allowed the owner of the property. Brainerd v. State, 131 N. Y. Supp. 221 (Ct. of Claims).
With rare exceptions the decisions have avoided holding that the constitutional requirement of “compensation” to the owner of property taken under eminent domain assures to him the allowance of costs in condemnation proceedings. In some, the constitutional provision merely fortifies an otherwise reasonable construction of a statute for the allowance of such costs. City and County of San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56. In others, it has induced courts, in order to achieve a similar result, to give statutes a strained construction. Stolze v. Milwaukee, etc. R. Co., 113 Wis. 44, 88 N. W. 919. A statutory repetition of the constitutional provision has been held to provide for the allowance of costs. Land and Canal Co. v. Hartman, 17 Colo. 138, 29 Pac. 378. But the great weight of authority refuses to allow costs in the absence of statute. Gifford v. Dartmouth, 129 Mass. 135; Matter of Board of Rapid Transit Railroad Commissioners, 197 N. Y. 81, 90 N. E. 456. Contra, Petersburg School District v. Peterson, 14 N. D. 344, 103 N. W. 756. Costs of an appeal unsuccessfully taken by the owner can even be taxed against him. Matter of Village of Theresa, 121 N. Y. App. Div. 119, 105 N. Y. Supp. 568; Kitsap County v. Melker, 52 Wash. 49, 100 Pac. 150. But it is unconstitutional to tax against the owner the costs of an appeal successfully brought by the condemning party. Matter of New York, etc. Ry. Co., 94 N. Y. 287; Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 104 Pac. 267. Contra, Metler v. Easton and Amboy R. Co., 37 N. J. L. 222. It has been held, though this is opposed to the weight of authority, that even the costs of the original proceeding are taxable against the owner. Rogers v. City of St. harles, 54 Mo. 229. Contra, Adams County v. Dobschlag, 19 Wash. 356, 53 Pac. 339.
EMINENT DOMAIN COMPENSATION — WATERWAY CONSTRUCTED BY CITY THROUGH RAILWAY'S RIGHT OF WAY NECESSITATING STRUCTURAL CHANGES.
A city constructed a canal, with walks on either side, through the right of way of a railroad, in order to join certain lakes, used principally for pleasure by its inhabitants. This made it necessary for the railroad to build a bridge. Held, that the railroad is not entitled to recover from the city the cost of building the bridge. Chicago, M. & St. P. Ry. Co. v. City of Minneapolis, 133 N. W. 169 (Minn.).
The authorities are not harmonious in allowing compensation in such cases. This is because judges have not always been mindful of the distinction between eminent domain and the police power. See 3 Harv. L. REV. 189; 22 id. 542. The former is resorted to where private property is taken for a public use; the latter where the sovereign restricts, regulates, or destroys private property in the public interest. See 1 LEWIS, EMINENT DOMAIN, $8 3,6,7. In the latter case there need be no compensation. Philadelphia v. Scott, 81 Pa. St. 80. In certain border-line cases the two powers so shade into each other that it becomes difficult to say whether there is a duty to make compensation. See Philadelphia v. Scott, supra, 86. However, in the principal case the erection of the bridge was made necessary by the exercise of the right of eminent domain. It is damage proximately consequent. The police power was not properly invoked. Where no special statutory provisions exist, as in the principal case, the rule is to give the value of the land taken and the cost of structural changes made necessary. Paterson, etc. R. Co. v. Nutley, 72 N. J. L. 123, 59 Atl. 1032; Cincinnati, etc. Ry. Co. v. Troy, 68 Oh. St. 510, 67 N. E. 1051. See 2 LEWIS, EMINENT DOMAIN, $ 733. But cf. C., I. & W. Ry. Co. v. City of Connersville, 218 U. S. 336, 31 Sup. Ct. 93. But there is considerable diversity among the statutory provisions on the subject. See 2 LEWIS, EMINENT DOMAIN, 88 733 et seq.
EMINENT DOMAIN COMPENSATION WHAT CONSTITUTES AN ENTIRE TRACT. — The plaintiff owned a block of land on B. Street south of A. Street, and also the fee of B. Street, subject to a public easement. The defendant railway company, owning land on both sides of B. Street north of A. Street, built a bridge for trains, with the consent of the city authorities, across A. Street from one portion of its land to the other. Held, that the plaintiff can recover merely nominal damages for the injury done to his fee of the street and not consequential damages for the injury to his lot. Coatsworth v. Lehigh Valley Ry. Co., 131 N. Y. Supp. 300 (Sup. Ct.).
It is well established that where part of a parcel of land is taken under eminent domain, just compensation includes damages to the residue as well as the value of the portion taken. South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301, 68 N. E. 366; Richardson v. City of Centerville, 137 Ia. 353, 114 N. W. 1071. What constitutes a “parcel” in this sense has been the subject of much litigation. See 2 LEWIS, EMINENT DOMAIN, 3 ed., $$ 698-701. If the residue was more valuable in connection with the land taken than it is as a separate lot, justice clearly requires that the owner be compensated for the decrease in value. That being the reason of the rule, in order to fall within it, the two lots, it is generally held, must be used as one property or be adapted to such use. Hoyt v. Chicago, etc. Ry. Co., 117 Ia. 296, 90 N. W. 724; Frick Coke Co. v. Painter, 198 Pa. St. 468, 48 Atl. 302. Thus, if a man having two contiguous farms occupies one and rents the other, he cannot collect for damages to both, if a portion of one is taken. Minnesota Valley R. Co. v. Doran, 15 Minn. 230. In the present case, the test is not satisfied, since the plaintiff's right in the street is merely nominal, the public being virtually the owner. See City of Schenectady v. Trustees of Union College, 144 N. Y. 241, 249, 39 N. E. 67, 68. The decision, therefore, is clearly correct.
EQUITY — JURISDICTION SECURITY FROM ADMINISTRATOR FOR PAYMENT OF UNMATURED DEBT OF DECEDENT. - The plaintiff's claim against the estate of the maker of notes, maturing more than three years after the maker's death, was disputed by his administrator. The only remedy provided by the Code was suit at law after the notes matured. The administrator demurred to the plaintiff's petition in equity to have sufficient assets set aside to meet the claim when due. Held, that the demurrer should be overruled. Bankers' Surety Co. v. Meyer, 131 N. Y. Supp. 57 (App. Div.).
Creditors' bills against an administrator constitute one of the oldest heads of equity jurisdiction. See POMEROY, EQUITY JURISPRUDENCE, 3 ed., $$ 348 et seq., SS 1151 et seq. To-day administration proceedings are carried on almost exclusively in the probate court. Statutes usually provide that a fund may be ordered to be set apart to meet unmatured or contingent claims. Hoyt v. Bonnett, 50 N. Y. 538. See Cobb v. Kempton, 154 Mass. 266, 268, 28 N. E. 264, 265. But generally equity still has at least supplementary jurisdiction. See Chipman v. Montgomery, 63 N. Y. 221, 235, 236. The principal case proceeds on the ground of a trust. But, though the executor holds the assets in a fiduciary relation to creditors and legatees, he is to be distinguished from a trustee. See AMES, CAS ON Trusts, 2 ed., 73, note 4. In a suit against an executor for a debt, the period of limitation is not that for enforcing trusts. Scott v. Jones, 4 Cl. & Fin. 382. A legacy is not a trust under a statute excepting trusts from the operation of a creditor's bill. Bacon v. Bonham, 27 N. J. Eq. 209. The creditor, however, should be able to secure the payment of his unmatured claim. Johnson v. Mills, 1 Ves. Sen. 282. See Petrie v. Voorhees' Exr., 18 N. J. Eq. 285, 288. One whose legacy is payable in the future has a similar right. Merritt v. Richardson, 14 All. (Mass.) 239, 242. Likewise, a life-tenant of personalty may be required to give security for the protection of the remainderman. Lyde v. Taylor, 17 Ala. 270.
- NATURE AND INCIDENTS OF INSURANCE CONTRACTS — ConTRACT TO DEFEND PHYSICIAN AGAINST SUITS FOR MALPRACTICE. - The plaintiff company brought a bill to restrain the insurance commissioner from interfering with its business, which consisted in issuing a contract to physicians, whereby the company in consideration of an annual payment agreed to employ an attorney to defend the holder of the contract in all suits for civil malpractice that should be brought against him; but the company was not to pay the judgment if the suit were lost. Held, that the bill should be dismissed. Physicians' Defense Co. v. Cooper, 188 Fed. 832 (Circ. Ct., N. D. Cal.).
“Insurance is a contract by which the one party in consideration of a price paid adequate to the risk becomes security to the other that he shall not suffer loss, damage, or prejudice by the happening of the perils specified to certain things which may be exposed to them.' See Lucena v. Craufurd, 2 B. & P. N. R. 269, 301; Cummings v. Cheshire County M. F. Ins. Co., 55 N. H. 457, 458. It differs from a contract of warranty or for services by the fact that the consideration is paid simply for assuming the risk and is not proportional to the property or services expected in return. Cole v. Haven, 7 N. W. 383 (Ia.); Commonwealth v. Provident Bicycle Association, 178 Pa. St. 636, 36 Atl. 197. It differs from the ordinary contract of suretyship, because of its separate development historically; but modern corporations which make a business of acting as sureties for fixed premiums are recognized as insurance companies.
See Cowles v. United States Fidelity and Guaranty Co., 32 Wash. 120, 124, 72 Pac. 1032, 1033; RICHARDS, INSURANCE LAW, 3 ed., $ 469. It differs from a wagering contract by the requirement that the insured must at the time of making the contract expect to suffer some worldly loss or liability if the contingency happens, though the misfortune for which he is to be indemnified need not be the loss of a legal right or the incurring of a legal liability. Le Cras v. Hughes, 3 Doug. 81; Lord v. Dall, 12 Mass. 115. The indemnity promised need not be a money payment. Beals v. Home Ins. Co., 36 N. Y. 522; Tolman v. Manufacturers Ins. Co., 1 Cush. (Mass.) 73. In the light of these broad principles, the decision of the principal case seems well founded. But the authorities are divided. Accord, Physicians' Defense Co. v. O'Brien, 100 Minn. 490, III N. W. 396. Contra, State v. Laylin, 73 Oh. St. 90, 76 N. E. 567; Vredenburgh v. Physicians' Defense Co., 126 Ill. App. 509.
LEGACIES AND DEVISES ADEMPTION — EFFECT OF MERGER OF COMPANY ON BEQUEST OF SHARES. - A testator bequeathed “twenty-three of the shares belonging to me in the London and County Banking Co." upon certain trusts. Between the date of the will and that of the testator's death the company amalgamated with another company, which resulted in a change of name and a new issue of capital, each original £80 share being subdivided into four £20 shares. Held, that the bequest passes ninety-two of the new shares. Re Clifford's Estate, 56 Sol. J. 91 (Eng., Ch. D., Nov. 9, 1911).
The theory that ademption of specific legacies depends upon intent has long been obsolete in England. Stanley v. Potter, 2 Cox 180. It is now well settled that whenever the specific thing devised has ceased to belong to the testator, the bequest is adeemed. In re Bridle, 4 C. P. D. 336. The weight of American authority is in accord with the English cases. Snowden v. Banks, 9 Ired. (N. C.) 373. Contra, Joynes v. Hamilton, 98 Md. 665, 57 Atl. 25. Nevertheless, a legacy is not adeemed if the alteration is purely formal. Oakes v. Oakes, 9 Hare 666. Such is the case where there is a mere subdivision of a company's shares. Re Greenberry, 55 Sol. J. 633. Where, on the other hand, the new shares represent an interest in a substantially different company, the change is more than a mere matter of form. The principal case seems opposed to previous English decisions. Cf. In re Slater, (1907] i Ch. 665; In re Gray, 36 Ch. D. 205. It is, however, in accord with American authorities. In re Peirce, 25 R. I. 34, 54 Atl. 588; Skipwith v. Cabell's Exr., 19 Grat. (Va.) 758. Though hardly consistent with the strict theory of ademption, the result of the principal case seems desirable, since the likeness of the new shares to the old is more important than their differences. The case is further complicated by a provision of the Wills Act, which was rightly held not to affect the result. 7 Will. IV. & 1 Vict. c. 26, § 24. But cf. In re Slater, supra.
MARRIAGE — NULLIFICATION - ALLOWANCE TO WIFE. — A marriage was annulled on account of the wife's incapacity, theretofore unknown to her. During the eighteen years from the marriage to its annulment the husband accumulated $70,000. Held, that an allowance to the wife of $10,000 is not improper. Coats v. Coats, 118 Pac. 441 (Cal.).
Alimony is allowed in divorce proceedings in lieu of the wife's right to future support. See Ex parte Spencer, 83 Cal. 460, 464, 23 Pac. 395, 396. Nullification proceedings present no such basis for alimony, for by the decree the wife's right to support is avoided. Willits v. Willits, 76 Neb. 228, 107 N. W. 379. Consequently, the orthodox view disallows alimony in such cases. Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736. See GODOLPHIN, ECCLESIASTICAL LAWS, 509. The wife
have several minor remedies. She can recover for fraud in procuring the marriage. Blossom v. Barrett, 37 N. Y. 434.
The husband, being liable for household expenses until nullification, must reim
burse the wife if she has paid them. Hunt v. Hunt, 23 Okl. 490, 100 Pac. 541. She has a right to a part of the joint accumulations. Werner v.
Werner, 59 Kan. 399, 53 Pac. 127. But in some cases these remedies may be grossly inadequate. Some jurisdictions have allowed alimony by statute in certain circumstances. Barber v. Barber, 74 Ia. 301, 37 N. W. 381. The same result is being achieved by judicial decision. Strode v. Strode, 3 Bush (Ky.) 227. The nondescript allowance, as yet bearing no specific name, takes the same form as alimony; for its size is within the discretion of the court, having regard to all the circumstances. The novelty of the doctrine readily explains the slight confusion with which the principal case achieves a just result.
MORTGAGE PRIORITIES SEVERAL NOTES SECURED BY SAME MORTGAGE. - A., the owner of several notes secured by a trust deed, payable two and three years after date, assigned one of the two-year notes to B. and one of the three-year notes to C. The trust deed contained the provision that on default in payment of any of the notes, all should become due. After maturity of all the notes a bill was filed to foreclose the trust deed. Held, that all of the twoyear notes should be paid first, then the three-year note assigned to C., and then the three-year notes retained by A. Kuppenheimer v. Chicago Title and Trust Co., 43 Nat. Corp. Rep. 467 (Ill., App. Ct., Oct. 4, 1911).
In many jurisdictions the various assignees of notes secured by the same mortgage and maturing at different dates share pro rata in a distribution of the security irrespective of the order of maturity or assignment of their respective notes. Donley v. Hays, 17 Serg. & R. (Pa.) 400; Wilson v. Eigenbrodt, 30 Minn. 4, 13 N. W.907. In one jurisdiction at least such assignees take priority in the order of assignment. Cullum v. Erwin, 4 Ala. 452; Alabama Gold Life Ins. Co. v. Hall, 58 Ala. 1. A large number of jurisdictions, however, hold that priority shall be determined by the order of maturity of the various notes. Lyman v. Smith, 21 Wis. 674; Winters v. Franklin Bank of Cincinnati, 33 Oh. St. 250. Nor is this order affected by the presence of an acceleration clause in the mortgage. Leavitt v. Reynolds, 79 Ia. 348; Horn v. Bennett, 135 Ind. 158, 34 N. E. 321, 956. Contra, Pierce v. Shaw, 51 Wis. 316, 8 N. W. 209. This view would seem preferable as giving effect to a probable intention of the parties that, by a prior date of maturity, which carries with it, in the absence of an acceleration clause at least, a prior right to foreclose, a party is to be entitled to a preference. The assignee, however, is usually allowed to prevail over the assignor irrespective of the order of maturity. Parkhurst v. Watertown Steam Engine Co., 107 Ind. 594, 8 N. E. 635; Anderson v. Sharp, 44 Oh. St. 260, 6 N. E. 900. Contra, Wood v. Trask, 7 Wis. 566. The principal case illustrates the latter views, except that it prefers the assignor's two-year notes to the assignee's three-year note.
OF CARE DISCONTINUANCE WITHOUT NOTICE OF A CUSTOM OF VOLUNTARILY GIVING WARNING. The defendant, operating a rock quarry near the plaintiff's blacksmith shop, exploded a blast which frightened a horse being shod by the plaintiff so that it plunged and injured him. At the plaintiff's request, the defendant had habitually warned him before blasting, but on this occasion failed to do so. Held, that a complaint alleging these facts states no cause of action. Hieber v. Central Kentucky Traction Co., 140 S. W. 54 (Ky.).
One is not originally obliged to notify a person in the plaintiff's situation before blasting. Mitchell v. Prange, 110 Mich. 78, 67 N. W. 1096. But, if he has habitually done so, it does not necessarily follow that the practice can be discontinued without warning. If a railroad, by withdrawing without notice signals from a crossing where they are usually displayed, causes injury to one relying on them, it is liable, though not originally bound to maintain signals