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Norris Bull, for appellant.

A. F. Rodenbeck, for City of Rochester.

Appeal from commissioners of appraisal.

Proceeding to condemn land for the extension of Ethel street in the city of Rochester. From an award to one Avenel of nominal damages only for land belonging to him, he appeals. Affirmed.

RUMSEY, J. By the commencement of these proceedings the city admits the right of the landowner in the premises, and that the land has not been dedicated for a public highway. Village of Olean v. Steyner, 135 N. Y. 341, 32 N. E. Rep. 9. Such was the necessary result of the judgment in the case of Avenel v. City of Rochester, which was introduced in evidence. But none of the abutting owners were parties to the action in which that judgment was rendered, and their rights were therefore left unaffected by it. They were still at liberty to assert their private easement over these lands if they had any. In re Eleventh Ave., 81 N. Y. 436, 446. If that easement in favor of the private owners existed, by means of which they were entitled to pass and repass over this piece of land, and to have kept it open for their benefit, an award of nominal damages was all the owner of the fee could claim. Village of Olean v. Steyner, 135 N. Y. 341, 32 N. E. Rep. 9; In re Eleventh Ave., 81 N. Y. 436. The duty of the commissioners was to appraise the damages which the persons interested shall sustain. They start upon this duty with the admission on the part of the city that the party whose damages they are to appraise has some interest, but that admission does not conclude either the city or the commissioners as to the extent of that interest. The statute requires the commissioners to appraise the damages of those who have rights or interests or easements in the premises. To do this they must necessarily decide what rights each party has, because, until that is done, they cannot fix his damages. Such an inquiry was made by the commissioners in the two cases last cited, and I can see no force in the claim that they are not bound to make it. The case of In re City of Yonkers, 117 N. Y. 564, 23 N. E. Rep. 661, was different. There the city claimed, after the proceedings to condemn the property of Lawrence had been begun, that the lands were subject to the very easement which it had sought to acquire. The court held only that by bringing the proceeding the right of Lawrence was conceded, and it could not be denied or disproved.

The only question, then, is whether the lands of Avenel were subject to an easement of passage in behalf of the abutters on the two sides of them, which rendered the premises, so far as those abutters were concerned, a public street for all practical purposes. The premises of Avenel were known as parts of lots 58 and 583. In 1886, lot 58 was conveyed to Mrs. Doran. Just north of lot 58 was lot 39 of the Doran tract, also owned by Mrs. Doran. In May, 1887, Mrs. Doran conveyed to Calista A. Foster lot 39 and a part of lot 58 lying north of what is now laid out as the north

line of Ethel street. The part of lot 58 conveyed to Mrs. Foster is described as bounded on the south by the north line of Ethel street. That left in Mrs. Doran so much of lot 58 as lay south of the north line of Ethel street and is what is now sought to be condemned. Before 1886, one Joseph Z. Culver had owned lots 57 and 58 on the south of 583. In 1885, Culver conveyed to one Upton, lot 57 and the south part of lot 58, bounding them on north by the south line of Ethel street, that being a line running through lot 58, and being the same line established by the city as the south line of the lands sought to be taken. The deed to Upton was with warranty. Culver was the agent of Mrs. Doran in making the sale to Foster, and at that time and when he deeded to Upton, he told him that Ethel street was a public street extending to Flora street. While they occupied these lots they had access to them over this part of lots 58 and 581, which had been so represented, and no fences were put there until 1890. It is undoubtedly the rule that where a grantor bounds the granted lands on a street or highway there is an implied covenant that there is such a highway; that, so far as the grantor is concerned, it shall be continued, and that the grantee, his heirs and assigns, shall have the benefit of it. Bank v. Nichols, 64 N. Y. 65, and cases cited on page 73. Mrs. Doran's deed to Foster, and Culver's deed to Upton, bound them by this implied covenant as to the lands by them respectively owned, and lying within the boundaries of Ethel street. In 1890, Mrs. Doran conveyed to Culver that part of lot 58 lying within the bounds of Ethel street, and just south of the land conveyed to Foster. That land, as we have seen, was already subject to the easement of a way in favor of Mrs. Foster and her assigns. When Culver took it, he took it with that burden. Lot 58, which he owned, was subject to a like burden because of his deed of the south part of the lot to Upton, which also contained the implied covenant in his favor. The covenant that Ethel street was a highway, and to be kept open, was binding upon Culver when he took the deed from Mrs. Doran, and Upton could then have compelled Culver to perform it not only as to that part of lot 58 which he retained, but as to that part of lot 58 which he then acquired, because his covenant was that there was a street, and any attempt of Culver to obstruct it would have been enjoined at the suit of Upton. Trustees v. Cowen, 4 Paige, 510. The commissioners were right, therefore, in assuming that there was an easement of passage over these premises, and in awarding nominal damages. There is no reason, from anything I can see in the papers, to suppose that the city intends to take the fee of this land, and so the case is not within City of Buffalo v. Pratt, 131 N. Y. 293, 297, 30 N. E. Rep. 233. The only remedy of Avenel in this case for his land is upon the covenant of warranty of Culver, which has clearly been broken.


(Supreme Court, General Term, Second Department. July 28, 1893.)


In an action for partition of land claimed under the will of J., the decree ordered a sale, and decided that the title was in the devisees of J. Held, that the purchaser at the sale would not be compelled to take the title where it appeared that J.'s husband died seised of the land, and that her title depended entirely on a release by the legislature of the interest of the state, subject to the rights of her husband's heirs, and it was not proven that the husband died an alien, or did not have heirs who could inherit the land.


The fact that land is sold subject to a condition without authority in the decree of sale, and the condition is signed by the purchaser's son without understanding its force and effect, will not oblige the purchaser to take the title.

Appeal from special term, Kings county.

Action by Mary Ann Recor against Charles Blackburn and others for partition. There was a decree for partition, and the land was sold to Levi Blumenon. From an order compelling Levi Blumenon to complete his purchase, he appeals. Reversed.

Argued before BARNARD, P. J., and DYKMAN, J.

Bearns & Brenner, for appellants.
William C. Kellogg, for respondent.

BARNARD, P. J. This is an action for partition and sale of lands. The title sold is derived under the will of Jane Richards. She was the wife of James Richards, who died seised of the same in December, 1884. The legislature, by chapter 170, Laws 1886, released the interest of the state of New York in the lands to Jane Richards, the widow, subject to the rights of the heirs of James Richards therein. The report of the referee finds that James Richards was never made a citizen of the United States, and that he left no child or children nor heirs at law nor next of kin, except the widow. There is no return of the evidence on which the fact of alienage is found, nor any testimony showing what heirs at law James Richards left. The decree ordered the premises sold; decided that the devisees of Jane Richards owned the title. The referee sold the land, subject to the claim of the heirs of James Richards, although this direction was not contained in the decree. One Levi Blumenon became the purchaser, at the sum of $1,800, and he declines to take the title. The papers show no title out of James Richards. The release of the state did not give a title as against the heirs of James Richards. The affidavit of Cahill tends strongly to show that there is a brother of James Richards living in England, who corresponded with his brother up to a period shortly before James Richards' death. As against this brother, the act granting title to the widow is inoperative. The purchaser is entitled to a merchantable title. Fleming v. Burnham, 100 N. Y. 1, 2 N. E. Rep. 905. This is not such a title.

It is doubtful, at least, as it is unproven, that James Richards died an alien. It is more than probable that he has a brother living who can inherit under chapter 38, Laws 1875.

The conditions of sale should have no binding effect. The wife was directed to sell a good title, and the conditions were signed by the purchaser's son, without understanding its force and effect. He should be relieved if he did not get a good title, notwithstanding the conditions of sale. The title is not one which will sell. It demands proof and explanation. The court will not force a poor title on a purchaser who is holding only by a condition of sale unauthorized by the decree in so vital a particular. The order should be reversed, with costs and disbursements, and the motion denied, with costs.

(4 Misc. Rep. 245.)


Under Laws 1890, c. 564, § 48, providing that no corporation which shall refuse to pay any of its obligations when due, nor any of its officers, shall assign any of its property to any of its officers, directors, or stockholders for the payment of any debt, and no officer, director, or stockholder shall make any transfer or assignment of its property to any person in contemplation of its insolvency, a corporation cannot make an assignment for benefit of creditors.

Action by the Troy Waste Manufacturing Company against the Saxony Woolen Mills and others.

James H. Ryan, for plaintiff.
Walter C. Anthony, for defendants.

PARKER, J. The following question is presented for decision: Under the law as it stood in September, 1891, could a manufacturing corporation organized under the act of February 17, 1848, in contemplation of insolvency, make a general assignment for the benefit of creditors without preferences? The right of corporations, trading or religious, to make assignments, if not restrained by statute, seems to have been settled. De Ruyter v. Church, 3 N. Y. 238; Haxtun v. Bishop, 3 Wend. 13; Robinson v. Bank, 21 N. Y. 406; Hurlbut v. Carter, 21 Barb. 221; Hill v. Reed, 16 Barb. 280. The Revised Statutes (chapter 18, pt. 1, tit. 4, § 4) relating to the assignment of property by a corporation in contemplation of insolvency provides:

"And it shall not be lawful to make any transfer or assignment in contemplation of the insolvency of such company to any person or persons whatever; and every such transfer and assignment to such officer, stockholder, or other person, or in trust for them or their benefit, shall be utterly void."

It has been repeatedly held that a general assignment by a corporation for the benefit of creditors without preferences is absolutely void. Harris v. Thompson, 15 Barb. 62; Robinson v. Bank, 21 N. Y. 406; Sibell v. Remsen, 33 N. Y. 96. Chapter 18, pt. 1,

Rev. St., of which the provision above quoted constitutes a part, was entirely repealed by chapters 564, 565, Laws 1890, the repeal to take effect in May, 1891. It was provided that existing laws should be continued in force, ❝modified or amended" so as to conform to the provisions of those chapters. Section 48 of said chapter 564 was substituted in place of that portion of the Revised Statutes heretofore alluded to, and was the law in force and regulating all corporations after it took effect, in May, 1891, and necessarily was in force in September following, the time referred to in the question submitted for decision. It is contended that the substituted provision does not in terms prevent a corporation from making an assignment in contemplation of its insolvency. It reads as follows:

"No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors, shall assign any of its property to any of its officers, directors, or stockholders, directly or indirectly, for the payment of any debt; and no officer, director, or stockholder thereof shall make any transfer or assignment of its property or of any stock therein to any person in contemplation of its insolvency; and every such transfer or assignment to such officers, directors, or other person, or in trust for them or for their benefit, shall be void."

The point is made that the statute prohibits an officer, director, or stockholder of a corporation from making an assignment of its property, but that it does not prohibit the corporation. Section 8, St. Const. Law, (chapter 677, Laws 1892,) provides that "words in the singular number include the plural, and in the plural number include the singular." Adopting that rule of construction, the statute must be read as prohibiting the officers, directors, or stockholders of a corporation from making an assignment or transfer of its property. Necessarily, therefore, the prohibition includes all the officers, directors, and stockholders. That which all of the offi cers, directors, and stockholders are debarred from doing, the corporation is in effect prevented from doing, because it can only act through its officers, directors, or stockholders. It would seem to follow that a general assignment made by a corporation through the action of its officers and directors comes within the condemnation of the statute.

(4 Mise. Rep. 436.)

THORNE et al. v. FRENCH.

(Superior Court of New York City, General Term. July 3, 1893.) 1. EQUITY-JURISDICTION RETENTION AFTER BEING ONCE ACQUIRED. Where the ostensible object of an action, as shown by the complaint, is to obtain an injunction, and to recover damages for breach of a contract, and the court is unable to conclude until after judicial investigation, as a court of equity, that plaintiffs are not entitled to an injunc tion, it will retain jurisdiction of the case, and determine the question of damages, and not remand it to that part of the court wherein issues of fact are triable by jury, nor dismiss it, in the absence of any motion to dismiss it, either at the close of plaintiffs' case, or at the conclusion of the trial.

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