constructed in the street upon which Story's property abutted. It was held that the street was subjected to a new burden and use, and that it was no longer exclusively devoted to street purposes, and that, so far as the railway interfered with the plaintiff's easements for light, air, and access, it took his property for which the railway company was bound to make him compensation. If this plaintiff had been an abutting owner upon Water street, he might have invoked the principles of that case for his protection. In the Story Case no one questioned the right of municipal authorities, or those acting under them, to alter at pleasure the grade of streets for street purposes without making compensation to abutters. DANFORTH, J., writing one of the opinions, said: "It is no doubt true that the grade of a street or highway may be altered by raising or lowering it without liability on the part of the municipality to the abutter. But this is on the ground that the public had already paid a full compensation for all damage to be done by them to the adjacent owners by any reasonable or convenient mode of grading the way. But the principle applicable to such a case does not aid the defendant. There is no change in the street surface intended, but the elevation of a structure useless for general street purposes." There are, undoubtedly, many cases where serious damages are done to abutting owners upon a street by altering the grade thereof, and the legislature, having regard for private rights, should generally make some kind of adequate provision to compensate such persons, specifying and regulating the mode of estimating and paying their damages; and it is believed that such provisions are contained in many of the city charters. One is found in the charter of the city of Buffalo, (title 9, § 17,) and the plaintiff should have pursued his remedy under that provision.

These views lead to the reversal of the judgment. But we ought further to say that an erroneous rule of damages was adopted at the trial. The plaintiff was not entitled to recover for the permanent diminution in the value of his lots, but was entitled only to recover such damages as he sustained prior to the commencement of the action, within the rule laid down in the Uline Case, and in Pond v. Railroad Co., 112 N. Y. 186, 19 N. E. Rep. 487. The judgment should be reversed, and a new trial granted, costs to abide event.

FINCH and GRAY, JJ., concur. RUGER, C. J., and ANDREWS and PECKHAM, JJ., concur in result, on the grounds of there being another remedy and on the erroneous admission of evidence as to damages.

(119 N. Y. 24)

In re ROSENBAUM.1 (Court of Appeals of New York. Jan. 14, 1890.) RES ADJUDICATA-VACATING ASSESSMENT.

1. A decision refusing to vacate an assessment as to a particular lot does not validate the whole assessment, nor affect other parties aggrieved by it. 2. Laws N. Y. 1874, c. 313, forbidding the vacating an assessment on account of certain specified

'Affirming 6 N. Y. Supp. 184.

irregularities and omissions, "except only in the cases in which fraud shall be shown," does not affect a case in which there had been no advertisement and no competition.

Appeal from supreme court, general term, first department.

Petition by A. S. Rosenbaum to vacate an assessment. From an order of the general term reversing an order of the special term refusing to vacate the assessment, defendant, the mayor and aldermen of the city of New York, appeals.

W. H. Clark, for appellant. Eliot Sandford, for respondent.

FINCH, J. The petitioner moved to vacate an assessment imposed upon his property in 1872 to defray a proportionate part of the expense of paving Fifty-Eighth street, between Sixth and Ninth avenues, in the city of New York. The petition was filed in that year. Some proof was sworn to in 1880, and the hearing was in 1888; so that the proceeding seems to have moved with due deliberation over a period of quite 16 years. The explanation is found in an alleged variation in the opinions of this court upon the facts established. The proof shows that, while a contract was let after advertisement, and upon competition, for paving the street with a patent pavement, called the "Stafford Pavement," the work of laying bridge stones or crosswalks was not included, but a contract was made for them with the successful bidder for the other work, at the rate of $1.40 per square foot, without advertisement, or any opportunity for competition. It was further shown that on the same day upon which this contract was made other bids for similar work, as to which competition was permitted, ranged from 40 cents to $1.20 per square foot, and contracts were actually made at $1. So that the work of laying the cross-walks was awarded without advertisement or competition, in violation of the provisions of the charter, and solely upon the order of William M. Tweed, the then commissioner of public works. The corporation counsel made two defenses to the illegality thus established. He introduced in evidence, under the petitioner's objection, the record of a similar proceeding, instituted by John D. Voorhis, to vacate, as to his property, the same identical assessment here assailed. The facts shown upon that hearing were those now established, except that there was then no proof that the price per square foot was excessive and unfair. The special term vacated that assessment; but the general term reversed the order, (5 Thomp. & C. 345,) and this court affirmed that conclusion without an opinion, (62 N. Y. 637.) Of course, the present petitioner had no motive left to press his claim to the same destructive result, and so permitted it to slumber. After the decision below, but before the affirmance in this court, in the case of another assessment, the same illegality relating to cross-walks came up for consideration. In re Eager, 46 N. Y. 100. It was then held that the assessment was invalid because laid without competition, and in violation of the city charter. That doctrine has been since repeatedly affirmed. In re Merriam, 84 N. Y. 596. Nevertheless,

N. Y.)

the corporation counsel insists that the decision of the Voorhis Case is conclusive, upon the principle of stare decisis. Two things are to be said about that: The decision did not validate the whole assessment, or bind or affect other parties aggrieved by it. Purssell v. Mayor, 85 N. Y. 330. And it should be added that the Voorhis Case was decided largely upon the ground that the property owners were not shown to have suffered by an unreasonable price, and at a date when there was no provision for reducing an assessment without vacating it wholly. Be that as it may, the Voorhis decision does not bind the petitioner; and we must apply the law as, after very much of argument and consideration, it has been finally settled.

But the city takes another ground, and insists that chapter 313 of the Laws of 1874 bars a reduction for the illegality complained of. That act forbids the vacating of an assessment on account of certain specified omissions or irregularities, “except only in the cases in which fraud shall be shown." We had occasion to determine the meaning of that act in Re Bank, 75 N. Y. 394, and there held that it closed the door upon the named irregularities, but had no effect upon a case in which there had been no advertisement and no competition at all. It cannot serve, therefore, to defeat the present application. It follows that the order of the special term, which denied the petitioner's application, was properly reversed by the general term, whose order should be affirmed, with costs. All concur.

(119 N. Y. 15)

FARMERS' LOAN & TRUST Co. v. BANKERS' & MERCHANTS' TEL. Co. et al.1 (Court of Appeals of New York. Jan. 14, 1890.) MORTGAGE FORECLOSURE-SETTING ASIDE SALEREFEREE'S DEED.

1. Where a judgment of foreclosure of the mortgage bonds of a telegraph company recites the amount due on the bonds, and refers the matter to a referee to report the sums due on the bonds, and the names of the owners thereof, and also of the coupons issued with the bonds, and orders the mortgaged property sold unless "the amount herein found" should be paid, a sale made by the referee before he reported the amount of the bonds, and confirmed by the court, is a harmless irregularity, where the mortgagor makes no complaint, and the entire proceeds of the sale are exhausted by claims paramount to the bonds.

2. The referee has power after sale to make a deed of the property, where the judgment provides that the purchaser shall obtain possession on the production of the referee's deed, in which the telegraph company and its receiver are to join.

3. Where the judgment provides for the payment of the price partly in cash and partly in receiver's certificates and mortgage bonds to be received only for a pro rata amount, the sale is not rendered invalid because the receiver's certificates delivered proved insufficient in amount to pay the balance due, where the purchaser gives ample security to pay any balance found due, and the court, in confirming the referee's report, orders him to determine such balance.

1

4. It is in the discretion of the court to refuse to set aside the sale because a reorganization scheme, entered into by some of the creditors with petitioner, and under which the purchase was to be made at the foreclosure sale, is not carried out, where petitioner has sued the parties to the

'Dismissing appeal from 6 N. Y. Supp. 643.

173

reorganization for failure to carry out the agree

ment.

5. The relief asked will not be granted where petitioner does not offer to bid more than the purchaser paid, in the event of a new sale, nor show that any one would, and where more than two years have elapsed since the sale, and a new corporation has expended money on the property, and it would be impossible to restore the parties to their former position.

Appeal from supreme court, general term, first department.

This is an appeal by the John A. Roebling's Sons Company from an order of the general term of the supreme court in the first department, affirming an order entered by Mr. Justice LAWRENCE at special term, denying appellant's petition to set

aside a foreciosure sale of the assets of the Bankers' & Merchants' Telegraph Comapny, and to cancel as illegal all the receivers' certificates issued upon the credit of such property, and overruling the appellant's exceptions to the report of the referee who made the sale.

Wheeler H. Peckham, for appellant. Roger Foster and Robert G. Ingersoll, for respondents.

EARL, J. There has been a bewildering maze of legal proceedings affecting the Bankers & Merchants' Telegraph Company and its property, and it is quite possible that wrong and injustice has resulted to some of the creditors of the company. The matters have in many forms been before the courts below by actions, receiverships, references, reports, petitions, motions, and orders, and it would seem as if no real grievance should now remain unredressed. We certainly can perceive no method, acCording to the settled practice of this court, for administering relief to the appellant upon this appeal. The judgment of foreclosure is unassailed, and from it we must set out upon an examination of the matters submitted for our consideration. It recites that it appeared from an affidavit that the bonds secured by the mortgage foreclosed, and then outstanding, amounted to $7,102,000, and it ordered that it be referred to a referee named, "to ascertain and report the principal sums due and unpaid on such bonds as may be ascertained and reported by such referee to be secured by said mortgage, and the names of the respective persons holding any, and what title to the same, and that the said referee shall also ascertain and report which of the coupons issued with any bonds so certified by the plaintiff are outstanding, and entitled to the security of the said mortgage, the names of the respective persons holding any, and what title to the same, and the sums due and unpaid on such coupons respectively, and in the aggregate, together with the aggregate amount of the sums due and unpaid on all bonds and coupons so secured." It further ordered and adjudged that the mortgaged premises should be sold by the referee, "unless, previous to such sale, the said defendant telegraph companies, or either of them, pay to the plaintiff, or its attorneys, the amount herein found as actually due and payable for principal and interest upon the bonds issued under, and secured by, the said mortgage to the plaintiff, and interest

66

thereon," besides the costs. The referee did not, prior to the sale, report the amount due upon the bonds, and hence the appellant claims that the sale was illegal. It was not expressly ordered that the referee should ascertain the amount of the bonds and make his report before he could sell, and the meaning of the judgment in that respect is not entirely clear. The judgment recites that the amount due upon the bonds appeared to the court, and the premises were ordered to be sold unless the amount herein [in the judgment] found," not the amount to be ascertained and reported by the referee, should be paid. It may be inferred that the main purpose of the reference was to ascertain who held the bonds, and by what title they were held, with a view to a distribution of the proceeds of the sale, and that the sum named in the judgment was assented to by all parties and accepted by the court as sufficiently accurate for the purposes of the judgment and sale. The court was competent to interpret its own judgment, and by its confirmation of the sale it is shown that it understood that the reference as to the amount of the bonds was to be executed after the sale. But if it should be held that the reference ought to have been executed before the sale, so that the mortga gor could pay, and thus stop the sale, then the execution thereof before the sale was for the benefit of the mortgagor, and it does not complain. But it is undisputed that valid bonds, amounting to several millions, were outstanding, and it is clear that no one would have paid the amount due upon the bonds for the purpose of stopping the sale. Besides it appears that the bondholders have no real interest in the foreclosure or the proceeds thereof, as the entire proceeds will be needed and exhausted to pay claims paramount to the bonds. So, in any view, the omission to execute the reference before the sale was at most a harmless irregularity, affecting no substantial right, and the court below could at least, in the exercise of its discretion, decline to set aside the sale on that account.

It is further claimed that the referee had no authority under the judgment to execute a deed to the purchaser. But it is implied from the language of the judgment that he was to give a deed, as it provided that the purchaser should be entitled to the possession on the production of his deed, and that the telegraph companies and their receiver should join in the deed. The court below having sanctioned the giving of the deed, and thus construed its own judgment, no ground of complaint on that account remained to this appellant. The judgment provided that the purchaser at the sale should pay a certain amount of cash, and that the balance of the purchase price might be paid in receivers' certificates, and in bonds secured by the mortgage, and that such certificates and bonds should be received only for the pro rata amount the holders of the certificates and bonds would respectively be entitled to receive on the distribution of the proceeds under the decree. Upon the sale the purchaser paid the cash required by the judgment, and delivered to the referee what was supposed at the time to be

a sufficient amount of certificates to pay the amount bid. It now appears that the certificates thus delivered are insufficient to pay the balance of the purchase money; but the purchaser gave ample security to pay any balance that might be found due from him, and the court below, in confirming the report of the referee, ordered that the referee should inquire, and report to the court, what receiver's certificates should have been, or should be, accepted by him in payment of the purchase price, and how much, if anything, is due upon the purchase price. So we think there is no just ground for complaint because the full purchase price was not paid before the deed was delivered.

Prior to the sale there was a reorganization ageement, to which the appellant was a party, and it now complains that the purchase was not made in pursuance of that agreement, and that the purchaser has refused to carry that agreement into effect. It would be a sufficient answer to this complaint that the purchaser denies that he was a party to the reorganization agreement alleged by the appellant, or that he agreed to purchase under and in pursuance of that agreement, or that he committed any fraud whatever in the purchase. But, if the complaint be well founded, it furnishes no absolute ground for setting aside the sale. The court below could, in the exercise of its discretion, leave the appellant to pursue its remedy by action to enforce any rights it has under the reorganization agreement, or against the reorganization committee for any breach of contract or violation of trust by them. A few days after the sale, it in fact commenced an action against the purchaser, the reorganization committee, and the new corporation, to which the premises sold had been transferred, to enforce the reorganization agreement and its rights thereunder, and that suit is still pending. The pendency of that suit does not furnish an absolute bar to the relief here claimed by the appellant, and, notwithstanding that, the court below could, in the exercise of its discretion, vacate the sale. But it could give the commencement of that suit its due weight, and on account thereof refuse to vacate the sale, and leave the appellant to proceed for its relief in that suit. It was not bound to set aside the sale because a reorganization agreement entered into by some of the creditors of the telegraph company had been violated, and its discretion could not be controlled by such agreement.

There are other facts which the court could properly give, and probably did give, much influence in considering the applica│tion of the appellant. It did not offer to bid for the premises upon a resale any more than the purchaser had agreed to pay, or any sum whatever, and it did not show that any one would bid any more. It delayed, with knowledge of all the essential facts, for nearly two years before making the application, and in the mean time the property had gone into a new corporation, which had expended large sums of money thereon, and had mortgaged the same to secure bonds, and had issued stock to the amount of millions. If, therefore, the sale should be vacated, it would be impossible to restore the parties to be affected thereby

(119 N. Y. 86)

PHELAN V. MAYOR, ETC., OF THE CITY OF NEW YORK.1

(Court of Appeals of New York. Jan. 14, 1890.) CONTRACTS-CONDITIONS.

Under the provisions of a contract that the party of the first part should retain, from the amount coming to the party of the second part for performing certain work, inspectors' fees for such time as the work should remain uncompleted beyond a specified time, but that the time during which the work is delayed by the party of the first part, which should be determined by third parties, should be excluded, it is a condition precedent to the right of the party of the second part to be relieved from the allowance of such inspectors' fees for the time that the work was delayed by the party of the first part, that the matter should be submitted to and determined by such third parties, unless they refuse or neglect to act upon it.

Appeal from superior court of New York city, general term.

Action by John Phelan against the mayor, aldermen, and commonalty of the city of New York, for balance of contract price for grading, and for damages. Exceptions taken at the trial were ordered to be heard in the first instance at the general term, and judgment was suspended in the mean time. From a judgment for defendant, plaintiff appeals.

James A. Deering, for appellant. D. J. Dean, for respondent.

ANDREWS, J. The release was a good answer to the second cause of action alleged in the complaint, founded on the delay on the part of the city to remove the obstructions in the street, thereby preventing the plaintiff from proceeding with the performance of the contract. Seymour v. Minturn, 17 Johns. 170; Gray v. Barton, 55 N. Y. 68; Coulter v. Board, 63 N. Y. 366; Simson v. Brown, 68 N. Y. 355. The claim to recover the sum retained by the city for inspectors' fees, for the 375 days beyond the 320 days allowed by the contract for the completion of the work, is based on the ground that performance was prevented by the neglect of the city to remove the obstructions from the street. The plaintiff requested the court to submit the question to the jury, which request was refused, and the plaintiff excepted. There was no error in this raling. The contract provides that, in computing the time exceeding the 320 days, time "during which the work of completing the contract is delayed in consequence of any act or omission of the par

'Affirming 4 N. Y. Supp. 631.

determined by the commissioner of public works, who shall certify the same in writing,) and also Sundays and holidays on which no work is done, and days on which the prosecution of the work is suspended by the said commissioner, shall be excluded." There was no determination of the commissioner of public works applied for or made under this provision. The inspectors' fees were a proper charge under another provision of the contract, unless, according to the provision quoted, the delay was occasioned by the act or omission of the city. But by the terms of this clause it was a condition precedent to any right of the plaintiff to be relieved from the allowance of inspectors' fees, that the matter should have been submitted to and be determined by the commissioner of public works, and this was not done. It was a lawful and binding provision, and is an answer to the claim in the first count of the complaint. If the commissioner had neglected or refused to act when called upon to do so, a different question would be presented. Smith v. Brady, 17 N. Y. 176; Bank v. Mayor, etc., 63 N. Y. 337; Nolan v. Whitney, 88 N. Y. 648. The point that it was not proved that the inspector, Fitzgerald, who was paid for 304 days' inspection, had ever performed the work of inspection, is not presented by the case; as the deposition of Fitzgerald, which was read on the trial, is not printed, and this evidence may have supplied the proof which is now absent. We find no error in the judgment, and it should therefore be affirmed. All concur.

(119 N. Y. 96) STATEN ISLAND RAPID TRANSIT Co. v. MAYOR, ETC., OF THE CITY OF NEW YORK.2

(Court of Appeals of New York. Jan. 14, 1890.) FERRY-LEASE-CONSTRUCTION.

The lessee of a ferry owned a railroad connecting therewith. The fare over the railroad was 5 cents; over the ferry, or over the ferry and railroad, 10 cents. The lessor of the ferry was entitled to a per cent. of the gross receipts of the ferry. The only provision in the lease as to the fare over the ferry was that it should not be less than 5 cents. Held, that the lessor was not entitled to its per cent. on the whole fare charged for a passage over the ferry and the railroad, but only on that part to which a fair division would entitle the ferry.

Appeal from supreme court, general term, first department.

Action by the Staten Island Rapid Transit Company against the mayor, aldermen, and commonalty of the city of New York, to construe a lease. From a judgment of the general term affirming the judgment of the special term (2 N. Y. Supp. 680,) in favor of plaintiff, defendant appeals.

D. J. Dean, for appellant. W. W. MacFarland, for respondent.

FINCH, J. Under both leases of the ferries the lessees were only bound to run their boats to Staten island. They were free to choose their port of arrival and departure, and were at liberty to have but one. They chose to have but one, and se

Affirming 5 N. Y. Supp. 575,