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MORAN V. KENT.

(Supreme Court, Appellate Division, Second Department. October 16, 1903.) 1. TRIAL-SUFFICIENCY OF PROOF.

Where the allegations to which plaintiff's proof is directed are unproved in their entire scope and meaning, there is such a failure of proof as re

quires a reversal on appeal. Appeal from Municipal Court, Borough of Queens, First District.

Action by Edward H. Moran against Walter L. Kent. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Geo. S. Billings, for appellant.
Burt Jay Humphrey, for respondent.

WOODWARD, J. The defendant and the plaintiff's assignor, who were husband and wife, were living apart under a judgment of separation. As a part of the provision made by the defendant for the payment of alimony to the plaintiff's assignor, and for her support, and the maintenance and education of the children of the marriage, two bonds and mortgages were executed and delivered by the defendant as collateral security. The complaint, as amended at the trial, alleges that the defendant became so far in arrears in his payments that the plaintiff's assignor was entitled to foreclosure of one of these mortgages according to its terms and the provisions of a written agreement between the parties, but that she agreed to and did forbear to start foreclosure proceedings at the defendant's request. In consideration of this forbearance, it is alleged in the complaint that the defendant promised to pay the plaintiff's assignor "a reasonable amount as she might pay F. H. Chandler for a piano, not exceeding $500," and it is upon this promise that the action was brought and judgment rendered in favor of the plaintiff.

We do not find upon an examination of the record that fair preponderance of evidence in favor of the plaintiff which is necessary to sustain the judgment. The testimony of the plaintiff's assignor is vague, confused, and wholly unconvincing. It falls far short of establishing the fact that any contractual obligation whatever was assumed by the defendant in reference to the piano. It finds no support upon any material point in the testimony of the plaintiff's other witnesses, and it is squarely in conflict with the testimony of the defendant, which is amply corroborated by the subsequent conduct of the parties and the probabilities suggested by the whole evidence. This is true, both of the evidence directed to the allegation of the defendant's promise and to the allegation of the consideration for that promise. It is reasonable to infer from the testimony of the witness Seaman, who was counsel for the plaintiff's assignor, that whatever forbearance to foreclose the mortgages the plaintiff's assignor may have exercised was for her own protection rather than for the defendant’s benefit, and upon the advice of her own counsel. The alleged instructions to her

84 N.Y.S.—2

and 118 New York State Reporter attorney by the plaintiff's assignor to foreclose the mortgage, and her subsequent direction to him to discontinue the proceedings, are supported by no proof sufficiently definite in point of time to be of avail to the plaintiff, and it seems to be established that the piano was rented rather than purchased by the plaintiff's assignor. The allegations to which the plaintiff's proof was directed were unproved in their cntire scope and meaning, and there is therefore a failure of proof that requires a reversal of the judgment. The judgment should be reversed, and a new trial ordered.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. All concur.

(87 App. Div. 177.)

In re MAYOR, ETC., OF NEW YORK. (Supreme Court, Appellate Division, First Department. October 16, 1903.) 1. MUNICIPAL CORPORATIONS-OPENING STREETS—CLOSING STREETS-CONSOLIDA

TION OF PROCEEDINGS-REPORTS OF COMMISSIONERS OF ESTIMATE AND As-
SESSMENT

Proceedings to acquire land for a street and proceedings for the discontinuance of a street being separate and distinct proceedings, the commissioners of estimate and assessment, appointed in proceedings to acquire land for a street, who, under Laws 1895, p. 2051, c. 1006, $ 14, authorizing the consolidation of the proceedings, were directed to determine the compensation that should be paid to property owners in consequence of the discontinuance of a street running at right angles to the street proposed to be laid out, must make separate reports—one in the proceedings to acquire land, and another of their estimate of the damage sustained in consequence of the closing of the street.

Laughlin, J., dissenting.
Appeal from Special Term, New York County.

In the matter of the application of the mayor, aldermen, and commonalty of the city of New York relative to acquiring title to lands necessary to open East 168th street, in the city of New York. Fron an order confirming the report of the commissioners of estimate and apportionment, and directing the commissioners to make a separate report of their estimate and assessment as to the damage sustained by owners of property in consequence of the closing of Gerard avenue, in the city of New York, certain property owners appeal. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Joel J. Squier, for appellants.
John P. Dunn, for respondent.

INGRAHAM, J. This is a proceeding instituted by the niayor, aldermen, and commonalty of the city of New York to acquire title to lands necessary to open East 168th street, in the Twenty-Third Ward of the city of New York. The proceeding was commenced in the year 1896, and on the 8th day of October, 1896, commissioners of estimate and assessment were appointed by the Supreme Court. The commissioners duly qualified, and while engaged in the performance of their duties, on the 15th day of April, 1897, the appellants pre

sented a petition to the Supreme Court which alleged that the appellants Deering and Brown were the owners of a piece of property abutting on 168th street, a portion of which was taken for the opening of the street; that their property also abutted on Gerard avenue, running at right angles to 168th street, and the appellant Strouse was the owner of property abutting upon Gerard avenue, north of 168th street; that Gerard avenue had been duly laid out and established as a public street, and the title thereto acquired by the city of New York; that upon the map or plan of that portion of the city adopted June 1, 1894, the lines of Gerard avenue as formerly laid out have been altered or changed, and a portion of Gerard avenue closed, so that the petitioners' premises have lost their frontage upon said Gerard avenue; that damage and loss resulted to the petitioners as a result of this closing of a portion of Gerard avenue; and therefore the petitioners ask that an order be entered, under and pursuant to section 14 of chapter 1006, p. 2051, of the Laws of 1895, directing the commissioners of estimate and assessment to ascertain and determine the compensation that should be paid to the petitioners in consequence of the discontinuance and closing of said, Gerard avenue between 168th and 16gth streets, and that the said commissioners further and separately appraise and report the value of the right, title, and interest of the city of New York in and to the fee of the land remaining in said Gerard avenue, discontinued and closed in front of the petitioners' said premises, over and above such sum as they may assess for benefit on such parcel of land, as provided by section 6 of chapter 1006, p. 2042, of the Laws of 1895. Upon the presentation of this petition, an order of the Special Term was entered on the 30th of April, 1897, by which the commissioners of estimate and assessment were authorized and directed to ascertain and determine the compensation to which the petitioners were entitled in consequence of the discontinuance and closing of a portion of Gerard avenue; and the said commissioners were also directed to further and separately appraise and report the value of the right, title, and interest of the city of New York in and to the fee of the land on Gerard avenue discontinued and closed in front of the petitioners' land. Pursuant to this order the commissioners of estimate and assessment in this proceeding took the testimony offered by the petitioners in support of their claim for the damages sustained by them in consequence of the closing of Gerard avenue, and also as to the value of land belonging to the city of New York within the portion thereof closed. Testimony was also submitted by the city of New York. Subsequently, on the 12th day of December, 1901, the commissioners filed their preliminary abstract of estimates of awards and assessments for the opening of 168th street, but such abstract contained no estimate by the commissioners of the loss and damage sustained by the petitioners by reason of the closing of Gerard avenue, or of the value of the lands remaining in the closed portion of said Gerard avenue. Subsequently the petitioners presented to the commissioners objections to the preliminary report, based upon the failure of the commissioners to include therein the damages to which the petitioners would be entitled in consequence of the closing of the portion of Gerard avenue in front of their premises, and

and 118 New York State Reporter also the refusal to report the value of the land remaining in said Gerard avenue discontinued and closed in front of the appellants'

their final report, without including the estimate of the damage sustained by these appellants, which report was, upon motion of the corporation counsel, despite the opposition of the petitioners, duly confirmed by the Supreme Court; and from that order the petitioners appeal.

The appellants insist that the commissioners were bound to include in one report their estimate of damage and benefit allowed for the acquisition of the property required for the benefit of 168th street, and the estimate of the damage sustained by the appellants in consequence of the closing of a portion of Gerard avenue. The counsel for the corporation insist that, as these were separate proceedings, instituted under separate statutes, the commissioners properly refused to include both in one report. This question does not seem to have been presented in any case that has been reported. These two proceedings have no particular relation to each other. One of the appellants has no relation or interest in the opening of 168th street, as no property of his is taken for that purpose, and the property for which he claims to be entitled to damage does not abut upon that street. The amount of the award to the appellants has no relation to the opening of 168th street. The amount, if any, to which they are entitled in consequence of the closing of Gerard avenue is not at all dependent upon the action of the commissioners in relation to 163th street. Any assessment that would be imposed by the commissioners for the damages allowed to the appellants would necessarily be based lipon an entirely different principle from that applied for the acquisition of property for the opening of 168th street. The two proceedings are based upon different statutes, and have no possible relation to each other. They are only connected by the fact that Gerard avenue runs at right angles to 168th street, and the property of one of the appellants abuts upon both streets. It would seem to be essential for the protection of the owners of property upon whom an assessment may be imposed for the opening of 168th street, and the owners of property upon which an assessment for the damages caused by the closing of a portion of Gerard avenue, that the awards and assessments should be separately stated, so that those persons who have to pay for these two separate and distinct assessments could ascertain the amount of the particular awards, and the principle upon which their property was assessed. There seems to be no reason why such distinct proceedings should necessarily be included in one report. So far as the acquisition of property for the opening of 168th street is concerned, the owners of the property taken are entitled to its value, and the property benefited by the opening of the street is required to pay the cost to the city of acquiring such property. The proceedings under which the city of New York acquires the title to the street are regulated by the Revised Acts of 1813 (2 Rev. Laws 1813, p. 342), the provisions of which have been continued and are in force as part of the present charter of the city of New York. Upon the closing of a public street, however, prior to the enactment of the

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act of 1818, to which I will call attention, the owners of abutting property had no right to an award for the damages sustained by the closing or discontinuing of a street or avenue. The distinction between these two proceedings is illustrated by the opinion of Mr. Justice Patterson on an appeal from the order authorizing the commissioners in this proceeding to take proof of the damage sustained by the discontinuance of Gerard avenue. In re Mayor, etc., of City oi New York, 28 App. Div. 143, 52 N. Y. Supp. 588. It is there said:

"Closing a street is the reverse of opening one. In the latter case private property is taken for the plain public use.

On closing a street the public right in the street ceases, and the title to and ownership of the fee of the land within the lines of the street, subject to any private easement therein, become vested in the grantor or his heirs if the street were dedicated, or in the city if the land were taken by condemnation proceedings.”

The whole object, therefore, of a proceeding to determine the value of the portion of Gerard avenue that was closed, is to determine what amount the abutting owners should pay to the city of New York to acquire title to the land in front of their property, and what sum should be paid to the abutting owners for the damage caused by closing the street; and that certainly has no possible relation to the proceedings to acquire title to the land necessary to open 168th street.

By chapter 213, p. 201, of the Laws of 1818, provision was first made for the payment to owners of property abutting on a public street, which had been closed or discontinued, of damages sustained by such abutting property in consequence of the discontinuance of the street. Section 1 of that act provides that it shall be lawful for the mayor, aldermen, and commonalty of the city of New York to apply to the Supreme Court for the appointment of commissioners to make a just and true estimate of the loss and damage to the respective owners, lessees, parties, and persons respectively entitled unto or interested in any lands, tenements, hereditaments, or premises, by or in consequence of closing any road, street, lane, or alley, or any part of said road, and converting the same to the use of the said mayor, and report thereon to the said Supreme Court. Section 3 provides that the mayor, aldermen, and commonalty of the city of New York shall, within four months after the confirmation by the court of the report of the commissioners in the premises, pay to the respective persons and parties mentioned or referred to in said report, in whose favor any sum or sums of money shall be estimated and reported by the said commissioners, the respective sum or sums so estimated and reported in their favor, respectively. By section 8 it was provided that whenever the mayor, aldermen, and commonalty of the city of New York shall be desirous to open, lay out, or form any street or public place, or to extend, enlarge, straighten, alter, or otherwise improve any street or public place, which shall be contiguous to, or in the neighborhood of, any lot of ground fronting on any street or part of the street which they may pray to have closed, then it shall be lawful for them to unite, in such application as aforesaid, an application to the said court to open, lay out, and form any such street or public place, in pursuance of the provisions of the act of 1813. Section 9 provided that, when an application to close and to open or extend any street or

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