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Adams v. Leland et al.

Seymour, Moore & Co., in favor of James Moore or order, payable on the 20th of June ensuing, without grace, with interest at the rate of seven per cent.

The payee, James Moore, and one P. C. Ward, and the defendants by their firm name of Simeon Leland & Co., indorsed the note, and it was delivered to John Thompson, by whom it was assigned and delivered to the plaintiff.

The chief question is, as to the sufficiency of the demand for payment upon the makers.

The note is dated at New York. The Notary deposes, that the note was given to him for protest by Thompson. "He (Thomp son) told me their office (the makers',) was at 110 Broadway. I called at the place designated, and found 'Seymour, Morton & Co.,' over the door, and presented the note; payment was demanded and refused. I was informed there that I might find their agent at 54 William street, and I presented to him, the man in William street."

It was also proved (by John Thompson) that Seymour, Moore & Co. had dissolved before the note matured. The last the witness knew of Seymour, Moore & Co., they were at 110 Broadway. The Notary further testified thus: "I inquired at No. 110 Broadway over the Metropolitan Bank, for Seymour Moore & Co. The person in attendance there told me that that had been their office; he said I might find somebody who knew more about it at 54 William street; he gave me the name of a man, a Mr. Lincoln, at 54 William street, that he said sometimes acted as their Agent. I understood from the man at 110 Broadway, that they (Seymour, Morton & Co.) were the successors of Seymour, Moore & Co. The defendants excepted to the evidence as to what was said in answer to the inquiries made by the Notary at 110 Broadway. The Notary further testified, that the man at 110 Broadway declined paying the note, saying he had no money. The Notary also inquired at the office adjoining 110 Broadway and was there told that Seymour, Moore & Co. had dissolved.

Demand of payment was then made of Lincoln, at 54 William street. He refused payment. He was asked by the Notary if he knew where the makers were. He answered that he supposed they were out West. "He professed to know a little about it, but refused to tell me (the Notary) much about it. He told me

Leman v. The Mayor, &c., of the City of New York.

the old firm was dissolved." The statements of Lincoln were objected to, the objection was overruled, and the defendants excepted.

The Notary went to the last place of business of the drawers. He is sent to another place, where he is told some information might be obtained. He would not have done his duty if he had not gone there. He is there told that the drawers were supposed to be out West. The statements thus admitted in evidence were admissible, not as proof of the facts stated, but upon the question of the Notary's diligence, to show that he availed himself of information as to where the parties might be found. I think that there was sufficient diligence used in ascertaining the place where the demand should be made, and such demand was sufficient. (Taylor v. Snyder, 3 Denio, 152; Edwards on Bills, &c., p. 484; 9 Wheat. R., 598.) There was enough to put the defendants upon proof of the makers being where they could be reached.

The exceptions to the ruling of the learned Judge in admitting the statements of the persons at 110 Broadway, and 54 William street, are disposed of by the above remarks.

The judgment should be affirmed, with costs.
Judgment affirmed.

MICHAEL L. LEMAN, Plaintiff and Respondent, v. THE MAYOR, ALDERMEN, &C., OF THE CITY OF NEW YORK, Appellants.

1. The Mayor, Aldermen and Commonalty of the city of New York, since the passage of the act entitled "An act to make permanent the grades of the streets and avenues of the city of New York," passed March 4, 1852, cannot, even under the authority of an ordinance passed by both branches of the Common Council and approved by the Mayor, change the grade of any street in said city, established by law when said act was passed, south of Sixty-third street, without becoming liable to the owner of any lot or building on the street so altered, for all damages caused to him, as such owner, by reason of the making of such change of grade; unless such change is made upon the written consent of the owners of at least two-thirds of

Leman v. The Mayor, &c., of the City of New York.

the land in lineal feet fronting on each side of the street opposite to and -adjoining that part thereof, the grade of which is to be changed or altered. 2. By the terms of that act it is declared that it shall not be lawful for the Common Council of the city of New York to change such established grade, without such consent; if therefore they make such change and the defendants by their agents proceed to carry it into actual execution to the injury of the owners of lots on the street, the city is liable for the damage sustained.

(Before HOFFMAN and WOODRUFF, J. J.)

Heard, November 7th; decided, November, 27th, 1859.

THIS is an appeal by The Mayor, Aldermen and Commonalty of the City of New York, the defendants, from a judgment in favor of Michael L. Leman, the plaintiff, rendered on the report of Hon. John L. Mason, as Referee.

The plaintiff is the owner of a lot on Pearl street, New York city, and the building thereon, fronting on Pearl street, and was at the time the acts hereinafter stated were done.

In April, 1857, the defendants, by an ordinance which passed both branches of the Common Council and was approved by the Mayor, directed the grades of Pearl and other named streets to be changed; that the work be done at the expense of the defendants; and appointed three assessors to make a just and equitable assessment of the expense among the owners of lots to be benefited thereby, in proportion as nearly as may be to the advantages which each may be deemed to acquire.

The defendants made such change of grade without the plaintiff's consent, and without the consent of the owners of twothirds of the land in lineal feet, fronting on and adjacent to such change of grade as required by the act of the Legislature, entitled "An act to make permanent the grades of the streets and avenues of the city of New York, passed March 4th, 1852.”

In making such change of grade, the street was dug down three or four feet below the original grade in front of the plaintiff's premises; and such change of grade was injurious to the plaintiff; and made expenditures by him necessary, to adapt the house and lot to the new grade; whereby the plaintiff sustained damage to the amount of $826.57.

The Referee held the defendants liable, and decided that the plaintiff recover from them the damages aforesaid. From the judgment entered on that decision the present appeal is taken.

Leman v. The Mayor, &c., of the City of New York.

Moses Ely, for appellants.

I. Plaintiff has no right of action of trespass against the defendants, for the acts he complains of.

Until the law of 1852 the city might "alter and amend " their streets at pleasure. (See all the laws upon this subject, to wit: 1st. Montgomerie Charter, § 16, Davies' Laws, p. 177; 2d. Rev. Laws of 1813, § 175, id., p. 526; 3d. Law of March 4, 1852, id., p. 1083.) The right to "alter and amend" involves the right to change the grade of a street. (Waddell v. The Mayor, &c., 8 Barb. S. C. R., 95, and cases there cited.) The law of 1852 does not take from the city the right to make the change of grade, where a change is to be made. It only imposes restraints upon its exercise. Before this law, the exercise of the right was unrestrained. No one had any remedy or redress for loss he might sustain by reason of it. No damages could be assessed, and none could be allowed to him. It follows that the remedy given by the last named statute is a "new remedy," and the assessors, by whom the damages are to be awarded, are, for the purposes of such award, a new tribunal. The consent of property owners to the change is made necessary by the language, "it shall not be lawful," &c., without such consent. This annexes to the law of 1852 a right of action on the part of the People for its violation. (2 R. S., part 4, ch. 1, title 7, p. 696.) "Where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, in such case, the party violating the statute is liable for the penalty only." (Sedgwick on Stat. and Const. Law, p. 401.) Again, (p. 402,) "where, by a statute, a new right is given and a specific remedy provided, or a new power, and also the means of exercising it, are provided by statute, the power can be exercised, and the right vindicated, in no other way than that prescribed by the statute." By the statute of 1852: 1st. A penalty was made to attend its violation. Its violation was a misdemeanor. 2d. No new right was given the individual. 3d. A specific remedy is provided.

II. The restraints imposed by the statute of 1852 were mere reservations of rights to the public, and not a bestowal upon individuals. These restraints were mere police regulations. It was left to the chances of each particular case, as to whose will their exercise should depend on. The consent was not a condition

Leman v. The Mayor, &c., of the City of New York.

precedent to the invasion of private property, but to the exercise of a public duty.

III. It does not follow that a valid award, under the statute, could not be made, because an assessment for benefits would be void. The argument that this does follow is founded upon the supposition that the awards are to be paid out of the particular fund to be raised by the assessment, which is erroneous. The assessment is but a means of reimbursing the city the moneys expended in payment of the awards. The test is whether the person, to whom an award should be made, would have a lien upon the particular fund derived from the assessment for the payment of the award, in case of refusal of payment by the city, for any cause.

IV. In this case the plaintiff is entitled to no private remedy. He has suffered no private wrong. 1st. (As already shown,) the right infringed was not a private right. 2d. The injury suffered was common to all plaintiff's neighbors in Frankfort, Hague, Pearl, Vandewater, and other streets in his vicinity. (Lansing v. Smith, 8 Cow., 146; Smith v. Lockwood, 13 Barb., 209.) The judgment should be reversed.

A. J. Willard, for respondent.

I. The power which had been conferred upon the Mayor, Aldermen and Commonalty of the city of New York, by previous laws or charters, to regulate the public streets, was limited by the act of the Legislature, passed in 1852. (Sess. Laws, 1852, p. 46, § 2.)

The second section of this act provides that "it shall not be lawful for the Common Council to alter or change in whole or in part the grade of any street or avenue in said city now established, south of Sixty-third street, or which may hereafter be established north of Sixty-second street, except upon the written consent of the owners of at least two-thirds of the land in lineal feet, fronting on each side of street or avenue opposite to and adjoining that part thereof, the grade of which is to be changed or altered."

This limitation of the power of the Corporation required, as a preliminary to any action, that they should obtain the written. consent of the owners of at least two-thirds of the lineal feet Bosw.-VOL. V. 53

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