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

fronting on and adjacent to any street, of which it was proposed to change the grade.

Without such consent, there was no authority in the Corporation to cause the existing grade of any of the established streets of the city to be altered, and if, without obtaining such consent, they changed the grade, their act was one of trespass, for which an action would lie by a party injured.

The power of the Corporation over the streets of the city is a mere political power. The public easement in the streets is vested in the People of the State, and not in the citizens of New York, or the corporation of New York. As, in the counties generally, the care and custody of highways is committed to commissioners or overseers, so the same duty is enjoined in cities upon the corporate authorities, and their respective common councils are made commissioners of highways, and the corporation is rendered liable for all damages occasioned by the negligent discharge of their duties. (Storrs v. City of Utica, 17 N. Y. R., 104.)

As commissioners of highways, in either towns or cities, all their powers and duties are conferred and prescribed by statute, and it is competent for the Legislature to enlarge or restrict them, or to take them away altogether.

The evidence in this case establishes that the appellants, without having obtained the consent of the owners of the requisite number of lineal feet, passed an ordinance and altered the grade of an established street, to the permanent injury of the respondent's property. This, under the prohibition of the act of 1852, was an unauthorized act, and constituted it a trespass.

If the act here complained of had been done under lawful authority, and all the requirements of the statute conferring the authority been strictly observed, then, except for the indemnity provided by the act of 1852, it would probably have been regarded as damnum absque injuria. And, it is submitted, that it was to relax the harsh rule of the common law, as stated in Radcliff's Executors v. Mayor of Brooklyn, (4 Comst., 195,) that the Legislature enacted the remedial statute of 1852.

In the absence of all evidence to the contrary, the respondent owning the premises abutting upon the street, is presumptively the owner of the fee of the street to the centre, subject to the

NOVEMBER,

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

public easement; and hence, if the act of subverting the soil for the purpose of lowering the grade of the street was without lawful authority, the respondent could have his action as well for the trespass to the freehold, as for the consequential injury to his adjacent property. For if the entry upon the street was without right, it rendered the trespasser liable for all the consequences of his illegal act.

The right to recover under such circumstances is founded in principle and sustained by authority. (Howell v. City of Buffalo, 15 N. Y. R., 512; Conrad v. Trustees of Ithaca, 16 id., 158; Molt v. The Mayor, &c., of New York, MS. Opinion, Common Pleas.)

BY THE COURT-HOFFMAN, J. The constitutionality of the act of 1852, (March 4, Davies' Laws, p. 1083,) has not been questioned, and is to be assumed until clearly disproved. It is, then, a restriction upon a previous legal and absolute right to change the grade of streets, as the Common Council might be advised.

The 2d section of that 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 the 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 the street or avenue opposite to and adjoining that part thereof, the grade of which is to be changed or altered."

By the 3d section of this act, where the grade of any street or avenue shall be changed or altered, in whole or in part, "it shall be the duty of the assessors appointed to estimate and assess the expense of conforming to such change of grade and regulating the street or avenue in accordance therewith, to estimate the loss and damage which each owner of land fronting on such street or avenue will sustain by reason of such change, to such lands or to any improvements thereon; and make a just and equitable award of the amount of such loss or damage to the owner or owners of such lands or tenements fronting on such street or avenue, and opposite thereto, and affected by such change of grade; and the amount of such award shall be included in the expense of such proceeding, and with such expense shall be assessed as provided in the 175th section of the act of April 9, 1813, entitled,

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

'An act to reduce several laws relating particularly to the city of New York into one act.'

This statute has thus provided a Board, not only for assessing adjoining owners for the benefit they may derive from the improvement, but also for ascertaining the damage which may be sustained by adjoining owners. It may well be that, if the plaintiff, or any one similarly situated, had gone before such assessors,

, proved his damage, and submitted his claim, he might be estopped from urging the present objection. But the Corporation has, in this instance, assumed the performance of the work; resolved that it shall be done at their own expense, and assessors were appointed only to assess upon the owners benefited their respec. tive proportion of the expense. I presume this was done under the 270th section of the act of 1813. (2 R. L., 446.)

The Common Council could only perform the work in ques. tion upon obtaining the consent of two-thirds of the owners, as prescribed in the act of 1852. They have done it in an unlawful manner, and damage has been suffered by the plaintiff from this unauthorized act. The case appears to be a clear

Howell v. T'he City of Buffalo, (15 N. Y., 512,) appears to

one.

govern it.

In The Philadelphia and Wilmington Railroad Company v. Quigley, (21 How. U. S. R., 202,) the Court say:

"The

powers of the Corporation are placed in the hands of a governing body selected by the members, who manage its affairs and who appoint the agents for the accomplishment of the objects of its being. But these agents may infringe the rights of persons who are unconnected with the Corporation, or who are brought into relations of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives, is a recognition of a corporate responsibility for the acts of those representatives.”

The result of the cases is, that, for acts done by the agent of a corporation, either ex contractu or ex delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible, under similar circumstances.

The action was one of libel. I may observe that the trespass and damage here complained of are the acts of immediate agents of the Corporation, who acted under its direct authorization.

Wiltsie y. Nortnam.

It is objected that thus the title of a multitude of owners must be searched before an improvement of this nature can be made. So it must be upon opening streets; and the act of 1852 has provided for the difficulty, where the owners to be paid are not designated in the report of the assessors.

The judgment should be affirmed, with costs
Judgment affirmed.

JAMES W. WILTSIE V. WILLIAM L. NORTHAM.

1. Where, by an agreement between L. & A., of the one part, and the defend

ant N., of the other, the former sell their fixtures, &c., in a toal-yard occupied by them, for a specific sum, and take N.'s negotiable note, and also sell to N., for other consideration, a lease of said yard, and guarantee its renewal on certain terms, and agree, if a renewal be not procured, “to refund the One-half the loss on such fixtures," and no renewal can be procured, and a suit is brought on such note by one who is an indorsee of it after its maturity, and there is no fraud in procuring the note or in the transaction on which it is founded, the most that the defendant can have deducted from the recovery on the note is one-half of the difference between the value of such fixtures for the purposes of use under a renewed lease and the

value thereof for the purpose of removal. 2. The plaintiff shows a sufficient title to the note to maintain an action on

it, although he bought it by giving his own note for it, and, before the second trial of the action, took up his own note by assigning a judgment recovered in the action itself on a former trial of it, (which judgment was reversed and a new trial ordered,) and notwithstanding his vendors of the note and his assignees of such judgment are the persons to whom the note was originally given. (Before HOFFMAN, PIERREPONT, and MONCRIEF, J. J.)

Heard, October 31; decided, November 26, 1859.

This action comes before the Court upon questions of law arising at the trial, and there ordered to be first heard at General Term. It was tried before Mr. Justice HOFFMAN and a jury, on the 24th of November, 1858.

The complaint is upon a note, dated November 16, 1855, made by the defendant, for $1,648.28, payable twelve months after its

Wiltsie v. Northam.

date, to the order of P. H. Lalouette, by him indorsed to Lalouette & Ashfield, and alleged to have been indorsed by them to the plaintiff, who is averred to be the lawful owner and holder of it.

The answer denies the indorsement to the plaintiff, or that he is the lawful owner and holder, and states, as a defense, that, in November, 1855, Lalouette & Ashfield sold to him their “stock, fixtures and lease of a certain coal-yard;" that the agreement was in writing, and a copy of it, dated November 16, 1855, is set forth, which states that, in consideration of the note, Lalouette & Ashfield sell to the defendant "all fixtures and appurtenances in, upon and appertaining to the coal-yard," and described in a schedule annexed to the agreement; and also, in consideration of one dollar, sell “the present lease of said yard, which has about two years to run, at its present rent, and do guarantee to him a renewal to him of said lease for five years at a yearly rent of not exceeding $200, advance, per annum, and at as much less as can be, and also the free privilege to remove all said fixtures at its expiration. If a renewal is not given, then Lalouette and Ashfield are to refund the one-half the loss on said fixtures ;" and "further, in consideration of a note" made by defendant for $3,791.79, at six months, they sell to defendant "all the coal in said yard, being about 700 tons.”

The answer states that, to induce the defendant to enter into said agreement, L. & A. represented that they held a lease which then “had two years or thereabouts to run,” and that, by its terms, they “were entitled and privileged to remove all of said fixtures at the expiration of said two years;" that, relying on these representations, he entered into said agreement, and gave the note in suit, and, to secure it, executed a mortgage on real estate in Sacramento, and entered into the possession of the premi. ses, fixtures and coal, and carried on business there until about the 1st of May, 1857, when he was obliged to quit and abandon all of said fixtures and appurtenances, excepting a horse and cart, worth about $200.

That, after entering into possession, he discovered that L. & A. had no lease, but occupied under one A. Ashfield, who had a lease which expired April 1, 1857; that L. & A. notified him they could not procure a renewal of said lease upon the terms

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