Pollock v. Morris — 8 N.Y. St. Rep. 199

Majority

p. 199

Julius Pollock, Resp’t, v. Gouverneur Morris, App’lt.

(Court of Appeals,

Filed May 13, 1887.)

Headnote

1 Jurisdiction of court—Superior court of New York—Laws 1882, chap. 410, § 993.

By Laws 1882, chapter 410, § 998, where no ownership -is named in the report of the park commissioners in taking land, or the owner cannot be found, “it shall be lawful” for the city to pay the award “into the supreme court.” Meld, that this is a provision for the city’s benefit which it may adopt and plead as a defense, but to which it is not compelled to resort, but may wait until it is sued and then pay the money into the court, and the superior court of the city of New York has jurisdiction of such an action.

2. Same—Evidence—Inference.

A question as to whether all persons who obtained deeds from defendant did so because they were members of the Land-owners Association, involved an inference derived from the character of the association, his relation to it, etc., and was properly excluded.

Appeal from superior court of the city of New York, general term, affirming judgment of trial term in favor of plaintiff.

Defendant, in June, 1848, contracted to convey to such persons as the committee of a building association should 'request, any or all of the lots included in the map of Morrisania. In 1848 he contracted to convey the streets and places on said map, which was filed to whomsoever should be authorized to receive the same. In 1864 the conveyance of the streets was made to town trustees, with reservation to himself. Lot 138, abutting on Spring place and Morris avenue, was conveyed, in 1848, to Hyde, under whom plaintiff claims. Thereafter Spring place was narrowed by the park commissioners, leaving a strip of twenty feet on each side, and Morse avenue was widened 22£ x 20 feet on plaintiff’s side of the street. This strip was condemned and an award made to “ unknown owners.” Pollock began an action against the city, and the city, by interpleader, substituted Morris as defendant and paid the money into court and the» action was dismissed as to it.

W. Stebbins Smith, for appl’t; J. R. Marvin, for resp’t.

There are no exceptions to the findings of fact or conclusions of law contained in this record, and. none to the refusals to find requested on behalf of the defendant. There is nothing subject to our review beyond, an exception taken to the jurisdiction of the court, and one to the exclusion of a question during the progress of the-trial. The action was brought in the superior court of the city of New York to recover an award for land taken in the opening of a street, and the city was the original defendant. A claim to the award was also made by Morris, and an order of interpleader granted and entered, substituting him as defendant, and discharging the city upon its paying into the hands of the chamberlain, to the credit of the action, the amount of the award.

The jurisdiction of the court was assailed upon the basis of a single provision of the statute. Laws 1882, chapter 410, § 993. The enactment is that when no ownership is named in the report of the commissioners, or the owners named cannot be found, “ it shall be lawful ” for the city to pay the award “into the said supreme court ” to be disposed of by it. This-is a provision for the city’s benefit which it may adopt and plead as a defense, but to which it is not compelled to resort. It did not adopt it in the present case, and made no such defense, but, admitting its liability to the true owner, brought the money into the court, in which it was sued, and left it there to the credit of the action. That such action could be maintained for the award, we have heretofore decided Fisher v. The Mayor, 57 N. Y., 344 ; Spears v The Mayor, 87 id., 359 .

The question excluded called for an inference or opinion of the witness, founded upon facts either undisclosed or insufficient to warrant the conclusion sought. The inquiry whether all persons who obtained deeds from Morris did so because they were members of the land-owners’ association involved an interest derived from the character of that association, and Morris’ relation to it, and the possibility of his conveyance outside of its control—matters which depended upon the force of the written contract, and as to which the judgment or inference of the witness was inadmissible. The effort was to derive from that inference another, that Hyde, when he took his deed from Morris, must have been a member of the association, and then from that a third, that he knew of the contract, and so was affected by it. The witness did not even know that Hyde was a member of the association, or that Morris had conveyed to him, and his inference from or reasoning upon, the facts was properly rejected.

The judgment should be affirmed, with costs.

All concur.