43 N.Y. 399, Coster v. City of Albany

Citation:43 N.Y. 399
Party Name:SEBASTIANA C. COSTER and JOHN V. L. PRUYN, Respondents, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF ALBANY, Appellants.
Case Date:January 24, 1871
Court:New York Court of Appeals

Page 399

43 N.Y. 399

SEBASTIANA C. COSTER and JOHN V. L. PRUYN, Respondents,

v.

THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF ALBANY, Appellants.

New York Court of Appeal

January 24, 1871

Argued Dec. 9, 1870.

Page 400

COUNSEL

N.C. Moak and William H. Greene, for the appellant, that before the act of 1823 the State held the bed of the Hudson river in trust for the people. (Hart v. Mayor of Albany,

Page 401

9 Wend., 584; People v. Land Appraisers, 33 N.Y. 461; People v. Gutchess, 48 Barb., 656, 657; People v. Cent. R. R. Co., Id., 479-509; Martin v. Waddell, 16 Peters, 410; La Playance v. City of Monroe, Walker's Mich. Chancery, 155; Woodman v. Kilbourne, 6 Am. Law Reg., U. S., 241.) The Tinicum Fishing Co. v. Carter (61 Penn. St. Rep.) The city of Albany had power to erect wharfs, to regulate wharfage, etc. (Corning v. Green, 23 Barb., 39, 45, 54, 56; Hart v. Mayor, 9 Wend., 585.) Neither right of soil of basin nor public easement was ever granted to the pier proprietors. (Hart v. Mayor, supra, also 3 Paige, 216, 217; Smith v. Comptroller, 18 Wend., 662-3; Follett v. People, 12 N.Y. 276.) The right of city to collect wharfage also remained. (Mayor v. Trowbridge, 5 Hill, 71-73; Buckbee v. Brown, 21 Wend., 112.) The basin was not by act of 1823 made part of the canal. (Hart v. Mayor, supra.) Not by act of 1849. (Follett v. The People, 12 N.Y. 276.) The State made no contract with the pier proprietors; only gave them a license. (Corning v. Green, supra; Hart v. Mayor, supra.) The legislature may discontinue highways. (Macy v. City of Indianapolis, 17 Ind., 267-8; matter of Furman, 17 Wend., 649; Gozler v. Georgetown, 6 Wheaton, 593; People v. Kerr, 27 N.Y. 212, 213; Zimmerman v. Union Canal, 1 Watts. & Serg., 346; Susquehanna Canal Co. v. Wright, 9 Watts & Serg., 9.) That defendants were not liable for consequential and remote damages. (Lansing v. Smith, 8 Cow., 146; 9 Wend., 23; Smith v. The City of Boston, 7 Cush., 254; Galen v. Clyde, etc., 27 Barb., 543; Graves v. Otis, 2 Hill, 467; Wilson v. Mayor, 1 Den., 595, etc., etc., citing a large number of cases.) That plaintiff cannot recover for injury resulting from digging too near the lot. (Ang. on Highways,§ § 213-215; Callender v. Marsh, 1 Pick., 418.) The owner of land has a right to support his soil in a natural condition, but not a superadded structure. (Radcliff v. Mayor, 4 N.Y. , 196-201-4; Panton v. Holland, 17 Johns., 92; Wyatt v. Harrison, 3 Barn. & Ad.; 23 Eng. C. L., 871; Partridge v. Scott, 3 Mees. & Welsb., 220; Board,

Page 402

etc., v. Railroad Co., Law Rep., 3 C. P., 621-625.)The owner must support his building. (Lasala v. Holbrook, 4 Paige, 173; Peyton v. Mayor, 9 B. & C., 17 Eng. C. L., 725.)

A. J. Parker, for the respondent, that act was passed by inducement of defendant, and that defendant is therefore liable. (Herring v. Hoppock, 15 N.Y. 409; Davis v. Newkirk, 5 Denio, 92.) That third party may sue on an agreement made for his benefit. (Lawrence v. Fox, 20 N.Y. 268; Van Schaick v. The Third Ave. R. R. Co., 38 N.Y. 346-354; Secor v. Lord, 3 Keyes, 525; Ricard v. Sanderson, 2 Hand, 179; Turk v. Ridge, Id., 256; Thorp v. Keokuk, 47 Barb., 439-446.) That removal of lateral pressure gave right of action. (Farrand v. Mashall, 21 Barb., 409; S. C., 19 Id., 380.) That the act of 1868 includes contingent damages. (Sedgwick on Statutes, 238; Cone v. Alger, 7 Cush., 53-89.)

FOLGER, J.

In this court, the appellants make four points: 1st.That the respondents were not entitled to damages, by reason of the removal of the Hamilton street bridge. 2d. Nor for the taking of lands near their's, by which their's were rendered less convenient for dockage and unloading, and thereby less valuable. 3d. Nor for injuries alleged to have been sustained by digging too close to their lands, and undermining their foundations. 4th. That there is no privity between the respondents and the appellants, by which the last are liable in an action to the first. On reference to the complaint in the action, it is seen, that it alleges but two causes of damages in two counts; and asks relief but for those damages. 1st. The first count states a cause of action, for so prosecuting the work under the statute, as to undermine the foundation of the plaintiffs' building, and render it insecure, whereby it became necessary for them to expend a sum named, which they did expend. 2d. The second count states a cause of action, for the injury to the plaintiffs by the removal of the Hamilton street bridge, making access to their

Page 403

property less easy and convenient, and rendering it impossible for vessels to lie there. On the trial at the circuit, all testimony on the question of damages was taken subject to objection by the defendants, the specific grounds of which they were not required to state as each question was asked, but were permitted to give as a whole at the close of the plaintiffs' case. The objections at that time stated, and the exceptions to the ruling of the court, and the positions taken on a motion for a nonsuit, and the exceptions then taken, will bring up for the consideration of this court, all the points here made by the appellants.

It is to be observed, that though evidence was given, applicable to the first count in the complaint, and tending to show damage of the nature and causes as therein alleged, no proof was made of the amount of damage resulting to the plaintiffs from the undermining of the plaintiffs' building, and thus rendering it insecure. There was proof, however, of direct damage inflicted upon the plaintiffs' building, in the tearing out of brick work, and of bearings, and of cross-beams. And there was proof of what it cost to repair the building in these particulars. And that sum, and the interest on it, the jury found for the plaintiffs, as one of the items of their verdict. The case states the verdict on that item to have been rendered "upon the first alleged ground, or cause of action set forth in the complaint."

The judgment entered upon the verdict slightly enlarges upon the allegations in the complaint, and upon the items of the verdict, thus "by the undermining of the building, and destruction of the wall." The verdict and the judgment cannot be sustained upon the first cause of action, as it is stated in the complaint, for there is no proof in dollars and cents of any damage from that cause. And although the verdict and judgment are correct in the amount, and there was proof of that amount of damage sustained, yet it was sustained from a cause not alleged in the complaint. So that the verdict and judgment cannot be sustained on that item without amendment, if such objection has been taken. This

Page 404

testimony of the amount of damage, and the particular cause by which damage was sustained, was received without objection, other than the objections made in a group at the close of the plaintiffs' case. One of these objections was, that the evidence should be confined to the issue, and the special allegations of injury set up in the complaint. At no other stage of the case, does it appear that the defendants' counsel raised any objection, or asked for any action or ruling of the court, based upon this especial variance of the proofs from the allegation of the complaint. And the case shows that the objections were reduced to writing, and given to the stenographer of the court; nor does it appear that the attention of the judge was called to them in detail. If this objection had been singly and promptly brought to the attention of the learned judge who presided at the circuit, it would at once have struck him that the testimony was inadmissible under the plaintiffs' pleading, and he would have rejected the testimony or have directed an amendment of the pleading, or would have conformed the pleadings to the proofs. (Code, § 173.) As will appear hereinafter, the plaintiff had a right of action for that direct damage; and the testimony would fully sustain a recovery for the amount of the verdict rendered. It does not appear in the papers that the point has ever been made by the defendants, other than as above noted, that here was a variance between the pleading and the proof. In the very elaborate points of the appellants' counsel in this court, the ground is not taken that this testimony is not in accord with the allegations of the complaint, nor is the ground here taken that for the damages proven, direct and immediate, to the plaintiffs' building, thus shown by the testimony, there was not a liability to them existing against some person or body corporate. It is plain that the case has not been brought up for review on account of this variance. There will be no surprise upon the defendants, then, if we treat the case as if this objection had been waived, as we doubt not it has.

Then we come to the principal questions presented for our decision; and they are: What liability did the city assume?

Page 405

Was there such a relation of the plaintiffs to the defendants as that an action will lie in their favor against them, and for what damages to their property can the plaintiffs recover?

The consideration of these will cover all the points made in this court by the appellants' counsel.

The work contemplated by the provisions of the statute brought under consideration in this action was a public one, to be performed by public agents, under due authority of law. No question is made but that the act is constitutional. No private property was to be taken for public use, without just compensation. The work is styled an improvement, in different sections of the act. It is to be inferred that it was an improvement in itself desirable, and one which the State was willing to undertake. It is quite apparent, however, that the agents of the State were uncertain what would be the sum ultimately needed to...

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147 practice notes
  • 124 F. 555 (S.D.N.Y. 1903), Barker v. Pullman's Palace Car Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • July 31, 1903
    ...amount, or that the benefit of such creditors should have been the sole object of this clause of the agreement. In Coster v. The Mayor, 43 N.Y. 399, Folger, J., said, in discussing this subject: 'The ultimate beneficiary is uncertain. It is settled in this state that an agreement, made on a......
  • 250 F.Supp. 582 (S.D.N.Y. 1965), In re Credit Indus. Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • December 16, 1965
    ...situation in the case at bar. 4 Corbin, supra, § 781 at 70-73; Bradley v. McDonald, 218 N.Y. 351, 113 N.E. 340 (1916); Coster v. Mayor, 43 N.Y. 399 (1870). The trustees further request the application of the reasoning utilized in Chase Manhattan Bank v. May, 311 F.2d 117, 120 (3d Cir. 1962)......
  • 129 Cal. 390, L. A. 680, Union Sheet Metal Works v. Dodge
    • United States
    • California Supreme Court of California
    • July 31, 1900
    ...will lie in favor of one for whose benefit a common-law contract is made. (Lawrence v. Fox , 20 N.Y. 268; Coster v. Mayor of Albany , 43 N.Y. 399; Lyman v. Lincoln, supra ; Baker v. Bartol , 7 Cal. 551; Civ. Code, sec. 1559; 7 Am. & Eng. Ency. of Law, 2d ed., 106; Hendrick v. Lindsay , ......
  • 28 S.W. 1074 (Mo. 1894), State v. The St. Louis & San Francisco Railway Company
    • United States
    • Missouri Supreme Court of Missouri
    • December 22, 1894
    ...466; Fitzgerald v. Barker, 85 Mo. 14; Rodgers v. Gosnell, 58 Mo. 589. See, also, Van Schaick v. Railroad, 38 N.Y. 346; Coster v. Mayor, 43 N.Y. 399; Lawrence v. Fox, 20 N.Y. 268; Schuster v. Railroad, 60 Mo. 290; Ellis v. Harrison, 104 Mo. 270; Lusk v. Ridge, 41 N.Y. 206; Railroad v. Hopkin......
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147 cases
  • 124 F. 555 (S.D.N.Y. 1903), Barker v. Pullman's Palace Car Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • July 31, 1903
    ...amount, or that the benefit of such creditors should have been the sole object of this clause of the agreement. In Coster v. The Mayor, 43 N.Y. 399, Folger, J., said, in discussing this subject: 'The ultimate beneficiary is uncertain. It is settled in this state that an agreement, made on a......
  • 250 F.Supp. 582 (S.D.N.Y. 1965), In re Credit Indus. Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • December 16, 1965
    ...situation in the case at bar. 4 Corbin, supra, § 781 at 70-73; Bradley v. McDonald, 218 N.Y. 351, 113 N.E. 340 (1916); Coster v. Mayor, 43 N.Y. 399 (1870). The trustees further request the application of the reasoning utilized in Chase Manhattan Bank v. May, 311 F.2d 117, 120 (3d Cir. 1962)......
  • 129 Cal. 390, L. A. 680, Union Sheet Metal Works v. Dodge
    • United States
    • California Supreme Court of California
    • July 31, 1900
    ...will lie in favor of one for whose benefit a common-law contract is made. (Lawrence v. Fox , 20 N.Y. 268; Coster v. Mayor of Albany , 43 N.Y. 399; Lyman v. Lincoln, supra ; Baker v. Bartol , 7 Cal. 551; Civ. Code, sec. 1559; 7 Am. & Eng. Ency. of Law, 2d ed., 106; Hendrick v. Lindsay , ......
  • 28 S.W. 1074 (Mo. 1894), State v. The St. Louis & San Francisco Railway Company
    • United States
    • Missouri Supreme Court of Missouri
    • December 22, 1894
    ...466; Fitzgerald v. Barker, 85 Mo. 14; Rodgers v. Gosnell, 58 Mo. 589. See, also, Van Schaick v. Railroad, 38 N.Y. 346; Coster v. Mayor, 43 N.Y. 399; Lawrence v. Fox, 20 N.Y. 268; Schuster v. Railroad, 60 Mo. 290; Ellis v. Harrison, 104 Mo. 270; Lusk v. Ridge, 41 N.Y. 206; Railroad v. Hopkin......
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