(226 N. Y. 70) report fixing the value of the land taken and NEW YORK MUNICIPAL RY. CORPORA- the damage done to the remainder of the TION et al. v. WEBER et al. If Appellate Division, on appeal from Special Term, was dissatisfied with report of commissioners, it should have directed a new appraisal, and not modified report by striking out damages awarded, leaving defendant without any compensation for the taking of his property or for his damages. 2. EMINENT DOMAIN 101(1) — DAMAGES – LAWFUL CHANGE OF GRADE. In the absence of some statute, the owner of property abutting on a street cannot claim damages for lawful change of grade in the highway. 3. EMINENT DOMAIN 101(1) CHANGE or GRADE-DAMAGES. Where the part of defendant's land taken is used for the purpose of erecting on it one end of a retaining wall, which extends across the street, the land was not taken for the purpose of changing the grade of the street, for which railway company obtained authority in another way, and there can be no recovery for damages for a change of grade. tract. This report was confirmed at the Special Term. On appeal the Appellate Division modified the report by striking out altogether the damages awarded to the defendant. This left the defendant without any compensation at all for the taking of his property or for his damages. Clearly the determination of the court at the Appellate Division was erroneous as the respondents' counsel admitted on the argument. If the Appellate Division was dissatisfied with the report of the commissioners, it should have directed a new appraisal. Inasmuch as there will be a rehearing in this proceeding, it appears proper to say a word on the question of damages. [2] The general rule in this state is that, in the absence of some statute, the owner of property abutting on a street cannot claim damages for lawful change of grade in the highway. Conklin v. N. Y., O. & W. Ry. Co., 102 N. Y. 107, 6 N. E. 663. [3] The appellant bases his demand for damages for a change of grade on the rule laid down in South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301, 68 N. E. 366, which is that, when land is taken by a railroad company, the owner may recover the market value of the land actually taken, also any damages resulting to the remainder of his Appeal from Supreme Court, Appellate Di- land including the damage that will be susvision, Second Department. In the matter of the petition of the New York Municipal Railway Corporation and another, relative to acquiring title to real estate, against Charles Weber and others. From an order of the Appellate Division, Second Department (179 App. Div. 245, 166 N. Y. Supp. 542), modifying and affirming the award of commissioners, Joseph A. Walsh appeals. Order modified by remitting proceedings to Supreme Court, with instruction to provide for a new appraisal. Louis J. Altkrug, of Brooklyn, for appellant. tained by reason of the use to which the part taken is put by the railroad company. The part of the appellant's land taken is used for the purpose of erecting on it one end of a retaining wall which extends entirely across the street. It is not correct to say that the land taken is used for the purpose of changing the grade of the street for which' the railroad company obtained authority in another way. The street grade could have been changed without taking the appellant's land. Therefore he should not in this proceeding recover damages for a change of grade. The order appealed from should be modified by remitting the proceeding to the Supreme C. L. Woody, of Brooklyn, for respondents. Court, with instructions to provide for a new appraisal before new commissioners, with costs. PER CURIAM. [1] This was a condemnation proceeding instituted to acquire title to a small piece of land belonging to the defendant Joseph A. Walsh. The land to be acquired was a part of a larger tract. The commissioners of appraisal duly made their HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. Ordered accordingly. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (226 N. Y. 158) AMSTERDAM v. APFEL. (Court of Appeals of New York. April 8, 1919.) ATTORNEY AND CLIENT 129(3)—ConvERSION BY ATTORNEY-QUESTIONS FOR JURY. On the facts, held, that the question whether an attorney converted funds of the client to his own use should have been submitted to the jury. deed the R. S. S. Co. as grantee, and thereupon taking a lease of the premises, with the privilege of purchasing the same for $8,000 cash or $9,000 by payment of $2,000 cash and $7,000 mortgage, the taking of title under that option after the commencement of this action and the conveying of the property to the Sixty-Six Realty Company, of which he is the owner of the entire capital stock and in control of its affairs-these Appeal from Supreme Court, Appellate Di- circumstances, in connection with the denial vision, First Department. Action by Rose Amsterdam against Ignace I. Apfel. From a judgment of the Appellate Division (178 App. Div. 71, 165 N. Y. Supp. 60), reversing a judgment entered on a verdict in favor of plaintiff, and dismissing the complaint, plaintiff appeals. Reversed, and new trial granted. E. Walter Beebe, of New York City, appellant. by plaintiff and the only other member of the family called as a witness that they had knowledge or information of any such acts relating to their property, and the admission by defendant that plaintiff, at the time she signed the deed, may have been under the impression that it went to Brown Weiss Realties, have a direct bearing upon the issue in this case, and were proper for considfor eration by a jury as bearing upon the credibility of the parties hereto, the purpose for which plaintiff delivered to defendant the sum of $1,500 and the reasons, if any, prompting defendant to solicit her to deliver the same. Charles Goldzier, of New York City, for respondent. HOGAN, J. The facts in this case are voluminous and referred to at some length in the prevailing opinion of the Appellate Division. Amsterdam v. Apfel, 178 App. Div. 71, 165 N. Y. Supp. 60. We do not deem it essential to recite at length the facts there enumerated. Our examination of the record leads us to the conclusion that the evidence adduced upon the trial presented a question of fact for a jury, and the determination by the Appellate Division was er roneous. It is undisputed that the plaintiff delivered of the defendant the sum of $1,500, and that defendant received that amount of money from plaintiff. The purpose for which said sum of money was delivered and received gave rise to a sharp conflict between the parties. The prevailing opinion below refers in a general way to a certain transaction relating to the sale of certain real estate on Lafayette avenue, Brooklyn, of which plaintiff and seven additional members of the same family were owners, in which transaction defendant acted as attorney for plaintiff and the members of the family. The various steps connected with the transaction leading up to the question of difference at issue, viz.: The failure of defendant to insert in the deed the name of Brown Weiss Realties as grantee, the retention of the deed, failure to close the contract, personal negotiations with Brown Weiss Realties resulting in a contract on June 18th for an exchange of Lafayette avenue property for property on Cortland street which he did not own and did not acquire title to until June 23d, when he purchased same for the purpose of making the exchange, thereafter inserting in the Passing to the transaction in dispute, plaintiff testified that on the evening of June 22, 1912, defendant asked her how she would like to invest in buying back her old property on Lafayette avenue, and said: "We will buy back that property if you will put up $1,500 and I will go to the Lawyers' for $8,000, or I will sell the property, which I Guarantee Trust Company and get a mortgage expect to do within the next three or four months, and I will give you back your $1,500 and give you half of the profits." The date of the interview is important, when considered in connection with transactions relating to the title to which attention has been called. Defendant places the date of the conversation as June 23d, the day he had entered into further transactions related above, and claims he told plaintiff that he had the Lafayette avenue property, which stood him about $9,500; that the plaintiff asked if she could get an interest in it; that he told her he expected to get a loan of $8,000 on the property, and had arranged with Robert S. Smith for $8,000, and she agreed to buy a one-half interest in it; that she said she would take a one-half interest in the property, "and I told her if she would give me $1,500 I would give her one-half of the profits as soon as the property is sold for the $1,500 and give her-first give her back the $1,500 and then give her half of the profits." Plaintiff further testified that on the evening of June 27th defendant called upon her (he admits that his deals were not closed until the 28th); that he asked her for $100, and she gave him a check therefor, and was to draw the balance from the savings bank For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on July 1st, before her departure for Europe | to receive $1,500, being the amount of her on July 2d at 9 a. m. He also told her to investment therein; the balance remaining leave a power of attorney with either of her sisters, as he expected to sell the property before her return the middle of August. For the $100 check defendant gave her a receipt in the following form: "Received from Rose Amsterdam check for one hundred dollars on account of fifteen hundred dollars to be paid by her for the purchase of 505-7 Lafayette avenue, Brooklyn, 40x200, for said sum plus one-half of any necessary expenses for mortgage closing of title, etc. Miss Amsterdam to have one-half interest in said property, I. I. Apfel to take charge of property, and profits are to be divided equally. Balance of ($1,400.00) fourteen hundred dollars to be paid by July 2, 1912. Before referring to the payment of $1,400, the facts above stated in connection with the admission by defendant in his answer that the sum of $1,500 paid by plaintiff to him was not used by defendant to purchase the said property, nor any part thereof, were important to be considered by a jury. Late on the night of July 1st, defendant called on plaintiff again and asked her if she had drawn her money. She replied she had. He thereupon, as she testified, asked her for the check for $1,400, and while she was writing her check "he read off the power of attorney. He read off a paper to I signed something. There was no question at all of the R. S. S. Co., or any lease. I never heard of a lease"-and never discovered same until after this action was commenced, when she states she handed it to her lawyer to read, as she imagined it was her deed. me. * Defendant produced upon the trial the paper which is set out in the prevailing opinion below, which in effect was an assignment by him in consideration of $1,500 of a one-half interest in a lease of the Lafayette avenue premises made between him and the R. S. S. Co. and constituting defendant her attorney to disclose of her interest in the lease, each party to have an equal one-half interest in and to said lease, together with the option to purchase the property therein contained, and in the event of a resale thereof out of the profits to be realized plaintiff to be equally divided. The court below wrote that there was no inconsistency between that instrument and the receipt of June 27th, that defendant had sold plaintiff a one-half interest in the property. We think there is opportunity for argument on that question, for determination by a jury, especially in view of all the circumstances, the manner in which plaintiff may have been induced to sign the same, and the fact that defendant as a witness testified that he intended by the agreement that the $1,500 should become his money, and if he never exercised the option to purchase the property he would not have to give the money back, that he was not required to exercise the option and buy the property, he did not have to use the $1,500 to buy the property, and if he did not buy it the $1,500 was his. The opinion below also states that importance cannot be attached to the fact that title to the property was not taken in plaintiff's name. We cannot assent to that proposition. The title is now in a corporation owned and controlled by defendant under a conveyance from him. That corporation may be solvent, or may have numerous creditors. It may mortgage or sell the property. Why the transfer by defendant to that corporation? Why should it be permitted to hold the title, and the defendant retain the moneys of plaintiff, asserting ownership of the same, while admitting he did not use the $1,500 for the purchase of the property? These are questions very well debatable, having some bearing upon the entire transaction in connection with other facts in the case, particularly as to whether or not plaintiff was misled by defendant into signing the agreement on July 1st, and the effect of any subsequent advance referred to in the opinion below. Such questions, including all the relations between the parties, were proper for consideration by a jury. The judgment should be reversed, and a new trial granted; costs to abide the event. CHASE, CARDOZO, POUND, MCLAUGHLIN, and ANDREWS, JJ., concur. HISCOCK, C. J., not sitting. Judgment reversed, etc. (226 N. Y. 578) WRIGHT et al. v. WRIGHT et al. (Court of Appeals of New York. March 18, 1919.) 1. APPEAL AND ERROR NOT RAISED BELOW. [3] But, aside from this, if we should assume that under ordinary circumstances the appellant would have the right to insist that the proposition upon which it has been defeated in this court should not have been 856(1)-QUESTIONS considered, because not urged in the lower courts, it has waived, and has now lost the right to take, this position. The respond Ordinarily respondent will not be allowed to sustain a judgment upon grounds not consid-ent, in its brief upon the argument of the ered below. 2. APPEAL AND ERROR CONSIDERED. 854(1)-QUESTIONS The rule that respondent cannot sustain a favorable ruling upon a reason not considered below, when such reason could have been obviated, if presented, is inapplicable to a proposition of law appearing upon the face of the rec ord, which could not have been avoided below. 3. APPEAL AND ERROR 832(4)-REHEARING -GROUNDS-WAIVER. Respondent, by ignoring a point specifically urged by appellant, waived the right to urge upon motion for reargument that the proposition should not have been considered, because not raised below. On motion for reargument. Motion denied. For former opinion, see 225 N. Y. 329, 122 N. E. 213. appeal, expressly and specifically urged the proposition considered by this court and upon which the appellant has been defeated. The appellant neither argued that this proposition could not be considered in this court · for the reason now suggested, nor that the proposition of law itself was erroneous. It absolutely and entirely ignored the point thus presented by the respondent, and made no answer whatever to it. It now says that the proposition was argued by the respond. ent upon its brief in a perfunctory way. This may be true. It may not have been argued in a thorough or efficient manner, but nevertheless it was presented to the court and the duty thrown upon the latter of examining and deciding the question. Under these circumstances it is evident that no reason is presented which justifies this court in granting the motion for reargument. In addition, we do not discover in the brief upon this motion anything which George L. Shearer, of New York City, op- leads us to believe that the decision already posed. Eli J. Blair and Frank H. Platt, both of New York City, for the motion. PER CURIAM. [1, 2] A motion for reargument is made in this case upon the ground that the appellant was defeated in this court upon a question which was not argued in the courts below. In attempted support of the motion appellant correctly states certain principles applicable to the consideration of appeals. It is accurate in asserting that as a general rule a party who has obtained a judgment will not be allowed in this court to sustain that judgment upon grounds which were not considered in the courts be made was erroneous or would be changed upon reargument. The motion should be denied, with $10 costs and necessary printing disbursements. FIDE PURCHASERS-RECORD AS NOTICE-DE- low. It is also true that a respondent will 1. VENDOR AND PURCHASER 231(15)—BONA not be permitted to sustain a ruling in its favor upon some reason not considered in the lower courts, and which if there presented could have been met and obviated. grantors in a deed was defective, the record Where the acknowledgment of one of four would not be notice to bona fide purchasers as to such grantor. INSTRUMENTS 2. ACKNOWLEDGMENT ~6(2)· a deed to which the acknowledgment of one of This case, however, is not subject to the application of these principles. The appellant has been defeated upon a proposition of law which appeared upon the face of the record, and which could not have been avoided if brought to the attention of the appellant in the courts below. Cook v. Whipple, 55 N. Y. 150, 157, 14 Am. Rep. 202; People v. Bradner, 107 N. Y. 1, 4, 13 N. E. 87; Murdock v. Ward, 178 U. S. 139, 20 Sup. Ct. 775, 44 L. Ed. 1009. The appellant does not contend that considerations could have In recording a deed to which the acknowledg been advanced there which were not avail-ment of one of the four grantors was defective, able here, but only that this court has reach- the register need not index the conveyance ed a wrong decision upon the question. against such grantor. 3. RECORDS 8 INDEX DEFECTIVE ACKNOWLEDGMENT BY ONE GRANTOR. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. MANDAMUS 190-CoSTS-APPEAL-GOOD | think it came within the spirit of the statute. FAITH OF OFFICER. Where the register refusing record to a deed acted in good faith, and the cause was novel, reversal of an order refusing mandamus should be without costs. [1] As to the grantor whose acknowledgment was defective, the record would not be notice to subsequent purchasers of the conveyance (Bradley v. Walker, 138 N. Y. 291, 33 N. E. 1079), and if that person had been the sole grantor, the deed could not have Appeal from Supreme Court, Appellate Di- been lawfully recorded. Penal Law (Consol. vision, First Department. Laws, c. 40), § 1862. Application for writ of mandamus by the But, confessedly, three of the four grantors People, on the relation of the Oaklawn Cor- properly acknowledged the deed, and it was poration, against James A. Donegan, Regis- entitled to be recorded as against them. ter of the County of New York. The Special | Sometimes it may happen that the vendee of Term denied the application (104 Misc. Rep. land may be compelled in making the title to 223, 172 N. Y. Supp. 37), and that determina- rely in part upon a deed in which all the tion was unanimously affirmed by the Appel- vendor owners are named as grantors, but late Division (184 App. Div. 763, 172 N. Y. which some of them do not sign or acknowlSupp. 448), which granted permission to rela- edge. May not the vendee in such case retor to appeal to the Court of Appeals. Re- gard the names of those who do not sign or versed, and writ directed without costs. acknowledge as surplusage, and hold the deed sufficient for recording as to the others? In the present case, according to the opinion of the court at Specia¶ Term, the register was willing to record the deed if the name and signature of the grantor whose acknowledgment was defective were erased. The relator was not obliged thus to alter or mutilate the instrument with the risk of invalidating it altogether. See, also, 173 N. Y. Supp. 918. The respondent refused to record the deed upon the ground that it was not properly acknowledged. The deed purported to be made by four grantors. It was duly acknowledged within the state by three of the grantors, but the fourth had acknowledged the instrument before a notary public in the county of Berkshire, state of Massachusetts. This latter acknowledgment was not authenticated by the certificate of the clerk of Berkshire county or other proper officer as required by the Real Property Law. Harold Swain, of New York City, for appellant. William P. Burr, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent. CUDDEBACK, J. Section 291 of the Real Property Law (Consol. Laws, c. 50) provides that a conveyance may be recorded on being duly acknowledged by the person executing the same. Sections 311 and 312 provide that the acknowledgment is not sufficient where it is taken by the officer of another state, unless it is authenticated by the certificate prescribed by the statute as to the authority of the officer taking the acknowledgment, and the genuineness of his signature. The conveyance presented by the relator was not precisely within the law, inasmuch as it lacked the authenticated acknowledgment of one of the four grantors. But I One object of the Recording Act is to preserve the evidence of real estate conveyances. To that extent, the relator was entitled in this case to the benefits that accrue from the law. [2, 3] Our attention is not called to any contrary authority, and I think the better view is that the deed in this case should be regarded as the conveyance of the grantors who properly acknowledged the same and should be recorded. The register should not, however, be compelled to index the conveyance against the grantor whose acknowledgment is not in proper form. [4] I recommend that the orders appealed from be reversed, and the issuance of a writ of mandamus directed; but, inasmuch as the question is novel and the register acted in good faith, I think the reversal should be without costs. HISCOCK, C. J., and CHASE, COLLIN, MCLAUGHLIN, and CRANE, JJ., concur. HOGAN J., concurs in result. Orders reversed, etc. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |