be responsible, even though this had been done wrongfully as against him, for he would have placed such person in a position to do the wrong. Having turned them over to the very person with whom he had contracted not to permit them to be out of the state, without requiring security for their maintenance within the state, he must be deemed to have made her his agent, and he cannot now be heard to say that the defendant is liable for his own neglect in the discharge of his obligation to furnish the "entire care and custody" of these children. The arrangement of June 11, 1912, in so far as it related to the custody of the children from that date to the 28th day of November, 1912, was in no sense a waiver of the rights of either party under the contracts then existing. It was a collateral agreement in relation to a matter not covered by any of these contracts. It was a contract by which Jane Francke undertook to perform some of the obligations of the plaintiff under these agreements. She became his agent in the performance of the conditions of the contracts requiring him to furnish "entire care and custody" between the 28th day of May and the 28th day of November, 1912, and the defendant is as innocent of any relation to this transaction as though it had never seen any of the parties to the surety agreement. [3] The effort to make the waiver provision fit into this case, and to give the plaintiff rights, is merely an evidence of that tendency to self-hypnotism into which litigants are apt to drift. The provision is designed, not to permit the parties to enlarge the obligations of the surety, but to maintain the contract of suretyship as a whole during the entire term designed to be covered by the contracts. It permits a waiver, such as that conceded in this case, where Jane Francke neglected to deliver the children on the 28th day of May, but did so on the 11th day of June, and it provides that in case of such a waiver it shall not "operate, directly or indirectly, thereafter to impair any of the rights of either of the parties under this undertaking, the intention hereof being that such undertaking shall, after such waiver, continue with the same force and effect as if such waiver had not been made." That is, the plaintiff might waive his right to have the children from the 28th day of May to the 11th day of June, or during the entire period up to November 28th, but upon Jane Francke coming into the "entire care and custody" of the children on the 28th day of November the contract of suretyship would attach, the same as though there had been no intermediate waiver. To give any other construction to this provision we must close our eyes to the words "thereafter" and "after such waiver," and read the clause as though they were not there, and even this would fall short of the requirements, for, as we have already pointed out, there were no rights of the plaintiff involved during the time that the children were, in contemplation of the contract, within the "care and custody" of himself. The language of the contract is that "no waiver by said principal or obligee of any of his or her rights under any of the provisions of" the contract "shall operate directly or indirectly, thereafter, to impair any of the rights," etc. "Thereafter" is synonymous with "afterward" (Sleigh v. Strider, 5 Call [9 Va.] 442), and "afterward" means subsequent in point of time (1 Am. & Eng. Ency. of Law, 924; 28 Am. & Eng. Ency. of Law, 132). So that the reading is that no waiver shall operate, directly or indirectly, afterward to impair any of the rights of the parties, which simply means that the general purpose of the undertaking shall not be defeated because the parties in interest may at any time forbear to insist upon the rights fixed by the terms of the various contracts, for it is declared that the intention of this provision is "that such undertaking shall, after such waiver, continue with the same force and effect as if such waiver had not been made." "There are," says Lord Bacon in his celebrated Reading on the Statute of Uses (Bacon's Works, 187), "in every statute certain words which are as veins where the life and blood of the statute cometh, and where all doubts do arise," and when we have found a legitimate and intelligent use of all of the language in a contract we will not travel outside of the provisions of the instrument to impose a hardship upon one who has been without fault; and this leads inevitably to the affirmance of this judgment. The words in this contract call for the performance of the original contracts by Jane Francke, in letter and spirit, with a proviso that, if the plaintiff shall waive any one of the requirements, this shall not operate to affect the validity of the undertaking as it relates to provisions of these contracts yet to be performed. It is not necessary to hold that the plaintiff has committed a breach of the contract. It is sufficient for the purposes of this litigation to hold that the defendant owed no obligation to the plaintiff in respect to the whereabouts of the children during the time that the contract provided that they should be in his "entire care and custody." This is not a right guaranteed to him by the defendant's contract. The judgment appealed from should be affirmed, with costs. All concur. (88 Misc. Rep. 630) NIES v. FANCHER et al. (Supreme Court, Special Term, Cattaraugus County. January, 1915.) INSANE PERSONS (§ 51*)-RELEASE ON BOND-COMPLAINT on Bond. Where, in an action on a bond given under Insanity Law (Consol. Laws, c. 27) § 94, providing that, where the superintendent of a state hospital is unwilling to certify to the discharge of an unrecovered patient and so certifies in writing, giving his reasons, the discharge of the patient may be ordered, the complaint alleges that as a condition of the release of the patient a bond was required, but fails to allege that the superintendent certified in writing his unwillingness to discharge the patient, it is demurrable for failure to show a legally required bond, on which plaintiff would have a right to sue, under Code Civ. Proc. § 814, authorizing any person interested to sue on a bond given, as prescribed by law, in the course of a special proceeding, to the people, for the benefit of any person interested. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 83; Dec. Dig. § 51.*] Action by Amelia Nies against Albert T. Fancher and another. On demurrer to complaint. Sustained. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Dowd & Quigley, of Salamanca, for plaintiff. BROWN, J. The complaint alleges: That Alice N, an insane person and an inmate of a state hospital in August 1910, was released from the hospital as insane and not cured. That as a condition of the release of such insane person a bond was required to be executed and delivered to the people of the state of New York. That the defendants executed and delivered such bond unto the state of New York in the sum of $5,000. That "the condition of this obligation is such that the [defendants] will at all times after the release of said Alice N, an insane person, hold and save the state of New York harmless by reason of the release of the said Alice N from hospital, and if they fail therein then this obligation to be of full force and virtue, and otherwise to be null and void." That after the release of such insane person, and on May 31, 1911, the said insane person threw sulphuric acid on the plaintiff, to her injury and damage in the sum of $5,000. That such damages have been demanded of the defendants, that they have not been paid, and that by an order of this court, entered March 27, 1912, permission was given the plaintiff to maintain an action in her own name for a breach of the conditions of such bond. The defendants demur to the complaint, upon the ground that the same does not state a cause of action. By the terms of section 814 of the Code of Civil Procedure, where an undertaking has been given as prescribed by law, in the course of a special proceeding, to the people, for the benefit of a party or other person interested, the party or other person so interested may prosecute an action in his own name for a breach thereof upon obtaining an order granting leave so to do. By section 94 of the Insanity Law it is provided that when the superintendent of a state hospital is unwilling to certify to the discharge of an unrecovered patient upon request, and so certifies in writing, giving his reasons therefor, any judge of a court of record in the judicial district in which the hospital is situated may, upon such certificate and an opportunity of a hearing thereon being accorded the superintendent, and upon such other proofs as may be produced before him, direct by order the discharge of such patient, upon such security to the people of the state as he may require for the good behavior and maintenance of the patient. It is not believed that there is any other authority for requiring the giving of a bond upon the release of an uncured patient from a state hospital for the insane. The complaint alleges that as a condition of the release of the patient a bond was required. Under this simple allegation the various acts and conditions prerequisite to the requirement of the giving of a bond could not be proved. The fact that the superintendent certified in writing his unwillingness to discharge the patient is a condition precedent. It must exist before a judge has any jurisdiction or power to make an order directing a discharge upon giving security. It cannot be proved without being pleaded. It is an issuable fact that must be established as part of plaintiff's cause of action, without which there could be no bond required. The allegation that a bond was required would be established by introducing in evidence the order of the judge directing the same, but it would not be a bond given as prescribed by law in the course of a special proceeding. It would only become such when the essential prerequisites to the granting of the order were proved. One of the important items of the plaintiff's cause of action is that the bond sued upon is an undertaking given as prescribed by law. Her complaint simply alleges that it was required. The plaintiff must prove a legally required bond. She makes no such allegation. She alleges no fact upon which a finding could be made that it is an undertaking given as prescribed by law. The plaintiff's alleged cause of action is upon a bond given to hold the state harmless. There is no statutory authority for the requiring or the giving of such a bond upon the release of an insane patient. The statute is that under certain circumstances security may be required for the good behavior of the patient. No such bond is alleged to have been required. No such bond is alleged to have been given. The complaint does not allege that the plaintiff has any beneficial interest in the bond sued upon. It is thus seen that the complaint does not state a cause of action. Demurrer sustained, with leave to plaintiff to plead over, upon paying taxable costs. Judgment accordingly. (165 App. Div. 231) PEOPLE v. STEEPLECHASE PARK CO. et al. (Supreme Court, Appellate Division, Second Department. December 31, 1914.) 1. NAVIGABLE WATERS (§ 37*)-CONVEYANCE OF UPLAND-USE OF FORESHORERIGHT OF PUBLIC. Where an application was made to the commissioners of the land office for a grant of the upland bordering on the seashore, the commissioners had no power to convey an unqualified fee of the foreshore for private purposes, and hence such shore was subject to the right of public passage, notwithstanding the grant. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. §§ 201226, 285; Dec. Dig. § 37.*] 2. NAVIGABLE WATERS (§ 43*)-"PURPRESTURE"-OBSTRUCTIONS TO SEASHORE. The term "purpresture" is not limited to an encroachment upon a public right of way on land, but applies to any invasion of sovereign rights along the seashore or the waters fronting thereon. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 104, 256-265; Dec. Dig. § 43.* For other definitions, see Words and Phrases, First and Second Series, Purpresture.] 3. NAVIGABLE WATERS (§ 43*)-SEASHORE-PUBLIC RIGHT-OBSTRUCTION. Where the state land commissioners exceeded their authority in granting a fee to upland facing on the sea, the fact that the state suffered structures obstructing the right of public use of the shore to be built without protest did not estop the state from afterwards maintaining a suit to remove them. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 104, 256-265; Dec. Dig. § 43.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 4. APPEAL AND Error (§ 878*)-RIGHT OF APPELLEE. Where appellee does not take a cross-appeal, he can be heard only in support of the decree, which rule is still binding on the Appellate Division, notwithstanding the enlargement of its powers to make new findings and render final decrees, conferred by Laws 1912, c. 380, amending Code Civ. Proc. § 1317. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 35733580; Dec. Dig. § 878.*]. - Appeal from Special Term, Kings County. Action by the People against the Steeplechase Park Company and others. From a judgment (82 Misc. Rep. 247, 143 N. Y. Supp. 503) in favor of plaintiff directing the removal of certain encroaching structures from the foreshore of Coney Island, the Steeplechase Park Company and certain of the other defendants appeal. Affirmed. Argued before JENKS, P. J., and CARR, STAPLETON, RICH, and PUTNAM, JJ. Andrew F. Van Thun, Jr., of Brooklyn, for appellants Steeplechase Park Co. and others. Samuel S. Whitehouse, of New York City (C. Walter Randall, of New York City, on the brief), for appellant Emilie Huber. William A. McQuaid, Deputy Atty. Gen., for respondent. PUTNAM, J. The Attorney General brought this equity suit in the name of the people, to compel defendants to remove certain structures charged to be nuisances upon the foreshore in front of Steeplechase Park, which runs along the water a distance of about 633 feet. It is owned under different titles. Defendant Huber owns the westerly 297.7 feet under a patent or state grant made in 1897. Steeplechase Park owns 148.63 feet easterly, under a patent to Paul Weidmann, granted February 2, 1898. Defendants Tilyou and Hogg own the next parcel, extending easterly 131.11 feet. This leaves about 56 feet not owned by defendants, although they or some of them have it in possession. The beach or foreshore fronting these premises is from about 122 to 126 feet in width. There were seven different structures which were claimed to encroach on the public right of passage, namely: (1) A westerly boundary jetty extending at right angles to the beach about 140 feet into low. water. (2) A pavilion, supported on piling, extending beyond highwater line 8 feet at the westerly end, and 38 feet at the easterly end. (3) A pier on piles, carrying a 12-inch iron pipe out to sea. (4) The Tilyou boardwalk, about 15 feet high, resting on piles, giving access to the pier, running easterly over the foreshore on piles, to a point beyond the eastern boundary, and thence north at right angles to the upland. (5) A machine race course, supported on five rows of piling. (6) A structure for a roller coaster, erected on piles of which 92 stand out beyond high-water line. (7) A board fence at the easterly boundary, running out from high water 45 feet, whence it is continued. by a row of piling a further distance of 8812 feet. The Special Term, following the rule of Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378, 85 N. E. 1093, 127 Am. St. Rep. 962, sus For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |