Misc.] New York Superior Court, December, 1895. MORRIS MOSES, Appellant, v. THE CITY OF KEY WEST, Respondent. (New York Superior Court General Term, December, 1895.) MUNICIPAL CORPORATIONS— IMPROVEMENT BONDS- PURCHASER HAS NO RIGHT TO CONTROL THE ORDER OR MANNER OF THE WORK. A negotiator of an entire issue of improvement bonds of a municipal corporation has no right to control the order or manner in which the work is being prosecuted, and is not justified in refusing to accept the second series of bonds on the ground that the proceeds of the first series were improperly applied, as long as such proceeds were expended for work within the general scope of the improvement or for work preliminary thereto. APPEAL from judgment of Trial Term dismissing complaint. W. F. Randel, for appellant. B. N. Harrison, for respondent. Per Curiam. This action was brought to recover the sum of $7,200, the amount of commissions alleged to be due to plaintiff's assignor under a certain agreement for the purchase of bonds that said assignor, one B. H. Oppenheim, had entered into with defendant. The appeal before us is by the plaintiff from a judgment entered at Trial Term dismissing the complaint. At the close of plaintiff's case, in granting the motion of the defendant that the complaint be dismissed, the learned trial judge delivered the following opinion: "To recover in this action, the burden of proof is upon the plaintiff to establish such a breach of the contract on the part of defendant as would entitle Mr. Oppenheim to recover his whole commission on the whole issue of bonds to the amount of $400,000. The defendant did not decide not to negotiate the balance of the bonds, and it did not fail to cause them to be prepared; but, on the contrary, the second series of $100,000 of bonds were prepared and tendered to Mr. Oppenheim for negotiation, and were refused by him. Unless Mr. Oppenheim was justified under the contract in refusing them and refusing to go any further, this constituted a breach of New York Superior Court, December, 1895. [Vol. 15. the contract on his part, and released the defendant from any further obligation under the contract. The whole case, therefore, turns upon the question whether Oppenheim was justified in his refusal. It is claimed that he was justified by reason of the alleged fact that the proceeds of the first series of bonds had not been expended strictly for the purposes for which the defendant was bound to expend them; but the evidence, in my judgment, does not establish the claim. Mr. Oppenheim, under his contract, had no right to control the manner or the order in which the work was to be prosecuted. As long as the expenditures were incurred for work within the general scope of the act of 1889, or for work preliminary to the inauguration of the system, or any part thereof, contemplated by the act of 1889, it was sufficient. If the application of the proceeds of the bonds can be questioned at all, as to which there may be a strong doubt, the authorities of the city of Key West necessarily ought to have a large discretion in directing all preliminary measures, and in the manner and the order of the prosecution of the general plan authorized by the act of 1889, and Mr. Oppenheim could not control the exercise of that discretion. The resolution referred to by the plaintiff's counsel is not of itself a breach of the contract. Under all the facts, as they appear, the motion to dismiss must be granted. There being no dispute as to the facts there can be nothing to submit to the jury." A careful examination of the evidence does not disclose any dispute as to the facts. Assuming all the testimony offered by plaintiff to be true, and adopting the inferences most favorable to him, we are of the opinion that he had failed to establish a cause of action. We concur in the conclusion of fact reached by the learned trial judge and with the principles of law applied to the case. The record is free from error. The judgment is right and should be affirmed, with costs to the respondent. Present: MCADAM and GILDERSLEEVE, JJ. Misc.] New York Superior Court, December, 1895. SOPHIA W. ADAMS, Respondent, v. THE MANHATTAN RAILWAY Co., Appellant. (New York Superior Court - General Term, December, 1895 RAILROADS-ELEVATED - RENTAL DAMAGES ACCRUING SUBSEQUENT TO ACQUIREMENT OF EASEMENTS BY THE RAILROAD CANNOT BE ALLOWED. Where substantial damage to an abutting owner is admitted, and his easements are acquired by the railroad company by condemnation proceedings pending an action for injunctive relief and damages, rental damages subsequent to the time the railroad became the owner of such easements cannot be allowed. APPEAL from a judgment of the Equity Term. Cannon & Atwater (H. G. Atwater and A. B. Cruikshank, of counsel), for respondent. Davies, Short & Townsend (Julien T. Davies and J. C. Bushby, of counsel), for appellant. GILDERSLEEVE, J. This action was brought to obtain an injunction against the further maintenance and operation of defendant's elevated railroad, and also to recover past damages to rental values suffered by the plaintiff by reason of the defendant's acts. When the action came on for trial in October, 1893, the defendant admitted an estate in the plaintiff in the premises in question, and that plaintiff had suffered substantial damage. The usual injunction was thereupon granted unless defendant condemned the property within nine months.. The question of the amount of rental damage was reserved until further order. Defendant instituted condemnation proceedings, and the report of the commissioners awarding plaintiff $1,200 was filed July 28, 1894, confirmed November 17, 1894, and on December 20, 1894, said award was paid, and defendant thereupon became the owner of the plaintiff's easements in question. It is claimed by the appellant that the award, upon confirmation, became a liquidated debt, and that payment of the same on December 20, 1894, related back to November 17, 1894, the date of the confirmation, and that, New York Superior Court, December, 1895. [Vol. 15. hence, plaintiff was not entitled to rental damage subsequent to November 17, 1894. There seems to be some authority for this contention, but we shall not now undertake to decide the point, inasmuch as the conclusion that we have reached as to the effect of an undisputed claim in the case renders it unnecessary. The action was commenced April 15, 1891, and was tried on January 17, 1895. The only issue in the case tried by the court below was as to the rental damage alleged to have been sustained by the plaintiff. The court awarded the plaintiff $2,545 for rental damages from April 15, 1885, six years prior to the commencement of the action, to January 17, 1895, the time of the trial. From the judgment entered upon that decision this appeal was taken. It needs no support of authorities to sustain the assertion that the plaintiff's right to rental damage ceased upon defendant's becoming owner of the easements. It is perfectly clear that not later than December 20, 1894, the easements in question became the property of the defendant. The finding of fact by the learned trial judge, upon which the judgment is based, is as follows: (No. 12) "By the maintenance and operation of said railroad from April 15th, 1885, to January 17th, 1895, the rental value of said premises has been damaged, with interest awarded, because it is necessary for plaintiff's compensation, in the sum of $2,545.00, and the plaintiff has suffered damages in that amount through such acts of defendant." It, therefore, appears that the court awarded rental damages subsequent to the acquisition by defendant of plaintiff's easements, for the period from December 20, 1894, to January 17, 1895. Could we ascertain from the findings that the learned trial judge fixed the damage to the rental value for the month of December, 1894, and the month of January, 1895, at a specific sum for each of said months, we might answer the challenge to the judgment upon the ground we are now considering by deducting therefrom the pro rata amount for the period subsequent to the acquisition by defendant of plaintiff's easements, and, as thus modified, affirm the judgment. But we have no such guide upon which to base a calculation. We Misc.] New York Superior Court, December, 1895. consider the rule laid down in Martin v. Manhattan Ry. Co., 63 Hun, 350, fully supported both by reason and authority, and as applicable to this case. The award for damages subsequent to the time that defendant became owner of the easements was error that requires a reversal of the judgment. Having reached this conclusion, it is unnecessary to discuss other points raised by the appellant. Judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event. FREEDMAN and MCADAM, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. MICHAEL F. BURNS, as Administrator, Respondent, v. THE HOUSTON, WEST STREET & PAVONIA FERRY RAILROAD Co., Appellant. (New York Superior Court - General Term, December, 1895.) NEGLIGENCE - PLEADING - AMENDMENT INCREASING DEMAND. An amendment of a complaint in an action for injuries resulting in death which accrued prior to the adoption of the new Constitution, by increasing the demand for damages to an amount in excess of that permitted by the statute, is not prejudicial error where the verdict of the jury does not exceed the statutory limit. APPEAL by defendant from judgment entered upon the verdict of a jury and from an order denying defendant's motion for a new trial. Henry A. Robinson (John T. Little, Jr., of counsel), for appellant. William Sulzer and William Armstrong, for respondent. FREEDMAN, J. Although it has been decided by the Court of Appeals that the constitutional provision that the amount recoverable in an action for damages for injuries resulting in death shall not be subject to any statutory limitation does not |