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Judge Burke's opinion in the former ap- | ages. This prayer was correctly refused, peals very clearly disposed of all the ques- for two reasons: First. Because in considtions sought to be raised in the present ap- ering the insurance company's first prayer peals except two, namely: First, the effect in the former appeal, which asserted the of the payment into court by the defendant; same legal principle as the defendant's first and, second, whether the plaintiff could re- prayer in this appeal, it was held that Mrs. cover for loss of rents accruing during de- | O'Brien was obliged under the terms of her lay in building caused by the obstruction of two policies to take immediate possession the streets in the burnt district, apart from of the property for the purpose of rebuilding the inability to procure a permit to build. or repairing; that there was no evidence These questions will be considered in their she did not do so, and that, in the absence reverse order. It was expressly and explicit- of such evidence, the presumption is she disly decided in the former case that the loss of charged that obligation; and, further, that rent occasioned by the action of the city there was no evidence to rebut this presumpauthorities in delaying the rebuilding of the tion. Second. Because, by paying into court premises could not be recovered under these the two sums paid in under the two policies policies. Counsel for Mrs. O'Brien, how- in these cases, the defendant has precluded ever, contend that there is a distinction be- itself from saying that no rent is due under tween delays caused by the city in with said policies. holding permits to build, and the delays The leading case upon this question is Cox caused by general conditions of the streets v. Parry, 1 Term Rep. 464, decided in 1786. being blocked by the débris of the fire That was an action upon a policy of insurthroughout the whole burnt district, and ance, and the pleas were the general issue, this question is raised by the plaintiff's first and payment of money into court. The poland second prayers and the defendant's icy was made in the name of De Simons, but third prayer, these prayers of the plaintiff the suit was by Cox, as executor of Shultz. being refused, and the defendant's third who was the owner of some of the articles inprayer being granted. These prayers, with sured, and it was alleged that it was directed the other granted and refused prayers, will and intended by all parties that the policy be set out by the reporter.

should be so framed as to secure both De Referring to the policies of insurance, it Simons and Shultz. The court said: “The will be seen that they provide that “the as- great question is whether the defendant has sured agrees to rebuild in as short a time not, by paying money into court, precluded as the nature of the case will admit,” and himself from making the objection that unit is upon that language that the plaintiff's der the statute 25 Geo. III the policy could first and second prayers are predicated. If not be applied to any goods except those of this were all, the plaintiff's contention might | De Simons. Therefore it will be necessary be sustained. But the policies also, after to see what effect paying money into court providing that the company shall not be has in the cause. It admits that the plainliable for loss caused directly or indirectly tiffs have a right to maintain the action, and by order of any civil authority, nor for loss reduces the question simply to the question occasioned by ordinance or law regulating of damages which they are entitled to reconstruction or repair of buildings, also pro- cover.

As the defendant has paid vides that it shall not be liable “for loss oc- money into court, he has thereby admitted casioned

by interruption of busi- that the plaintiffs are entitled to maintain ness, manufacturing processes, or other- the action on their policy to the amount of wise.” The fall of débris in the streets was that sum. But he has admitted nothing what occasioned “the interruption of busi- more. He does not, by paying money into ness” in this case, so far as it affected build court, vary the construction and import of the ing operations, and this cause of delay is as policy, so as to entitle the plaintiffs to reclear a bar to recovery as was the ordinance cover beyond that extent." delaying the granting of permits to rebuild. This case was approved in Watkins v. TowWe, therefore, must hold that the plaintiff's ers, 2 Term Rep. 275, where payment of monfirst and second prayers were properly re- ey into court was held to dispense with proof fused, and the defendant's third prayer prop- of execution of deed on which the suit was erly granted, in each of the cases.

brought. The defendant's second prayer was cor- It was again approved in Gutteridge v. rectly granted, and the plaintiff's third pray-Smith, 2 Henry Bl. 374, decided in 1794. The er was conceded, and these require no fur- action was on a bill of exchange by the payee ther notice.

against the drawer, and payment into court The defendant's first prayer raises the was pleaded. There was a nonsuit because important question in this case, and goes to the plaintiff was not prepared to prove the the right of recovery. It asserts that no drawer's signature, but, under a rule to show legally sufficient evidence of the amount, it cause why the nonsuit should not be set any, of rents actually lost by the plaintiff aside, the rule was made absolute. Lord by reason of the fire, has been offered, and Chief Justice Eyre said: "Payment into therefore, under the pleadings and evidence, court of £5 on a £20 note would have same brought, and would afford a just inference of proofs of loss, if the sum found should exceed the existence of the debt.” And in the same the amount paid in. case Justice Rooke said that: “On a policy For the reasons stated, the judgment apwhere the plaintiff goes for a total loss, while pealed from in each case will be affirmed. it admits the policy itself, yet it does not The costs below were properly taxed against admit that defendant is liable for more than the plaintiff under section 21, art. 75, Code the amount paid in.”

Pub. Gen. Laws, but the costs of these apIn Jenkins v. Tucker, 1 Henry Bl. 90, the peals should be paid by the defendant. question was whether defendant could demur Judgment affirmed; costs below to be paid after payment of money into court, and Lord by Katherine T. O'Brien; costs on appeals to Loughborough went so far as to say: “This be paid by the Palatine Insurance Company. demurrer strikes me as being extremely absurd, since by payment of money into court the defendant admits a cause of action." In Bennett v. Francis, 2 Bos. & Pul. 550,

FITZGERALD V. CITY OF HARTFORD. the earlier cases were reviewed by Lord (Supreme Court of Errors of Connecticut. Jan. Chief Justice Alvanley at length, and the doc

22, 1909.) trine established by them was maintained. APPEAL AND ERROR (81056*) — REVIEW The American cases are to the same effect.

HARMLESS ERROR.

Where a witness' statement, offered to conIn Enc. Pl. & Pr. vol. 21, p. 584, it is said tradict him and excluded, was not contradicthat, where the plea of tender is treated as tory of his testimony to any fact material, and an admission that the amount tendered is testimony admitted over objection disclosed noth

ing different in substance from that which had due, the adverse party is entitled to recover been previously testified to by the same witness that amount, without proof on his part. But without objection, the rulings, if erroneous, were a plea of tender of a sum smaller than that harmless. claimed by plaintiff does not preclude re- (Ed. Note.-For other cases,' see Appeal and sisting demand for a greater sum, or from Error: Cent. Dig. $8 4187-4193; Dec. Dig. g

1056.*] making any defense consistent with the admission of the cause of action.

Appeal from Court of Common Pleas, HartIn Wood v. Parry, 1 Barb. 129, the court ford County ; John Coats, Judge. said: "Whenever tender is made and insist- Action by Johanna Fitzgerald for personal ed on in the pleadings, the creditor is at injuries against the City of Hartford. Verleast entitled to that amount. The rule is diet and judgment for defendant, and plainfounded in good sense. Where the debtor ad- tiff appeals. Affirmed. mits a certain amount to be due, it is not a

Andrew J. Broughel, foro appellant. Franpoint at issue between the parties, and the cis H. Parker and Lawrence A. Howard, for creditor is not required to establish it by

appellee. proof.” In Eaton v. Wells, 82 N. Y. 576, there was

PRENTICE, J. The two rulings of the a tender of $2,568, which was a few cents less than the amount due that day on the court, one admitting and the other excluding mortgage, and Chief Judge Folger said: the subject of the only assignments of error,

testimony contrary to objection, which are "There was no issue of fact for trial. The

were harmless, even if incorrect. The answer pleadings contain the facts."

received disclosed nothing which differed in In Foster v. Napier, 74 Ala. 393, the court substance from that which had been previoussaid: “Since a plea of tender admits that ly testified to by the same witness without the amount tendered is due, the plaintiff is objection. The statement in a deposition giventitled to that amount at all events, what

en by this witness, which was offered to conever may be the result of the action; nor tradict him and excluded, was not contradoes his refusal to accept that sum affect his dictory of his testimony upon the trial in right to recover that sum.”

respect to any fact material to the case or In harmony with the cases cited is the case in respect to any fact which he asserted. The of McCullough v. Hellwig, 66 Md. 2.6, 7 Atl. most which could be claimed for it was that 457, in which this court said: “In an action it tended to disclose the uncertainty of his ex contractu, the defendant may tender the recollection upon the matter involved, which amount he believes to be due, and the tender took place nearly three years before the trial, operates as an estoppel, so that he cannot and thus affected his credit. The witness, subsequently deny that the amount tendered however, freely and frankly stated that his is due.”

recollection upon the matter was indistinct The jury found for the plaintiff for the and declined to speak with any confidence exact sum paid in each case, consequently it thereon. The evidence excluded could have is unnecessary to consider the refusal of the added nothing to what the jury already plaintiff's fourth prayer in each case, which knew from the witness' own lips. asked that interest be allowed on the amount There is no error. The other Judges confound, after 60 days from submission of curred.

(81 Conn. 570)

ties together with the result that a sale was ZIMMERMAN V. GARVEY.

finally accomplished; he participating in the (Supreme Court of Errors of Connecticut. Jan. negotiations. When the question as to a 22, 1909.)

commission to the plaintiff and by whom it 1. BROKERS ($ 65*) — EMPLOYMENT BY BOTH should be paid arose, this result had not been PARTIES-KNOWLEDGE.

reached. An offer had been made and was A real estate broker may not act for both under consideration. The parties were free parties except with their knowledge and assent. [Ed. Note.--For other cases, see Brokers,

to act as they chose as to concluding a barCent. Dig. $ 49; Dec. Dig. § 65.*]

gain. They chose to conclude one which in2. BROKERS (8 67*)—CONTRACT FOR COMMIS- | volved the sale by the landowner and the SIONS-EMPLOYMENT-EVIDENCE.

purchase by the defendant at a stipulated A real estate broker, having information price, and also embodied a subsidiary agreethat an owner was willing to sell certain real ment upon the matter of a commission to estate and learning that defendant was desirous of making an investment, suggested to her the the plaintiff. This subsidiary agreement, to purchase of the property and accomplished a which the plaintiff became a party and assale. Before a conveyance was made, it was sented, stipulated that he should receive the stipulated between the parties that plaintiff should receive a commission of $500, of which usual commission amounting to $500, and the vendor should pay $200 and defendant the that of this amount the owner should pay balance. Held, that defendant thereby approv- the plaintiff $200 and the defendant the baled plaintiff's engagement to act for both parties, and that she was therefore liable for the agreed ance. Pursuant to the agreement thus reachcommissions.

ed, a conveyance was made. When it was [Ed. Note.-For other cases, see Brokers, entered into and the conveyance made in Cent. Dig. § 52; Dec. Dig. § 67.*]

conformity with it, the parties to it necesAppeal from Court of Common Pleas, sarily had full knowledge of all the essenHartford County; John Coats, Judge.

tial facts bearing upon the plaintiff's relation Action by Frank M. Zimmerman against to the transaction, as those relations actual. Mary A. Garvey to recover on an expressly were, since they all lay revealed upon the promise to pay brokers' commissions. Judg- surface of his known conduct. Nothing in ment for plaintiff, and defendant appeals. that matter was concealed from them or Affirmed.

lay hidden. Whatever employment or relaJames E. Cooper, for appellant. William tionship the law would discover in the situ

ation it would arise from the circumstances F. Delaney, for appellee.

and the acts of the parties, and these were

fully known. When, therefore, the vendor PRENTICE, J. A recognized rule of pub- and the defendant acquiesced in the plainlic policy forbids 'a real estate broker, as it tiff's right to the usual commission, and condoes agents generally, to act for both par- cluded their bargain, and as a part of it ties to a transaction in the absence of their agreed to share the amount of such commisknowledge that he is so acting, and their ex- sion in the way they did, they acted with press or implied assent thereto. One who full knowledge of the true situation, and acts in violation of this rule cannot recover

gave their assent to his course of action, for his services, even upon an express prom- whether it involved service for the one, or ise. Farnsworth v. Hemmer, 83 Mass. 494, the other, or both of them. The defendant 79 Am. Dec. 756; Carman v. Beach, 63 N. cannot, therefore, successfully object to the Y. 97; Bell v. McConnell, 37 Ohio St. 396,

payment according to her promise. 41 Am. Rep. 528. "If, however, both parties

There is no error. The other Judges conhave knowledge that the broker is acting

curred. for them both and do not object, but allow him to so act and agree to pay him commis

(81 Conn. 581) sions, they will be held to have assented to his acting in a double capacity, and neither NEW YORK, N. H. & H. R. CO. V. CITY party can object thereafter.” Clark & Sykes

OF NEW HAVEN. on Agency, $ 765; Rice v. Wood, 113 Mass. (Supreme Court of Errors of Connecticut. Jan. 133, 18 Am. Rep. 459; Rowe v. Stevens, 53

27, 1909.) N. Y. 621; Bell v. McConnell, 37 Ohio St. 1. EMINENT DOMAIN ($ 47*)-POWER—MUNIC396, 41 Am. Rep. 528.

IPAL CORPORATIONS CONDEMNATION OF The plaintiff had not been expressly em

RAILROAD RIGHT OF WAY.

A city was authorized by its charter to take ployed to act for either the defendant or the any property needed for extending streets on property owner from whom she purchased. payment of compensation. Gen. St. 1902, $ Having information that this owner

3710, authorized the railroad commissioners to willing to sell a piece of his real estate at a structed across a railroad should pass over or

direct whether a new highway thereafter concertain price and having incidentally learned under the road, and section 3711 provided for that the defendant was desirous of making the determination by the commissioners of the a real estate investment, he had volunteered that, since'the city had implied power under the

length, etc., of any bridge over a railroad. Held to suggest to her the purchase by her of the statutes to construct highways across a railroad, property referred to, and to bring the par-lit could condemn land for the purpose of ex.

was

tending a street across a railroad, and through road. The city authorities thereupon assessed its station building.

the damages thus accruing to the railroad [Ed. Note.—For other cases, see Eminent Do- company at $5,527. The company applied to main, Cent. Dig. $ 108; Dec. Dig. $ 47.*] 2 EMINENT DOMAIN (§ 136*)—COMPENSATION and the court raised the amount of the com

the superior court for a review of this action, -MEASURE.

The compensation for a part of a tract tak pensation to be paid to $32,350. The addition en by eminent domain is the difference between thus made was for what would be the exthe value of the entire tract before the taking and the value of that part of the tract not tak pense to the company of constructing a re en, in view of the new conditions created by the taining wall on its own land, immediately adtaking.

jacent to the street as extended, and for tem[Ed. Note.-For other cases, see Eminent Do- porary support to certain side tracks on this main, Cent. Dig. $ 364; Dec. Dig. § 136.*] land while in use during the construction of 3. EMINENT DOMAIN (§ 319*)-COMPENSATION the wall. These tracks were formerly part -APPROPRIATION-New Use.

of the main line of the Shore Line Railroad The taking of property already appropriated to public use must not interfere with the Company, but now end at Ferry street, a few former use to a greater extent than is necessary blocks east of the grounds around the Cedar to effectuate the new use, so that, where a city Hill station. They pass from those grounds extended a street under railroad tracks, the railroad had the right to continue to use its tracks over James street by a bridge. They are used above the street which were not taken.

for switching purposes and to furnish a con(Ed. Note.-For other cases, see Eminent Do- nection with a large manufacturing plant main, Dec. Dig. 8 319.*]

now situated on the easterly side of James 4. EMINENT DOMAIN (103*)—COMPENSATION street, and would furnish such a connection

MEASURE – EXTENT OF RIGHT TAKEN with any other factories or establishments RAILROAD RIGHT OF WAY-APPROPRIATION which may be located in the future on land FOR STREET CROSSING,

Where a city extended a street under rail- adjacent to the tracks between James and road tracks so that the tracks could not there Ferry streets, which is now unoccupied. To after be used except by erecting retaining walls use them for any purposes after the extension adjacent to the street, or otherwise supporting of the street would be impossible without the soil under the tracks, the city was bound to provide such support or pay the expense such a retaining wall as is above described, thereof as part of the compensation for taking and it does not appear that the damages the land, and it did not affect the company's could be reduced by their removal to any othright to compensation that the cut was ordered by the railroad commission, or that the railroad

er place where they could be used to equal might abandon its tracks, and not build the re- advantage for the purposes of the railroad. taining wall.

By the city charter it could take “any prop[Ed. Note.-For other cases, see Eminent Do-erty or property rights” needed for the purmain, Dec. Dig. & 103.*]

pose of extending any street “upon payment 5. EMINENT DOMAIN ($ 134*)—COMPENSATION of just compensation under the rules govern-MEASURE.

Damages for property taken under eminent ing the right of eminent domain." By Gen. domain must be awarded on the basis of the St. 1902, $8 3710, 3711, it has implied power value of the property for its present use or for to construct highways across railroads. It purposes to which it could be most advantage could, therefore, as it did, take by condemnaously applied under existing conditions.

[Ed. Note.--For other cases, see Eminent Do- tion proceedings the right to extend Humphmain, Cent. Dig. § 356; Dec. Dig. f 134.*]

rey street across the appellee's railroad and Appeal from Superior Court, New Haven through its station building. It is one of the

general rules governing the right of eminent County ; Alberto T. Roraback, Judge.

Application by the New York, New Haven domain that just compensation for taking a & Hartford Railroad Company against the part of a parcel of land or an easement in City of New Haven to review an assessment ing the value of the entire parcel before the

such a part is to be ascertained by comparof compensation for property taken by emi- taking with the value of what remains after nent domain. From a judgment increasing the taking, and in view of the new conditions the compensation, the city appealed. Afarmed.

created by the taking. If the latter of these

two values be less than the former, the Edward H. Rogers and Edward P. O'Mea- amount of the difference measures the damra, for appellant. Harry G. Day and Benja- ages to be paid. In the case at bar, after the min I. Spock, for appellee.

taking, certain railroad tracks would become

incapable of use without further support than BALDWIN, C. J. The city of New Haven, that afforded by the soil beneath them, which by its board of alderman, ordered an exten- had been previously sufficient. These tracks sion of Humphrey street, with a width of 60 are of great value for the purposes of the feet, across the main line of the plaintiff's railroad. When property already devoted to railroad, and through and across its station one public purpose is to be in part appropriatat Cedar Hill. On its application, the railed to another, the interference with that road commissioners, under Gen. St. 1902, $ previously served must be as little as is rea3710, ordered that the street as thus to be ex- sonably consistent with the attainment of the tended should be constructed under the rail. I new purpose. The railroad company was therefore entitled to the continued use of its sence of evidence to the contrary (of which side tracks, for they would be outside the there was none), that its devotion to railroad Pimits of the street as extended. Being so uses will be permanently continued. entitled, it had the right to demand that the There is no error. city should either make such use safe by shoring up the soil beneath them or pay the

(81 Conn. 598) expense of providing proper means of supporting them by structural changes in the

SWITS v. SWITS et al. land adjacent to the street, in which it did (Supreme Court of Errors of Connecticut. Jan. not seek to acquire an easement. The city

27, 1909.) not having proposed to do any such work it- DEAD BODIES (8 5*)—INTERMENT—PLACE OF

SEPULCHER-CHANGE-STATUTES-"CUSTODY self, it was proper for the superior court to

AND CONTROL." require it to pay the expense thus necessarily Gen. St. 1902, & 363, declares that the "custhrown upon the railroad company.

tody and control" of a decedent's remains is The question is not whether, had no part granted to the husband or wife of the deceased of the property or rights of the company been of death, and, if there be no husband or wife

unless abandoned, and living apart at the time taken, damages of this nature could have surviving, then such “custody and control" is been awarded. They have been allowed as granted to the next of kin, but the probate court being the direct effect of taking away some "custody and control” to the relative who may

on petition of any of the kin may award such of its property rights in a part of an entire seem to the court most fit to have the same. parcel of land, which had been previously | Held, that the words "custody and control," as appropriated to one and the same use. Such used in the act, were not limited to the immedamages are incident to and necessarily in- diate possession of a dead body prior to inter:

ment; and hence a widow, having removed and volved in the taking of the property right. reinterred her husband's body in her own burial See New York & N. E. R. Co. v. Waterbury, lot, could not be compelled to remove the same 60 Conn. 1, 10, 22 Atl. 439. It is immaterial to its original place of interment in the lot of

the husband's mother. that the cut in the railroad land was required by the order of the railroad commissioners Cent. Dig. & 5; Dec. Dig. $ 5.*]

(Ed. Note. For other cases, see Dead Bodies, because necessary to make the grade of the street outside the bridge a proper one as re

Appeal from Court of Common Pleas, Fair. lated to the grade under the bridge prescrib- field County; Howard B. Scott, Judge. ed by them. This order could not protect

Suit by Harriet Swits against Edith M. the city from liability to make just compen- Swits and others for injunction to secure the sation for property actually taken in order reinterment of a decedent's remains in their to comply with its terms. Had the street at original place of burial in plaintiff's lot, the point in question been laid out with such from which they had been removed by de a width as to allow for the formation of a

fendant. Judgment for defendants, and permanent slope on either side of the 60-foot plaintiff appeals. Affirmed. roadway, it would have been necessary to Homer S. Cummings, for appellant. John include in the damages to be paid the value of H. Light, for appellees. the land thus taken for the purposes of the slopes. When it took a right over a less

RORABACK, J. It is provided by section width of land, the extension of the street over 363 of the General Statutes of 1902, that "the which necessarily involved a fall of the ad- custody and control of the remains of de joining soil, the city came under a correceased residents of this state is hereby grantsponding duty to indemnify the company fored and shall hereafter pertain to the husband the resulting loss. It is true that the com- or wife of the deceased; but if the surviving pany may never build the retaining wall, and husband or wife had abandoned, and at the may to-morrow abandon the further use of time of death was living apart from the de the side tracks for the support of which that ceased, or if there be no husband or wife surwall would be necessary. But possibilities viving, then such custody and control is of such a nature cannot be contemplated by granted and shall pertain to the next of kin; those charged with the duty of assessing dam- but the court of probate for the district of ages for property taken under the right of the domicil of the deceased may, at any time, eminent domain. They must estimate them upon the petition of any of the kin, award by the standard of its value for the purposes such custody and control to that relative who to which it is being applied, or of its value may seem to said court most fit, for the time for the purposes to which it could, under the being, to have the same.” The case now unexisting circumstances, be most advantage der consideration presents the question as ously applied, if this be a greater sum. Boom to the meaning of the words "custody” and Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206. “control" as used in this act. The plaintiff In respect to property so long appropriated to contends that these words relate primarily to and in use for railroad purposes and so the immediate possession of a dead body priadapted to other similar uses in connection or to interment, and that, when the statutory with factories which might be built hereafter right has once been exercised, this right is along the line, it is to be assumed, in the ab-I exhausted.

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