Judge Burke's opinion in the former appeals very clearly disposed of all the questions sought to be raised in the present appeals except two, namely: First, the effect of the payment into court by the defendant; and, second, whether the plaintiff could recover for loss of rents accruing during delay in building caused by the obstruction of the streets in the burnt district, apart from the inability to procure a permit to build. These questions will be considered in their reverse order. It was expressly and explicit ly decided in the former case that the loss of rent occasioned by the action of the city authorities in delaying the rebuilding of the premises could not be recovered under these policies. Counsel for Mrs. O'Brien, however, contend that there is a distinction between delays caused by the city in withholding permits to build, and the delays caused by general conditions of the streets being blocked by the débris of the fire throughout the whole burnt district, and this question is raised by the plaintiff's first and second prayers and the defendant's third prayer, these prayers of the plaintiff being refused, and the defendant's third prayer being granted. These prayers, with the other granted and refused prayers, will be set out by the reporter. ages. This prayer was correctly refused, for two reasons: First. Because in considering the insurance company's first prayer in the former appeal, which asserted the same legal principle as the defendant's first prayer in this appeal, it was held that Mrs. O'Brien was obliged under the terms of her two policies to take immediate possession of the property for the purpose of rebuilding or repairing; that there was no evidence she did not do so, and that, in the absence of such evidence, the presumption is she discharged that obligation; and, further, that there was no evidence to rebut this presumption. Second. Because, by paying into court the two sums paid in under the two policies in these cases, the defendant has precluded itself from saying that no rent is due under said policies. The leading case upon this question is Cox v. Parry, 1 Term Rep. 464, decided in 1786. That was an action upon a policy of insurance, and the pleas were the general issue, and payment of money into court. The policy was made in the name of De Simons, but the suit was by Cox, as executor of Shultz, who was the owner of some of the articles insured, and it was alleged that it was directed and intended by all parties that the policy 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. ** It was again approved in Gutteridge v. Smith, 2 Henry Bl. 374, decided in 1794. The The defendant's second prayer was correctly granted, and the plaintiff's third prayer 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, if 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 the existence of the debt." And in the same case Justice Rooke said that: "On a policy where the plaintiff goes for a total loss, while it admits the policy itself, yet it does not admit that defendant is liable for more than the amount paid in." In Jenkins v. Tucker, 1 Henry Bl. 90, the question was whether defendant could demur after payment of money into court, and Lord Loughborough went so far as to say: "This 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, the earlier cases were reviewed by Lord Chief Justice Alvanley at length, and the doctrine established by them was maintained. The American cases are to the same effect. In Enc. Pl. & Pr. vol. 21, p. 584, it is said that, where the plea of tender is treated as an admission that the amount tendered is due, the adverse party is entitled to recover that amount, without proof on his part. But a plea of tender of a sum smaller than that claimed by plaintiff does not preclude resisting demand for a greater sum, or from making any defense consistent with the admission of the cause of action. In Wood v. Parry, 1 Barb. 129, the court said: "Whenever tender is made and insisted on in the pleadings, the creditor is at least entitled to that amount. The rule is founded in good sense. Where the debtor admits a certain amount to be due, it is not a point at issue between the parties, and the creditor is not required to establish it by proof." In Eaton v. Wells, 82 N. Y. 576, there was a tender of $2,568, which was a few cents less than the amount due that day on the mortgage, and Chief Judge Folger said: "There was no issue of fact for trial. The pleadings contain the facts." In Foster v. Napier, 74 Ala. 393, the court said: "Since a plea of tender admits that the amount tendered is due, the plaintiff is entitled to that amount at all events, whatever may be the result of the action; nor does his refusal to accept that sum affect his right to recover that sum." In harmony with the cases cited is the case of McCullough v. Hellwig, 66 Md. 2.6, 7 Atl. 457, in which this court said: "In an action ex contractu, the defendant may tender the amount he believes to be due, and the tender operates as an estoppel, so that he cannot subsequently deny that the amount tendered is due." The jury found for the plaintiff for the exact sum paid in each case, consequently it is unnecessary to consider the refusal of the plaintiff's fourth prayer in each case, which asked that interest be allowed on the amount found, after 60 days from submission of proofs of loss, if the sum found should exceed the amount paid in. For the reasons stated, the judgment appealed from in each case will be affirmed. The costs below were properly taxed against the plaintiff under section 21, art. 75, Code Pub. Gen. Laws, but the costs of these appeals should be paid by the defendant. Judgment affirmed; costs below to be paid by Katherine T. O'Brien; costs on appeals to be paid by the Palatine Insurance Company. FITZGERALD v. CITY OF HARTFORD. (Supreme Court of Errors of Connecticut. Jan. 22, 1909.) APPEAL AND ERROR (§ 1056*)-REVIEW HARMLESS ERROR. Where a witness' statement, offered to contradict him and excluded, was not contradic tory of his testimony to any fact material, and testimony admitted over objection disclosed nothing different in substance from that which had been previously testified to by the same witness without objection, the rulings, if erroneous, were harmless. [Ed. Note.-For other cases,' see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*] Appeal from Court of Common Pleas, Hartford County; John Coats, Judge. Action by Johanna Fitzgerald for personal injuries against the City of Hartford. Verdiet and judgment for defendant, and plaintiff appeals. Affirmed. Andrew J. Broughel, for appellant. Francis H. Parker and Lawrence A. Howard, for appellee. PRENTICE, J. The two rulings of the court, one admitting and the other excluding the subject of the only assignments of error, testimony contrary to objection, which are were harmless, even if incorrect. The answer received disclosed nothing which differed in substance from that which had been previously testified to by the same witness without objection. The statement in a deposition given by this witness, which was offered to contradict him and excluded, was not contradictory of his testimony upon the trial in respect to any fact material to the case or in respect to any fact which he asserted. The most which could be claimed for it was that it tended to disclose the uncertainty of his recollection upon the matter involved, which took place nearly three years before the trial, and thus affected his credit. The witness, however, freely and frankly stated that his recollection upon the matter was indistinct and declined to speak with any confidence thereon. The evidence excluded could have added nothing to what the jury already knew from the witness' own lips. There is no error. The other Judges concurred. (81 Conn. 570) ZIMMERMAN v. GARVEY. ties together with the result that a sale was finally accomplished; he participating in the (Supreme Court of Errors of Connecticut. Jan. negotiations. When the question as to a 22, 1909.) 1. BROKERS (§ 65*) - EMPLOYMENT BY BOTH PARTIES-KNOWLEDGE. A real estate broker may not act for both parties except with their knowledge and assent. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 49; Dec. Dig. § 65.*] 2. BROKERS (§ 67*)-CONTRACT FOR COMMISSIONS-EMPLOYMENT EVIDENCE. A real estate broker, having information that an owner was willing to sell certain real estate and learning that defendant was desirous of making an investment, suggested to her the purchase of the property and accomplished a sale. Before a conveyance was made, it was stipulated between the parties that plaintiff should receive a commission of $500, of which the vendor should pay $200 and defendant the balance. Held, that defendant thereby approved plaintiff's engagement to act for both parties, and that she was therefore liable for the agreed commission to the plaintiff and by whom it should be paid arose, this result had not been reached. An offer had been made and was under consideration. The parties were free to act as they chose as to concluding a bargain. They chose to conclude one which involved the sale by the landowner and the purchase by the defendant at a stipulated price, and also embodied a subsidiary agreement upon the matter of a commission to the plaintiff. This subsidiary agreement, to which the plaintiff became a party and assented, stipulated that he should receive the usual commission amounting to $500, and that of this amount the owner should pay the plaintiff $200 and the defendant the balance. Pursuant to the agreement thus reached, a conveyance was made. When it was entered into and the conveyance made in 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 actualMary A. Garvey to recover on an expressly were, since they all lay revealed upon the promise to pay brokers' commissions. Judgment for plaintiff, and defendant appeals. Affirmed. commissions. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 52; Dec. Dig. § 67.*] surface of his known conduct. Nothing in that matter was concealed from them or lay hidden. Whatever employment or relaJames E. Cooper, for appellant. William ation it would arise from the circumstances tionship the law would discover in the situF. 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 exsion 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 commissions, 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 N. Y. 621; Bell v. McConnell, 37 Ohio St. 396, 41 Am. Rep. 528. The plaintiff had not been expressly employed to act for either the defendant or the property owner from whom she purchased. Having information that this owner was willing to sell a piece of his real estate at a certain price and having incidentally learned that the defendant was desirous of making a real estate investment, he had volunteered to suggest to her the purchase by her of the property referred to, and to bring the par 27, 1909.) (81 Conn. 581) 1. EMINENT DOMAIN (§ 47*)-POWER-MUNICIPAL CORPORATIONS CONDEMNATION RAILROAD RIGHT OF WAY. OF A city was authorized by its charter to take any property needed for extending streets on payment of compensation. Gen. St. 1902, § 3710, authorized the railroad commissioners to direct whether a new highway thereafter constructed across a railroad should pass over or under the road, and section 3711 provided for the determination by the commissioners of the length, etc., of any bridge over a railroad. Held that, since the city had implied power under the statutes to construct highways across a railroad, it could condemn land for the purpose of ex [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 108; Dec. Dig. § 47.*] -MEASURE. [Ed. Note. For other cases, see Eminent main, Cent. Dig. § 364; Dec. Dig. § 136.*] 3. EMINENT DOMAIN (§ 319*)-COMPENSATION -APPROPRIATION-NEW USE. The taking of property already appropriated to public use must not interfere with the former use to a greater extent than is necessary to effectuate the new use, so that, where a city extended a street under railroad tracks, the railroad had the right to continue to use its tracks tending a street across a railroad, and through | road. The city authorities thereupon assessed its station building. the damages thus accruing to the railroad company at $5,527. The company applied to the superior court for a review of this action, 2. EMINENT Domain (§ 136*)—COMPENSATION and the court raised the amount of the comThe 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 pense to the company of constructing a re and the value of that part of the tract not taken, 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 temDo-porary support to certain side tracks on this land while in use during the construction of the wall. These tracks were formerly part of the main line of the Shore Line Railroad Company, but now end at Ferry street, a few blocks east of the grounds around the Cedar Hill station. They pass from those grounds over James street by a bridge. They are used for switching purposes and to furnish a connection with a large manufacturing plant now situated on the easterly side of James Street, and would furnish such a connection with any other factories or establishments which may be located in the future on land adjacent to the tracks between James and Ferry streets, which is now unoccupied. To use them for any purposes after the extension of the street would be impossible without such a retaining wall as is above described, and it does not appear that the damages could be reduced by their removal to any other place where they could be used to equal advantage for the purposes of the railroad. By the city charter it could take “any property or property rights" needed for the purpose of extending any street "upon payment of just compensation under the rules govern above the street which were not taken. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 319.*] 4. EMINENT DOMAIN (8 103*)-COMPENSATION MEASURE EXTENT OF RIGHT TAKEN RAILROAD RIGHT OF WAY-APPROPRIATION FOR STREET CROSSING. Where a city extended a street under railroad tracks so that the tracks could not there after be used except by erecting retaining walls adjacent to the street, or otherwise supporting the soil under the tracks, the city was bound to provide such support or pay the expense thereof as part of the compensation for taking the land, and it did not affect the company's right to compensation that the cut was ordered by the railroad commission, or that the railroad might abandon its tracks, and not build the retaining wall. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 103.*] -MEASURE. 5. EMINENT DOMAIN (§ 134*)-COMPENSATION Damages for property taken under eminenting the right of eminent domain." By Gen. domain must be awarded on the basis of the value of the property for its present use or for purposes to which it could be most advantageously applied under existing conditions. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 356; Dec. Dig. § 134.*] Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge. Application by the New York, New Haven & Hartford Railroad Company against the City of New Haven to review an assessment of compensation for property taken by eminent domain. From a judgment increasing the compensation, the city appealed. Affirmed. Edward H. Rogers and Edward P. O'Meara, for appellant. Harry G. Day and Benjamin I. Spock, for appellee. BALDWIN, C. J. The city of New Haven, by its board of alderman, ordered an extension of Humphrey street, with a width of 60 feet, across the main line of the plaintiff's railroad, and through and across its station at Cedar Hill. On its application, the railroad commissioners, under Gen. St. 1902, § 3710, ordered that the street as thus to be extended should be constructed under the rail St. 1902, §§ 3710, 3711, it has implied power to construct highways across railroads. It could, therefore, as it did, take by condemnation proceedings the right to extend Humphrey street across the appellee's railroad and through its station building. It is one of the general rules governing the right of eminent domain that just compensation for taking a part of a parcel of land or an easement in such a part is to be ascertained by comparing the value of the entire parcel before the taking with the value of what remains after the taking, and in view of the new conditions created by the taking. If the latter of these two values be less than the former, the amount of the difference measures the damages to be paid. In the case at bar, after the taking, certain railroad tracks would become incapable of use without further support than that afforded by the soil beneath them, which had been previously sufficient. These tracks are of great value for the purposes of the railroad. When property already devoted to one public purpose is to be in part appropriated to another, the interference with that previously served must be as little as is reasonably consistent with the attainment of the new purpose. The railroad company was sence of evidence to the contrary (of which (81 Conn. 598) therefore entitled to the continued use of its side tracks, for they would be outside the limits of the street as extended. Being so entitled, it had the right to demand that the city should either make such use safe by shoring up the soil beneath them or pay the expense of providing proper means of supporting them by structural changes in the land adjacent to the street, in which it did (Supreme Court of Errors of Connecticut. Jan. not seek to acquire an easement. The city not having proposed to do any such work itself, it was proper for the superior court to require it to pay the expense thus necessarily thrown upon the railroad company. SWITS v. SWITS et al. 27, 1909.) DEAD BODIES (8 5*)—INTERMENT-PLACE OF SEPULCHER-CHANGE-STATUTES-"CUSTODY AND CONTROL. Gen. St. 1902, § 363, declares that the "custody and control" of a decedent's remains is granted to the husband or wife of the deceased unless abandoned, and living apart at the time of death, and, if there be no husband or wife surviving, then such "custody and control" is granted to the next of kin, but the probate court "custody and control" to the relative who may on petition of any of the kin may award such seem to the court most fit to have the same. Held, that the words "custody and control," as used in the act, were not limited to the immediate possession of a dead body prior to interment; and hence a widow, having removed and reinterred her husband's body in her own burial lot, could not be compelled to remove the same to its original place of interment in the lot of the husband's mother. [Ed. Note. For other cases, see Dead Bodies, Cent. Dig. § 5; Dec. Dig. § 5.*] Appeal from Court of Common Pleas, Fair Suit by Harriet Swits against Edith M. Swits and others for injunction to secure the reinterment of a decedent's remains in their original place of burial in plaintiff's lot, from which they had been removed by deJudgment for defendants, and plaintiff appeals. Affirmed. Homer S. Cummings, for appellant. John H. Light, for appellees. fendant. The question is not whether, had no part of the property or rights of the company been taken, damages of this nature could have been awarded. They have been allowed as being the direct effect of taking away some of its property rights in a part of an entire parcel of land, which had been previously appropriated to one and the same use. Such damages are incident to and necessarily involved in the taking of the property right. See New York & N. E. R. Co. v. Waterbury, 60 Conn. 1, 10, 22 Atl. 439. It is immaterial that the cut in the railroad land was required by the order of the railroad commissioners because necessary to make the grade of the street outside the bridge a proper one as related to the grade under the bridge prescrib-field County; Howard B. Scott, Judge. ed by them. This order could not protect the city from liability to make just compensation for property actually taken in order to comply with its terms. Had the street at the point in question been laid out with such a width as to allow for the formation of a permanent slope on either side of the 60-foot roadway, it would have been necessary to include in the damages to be paid the value of the land thus taken for the purposes of the slopes. When it took a right over a less width of land, the extension of the street over which necessarily involved a fall of the adjoining soil, the city came under a corresponding duty to indemnify the company for the resulting loss. It is true that the company may never build the retaining wall, and may to-morrow abandon the further use of the side tracks for the support of which that wall would be necessary. But possibilities of such a nature cannot be contemplated by those charged with the duty of assessing damages for property taken under the right of eminent domain. They must estimate them by the standard of its value for the purposes to which it is being applied, or of its value for the purposes to which it could, under the existing circumstances, be most advantageously applied, if this be a greater sum. Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206. In respect to property so long appropriated to and in use for railroad purposes and so adapted to other similar uses in connection with factories which might be built hereafter along the line, it is to be assumed, in the ab RORABACK, J. It is provided by section 363 of the General Statutes of 1902, that "the custody and control of the remains of de ceased residents of this state is hereby granted and shall hereafter pertain to the husband or wife of the deceased; but if the surviving husband or wife had abandoned, and at the time of death was living apart from the deceased, or if there be no husband or wife surviving, then such custody and control is granted and shall pertain to the next of kin; but the court of probate for the district of the domicil of the deceased may, at any time, upon the petition of any of the kin, award such custody and control to that relative who may seem to said court most fit, for the time being, to have the same." The case now under consideration presents the question as to the meaning of the words "custody" and "control" as used in this act. The plaintiff contends that these words relate primarily to the immediate possession of a dead body prior to interment, and that, when the statutory right has once been exercised, this right is exhausted. |