on from private owners. To do this it was necessary to close the streets across the right of way as broadened, so that the companies could have the fee and possession thereof for railroad purposes. But in some instances, and among them at Thomson avenue, in the place of the portion of the street closed and agreed to be sold a viaduct over the yard was provided and built, and it was necessarily so high over the tracks that the grade of the avenue at either end was necessarily raised to meet it. In other words, over the space where the avenue was obliterated and its bed agreed to be sold a bridge was built, and the abandoned portion made a part of the terminal facilities. The grade of the avenue was raised for the purpose of approaching the viaduct at either end. The companies suggested it, and induced it to be done. It was for their immediate and primary benefit that. it should be done. By it they obtained terminal facilities of greatly increased dimension, uninterrupted and unembarrassed by any street uses. But their benefit, however direct or however great, does not exclude benefits to the general public in whose behalf it is highly important for the safety of travelers that a viaduct should be built. The terminal was necessarily enlarged, and for that purpose the companies could, unaided by the city, acquire the abutting land on the many streets over which its many trains would pass, and it was in the public interest that travelers should be delivered from jeopardy by overhead and under crossings. It is generally, if not always, the case that a crossing other than at grade is, if practicable, a public benefit, and over the terminal of an important railway line it removes from the traveler many perils and the burden of extreme care. Whether the yard was or was not enlarged, the overhead crossing might well be deemed for the public interest. It was also in the public welfare that the companies were compelled to pay in so great part for the changes to be made. Hence, the public interest was subserved by furthering the interests of the companies even to burthening the latter pecuniarily. If the things to be done were for the public interest, it is an unjustified inference that, because the interests of the companies were largely concerned, the good of the public could not be enhanced by what was proposed. Matter [1-3] So I conclude that, if the grade of a street be raised for the benefit of the public, the action of the authorities does not become illegal merely from the fact that railway companies will also reap as great or greater benefit, and for that purpose set in motion the authorities. But this conclusion is only a step forward. The public may be benefited, but the change made must be for a street use. of Rapid Transit R. R. Commissioners, 197 N. Y. 81, 105, 106, 90 N. E. 456, 36 L. R. A. (N. S.) 647, 18 Ann. Cas. 366. If the change of grade is not for a street use, then there must be compensation for injury to plaintiffs' easements. The respondents insist that the declarations in the resolutions and agreements that it is for the public interest is not conclusive of the fact, but that the court may scrutinize the undertaking to discover whether the declared fact is the fact. What are some street uses has sometimes been determined, and references to decision in that regard are made in the Matter of Rapid Transit R. R. Commissioners, supra, 197 N. Y. 81, 97, etc., 90 N. E. 456, 36 L. R. A. (N. S.) 647, 18 Ann. Cas. 366. There the determina In The tion of the question depended upon the capacity in which the city acted, as well as upon the nature of the undertaking. The street below the surface had been appropriated by the city, not in its governmental capacity, but as the proprietor of a railway and the franchise to operate it; and the undertaking required the appropriation of the street beneath its surface and the physical disturbance of the street. the case at bar the embankment raised in front of the plaintiffs' premises will be used on its surface only for the traveling public, and below the surface there may be usual appropriations to sewers and similar facilities. The viaduct on its surface will also be used for public travel. The railroad companies do not share in that kind of use. grade in front of the plaintiffs' premises was raised so as to meet and form with the viaduct a way. It is undoubted that the viaduct was raised to its present height, thereby necessitating the change of the grade of the approach, for the primary purpose of allowing the companies to pass under it, and to acquire for its uses by purchase that portion of the avenue which was closed, so that the yard in all its new limits would be at the free and uninterrupted service of the companies. The whole plan was the conception of the companies, and while it was for the public interest, as the city conceived, that the plan should be adopted, yet, as the contract states in the leading premise, it was "in order to provide a suitable terminus and suitable terminal facilities for the railroad of the Terminal Company, and to avoid the crossing of certain streets at grade which are now crossed by the railroad of the Long Island Company." But, even so, if there be merely the substitution of a viaduct for a grade crossing, and the closing of the street thereunder, the plaintiffs are not entitled to compensation, whatever the actual damage to their adjoining property. * * * But the vital question is, Was the undertaking in its essential quality a change of grade? I do not regard the extent of the change. The power is the same whether the map be changed as to one or many streets. I do not consider the mere fact that portions of streets are closed at grade over the tracks and in instances viaducts substituted. Conceding the power, the degree of its exercise is unimportant. But one essential of the plan was to convey the title to the streets closed. What is the result? There is no continuing street owned by the city passing plaintiffs' premises. True, the plaintiffs may pass from the approach onto the viaduct. But who owns that? The companies own or will own the land under it, subject to easements for sewers and similar purposes, but the viaducts will be built over the land of the companies. What are the proposed property interests of the city therein? "Easements for the right to continue and maintain the said viaducts or bridges over the following streets or avenues as now laid out or proposed; a perpetual easement or easements sufficient for the use and control by the city of the said viaducts and bridges for the purpose of police regulation and other control contemplated by the city ordinances for the care of streets or highways." The city may undoubtedly use the viaducts for street purposes, and the companies may interconnect them for their purposes. The companies will own the land supporting the viaducts. The city will maintain and police * * * them. But thereby has the city changed the grade within the meaning of section 442 of the Greater New York Charter? The appellants are contented to assume that such is the fact and to show consequent nonliability. But a change of grade, as usually considered, is an elevation or depression of the surface, or a change of the natural contour of its face so as to facilitate travel over it. But here portions of many streets are taken from the ownership of the city, their beds appropriated to the business of the new owners, viaducts in place built by them, and passage for the public thereon provided, and right of maintenance and power to protect them ceded. This, in my judgment, is not change of grade but disposition of streets for railway facilities, with substituted right of passage along viaducts built by the companies over their land, with accompanying power to the city to maintain and to police. In brief, the city has sold its streets, and in return obtained a right of way over some viaducts built and presumably owned by the vendee, to which is superadded the duty of maintenance and policing by the city. The judgment should be affirmed, with costs. All concur. L. B. REPAIR CO., Inc., v. WHICHER et al. (Supreme Court, Appellate Term, First Department. February 18, 1913.) LIENS (§ 11*)-LABOR AND MATERIAL-CONTRACT. Where a repair company under a contract with a patentee furnished labor and material for the construction of an experimental engine, it-acquired no lien therefor upon another and different engine which it subsequently constructed out of new material under a contract with a syndicate formed by the patentee, though both engines were constructed on the basic idea of the patent. [Ed. Note.-For other cases, see Liens, Cent. Dig. §§ 2, 3; Dec. Dig. § 11.*] Page, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Third District. Action by the L. B. Repair Company, Inc., against Louis E. Whicher, as trustee, etc., and another. From judgment for plaintiff, the defendant trustee appeals. Reversed, and new trial ordered. Argued November term, 1912, before SEABURY, LEHMAN, and PAGE, JJ. Parker & Aaron, of New York City (Harold F. Carlton, of New York City, of counsel), for appellant. Moos, Prince & Nathan, of New York City (Alfred B. Nathan and Sidney J. Loeb, both of New York City, of counsel), for respondent. LEHMAN, J. The complaint herein seeks damages for the conversion of certain parts of a "Whiteside gas turbine engine, on which the plaintiff claims a lien for work, labor, and services and materials used in the making, altering, repairing, and otherwise enhancing the value thereof." The work and labor performed and the materials furnished, for which the plaintiff claims a lien, are minutely described in a bill of particulars, and the complaint also alleged that the sum for which a lien is claimed was due at the time of the conversion, with interest thereon from the 7th day of June, 1910. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes The evidenciary facts in this case are undisputed, and the law applicable to these facts is well settled, and the only question presented in this appeal is the correct inference to be drawn from the undisputed evidenciary facts. It appears that in March or April, 1910, one Dr. Whiteside called on the plaintiff, and asked if they would be interested in doing some work for him in the line of experimental work. He then laid before them plans for an experimental engine, the details of which were not yet fully developed. They told him they would be pleased to go ahead with it, if he would give them subject and plans from which they could work. They talked the matter over as to what would be required, the kind of work he wanted done, and the kind of material and steel which he wanted to use in that construction, and the prices which they were to charge for the same. He told them to go ahead with the work. He brought from time to time the prints from which they were to work, and the blue prints were followed except for some changes suggested by the plaintiff. The experimental engine was to be a working model of certain patents owned by Dr. Whiteside. In June, 1910, Dr. Whiteside told the plaintiff that he was organizing a syndicate of moneyed men to carry on the manufacture of this patent, and that he would not do any more work on it until that syndicate was completed. Dr. Whiteside has never paid the agreed price for the work actually done. It appears that the work which the plaintiff did prior to June, 1910, was work in connection with an air compressor to be used on the engine, and that no parts made by the plaintiff prior to June, 1910, or furnished by Dr. Whiteside to the plaintiff, have ever been removed from the plaintiff's possession. Thereafter, however, the plaintiff was employed by the syndicate organized by Dr. Whiteside to do further work in the making of an entirely different engine, though based on the same basic idea covered by Dr. Whiteside's patent. None of the material belonging to Dr. Whiteside which he had made and which were in the possession of the plaintiff was used on the second engine, and all the work done by the plaintiff upon orders from the defendant's syndicate and which went into the second engine has been paid for. The plaintiff claims a lien for the work done previous to June, 1910, upon the working model made thereafter from plans prepared thereafter, for materials furnished thereafter and ordered by a syndicate organized thereafter, upon the theory that it was all work done in the making of an engine based upon the basic idea of Dr. Whiteside's patent. I agree with the view that, if all the work had been done under an agreement made by Dr. Whiteside and continued and adopted by the defendant, there would be a real basis for this contention; but I find no such evidence in this case. Dr. Whiteside employed the plaintiff to do certain work according to certain plans and at an agreed price. Thereafter the defendant abandoned the plans and abandoned the materials previously furnished by Dr. Whiteside, and gave the plaintiff an order to do some other work under the new plans. Conceding that both the employments of the plaintiff were made for the general purpose of completing a working model for Dr. Whiteside's patent, yet certainly, if the employments were made separately and not under one contract, the defendant is not liable for any work performed for Dr. Whiteside previously. I think the judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. SEABURY, J., concurs. PAGE, J., dissents. (79 Misc. Rep. 430.) GATTI-MCQUADE CO. v. FLYNN. (Supreme Court, Appellate Term, First Department. February 18, 1913.) 1. EXECUTORS AND ADMINISTRATORS (§ 119*) - TORTS OF ADMINISTRATOR-LIABILITY OF ESTATE. As an administrator may not bind decedent's estate by continuing to carry on decedent's business, she on committing a tort, either personally or by agent, is liable therefor in her personal capacity alone. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 483; Dec. Dig. § 119.*] 2. PARTIES (§ 71*) -CAPACITY-INDIVIDUAL OR REPRESENTATIVE CAPACITY. The rule that the omission of the word "as" after the name of a party determines that the action is brought in an individual capacity gives way to any clearly expressed intent, and the character of the action, whether individual or representative, is determined from an inspection of the entire record, which governs in spite of a misdescription in the title. [Ed. Note. For other cases, see Parties, Cent. Dig. § 113; Dec. Dig. §71.*] 3. EXECUTORS AND ADMINISTRATORS (§ 444*)-ACTIONS-INDIVIDUAL CAPAC ITY. A complaint in an action based on the negligence of a driver employed by an administratrix in her capacity as such while carrying on decedent's business, which alleges the death of decedent and the granting of letters of administration, and which demands only a money judgment against defendant named, followed by the words "Administratrix of the estate deceased," but omitting the word "as" after the name, sets forth a cause of action against defendant in her individual capacity. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1813-1817, 1837-1841; Dec. Dig. § 444.*] of * * * Page, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Gatti-McQuade Company against Virginia Flynn, administratrix of Patrick H. Keahon, deceased. From a judgment of the Municipal Court of the City of New York dismissing the complaint for failure to file an amended complaint after sustaining a demurrer, plaintiff appeals. Reversed, and new trial ordered. Argued November term, 1912, before SEABURY, LEHMAN, and PAGE, JJ. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |