aggregate cash value of the rolling stock for be assessed by the state auditor as charter the purpose of levying the state tax. Valuation of Tangible Personal Property line property, though there is a disagreement between counsel as to whether or not of the items in these subdivisions some should be assessed by the local assessors under the General Revenue Law of the state. [13, 14] Under the advice of counsel, the The questions of taxation as to practically state auditor, in assessing this class of prop- all the items under these subdivisions are, erty, assessed all that was owned by the com- so far as this cause is concerned, moot quespany, wherever situated, the total aggregate tions and need not be decided. There is, howcash value being $6,982,517.18. It is now ever, a difference of opinion as to the proper conceded by counsel for the state that under method of taxing items under subdivision 3, the decisions already cited and numerous oth- especially as to whether the company had er decisions of the federal and other courts, the right to set off debts against credits, such as Delaware, Lackawanna & Western which the commissioner held it had, and also Railroad Co. v. Pennsylvania, 198 U. S. 341, a difference of opinion between counsel as 25 Sup. Ct. 669, 49 L. Ed. 1077, Buck v. to the commissioner's findings as to subdiBeach, 206 U. S. 392, 27 Sup. Ct. 712, 51 L. vision 6 and subdivision 11. In view of the Ed. 1106, 11 Ann. Cas. 732, Selliger v. Ken- conclusions that we have reached on other tucky, 213 U. S. 200, 29 Sup. Ct. 449, 53 L. branches of this case, no practical purpose Ed. 761, and Irvin v. New Orleans, St. Louis can be served in this opinion by giving our & Chicago Railroad Co., 94 Ill. 105, 34 Am. views of the law as to the proper rules for Rep. 208, the proof showing that a large pro- levying taxes on any of these items. It apportion of the materials and supplies had pears as to the items in some of these subdiobtained a permanent situs at points not in visions that there is now other litigation in any way connected with the charter lines of which the question of proper methods of taxthe company, such property so located out- ation is squarely at issue and must be setside of the state should not be included as tled to end that litigation. Indeed, considcharter line property for the purpose of levy-erable space in these briefs on this question ing a tax in this state. The valuation of is devoted to argument to prevent the court this property.is higher in the commissioner's from prejudging the questions involved in the report than it is in the return of the compa- other litigation. The state auditor placed the ny to the state auditor. The commissioner fair cash value on cash, stock, bonds, and found the value to be $4,420,115.54; its value other credits at $190,901,243.05. In the reas returned in the schedule of the company turn of the schedule of the company to the was $2,585,675. Under the law the state is state auditor the aggregate value of this class not bound by a valuation given by the prop- of property to be assessed against the charerty owner to the assessing officer. 1 Cooley ter lines was given as $70,728,290.49. The on Taxation (3d Ed.) 616, and cited cases; commissioner valued this class of property 37 Cyc. 994, and cited cases. The state contends that while the auditor's valuation for the assessment of this property is too high commissioner requires this class of property the commissioner's is too low. We think the weight of the evidence supports the finding of the commissioner. His finding, therefore, will be taken as the full cash value for this property, for the state tax for the year here in question. By the great weight of evidence in this record none of the items of property of the company, except the one considered under this heading, should be valued at a higher figure than was fixed thereon in said schedule of the company returned to the state auditor for the year 1913, as herein set forth. for assessment at $23,950,993.40. Counsel for the company now insist that proof before the to be valued at $3.391,391.83, while counsel for the state insist that the proof shows that this property should be valued for assessing purposes at $16,329.588.89. [15] The conclusion heretofore stated, that the valuation given in its schedule as to the railroad track and right of way returned to the auditor for the year 1913 must bind the company, applies as to the value of the intangible personal property. The evidence in the record tends to show that these returns were made on forms prepared by the state auditor, and included much property, especially intangible personal property, that did Valuation of Intangible Property. not belong to the charter lines. Similar returns had been made for some seven years Under this heading the state auditor val- previous on the same forms by the company ued and assessed cash, bonds, stocks and to the state auditor and the state taxes levied other credits. The commissioner, after he by that officer in accordance with said rehad heard evidence, made his report on this turns. Even though it be a fact that the branch of the case under 11 different subdi- company included in this schedule property visions or headings. As to the first, second, that did not belong to the charter lines, that fourth, fifth, seventh, eighth, ninth, and tenth fact cannot alter the rule of law as to the subdivisions, counsel agree that the com- binding effect in this case upon the company missioner found correctly that the various of the values fixed in the schedule for the items under these subdivisions should not assessment of the state tax for the year in question. The valuation given to the in-] tangible personal property in the company's schedule for 1913, namely, $70,728,290.49, is binding upon the company, and should be the total aggregate cash value of this item of the company's property for the purpose of levying the state tax. Both counsel in their briefs and arguments have discussed at length various points which we have not deemed it necessary to consider. Having in mind the fact that there is another cause in litigation wherein the question is involved as to a proper accounting between the state and the company under the rules laid down by this court in State v. Illinois Central Railroad Co., 246 Ill. 188, 92 N. E. 814, counsel have stated in their briefs that they do not desire the court, without fully considering its bearing on the litigation for an accounting, to say anything in this opinion that would, directly or indirect ly, affect a decision in that case, and they have argued here at some length questions that arise only in the litigation for an ac counting. The issues there differ so widely from those we are considering, that anything that is said in this opinion should not have the slightest bearing on the issues in the litigation for an accounting. That cause, if it ever reaches this court, will be decided, both on the law and the facts, without any prejudice to either party by reason of the conclusions we have reached in this cause. Recapitulation. The aggregate values that have been or are now placed upon the property of the company by the various authorities, before those values are equalized under the rules heretofore laid down in this opinion, are as follows: It is proper to state here that the aggregate value of all the property and assets of the company as returned by it in its schedules to the state auditor for the various years from 1906 to 1912, inclusive, and which the state auditor took as a basis in fixing the assessment for the state tax in accordance with the rules laid down herein, varies in these different years from $155,016,656.50 to $182,067,092.55. In view of the conclusions that we have reached, the total aggregate cash value of the property of the company to be assessed as of March 31, 1913, should be in accordance with the figures set forth in the last column of the table given above; that is, $191,020,034.03. The auditor of public accounts, in assessing the tax thereon for state purposes, must proceed in accordance with the views set forth in this opinion. He must equalize its value on the same basis as has been applied to the other property throughout the state for assessing the taxes for the year 1913 (that is, to 70 per cent. of said aggregate cash value), making such equalized value $133,714,023.82. In harmony with the General Revenue Law of this state and under the reasoning of this opinion, only onethird of said total equalized value (that is, $44,571,341.27) should be taken by the auditor as the value upon which said state taxes against the company should be assessed, and said state taxes should be assessed at the rate fixed by the state for other state taxes for that year (that is, 70 cents on each $100 of valuation). The clerk of this court will certify to the auditor of public accounts the aggregate cash value as found by this court; that is, $191,020,034.03. Ordered certified accordingly. Right of way and improvements thereon, including railroad track Rolling stock Tangible personal property other than rolling stock.. Intangible property, includ ing cash, stocks, bonds and other credits..... Total $125,000,000.00 $111,986,966.38 $ 75,000,000.00 $75,000,000.00 $101,776,098.00 $101,776,098.00 42,675,857.00 42,675,857.00 14,095,530.00 14,095,530.00 14,095,530.00 14,095,530.00 6,982,517.18 4,687,790.35 4,420,115.54 4,420,115.54 2,585,675.00 4,420,115.54 190,901,243.05 16,329,588.89 23,950,993.40 3,391,391.83 70,728,290.49 70,728,290.49 $365,559,617.23 $175,680,202.62 $117,466,638.94 $96,907,037.37 $189,185,593.49 $191,020,034.03 (218 N. Y. 270) tion and exception of the defendant, to introDIETZEL v. CITY OF NEW YORK. duce opinion evidence as to the value of the (Court of Appeals of New York. May 12, 1916.) | plaintiff's property before and after the con1. TRESPASS 50- REMEDIES OF PROPERTY struction of the sewer. OWNERS-MEASURE OF DAMAGES. The learned trial judge also charged the jury that the measure of the plaintiff's damage would be the difference in the value of her property with and without the sewer, to which instruction the defendant duly excepted. In an action at common law for damages for a trespass by defendant city in constructing a sewer upon plaintiff's land, plaintiff's damages were limited to the injury she sustained up to the time of commencement of the action, and were not the difference in the value of her prop[1] It is quite clear that the evidence was erty with and without the sewer, since a recovery on the basis of permanent damage is not received and that the jury were thus instructpermissible in a common-law action for tres-ed upon the assumption that the sewer was pass upon land, unless the injury is incapable to remain as a permanent structure upon the of actual physical repair, and therefore, in its plaintiff's land the fee value of which would nature, and of necessity, permanent. thus be permanently lessened thereby. This was an erroneous assumption in an action at [Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 134, 136; Dec. Dig. 50.] 2. PLEADING 366-ACTION FOR DAMAGES-common law where the character of the tresSTRIKING AVERMENT. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1145; Dec. Dig. 366.] 3. EMINENT DOMAIN 126(1)—DAMAGES. Where, pending an action at common law for damages for trespass by constructing a sewer on plaintiff's land, the city instituted condemnation proceedings any damage for permanent injury is recoverable in such proceeding. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 345, 346; Dec. Dig. 126(1).] pass is such that it need not be permanent. The invasion of land by the construction of a sewer thereon is not necessarily permanent. The sewer may be removed and the land restored to its former condition. There is no presumption that the trespasser will persist in his wrongdoing in such a case, but, on the contrary, the plaintiff's damages are to be assessed on the assumption that he will right the wrong, and, therefore, they are limited to the injury which the plaintiff has sustained up to the time of the commencement of the action. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661; Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436, 28 N. E. 518, 13 L. R. A. 401, 26 Am. St. Rep. 486; Stowers v. Gilbert, 156 Appeal from Supreme Court, Appellate N. Y. 600, 51 N. E. 282. A recovery on the Division, First Department. Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for appellant. J. Homer Hildreth, of New York City, for respondent. Such basis of permanent damage is not permissiAction by Rosina Dietzel against the City ble in a common-law action for a trespass of New York, From a judgment of the Ap-upon land unless the injury is incapable of pellate Division (170 App. Div. 571, 156 N. actual, physical repair, and therefore in its Y. Supp. 748), affirming judgment for plain- nature and of necessity permanent. tiff, defendant appeals. Judgment reversed, was the case of Argotsinger v. Vines, 82 N. Y. and new trial granted. 308, where the trespass consisted of the cutting and removal of timber; such was the case of Dwight v. Elmira, Cortland & Northern R. R. Co., 132 N. Y. 199, 30 N. E. 398, 15 L. R. A. 612, 28 Am. St. Rep. 563, where the plaintiff's fruit trees were set on fire and destroyed; and similar in principle was the case of Evans v. Keystone Gas Co., 148 N. Y. 112, 42 N. E. 513, 30 L. R. A. 651, 51 Am. St. Rep. 681, where shade trees were killed by the leakage of illuminating gas. In none of these cases was it possible, as it clearly was in the present case, to restore the property to its original condition. WILLARD BARTLETT, C. J. This is an action at common law to recover damages for a trespass committed by constructing a sewer upon the lands of the plaintiff. The trespass was established by uncontradicted proof upon the trial. The answer contained an averment to the effect that since the trespass the title to that portion of the land of the plaintiff occupied by the sewer had become vested in the city of New York through condemnation proceedings duly instituted and conducted according to law; but this aver ment was stricken out upon the motion of plaintiff's counsel, with the assent of counsel for the city. The only question presented by the appeal relates to the measure of damages. [2, 3] Recognizing the law to be as we have stated it, the learned Appellate Division, nevertheless, upheld the measure of damages sanctioned by the trial court because, as it said: "It is not contended that the occupation is otherwise than permanent." This assumption was evidently based upon the reference in the answer to the institution of condemnation proceedings by the city. The averment, however, having been stricken out The plaintiff was permitted, over the objec-at the instance of plaintiff's counsel, cannot For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be considered for any purpose. Indeed, it was improperly pleaded in such an action as this, condemnation having been sought only after the suit was commenced. Whatever loss the plaintiff will suffer by reason of the permanent presence of the sewer will be made good to her in that proceeding if we assume it to have been instituted, notwithstanding the elimination of all reference thereto in this record. In the present action her damages must be measured by the rule in the Uline Case, supra. In the discussion of the authorities bearing upon the question under consideration, the Appellate Division refers with approval to Goldschmid v. Mayor, etc., of N. Y., 14 App. Div. 135, 43 N. Y. Supp. 447, where the trespass consisted of an invading retaining wall erected by the city in front of the plaintiff's property where it abutted upon the street, and the court held that the correct measure of damages was the depreciation in the value of the property, because the encroachment was practically permanent. We are unable to see why the wall was not capable of removal and doubt the correctness of the deci sion. The judgment should be reversed, and a new trial granted, with costs to abide the event. HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur. Judgment reversed, etc. (218 N. Y. 259) sessment on the tracks of plaintiff, plaintiff appeals. Reversed and rendered. Maurice C. Spratt, of Buffalo, for appellant. Herbert A. Hickman, of Buffalo, for respondents. WILLARD BARTLETT, C. J. The plaintiff's railroad tracks run through an open cut 15 feet deep in a street known as the Terrace, in the city of Buffalo. This cut is protected by stone walls along the edge thereof 3 feet high, surmounted by an iron fence of equal height, erected in the first instance by the railroad company, and subsequently maintained by the city. On October 24, 1904, the common council of Buffalo adopted a resolution, which was duly approved by the mayor, directing the commissioner of public works to cause the New York Central & Hudson River Railroad Company to be notified to construct a concrete sidewalk along the open cut in the Terrace within ten days, and, if not done in that time, to cause the same to be done, and the expense to be assessed upon the property benefited. The notice was given, the railroad company did not comply with its requirements, the city constructed the concrete sidewalk, and the cost of the work was assessed against the tracks of the plaintiff in the Terrace and in some other streets. Upon this appeal we are concerned only with the validity of the assessment upon the tracks in the Terrace. The authority for the assessment is supposed to be found in section 288 of the charter of the city of Buffalo, as amended in NEW YORK CENT. & H. R. R. CO. v. 1901. Laws of 1901, c. 228. That section CITY OF BUFFALO et al. (Court of Appeals of New York. May 12, 1916.) MUNICIPAL CORPORATIONS 425(3)-PUBLIC IMPROVEMENTS-ASSESSMENTS "PREMISES.' Under Buffalo City Charter (Laws 1901, c. 228) § 288, declaring that the owner or occupant of any premises in the city shall, when ordered by the common council, lay sidewalks, and, if the work shall not be done within the specified time, it shall be performed by the city and the cost assessed upon the premises, railroad tracks running through a cut in a street are not "premises" within the charter, that expressly referring to property abutting on the street, and the cost of laying a sidewalk beside such tracks cannot be assessed on the tracks, the railroad company not owning the street. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1033; Dec. Dig. 425(3). For other definitions, see Words and Phrases, First and Second Series, Premises.] Chase, J., dissenting. makes it the duty of "the owner or occupant of any premises in the city" whenever such work shall be ordered by a resolution of the common council "to lay and relay sidewalks in front of such premises," and at all times to keep and maintain the same in good order and repair. "In case any such work shall not be done within the time specified in such notice * said commissioner of public works may cause such work to be done, and the expense thereof shall be a charge and lien upon such premises." The same section also requires that the assessment therein provided for shall be laid "upon the lands and premises in front of which the work is done, according to the lineal frontage." In the present case the plaintiff railroad company has been treated as the owner or occupant of premises within the meaning of this statutory provision because of its own Appeal from Supreme Court, Appellate Di-ership of the tracks which run along the botvision, Fourth Department. Action by the New York Central & Hudson River Railroad Company against the City of Buffalo and George M. Zimmerman, as comptroller. From a judgment of the Appellate Division (157 App. Div. 900, 141 N. Y. Supp. 1133) affirming a judgment of the Supreme Court which confirmed an as tom of the open cut in the Terrace. We are of opinion that the action of the Special Term and the Appellate Division is based upon a misapplication of the charter provision which is not warranted by the language thereof. The plain import of section 288 of the Buffalo charter so far as the laying down of a new sidewalk is concerned is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-46 (218 N. Y. 155) EISEMANN v. HAZARD. (Court of Appeals of New York. May 9, 1916.) 1. ATTORNEY AND CLIENT 20-RIGHT TO REPRESENT CONFLICTING INTERESTS. It is not always improper or unlawful for terests, but adverse interests, if they are to be an attorney at law to represent conflicting inadjusted, may be represented by the same counsel, although the cases in which this can be done are exceptional, and never entirely free from the danger of conflicting duties. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 27, 29; Dec. Dig. 20.] 2, ATTORNEY AND CLIENT TORNEY-COMPENSATION. 20-DUTY OF AT Where an attorney was retained to adjust the affairs of a firm and secure control of the firm for his client by an involuntary proceeding in bankruptcy which he induced the firm's cred rupts into giving his client a controlling interest in a corporation formed to carry on business of the defunct firm, he acted within the terms of his employment, and his client cannot complain of improper conduct or be relieved from paying the agreed compensation by invoking the rule that, if an attorney represents adverse interests or undertakes to discharge conflicting duties he cannot receive compensation from either party. that the common council may impose this obligation only upon the owners or occupants of property who actually own or possess land fronting upon the street in which the new sidewalk is to be constructed. It seems to us a forced and wholly unwarrantable interpretation of the term "premises" to apply it to railroad tracks which merely constitute the tangible part of a railroad company's special franchise to occupy a city street. Ownership of the street is not in the railroad company; nor does the railroad company exclusively occupy any portion thereof except that which lies directly under the rails. These tracks do not seem to us to be premises within the true meaning and purport of the statute; yet it is these tracks, and these alone, which are the subject of the assess-itors to bring, although he coerced the bankment in question here. The provision is applicable to cases of the ordinary owner or occupant of land on the side of a public street in front of whose land a new sidewalk is to be constructed, and not at all to the grantee of a special franchise enjoying simply an easement in the middle of the street. The requirement that the assessment shall be laid upon the land and premises in front of which the work is done according to the lineal frontage further confirms the view that such a condition of things as exists in the present case does not fall within the scope of the charter provision. Railroad tracks cannot fairly be said to have any "frontage." The learned judge who heard the case at Special Term declared that the railroad company was the exclusive occupant of the lands bounded by the retaining wall of the cut, and that this piece of real estate constituted definite premises, accurately described; but the mere fact that it is not convenient for the public to travel through that part of the Terrace occupied by the cut does not make the railroad company the exclusive occupant thereof in a legal sense and as a matter of right. As we have pointed out, the assessment in question is not laid upon any land in the cut, but applies solely to the tracks of the railroad company. This expressly appears in the findings. For these reasons, without passing upon any of the other questions in the case, we have reached the conclusion that the tracks of the plaintiff could not lawfully be assessed for the expense of constructing the socalled sidewalks along the open cut in the Terrace. It follows that the judgment, so far as appealed from, should be reversed, with costs, and that judgment should be rendered in favor of the plaintiff in accordance with the prayer of the complaint. HISCOCK, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. CHASE, J., dissents. Judgment accordingly. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 27, 29; Dec. Dig. 20.] Willard Bartlett, C. J., and Chase and Hogan, JJ., dissenting. Appeal from Supreme Court, Appellate Division, First Department. Action by Frederick F. Eisemann against Florence A. Hazard. From a judgment of the Appellate Division (161 App. Div. 703, 146 N. Y. Supp. 685) reversing a judgment of the Trial Term and dismissing the complaint, the plaintiff appeals. Reversed. Jerome Eisner, of New York City, for appellant. James A. Gray, of New York City, for respondent. CUDDEBACK, J. The plaintiff in this action is an attorney and counselor at law, and he sues to recover for professional services performed by him for the defendant at her request. The answer in the action is a general denial. In the trial court the plaintiff recovered a judgment. The Appellate Division reversed the judgment, and dismissed the plaintiff's complaint. It appears from the plaintiff's testimony that he was employed by the defendant in the month of August, 1907, in respect to the wholesale grocery firm of E. C. Hazard & Co. The defendant's husband, who had been the principal partner in the firm, had died, and his affairs were going on badly. The surviving partners refused to give the defendant any information as to the firm's business, and they were at the same time calling on her for contributions of money to carry on the business. She employed the plaintiff to straighten out the partnership matters, and to secure for her the control of the firm. The plaintiff accepted the employment, and at once began an in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |