to contribution from plaintiff's assignor for one-half the amount of a note, jointly signed by defendant and plaintiff's assignor, and paid by the defendant, and where it appeared that defendant had given his individual note for the amount of the joint note, the giving of that note was not a payment, so as to entitle defendant to contribution, unless it was accepted as such; and it was therefore error to exclude evidence offered by the defendant that his note was accepted as payment. [Ed. Note.-For other cases, see Contribution, Cent. Dig. §§ 10-12; Dec. Dig. § 6.*] Appeal from City Court of New York, Trial Term. Action by Max Rindskopf against Benjamin Zimmer. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered. See, also, 84 Misc. Rep. 32, 145 N. Y. Supp. 984. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Gallert & Heilborn, of New York City (David J. Gallert and Walter S. Heilborn, both of New York City, of counsel), for appellant. Myers & Goldsmith, of New York City (E. J. Myers and Gordon S. P. Kleeberg, both of New York City, of counsel), for respondent. SEABURY, J. This case was tried before the court without a jury, and judgment rendered for the plaintiff and against the defendant upon his counterclaim. Plaintiff, as assignee, sues to recover $1,500 for the purchase price of an automobile sold and delivered by plaintiff's assignor to defendant. Defendant denies the assignment, and pleads a counterclaim against plaintiff, based upon the contention that plaintiff's assignor and defendant made and delivered to Hilder their joint promissory note for $5,000, and that, to induce the defendant to sign such note, plaintiff's assignor agreed to indemnify the defendant to the extent of one-half the amount defendant was required to pay upon that joint note. Defendant claimed that, prior to the assignment to plaintiff, he paid the amount of the note and $300 interest. The defendant paid the original note of $5,000 by giving Hilder, the payee, his individual note and $300 interest. The assignment was fully proved. The question in dispute arises upon the counterclaim. [1, 2] It seems to be settled law that, if the defendant paid the whole amount of the joint note, he is entitled to contribution against the plaintiff's assignor. The giving by the defendant of his own note was not such a payment as entitled the defendant to contribution by the plaintiff's assignor, unless the note was given in payment. Auerbach v. Rogin, 40 Misc. Rep. 695, 697, 83 N. Y. Supp. 154. If the creditors received the note of the defendant in satisfaction of the joint debt, the defendant is entitled to contribution from the plaintiff. Repeated efforts were made by the defendant, both by questions asked and offers made, to show that the individual note of the defendant was received in payment of the joint note, and that when the individual note became due it was paid in full by the defendant; but the court ruled out such offered testimony. These rulings were erroneous, and require a reversal of the judgment. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (88 Misc. Rep. 1) ROSENBERG v. DELAWARE, L. & W. R. CO. (Supreme Court, Appellate Term, First Department. December 4, 1914.) CARRIERS (§ 105*)-CARRIAGE OF GOODS-DELAY-DAMAGES. The measure of damages for delay in the transportation of goods, consisting of ladies' and misses' cloaks, known as seasonable goods, was the amount reasonably within the contemplation of the parties when the contract of shipment was made, and not damages based upon the fact, of which the carrier had no notice, that the goods were seasonable. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.*] Bijur, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Fifth Dis trict. Action by Adolph Rosenberg against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Douglas Swift, of New York City, for appellant. M. Harold Hochdorf, of New York City, for respondent. PER CURIAM. This action was brought to recover damages caused by defendant in delaying a shipment of goods belonging to the plaintiff. The goods were delivered to the defendant in this city, on August 14, 1913, consigned to one Rubenstein, at Hannibal, Mo. They were transported by defendant and its connecting carriers, and tendered to the consignee on November 20, 1913. The shipment was refused by him. It is conceded that a reasonable time for the transportation of a shipment of this character, in the ordinary course of events, is six days. The delay between August 14 and November 20, 1913, and the defendant's responsibility for that delay is admitted. The only question in the case is the measure of damages which the plaintiff was entitled to recover by reason of such delay. The proof showed that the goods consisted of ladies' and misses' cloaks and are what is known as "seasonable" goods. The plaintiff is entitled to recover only such damages as were reasonably within the contemplation of the parties when the contract of shipment was made. The damages. allowed by the court below were based wholly upon the fact that the goods were seasonable, and there was no proof that the defendant had notice of this fact, nor was there any testimony given from which the defendant could be charged with such knowledge. The bill of lading simply described the goods as "1 case clks." Under the decision in the case of Wolfe v. Weir, 61 Misc. Rep. 57, 112 N. Y. Supp. 1078, and Lichtenstein v. Fargo, 66 Misc. Rep. 149, 121 N. Y. Supp. 327, the judgment must be reversed. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. BIJUR, J., dissents. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (164 App. Div. 548) ONEONTA LIGHT & POWER CO. v. SCHWARZENBACH et al. (No. 249-88.) (Supreme Court, Appellate Division, Third Department. November 25, 1914.) 1. STATUTES (§ 112*)-TITLES AND SUBJECTS OF ACTS. Laws 1898, c. 234, the title of which recites that it is "An act to incorporate the Electric Water Power Company of Oneonta," provides that such corporation may construct and operate all necessary dams, reservoirs, etc., for the proper use of the water of a river in the development of hydraulic and electrical power, and for generating electricity for heating, lighting, and other purposes, and acquire lands necessary for carrying into effect its powers, and accumulate and store water, and sell, lease, etc., power developed from such water, and dispose of the electricity generated by such power, that it may acquire lands by condemnation, and that it shall possess all the powers and be subject to the same liabilities as a corporation organized under the general law of the state. Held, that such act does not violate Const. art. 3, § 16, providing that no private or local bill shall embrace more than one subject, and that shall be expressed in the title. as the title indicates the necessity for a franchise to operate a water power, and it would be assumed from the title that the purposes and powers of the corporation would be specified, while no person reading the bill with the title in mind would be surprised by the provision authorizing the acquisition of land by condemnation. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 140%; Dec. Dig. § 112.*] 2. EMINENT DOMAIN (§ 10*)-ELECTRIC LIGHT COMPANIES-STATUTORY PROVI SIONS. Transportation Corporations Law (Consol. Laws, c. 63) § 61, providing that any electric light company in any town or village, having a contract with any town or incorporated village for the lighting of streets, etc., in any town or village, shall have the right to acquire real estate necessary for the purposes of its incorporation, or to acquire a right of way through any property in the same manner as waterworks companies under the general condemnation law of the state, is applicable only to towns and villages, and not to cities. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 35-48; Dec. Dig. § 10.*] 3. STATUTES (§ 79*) - LOCAL OR SPECIAL BILLS CONSTITUTIONAL RESTRIC TIONS. Laws 1898, c. 234, incorporating an electric water power company, does not violate Const. art. 3, § 18, providing that the Legislature shall not pass a private or local bill in any of the cases therein specified. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 84, 85; Dec. Dig § 79.*1 4. CONSTITUTIONAL LAW (§ 70*)-STATUTES-DETERMINATION OF VALIDITY— JUDICIAL AUTHORITY. Under Const. art. 8, § 1, providing that corporations shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws, whether a special act is necessary rests whollyin the legislative discretion, and is not subject to judicial review. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129132, 137; Dec. Dig. § 70.*] 5. EMINENT DOMAIN (§ 35*)—"PUBLIC USE"-ELECTRIC POWER OR LIGHT. Where a corporation had contracted with a city to furnish electric light for the streets and other public places and buildings of the city, to furnish light and power to applicants within the city upon reasonable no*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes tice and at a reasonable price, and to provide a duplicate system against emergencies, land overflowed by its dams, maintained for the purpose of carrying out such contract and furnishing such light and power, was taken for a "public use." [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 80; Dec. Dig. § 35.* For other definitions, see Words and Phrases, First and Second Series, Public Use.] 6. EMINENT DOMAIN (§ 14*)-PUBLIC USE-PRIVATE BENEFIT. Where the intended use of an improvement, sought to be accomplished through an exercise of the right of eminent domain, is not restricted to private parties or private interests, but is open to the whole public, it is no objection to the act authorizing it that it will benefit one person or class of persons more than others, or that it originated in private interests and was intended in some degree to subserve private purposes. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 54; Dec. Dig. § 14.*] 7. EMINENT DOMAIN (§ 56*)—"NECESSITY" OF APPROPRIATION. The "necessity" for land sought to be condemned by an electric light and power company, which will justify its condemnation, need not be an absolute necessity, but only a reasonable necessity of the corporation in the discharge of its duty to the public. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 147160; Dec. Dig. § 56.* For other definitions, see Words and Phrases, First and Second Series, Necessity.] 8. EMINENT DOMAIN (§ 265*)-Costs-OFFERS BY CONDEMNING PARTY. Code Civ. Proc. § 3372, providing, relative to condemnation proceedings, that where the owner is a resident, and not under legal disability to convey real property, plaintiff may make a written offer to purchase the property at a specified price, and that if the offer is not accepted, and the compensation awarded by the commissioners does not exceed the amount of the offer, with interest, no costs shall be allowed, did not apply where the owners were nonresidents of the state; and the costs were in the discretion of the court, under section 3240, providing that costs in a special proceeding, when not specially regulated, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services in an action. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 400, 690-693; Dec. Dig. § 265.*] 9. EMINENT DOMAIN (§ 265*)-Costs-OFFERS BY CONDEMNING PARTY-JUST COMPENSATION. A corporation, not authorized to exercise the right of eminent domain, made an offer to purchase the land for a price exceeding the award in a subsequent proceeding, brought after a merger of such corporation with a corporation authorized to exercise such power. The offer was apparently not recognized by either party as a continuing offer, and no offer was apparently made in the subsequent proceeding; it being conceded by both parties that an effort to agree upon the value of the land had been made, but that they had been unable to agree. The only witness for plaintiff as to the value of the land placed its value at $25, while the commissioners awarded $325. Held, that the Special Term did not err in imposing costs upon plaintiff, as, under Const. art. 1, § 6, requiring that private property shall not be taken for public purposes, except upon payment of "just compensation," the party whose property is taken by condemnation should ordinarily recover the necessary expenses incurred in fixing its value. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. $$ 400, 690-693; Dec. Dig. § 265.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 10. EMINENT DOMAIN (§ 265*)-Costs-EVIDENCE-BURDEN OF PROOF. In a condemnation proceeding, if plaintiff intended to ask an exemption from costs by reason of an offer to purchase the land for more than the award, or to have defendants charged with costs by reason thereof, it was incumbent upon it, on a motion to confirm the report of the commissioners, to prove such offer. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 400, 690-693; Dec. Dig. § 265.*] Appeal from Trial Term, Otsego County. Condemnation proceeding by the Oneonta Light & Power Company against Arthur Schwarzenbach and others. From a final order confirming the report of commissioners of appraisal, defendants appeal, with notice of intention to bring up for review the interlocutory judgment; and from so much of such order as awards costs to defendants, plaintiff appeals. Affirmed. Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ. Thompson & Van Woert, of Oneonta, for plaintiff. LYON, J. This proceeding was instituted by the plaintiff, which is the owner of and engaged in operating an electric plant by both water and steam power, situate in the town of Oneonta, Otsego county, N. Y., to condemn the right to overflow 3.87 acres of land, a portion of which is now covered by the water of plaintiff's dam. The final order appealed from by the defendant confirmed the report of commissioners appointed to ascertain the compensation to be made therefor to the defendants Schwarzenbach, who are the owners thereof, but awarded the costs of the proceeding to said defendants, who reside in the state of New Jersey; the defendant Haines being the tenant of the property and residing within this state. [1] The defendants place their main reliance for success upon this appeal upon the claim that chapter 234 of the Laws of 1898, entitled "An act to incorporate the Electric Water Power Company of Oneonta, Otsego County," with which company the plaintiff was merged in September, 1911, confers no right of condemnation, for the reason that the act contravenes section 16 of article 3 of the state Constitution which provides that no private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that that shall be expressed in its title, and also contravenes section 18 of that article, which provides that the Legislature shall not pass a private or local bill in any of the cases enumerated in that section. The act above referred to, which is concededly a private or local bill, provides in part as follows: "Sec. 2. Such corporation may construct, maintain and operate upon the Susquehanna river, at any and all points within the town of Oneonta, all necessary dams, reservoirs, canals and other appliances, for the proper use of the water of such river in the development of hydraulic and electrical power and for generating electricity for heating, lighting and other purposes. Such corporation may acquire lands necessary for carrying into effect the powers granted by this act; may accumu*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |