Bennett v. Boyle.

the mortgaged premises under his title derived from the commissioners.

If the proof taken at the trial established certainly and positively that Horace R. Fletcher accepted and received the sum awarded to him by the commissioners in full payment and satisfaction and as a compensation for the lands and for the buildings upon the lands taken, as well as for those upon the adjoining lands, as expressed in the receipt signed by him (which I think it does not establish by any means) I do not see how it could affect or impair the lien of the plaintiff. He was not a party to or present at the transaction, and Mr. Abraham Lott was his attorney to deliver the release and for no other purpose. He gave no assent, and did nothing which can be construed into an assent that Fletcher's receipt should have the effect which Boyle claims for it. So far from that, he gave the commissioners express notice, in the release and in the written certificate, that he looked to and retained his lien upon the land not included within the lines of the avenue as security for the payment of the mortgage debt. This was enough in itself to dispose of all claim which they or Boyle, who claims from them, could have to the building outside of the line of the avenue. Let us look, however, for a moment, at the nature of the proceedings under which the lands were taken for the avenue, and the powers of the commissioners under them. The act of the 17th of April, 1861, and that to which it was an amendment, was an exercise by the legislature of the right to resume the posesssion and the ownership of private property for the public use. The law of eminent domain extends to lands needed for the public use, and no further. Private property may be taken by the state, and the title of the owners divested for this purpose, and for no other. Within this limitation the power of the legislature is indisputable, but further than this it cannot go. The use to which it is to be appropriated must be a public The law was so far relaxed by the constitution of 1846 as to allow private roads to be opened through private prop

use.

Bennett v. Boyle.

erty. Until that time not even a right of way could be taken from one man and given to another. "The constitution, by authorizing the appropriation of private property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the use of another. It is in violation of natural right, and if it is not in violation of the letter of the constitution it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation have been supposed best qualified to take and dispose of such parcels, or gores as they have sometimes been called; and probably this assumption of power has been acquiesced in by the proprietors. I know of no case where it has been questioned and where it has received the deliberate sanction of this court." (Opinion of Ch. J. Savage, in the matter of Albany street, 11 Wend. 148. See also Varick v. Smith, 5 Paige, 137; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 9.) Fourth avenue was to be enlarged so as to be of a uniform width of 120 feet. For this purpose a strip of land 50 feet in width for a part of the distance, and 40 feet for the residue of the distance, was taken by force of the act to which I have referred, and added to the street. The powers and jurisdiction of the commissioners were limited and restrained to the lines of the avenue, as enlarged. Beyond and outside of them they could exert no power or authority whatever. It was the value of the lands taken and the improvements thereon, with the damages to be sustained by the owners by reason thereof, that the commissioners were to estimate and ascertain. This was their office and they had no other. Buildings, such as those upon the mortgaged premises, are part and parcel of the freehold, and pass from the owner to another or to the public in all ordinary transfers, either voluntary or coercive, as the land itself passes, and as a part thereof. Where land is taken for

Dubois v. Baker.

the uses of a street or avenue such buildings and parts of buildings as are within the lines of the proposed improvement pass, by force of the statute and the proceedings taken under it, to the public authorities with the land taken, the owners being thereby divested of their title, which is resumed by the public; while the residue of such buildings, or parts thereof, beyond and outside of such lines, remain to the owners with the land upon which they stand, the title thereto being untouched and unaffected by the statute and the proceedings taken under it. If I am right in the view I have taken of the law of eminent domain the commissioners were without any authority over that part of the buildings known as the extension, and could grant no right or title thereto to the defendant Edward Boyle.

The judgment should be affirmed with costs.

[KINGS GENERAL TERM, December 14, 1863. Brown, Scrugham and Lott, Justices.]

DUBOIS and others, adm'rs &c., vs. BAKER.

B. being sued by the executors of A. upon promissory notes given in May and June, 1861, to the testator, set up by way of counter-claim' or setoff, a note for $5000 made by A., dated November 19, 1860, payable one day after his death; which note B. alleged was given in settlement of his claim against A. for money lent, money had and received, goods sold and delivered, and for work, labor, services, counsel, advice, &c. A. died in January, 1862, at the age of 80 years. His eyesight had been impaired and gradually decaying for some years; and for more than a year before the note was made he was entirely blind. B. resided in the neighborhood, and occasionally sold farm produce for A., paid his taxes, collected money and conducted lawsuits before justices &c. Beyond these inconsiderable services B. offered but little proof in respect to the consideration of the note, and produced no book containing entries of the items which made up the $5000; nor did he show how much was due for money, how much for property, and how much for services. On the other hand the plaintiffs produced receipts from B. to A. in full for services and demands, dated subsequent to the giving of the $5000 note. Held that the proof showed an

Dubois v. Baker.

absence of any consideration for the latter note; and that the judge would have been justified in directing a verdict for the plaintiffs upon that ground. Questions referring to the appearance of a promissory note, at the trial, as, whether the body of the instrument and the signature were written with the same ink; whether there appears to be an erasure on the note; whether the erasure was made before or after the body of the note was written; and whether either of the edges of the note were cut edges, or the ordinary foolscap edges; are proper, as calling for facts (and not opinions) which are apparent and obvious, and which the party has a right to prove, if material. As respects the existence of a writing upon an erasure, and whether it was made before or after the body of the note was written, if that rests in opinion, it is a question upon which a witness who is a bank cashier is qualified to speak as an expert.

Where notes and receipts of a party, conceded to be genuine, are already in evidence, for other purposes of the cause, a witness who is an expert may state in what respect the character of the handwriting of another note (whose genuineness is questioned) differs from such notes and receipts.

A

PPEAL from a judgment entered upon a verdict at a circuit.

A. J. Parker, for the plaintiffs.

H. A. Nelson, for the defendant.

By the Court, BROWN, J. This action was brought to recover the sum due upon a promissory note, dated at Hyde Park, May 1, 1861, for $500, payable to Isaac Allen, the plaintiffs' intestate, or bearer, one year after date, with interest; also a promissory note dated at the same place, June 25, 1861, for the sum of $100, payable to Isaac Allen or bearer, thirty days after date. The defendant, in his answer, did not deny the making and delivery of the two notes, but he set up in his answer, by way of counter-claim or offset, in substance, that on the 19th day of November, 1860, the intestate was indebted to the defendant in various large sums of money, for money lent by the defendant to the intestate and for which the latter had given his promissory notes to the former; and also for money had and received by Allen for the defendant; and for part of a bond and mortgage sold

Dubois v. Baker.

and assigned by the defendant to Allen; and for goods, wares and merchandise, and bonds, sold and delivered by the defendant to Allen, and for work, labor and services, counsel, advice and assistance rendered and furnished by the defendant to Allen, and at his request. That Allen and the defendant, on or about the 19th day of November, 1860, adjusted all claims and demands which the former had against the latter, at the sum of $5000, and it was agreed that Allen was indebted to the defendant in such sum of $5000, which sum was to be paid out of the estate of said Allen, one day after his death, and should then become due and payable. And Isaac Allen did then, at the town of Hyde Park, make and deliver to the defendant his promissory note in words and figures following;

"$5000. One day after my death, for services rendered and value received, I promise to pay, and there shall be paid out of my estate to A. C. Baker or bearer, the sum of five thousand dollars. Hyde Park, November 19th, 1860. ISAAC ALLEN."

It is of consequence to keep in mind that the defendant claims the note to have been given to him for the sum found due to him upon an account stated, which account consisted of money actually advanced and received, of goods and property sold, and services rendered, and that it is payable after the death of the maker, and without interest. were some other items of set-off claimed in the answer, but no question arose upon them at the trial, and it is not worth while to notice them further. The question litigated was the genuineness and validity of the $5000 note.

There

Isaac Allen died on the 20th day of January, 1862, at Hyde Park, where he had resided for many years, upon a farm of his own, the management and cultivation of which was his only business. He had neither wife nor children at the time of his decease, and no one resided with him, at and for some time before his death, but Mary E. Sarles, a woman of somewhat doubtful reputation. He was 80 years of age