1076





The Record and Guide.





October 25, 1884





An Important Decision to Real Estate Brokers.

A decision was rendered a few days since in the case of Fox vs, Byrnes,
which was tried before Judge Truax and a jury in the Superior Court,
that is of considerable interest to real estate brokers. Ib seems that on
May Sth last. Matthew Byrnes employed Tbomas Fox, a broker, to sell
four lots on the corner of Sixth avenue and One Hundred and Twenty-
fourth street and his country seat at Stamford, Conn, Pox procured a
customer, Bernard Spaulding. who offered, in exchange for the above
property, tbe Englewood apartment house on the corner of Lexington
avenue and Eighty-first street, which was satisfactory to Mr, Byrnes-
Upon May the 13th the contract was to be signed, but on that day Byrnes
Informed Spaulding tbat he had transfet-red hia property to his son,
Matthew Byrnes, Jr., and that hs had aole control of it. Two daya later,
Spaulding and Byrnes, Jr., signed a contract for tbe exchange of the
property upon the same terms as those made by Fox, whereupon tbe latter
claimed his commission, and Byrnes refused to pay it. The broker brought
auil, and on May SOth, through his lawyers, served the papers in the case,
whereupon Byrnes, Sr,, transferred the property in question to Byrnes, Jr,
The jury returned a verdict for the full amount claimed, *1,380, and, in
affirming their decision, Judge Truax said that an owner of property who
employed a broker to sell it for him could not dissolve his liability to the
latter by merely disposing of his property if the brok r procured a
customer upon tbe terms agreed upon, S, A. Se D. J. Noyes appeared for
the plaintiff, and Arnoux, Hitch & Woodford for tb deefendant,

---------•——----

It ia aa much a matter of course for a court of equity to decree specific
performance of a written contract respecting real property as it is for a
court of law to give damages for the breach of it, provided the contract is
certain, fair in all its parts, for an adequate consideration, and capable of
being performed. And a mistake in a written contract may be proven by
parol, and the contract rectified, and then specific performance ordered in
the same suit, Tbia was done in the suit of Poppline is, Foley, deter¬
mined by the Court of Appeals of Maryland, where tbe contract waa for a
lease which was intended to be for ninety-nine years, renewable forever,
and the contract omitted to state for how long a time ths lease was to

be made,

-—------•—------

If you buy land bounded by a stream you want to be careful how the
contract and deed are worded as to the boundaries. Unless tbe terms of
tbe dted clearly show the intention to stop at the margin of the river^
simply bounding upon the river, or its margin (provided it is above tide
water), will give the buyer to the centre tbri=ad of tbe current; but this is
only presumption, for one man may own ths bed of such a stream and
another man may own the banks. Tbe Supreme Court of Illinois, in the
suit of Piper vs. Connelly, say tbat tbe question of intention muat be set¬
tled by the language of ths deed and by all tbe attendant circumstances
in evidence.   So the best way is, as we said above, to have it all clearly

espressed in writing.

---------*---------

If you hire a piece of land for, say six years, and do not have the leaas
n writmg, it is void under what is called tbe statute of frauds. But
where a lessee, by virtue of such a lease, takes possession of tbe property,
and continues in possessiou over five years, such lease will be taken out of
the statute, because it bas been partly performed, and willbe valid for the
rest of the term of the lease.





purchaser will be freed from liability by a payment to tho trustees, and
will not be reaponaible for a subsequent misappropriation by the latter.





One would think that tbe diminution of water power arising from
improvements to a navigable stream by tbe State Legislature would
amount to a " taking " within the meaning of tbe statue, but Judge Ship-
man, of the United States Circuit Court, has decided in the suit of the
Holyoke Water Power Company vs. Connecticut River Company that tbia
is not so, tbat damages thus arising to the owner of the adjoining shore
are too remote. An interesting question iu thia suit was whether the
owner of property situated in one State could recover damages caused by
the exercise of the right ot eminent domain by ths Legislature of an
adjoining State (in which the property ia not situated); this question bas
never arisen before, and as the judge decided as above stated, it has not

yet been finally determined.

---------•---------

Out iu Colorado some private parties tried to copy the records of the
County Clerk's office, and the Supreme Court thtrs has held tbat, while
those records are to be opened to any person for inspection during business
hours, the clerk cannot bs compelled by mandamus to allow private
parties to occupy hia offlce for months, in order to make abstracts of the
entire record of the county for the purpose of making money by the sale of
abstracts of title, and to coiitinue to occupy it every day thereafter to maks
abstracts from thecouveyancesas Ihey are filed. Tbis is bad tor the Colorado
Title Co, The same court has also decided that if the papers are properly made
out for record, aud the Recorder makes a misiaks in recording them, tbat
will not excuse or beneflt tbe persons who deal iu the property according to
the records as be has naade tbtm. Tbis is bad for tbe owners of property,
and is oue of those mistakes which would be absolutely prevented by a
properly managed Title Company, indexio^ convsyancss, mortgages, &c.,
by a locality index, ^d not by a name index.





A verdict for 13,250 was rendered on October 15th by a-jury, before
Judge Barrett, against Walter L, Ranney and Catharine H, Ranney, as
executors of Dr. Lafayette Ranney, deceased, for tbe refusal of tbe latter
in his lifetime to convey to Dr. Louis De V, W iider, the plaintiff, the
house now occupied by tbe latter at No, 237 West Thirty-fourth street)
New York, in accordance with a contract Lafayette Ranney had mads as
one of the executors of bis brother, Dr, Henry D, Ranney, deceased, A
prior action to compel a specific performance of the contract had been
defeated on the ground tbat Tbomas Russell, a co-executor with Lafayette
Ranney, had not also signed the contract, the Court of Appeals holding
that the estate of Henry D. Ranney was not bound without the action of
both the executors. This second suit followed against Lafayette Ranney
personally for damages for breach of tbe contract and for his assuming to
act for both executors without authority; and he having died before the
trial, the verdict went against his son aud widow as his executora.





Financial Points.

The weakness in Western Union ia aaid to be due to negotiations
pending between Robert Garrett aud Wm, K, Vanderbilt, It is known
that the B. & O, telegraph line is losing money heavily and is a grievous
burden to Mr, Garrett. The Vanderbilts, it is rumored, in continuing
their war against Mr. Jay Qould propose to take bold of ths Baltimore
& Ohio Tslegraph Company and to make it a real rival to the Western
Union. In addition to the railroads they havs a proprietary interest in
tens of thousands of miles of tslegraph wires leased to the Western
Union. Theae they may turn over to tbe B. Sc O, It is said that Wm,
H, Vanderbilt has always been sore over the way he was tricked into
surrendering Western Union for Uniou Pacific stock, and he is anxious
to give Jay Gould a "Roland for bis Oliver." Should this programme
be carried out the Baltimore &, Olii'i will withdraw [its support from tbe
West Shore, and a handsome deal in the Vanderbilt stocks will be in order.

Petroleum on its merits is said to be worth 90 cents a barrel, notwith¬
standing tbe great production of the gushers like the Phillips & Christie
wells. The consumption, especially the domestic consumption, is increas¬
ing amazingly, and ths production does not keep up with the demand
for oil.

Notwithstanding ths blue outlook of the stock market there ars a number
of wealthy operators picking up stocks as they believe that November
will see an important rise in prices. They thiuk that soms morning it
will be announced tbat tba West Shore difficulty has been disposed of,
and then the gold imports will help to stimulate a market all ready for a
handsome rise. The Vanderbilts will lead the advance as they have the
dechne.





Sometimes the buyer of apiece of property which is sold by trustees
under a will, who are ordered by the wil! to invest cr pay over the pro¬
ceeds of tbe sale iu some particular manner, fears Ihat it is his duty to
follow the matter up and see that the trustees apply the money as the will
di sets, but this is not so, and the decision bas been reiterated by the
Maryland Court of Appeals, iu the suit of Keiater vs. Scott, that whaire
tbe di-position of the proceeds depends in any material particular upcm
tbe discretion of the trusteos, or where an interval must or may properly
elapse between the aale aud tbe application of the purchase money, Or
where the trustees are required to sell and Invest for the same trusts, tile





The number of delinquents in the Real Estate Exchange aud Auction
Room (Limited) out of 500 stockholders is now reduced to two. One of
these, Mr. Cbarles Treichel, bas sold his stock through Messrs. Edey Bros,,
and there is no trace of the buyer's name. Tbs buysr would do well to
rsdeem ths stock, which is now selling freely at par, before the Sth day
of November, at which time it wilt be sold at auction.





A Needed Local   Railroad.

The Manhattanville, St. Nicboias Avenue & Forty-second Street Rail
road are pushing forward their road bed as fast as po3=iible, Wm, Whar¬
ton, of Philadelphia, has tbe contract for buildiug all that portion of tbe
road above Forty-second street. The road, when fluished, will be about
fourteen miles iu length, in fact nearly double tbat of any other iu the
city. Mr, Wharton has made a commencement on Oae Hundred and
Tenth street. East River, and already has several blocks under way. The
company expect, with favorable weather, to have the west branch up
Broadway and the Boulevard, at least as far as Seventy-second street,
ready before Chistmas.

The  Forty-second street section is increasing daily in its receipts, now
reaohingnearly $700, The road will shortly be finished to the East River,

and when completed with its further extension to Thirty-fourth street
Ferry, will then connect with tbe Long Island Railroad, wbich must con¬
tribute to swell its reciipts to probably 11,000 per day—a sum amply suffi¬
cient to pay interest upon ita bonds and a moderate dividend upon the stock,
Tbis estimate is for the Forty-second street section alone without taking
into calculation ths receipts and daily growth of ths upper section. This
exhibit shows bow much this road was needed. Most roads have to wait
to build up their business witb the growth of ths locality. Even the
■Third avenue road is an instance of tbis. It is estimated that from SO.niiU
to 100,000 peopia enter or depart daily from Ihe Grand Central Depot.
This alone is a good sized city of itself, aud it therefore ought not to be a
surprise, as we understand it bis been to experienced horse railroad
managers, that some of theond-horse cars in Forty-second street have
turned in $30 per day^a thing heretofore unprecedented in horse railroad
experiencs.





The question of the durability of small wrought-iron pipes forconveying
water often comes before the architect, but seems to be less frequently
considered by those better fittPd to obtain definite information on the
subject. Accorduig to tbe Sanitary Xews, the superintendent of the
Philadelphia water supply, Col, Ludiow, recently read a paper before tbe
Engineers' Club of tbat city, in wbich be stated, as the result of hia experi¬
ence, that wrought-iron pipe caunot be depended upon, wben laid under
ground, to carry its full volume of water for aiore than ten or twelve years.
In one case, wberu a service pipe bad been iu for about twelve years, the
pressure in the main cf seveutetn pounds to the square inch was reduced
in the house, at nearly the same level, to seven pounds, by obstructions io
tbe pipe; and other pipes v/ben taken up had been found nearly closed.
This agrees with the experience of most others who have used wrought-
iron pipes; but Col. Ludlow is said to have reported tbat a coating of coal-
tar pitch on tbe inside of the pipy would prevent deposit, but we think the
evidence tends to sbow that, as tai red pipes are generally used, the rusting
still goes on at the joints to a serious extent.