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Dunbar v. Boston.

THOMAS J. DUNBAR V8. CITY OF BOSTON.

A constarle and deputy collector, in serving a warrant for the collection of taxes, is a pub

lic officer, and not a servant of the city; and if he illegally arrests the person named in the warrant, who thereupon pays under protest a tax legally due, the person so paying cannot maintain an action against the city to recover it back.

CONTRACT to recover the amount of a tax paid by the plaintiff after and under arrest, and under protest.

Trial in the Superior Court, before Brigham, C. J., without a jury, who ruled that the action could not be maintained, and found for the defendant. The plaintiff alleged exceptions, by which it appeared that he admitted the tax was due, but claimed the arrest was illegal because the warrant included taxes assessed and due for four several years, and because the constable and deputy collector who served the warrant arrested him instead of first searching for goods to distrain.

C. S. Lincoln, for the plaintiff.
J. P. Healy, for the defendant.

BY THE COURT. It is admitted that the taxes, to recover back which this suit is brought, were legally assessed and were due from the plaintiff to the defendant. The constable and deputy collector, to whom the warrant was committed for service, arrested the plaintiff, who thereupon paid the taxes under protest. The only ground upon which he seeks to maintain this suit is that such arrest was illegal.

We have not deemed it necessary to consider this question, because, if the arrest was illegal, the plaintiff cannot maintain this action. The constable and deputy collector, in serving the war. rant, did not act as the servant or agent of the city, but as a public officer of the law. If he exceeded his authority, the remedy of the plaintiff is in a suit against him; but the city is not responsible, and the plaintiff cannot maintain an action against it for damages, nor to recover back the money paid. Buttrick v. Lowell, 1 Allen, 172. Kimball v. Boston, 1 Allen, 417. Ros rire v. Boston, 4 Allen, 57.

Exceptions overruled.

Prager 0. Bancroft.

PHILIP PRAGER & another vs. JACOB BANCROFT.

Tho defendant leased to the plaintiffs an estate for a term commencing in futuro. The

lease contained a covenant that if, at any time during the term, any portion of the premises should be taken by right of eminent domain, the amount awarded as damages should, after putting the buildings into condition, be paid to the lessor. A portion of the land and of the building thereon was so taken before the commencement the term. The lessor received the money, but did not repair the building. Held, that, the land not having been taken during the term, the lessees could neither maintain an action against the lessor upon the covenant, for not repairing, nor an action for money received by him and not expended on repairs.

CONTRACT. The declaration contained two counts, one for the breach of an alleged covenant in a lease, the other for money had and received. Trial in the Superior Court, before Lord, J., who, before verdict, by consent of parties, reported the case for the determination of this court upon the question whether the plaintiffs could maintain the action.

From the report it appeared that the defendant leased to the plaintiffs certain premises on Hanover Street, Boston, by indenture made and dated August 28, 1868, but subject to a subsisting lease to one Gould, running to August 17, 1869, for a term of twenty-five years from August 17, 1869. One of the covenants in the lease was, “ That if at any time during said term any part of said land shall be taken by public authority for public use, the total amount allowed or recovered as damages of every des

every description, after putting the buildings into condition as required by the taking, shall belong and be paid over to said lessor, or those having his estate in the premises, and that said lessees shall have no claim thereto or on account thereof, but shall have in lieu thereof, from and after the time of such payo ments for the remainder of said term, a deduction of six

per

cent. per annum on such amount so paid over from the rent herein reserved." There was also an agreement in the lease that the plaintiffs, within the first five years of the term, would erect a new block on the land, and that for thɛt purpose, they might whoily take down the buildings standing thereon when the lease

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Prager e. Bancroft.

After the making of the lease, but before the beginning of the term, a portion of the land, with the part of the building resting thereon, was taken by the city of Boston for widening Hanover Street. The total amount allowed and recovered for damages to the estate by reason of this taking was $47,491.29, which included the damage to the building, and this amount was received by the defendant, and both the plaintiffs and the defendant, in consideration thereof, released the city of Boston from any further claim. Of this sum, $45,058.15 was principal, and the balance interest, from the commencement of the term to the payment of damages July 1, 1870, and this interest was paid to the plaintiffs; and since this payment the plaintiffs have been allowed by the defendant six per cent. on the principal sum in reduction of their rent reserved.

The plaintiffs offered to prove that, after the cutting off and removal of the part of the building resting on the land taken, the remaining portion of the building was repairable and worth repairing. The plaintiffs claimed that it was the duty of the defendant to repair this remaining portion of the building, and that, having failed so to do, they were entitled to the value of the repairs or of the old building.

A. Hemenway, for the plaintiffs.
G. W. Phillips, for the defendant.

AMES, J. At the time when a portion of the estate was taken by public authority for public uses, the plaintiffs were lessees for a term of years, and as such were entitled to share in the damages payable by the city, in the manner provided by the General Statutes for such cases. It is true that their term and their right of actual possession had not commenced, but they had taken their lease, and acquired a title and interest in the estate, and the extent of their interest and their enjoyment of the estate were materially affected by the proceedings of the city authorities in the widening of the street. If the plaintiffs had availed themselves of their legal rights, and taken part in the proceedings as parties claiming damages, the operation of the statute provision applicable to the case would have been to secure to them a full indemnity in the shape of a virtual abatement in the amount of

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Prager v. Bancroft.

rent payable during the continuance of the demise. As we un. derstand the report, the parties do not disagree as to the right of the plaintiffs to a reduction of the rent reserved, equal to six per cent. per year, upon the amount allowed by the city authorities as the entire indemnity for the damage done to the estate by the widening.

But whatever rights the plaintiffs have, or might have had, in any other form of proceeding, we see no ground upon which their claim in the present action can be maintained under either count of their declaration. If the covenant upon which they rest their claim could have the effect, in any event, to make the amount recovered by the defendant, as damages, chargeable with the expense of putting the buildings “into condition," it could be only after a taking of part of the land by public authority for public use, during the term. The defendant has not assumed any obligation whatever to repair or restore the buildings, or to furnish money for that purpose, in the event of such a taking before the commencement of the term. The money which was paid by the city for land taken cannot be said to be money paid in part to the plaintiffs' use, or to be in part the plaintiffs' money, except so far as made so by express stipulation. Whatever stipulation the defendant entered into in the lease, upon this subject, was condicional only; and the contingency upon which it was to go into effect, namely, the taking of part of the estate by public authority during the term, has never occurred. The plaintiffs do not bring their claim within the terms of the contract, and the facts upon which they rely are not those provided for by the lease. It follows that there must be Judgment for the defendant.

Williams o. Grealy.

ELLEN WILLIAMS vs. PATRICK GREALY.

It cannot be determined that there was error in a refusal to rule that a foot passenger, who

was injured by a runaway horse at a street crossing, was not in the exercise of due care, from the mere fact that she did not look as she crossed to see if anything was coming, when it appears that at the trial there was other and unreported evidence which bore upon

that question. Where the question of due care on the part of the defendant depends upon many consider

ations and circumstances, it is not a question of law for the court, but is a question of fact for the jury.

Tort for damages received by the plaintiff from the runaway horse of the defendant. Trial in the Superior Court, before Lord, J., who, after verdict for the plaintiff, reported the case for the determination of this court.

At the trial, it appeared that the plaintiff was in the act of crossing Leverett Street, in Boston, on the crossing at the corner of Brighton Street, on her way to a bakery, when the defendant's horse, which at the time was attached to a light wagon, ran against her at great speed and injured her; that the horse was under the control of the defendant, a teamster, who in the course of his business had driven himn into a freight yard of the Boston & Lowell Railroad Company; that he had never driven the horse before; that the horse had never before been harnessed to that wagon or had that harness upon him; that beföre the defendant drove into the yard, a driver of the defendan: had driven into the yard a large wagon with a horse attached, and backed the large wagon up against a door of one of the freight houses in the yard, at right angles to the line of the house, at a point more than ninety-five feet from the gateway; that the horse attached to the wagon faced outward from the house ; that the defendant drove his horse, with the light wagon attached, into one of the angles formed by the large wagon and the house, the horse facing inward to the house, with his head near the door ; that the yard was inclosed in such a manner that there was only one opening or gateway from it to the highway; that the horse, while standing in the angle, more than ninety-five feet from the gateway, with his back to it, suddenly turned completely around,

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