202 Misc. 455 | New York Court of Claims | 1952
About 1903, Abbott A. Low built a dam across the Bog River in Adirondack Park, St. Lawrence County, near the Hamilton County line. Some 3,000 acres of wild forest land were flooded including a small swamp area which the State of of New York claimed as part of its forest preserve. In 1905, after an investigation by the Superintendent of State Forests, Mr. Low was told to lower the water in his dam and that he would be held liable “ for damages, already inflicted, as fixed by law, as well as for any subsequent damages ” for any timber destroyed by the flooding. Mr. Low opened his dam gates and lowered the water level at this time. On July 3, 1908, he was informed in writing that his impounded waters were flooding State lands and “ unless immediate settlement is made an action will be begun to enforce the penalties prescribed by law.” The penalty for the killing of each tree was set forth to be $10 and Low was informed that he would be held to strict accountability for his acts. As a result of these representations, Low paid, as a penalty, to the State of New York, the sum of $7,000.
Neither Abbott A. Low, during his lifetime, nor his executrix, Marian Low, during her lifetime, until her death in 1928, had any suspicion that the State was not the owner of the lands in question. After her death there was no representative of Low’s estate until his son, A. Augustus Low, was appointed administrator c. t. a. June 30,1950. The first intimation to any one associated with the Low family that the State’s representation of ownership was questionable came to Low, Jr. in 1930 through a casual conversation. He promptly started an investigation and began negotiations with the State in an effort to ascertain the true fact. He acquired certain property rights and by reason of information and material taken in great part
In 1772, Archibald Campbell and one Stansborough surveyed and marked from its western terminus easterly, the north boundary line of the Totten and Crossfield’s Purchase and divided it into townships. A copy of this division was made and filed in the office of the Secretary of State.
In 1797, Charles Brodhead, at the direction of the Surveyor General, attempted to locate the Campbell line, and unable to follow the markings of the Campbell line, at a point some distance easterly of the point where the westerly line of the triangle north of Township 38 intersects the Campbell line, he veered to the south and proceeded along such erroneous line easterly across the triangle.
The Campbell north line of 1772, the Brodhead erroneous line of 1797, and the Richards erroneous line of 1821, marked by him from the Brodhead line as the south line of the triangle north of Township 38, were identified upon the ground and recognized as to their source 'by various surveyors at various times thereafter.
In 1854, S. H. Snell found these marked lines upon the ground. He identified them and recognized which were correct and which were erroneous. A copy of Snell’s field notes which perpetuated his work, was made by him for the State under the direction of Verplank Colvin, Superintendent of the Adirondack Lands Survey. In 1891, D. C. Wood identified these various lines, recognized which were correct and which were erroneous, identically with Snell, and so recorded them in his field notes, referring to the Brodhead line as the “ erroneous county line ” and to the Campbell line as the “ county line ”.
In 1894, D. C.Wood prepared a description which was incorporated in the deed from Webb to Ne-ha-sa-ne Park Association of 1894. Two years later he prepared the description to be used in the deed from Webb and Ne-ha-sa-ne Park Association to the State and the State engineer’s office checked and verified this description and the acreage. It is apparent from the reduction in acreage in the descriptions of these conveyances that some of the land surveyed by Wood as part of the triangle and incorporated in the 1894 deed was eliminated from the 1896 deed. The eliminated acreage consisted of the land between the Brodhead and Campbell lines and was part of the flooded area. The map entitled ‘ ‘ Map of Lands in Herkimer & Hamilton Counties sold to the State of New York by W. S. Webb & Ne-ha-sa-ne Park Ass’n. Dec. 1895, D. C. Wood, Surveyor ” was filed in the office of the Secretary of State — 339-A. In 1896, immediately
In 1897, Verplank Colvin included in his annual report to the Legislature which was published and circulated, discussions as to this “ great boundary line ”. In 1898, Verplank Colvin sent Lorrin Kelly to make a study of these lines upon the ground. Kelly’s work was perpetuated and a map was made and printed showing the existing area between the two lines.
In 1901, Herkimer County assessed the area between the Brodhead and the Campbell lines to the State, levied a tax and forwarded its list of taxes to the ‘State Comptroller. The State Comptroller verified that these lands were not claimed by the State, and that that they were not on the State lands lists. The Comptroller sent his own surveyor, Clark, to make a survey of the gore. Clark made his survey, placed it on a map and that map was filed in the Comptroller’s office. Then Wood Brothers made a map for Herkimer County showing this unallotted area and a copy was filed in the Conservation Department and wdth the Comptroller. The Comptroller then rejected these taxes as assessed upon lands not on the State lands lists.
Just prior to the county line survey of 1902-1904, the Attorney-General rendered his opinion recognizing the Brodhead line as erroneous, and in 1904, the County of Herkimer again assessed this area and again the taxes were rejected by the State.
The discrepancy between the true line and the erroneous line was further recognized by Deputy New York State Engineer Flanagan and by D. C. Wood, surveying for the State engineer’s office in 1902 and 1903, and the State engineer and surveyor made note of it in his survey of the county line of 1904.
On May 23,1905, the State Superintendent of Forests directed Robert Moore to make a thorough investigation of the flooding. There is nothing to indicate that the investigation on the part of the State was not thorough. It would seem on this record, that a careful examination of its owm records would have afforded realization that these were not State lands. Certainly a fair and reasonable study of the records, surveys, titles and
When the State of New York penalized Abbott A. Low the sum of $7,000 for destroying timber by the flooding of lands under the latter provisions of section 222 of the Forest, Fish and Came Act (L. 1900, ch. 20) its right to proceed under the statute was predicated upon its ownership of the land in question. If it did not own the land, it had no authority to levy the penalty and no moral or legal right to retain the money. Unless the State was the owner and the sole owner of the land that was flooded, the statutory provisions of section 221 of the same act required the State to either bring an action in partition if it was an owner of an undivided portion, or bring an action in a court of competent jurisdiction in which questions of title could be litigated if it thought it had an interest. Such litigation would have been between different parties than the parties to this claim. The State elected to hold Low, Sr. to strict accountability for acts constituting a misdemeanor. It is now evident that the State has in its possession a sum of money which it should never have collected and which should be repaid unless the running of the Statute of Limitations shall have extinguished claimant’s remedy. A penal statute is to be strictly construed. (People v. Long Is. R. R. Co., 149 App. Div. 765, affd. 208 N. Y. 541.) The State was chargeable with knowledge that statutory provisions for penalties must be strictly construed. (Osborne v. International Ry. Co., 226 N. Y. 421, 426.)
The basis upon which the money was exacted from Low, Sr. was the material representation to him, which he accepted as true, and upon which he relied, that this thirty acres of bog land belonged to the State; that it was State land. It was only if that had been true that the State would have been able to proceed, under the latter part of section 222 of the above statute and
Actual fraud, express or implied, serves to toll the Statute of Limitations until the discovery of the facts which constitute the fraud. (Civ. Prac. Act, § 48, subd. 5; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139.) The essential allegations of fraud have been generally stated as representation, falsity, scienter, deception and injury, but there is no categorical definition of what constitutes a fraudulent concealment sufficient to toll the statute. Each case must be determined upon its own facts and the concealment must be of the cause of action or the facts constituting it. “ ‘ Independent of any statute, form of action or legal nomenclature, the obligation to do justice rests upon all persons, natural or artificial, and the law will compel restitution from a person who obtains money or property from another * * * unjustly, or without authority.’ (Pink v. Title Guarantee & Trust Co., 274 N. Y. 167, 173.) ” (MacMurray v. City of Long Beach, 292 N. Y. 286, 290-291.)
Actual bad faith and intent to deceive is not always an essential element in a cause of action for deceit. Such intent may exist where one asserts a thing to be true which he does not know to be true since it is fraud to affirm positive knowledge of something one does not positively know. “ Where a party represents a material fact to be true to his personal knowledge, as distinguished from belief or opinion, when he does not know whether it is true or not and it is actually untrue, he is guilty of falsehood, even if he believes it to be true, and if the statement is thus made with the intention that it shall be acted upon by another, who does so act upon it to his injury, the result is actionable fraud.” (Hadcock v. Osmer, 153 N. Y. 604, 608.) “ Fraud includes the pretense of knowledge when knowledge there is none.” (Ultramares Corp. v. Touche, 255 N. Y. 170, 179.) Thus, words or conduct asserting the existence of a fact constitute a misrepresentation if the fact does not exist. (Restatement, Torts, § 525. See Kountze v. Kennedy, 147 N. Y. 124, 130; Marsh v. Falker, 40 N. Y. 562; Bennett v. Judson, 21 N. Y. 238; Deyo v. Hudson, 225 N. Y. 602, 612; Adams v. Clark, 239 N. Y. 403; Abel v. Paterno, 245 App. Div. 285; Metropolitan Life Ins. Co. v. Becraft, 213 Ind. 378; McLearn v. Hill, 276 Mass. 519, and Trust Co. v. Fletcher, 152 Va. 868.)
There can be no fraud in law or in fact without a breach of some legal or equitable duty. The relationship must be such
Heedlessness and reckless disregard of consequence may take the place of deliberate intention. (State St. Trust Co. v. Ernst,
Eeckless and ruthless misrepresentation may be fraud. Negligence or blindness to the obvious may be evidence to sustain an inference of fraud. Concealment of facts" which one is duty bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact. The representation being untrue and influential vitiated the transaction whether such representation was willfully and designedly false or ignorantly or negligently untrue. (Taylor v. Fleet, 1 Barb. 471.) Fraud is the gravamen of this action because there would be no injury except for the fraud. (See Emmerich v. City Bank Farmers Trust Co., 300 N. Y. 417, and cases cited.) Here, we find that reckless indifference to error, or that pretense of exact knowledge, which will sustain an action for deceit. We think the elements of representation and reliance of a common-law action of deceit are present.
An involuntary payment imports a payment made against the will of the person who pays. (Tripler v. Mayor of City of New York, 125 N. Y. 617, 625.) Whether a payment is in truth voluntary, i.e., whether it was meant to be made in renunciation of any adverse right, has been held to be a question of intention. (People ex rel. Wessel, Nickel & Gross v. Craig, 236 N. Y. 100, 105.) That the State obtained money without right or title, and that it knew or should have known that it had none, excludes the idea that it was received contractually. (People ex rel. Dusenbury v. Speir, 77 N. Y. 144.) Any claim of compromise or settlement finds no substance in what actually took place. The basis for the penalty was void because of the existence of facts dehors the records. If the State had not accepted the affirmative
Claimant is entitled to the full benefit of the distinction between “ claim accrued ” and “ cause of action accrued ”. The time when the “ cause of action ” has accrued, as that term is used in those provisions of the Civil Practice Act, limiting the periods within which actions must be commenced, means the time when the claimant first became enabled to maintain this action. (Cary v. Koerner, 200 N. Y. 253, 259.) It has always been the law of this State that a cause of action did not accrue until someone was in a position to bring and maintain the action. (Crapo v. City of Syracuse, 183 N. Y. 395; Jensen v. Metropolitan Life Ins. Co., 251 N. Y. 336, 339) and in Jacobus v. Colgate (217 N. Y. 235, 245) in applying the above rule Judge Cabdozo stated: “A cause of action does not accrue until its enforcement becomes possible.” The general rule is the same in other jurisdictions. (Federal Reserve Bank v. Atlanta Trust Co., 91 F. 2d 283; Dean v. Iowa-Des Moines Bank, 227 Iowa 1239; Young v. City of Seattle, 30 Wn. 2d 357; Note 3 A. L. R. 2d 704.) It cannot be said that a person should assert a right before he has knowledge of, or is chargeable with knowledge of, the same. (Metropolitan Life Ins. Co. v. Oseas, 261 App. Div. 768, affd. 289 N. Y. 731; Wendel Foundation v. Moredall Realty Corp., 176 Misc. 1006; Bicknell v. Hood, 168 Misc. 127; Holmberg v. Armbrecht, 327 U. S. 392; Scarsborough v. Atlantic Coast Line R. Co., 178 F. 2d 253, Note 15 A. L. R. 2d 500, certiorari denied 339 U. S. 919.) The ‘ ‘ law does not seek to compel a man to do that which he cannot possibly perform ”. (Murphy v. Village of Ft. Edward, 213 N. Y. 397, 402; Matter of Brown v. Board of Trustees of Hamptonburg School Dist., 303 N. Y. 484, 490.) This is a case where failure to disclose knowledgeable basic facts actually prevented the claimant from seeking a recovery of his due. Here the claimant’s consciousness of the wrong was not aroused until long after the limitation period of the general statute. It was then apparent that there was prerequisite liti
It has been held in many jurisdictions that fraudulent concealment of the existence of a cause of action which in fact induces the possessor of the cause of action to refrain from bringing an action thereon until after it has become barred by the Statute of Limitations, gives rise to an action for deceit. (Desmarais & Co. v. People’s Gas Light Co., 79 N. H. 195; Cockrill v. Hall, 65 Cal. 326; Clark v. Amos, 144 Kan. 115; Ott v. Hood, 152 Wis. 97; Stetson v. French, 321 Mass. 195.) There is perhaps a like suggestion in Spallholz v. Sheldon (216 N. Y. 205, 208) and Koerner v. Apple (198 App. Div. 540, 544) where the court mentions yielding of rights or foreclosure of any remedy. And the Court of Appeals stated in Brick v. Cohn-Hall-Marx Co. (276 N. Y. 259, 264): “ If there were fraud extraneous to the contract, lulling the plaintiffs into the belief that the money had been paid or would be paid, a different situation might arise. The plaintiffs in such a case would have a cause of action for the damages caused by the fraud in inducing them to let the Statute of Limitations arise.” (See Safrin v. Friedman, 96 N. Y. S. 2d 627, 631, affd. 277 App. Div. 1138.)
The judgments that were entered upon the decisions of the Supreme Court are conclusive upon the issue of ownership and preclude any attempt at relitigation. (Culross v. Gibbons, 130 N. Y. 447, 454.) The courts did not hold that any Statute of Limitations had run in any of these actions. The tendency of the latest decisions of the Court of Appeals has been to extend to all claims the benefit of the exceptions to the bar of the statute. (Chapin v. Posner, 299 N. Y. 31.) The Statute of Limitations is one of repose, based upon the theory that the mists of time prevent the actual facts from appearing. A technical and eonceptualistic application to the facts herein, is inconsistent with natural justice. Bather, we think, should it be realistic and humane. It has often been said that a primary purpose of statutory limitations in general has been the prevention of fraud. The entry of final judgment was properly withheld pursuant to the interim opinion of Mr. Justice Imbie and was not a mere ministerial act. It was necessary under the
The measure of damages in an action for deceit is firmly established. Claimant is entitled to indemnity for the actual pecuniary loss sustained as a direct result of the wrong. (Hanlon v. Macfadden Publications, 302 N. Y. 502, 511.) A. Augustus Low, as administrator with will annexed of Abbott Augustus Low, deceased, is entitled to an award against the State of New York in the sum of $20,000.
Let judgment be entered accordingly.