These cases were tried together before a referee, although separate judgments were entered. In the city case the form of the referee's report is a decision stating concisely the grounds upon which the issues were decided, while in the case of McIntyre the report states separately the facts found and the conclusions of law. (Code of Civil Procedure, § 1022.) *Page 611
The practice under the Constitution (Art. 6, § 9) and the Code of Civil Procedure (§ 191), which provide that no unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting, or tending to sustain a finding of fact, or a verdict not directed by the court, shall be reviewed by the Court of Appeals, is well settled by numerous adjudications. The short form of decision is to be treated as a general verdict and we are not permitted to look into the record to determine whether there is any evidence to support it.
If the findings of fact and conclusions of law are separately stated, the facts found are conclusive here and this court is not only forbidden to examine the record to see if the findings of fact are supported by evidence, but cannot consider the question of law whether there are findings without any evidence to sustain them.
The only questions open to review in this court are such as are raised by exceptions to the admission or rejection of evidence, the charge of the trial judge to the jury and questions of law not based on sufficiency of the evidence.
These questions have been so fully discussed by the court that a citation of a few cases will suffice without further comment. (Amherst College v. Ritch, 151 N.Y. 282; Ayres v. D., L. W.R.R. Co., 158 N.Y. 254, 257, 258; Farleigh v. Cadman,159 N.Y. 169, 173; Marden v. Dorthy, 160 N.Y. 39; Reed v.McCord, 160 N.Y. 330, 337; Meserole v. Hoyt, 161 N.Y. 59,61; Cronin v. Lord, 161 N.Y. 90, 94, 95; Hilton v. Ernst,161 N.Y. 226, 228; Cons. El. Storage Co., v. Atlantic TrustCo., 161 N.Y. 605, 610, 611; Lewis v. Long Island R.R. Co.,162 N.Y. 52; Kleiner v. Third Avenue R.R. Co., 162 N.Y. 193;Lawrence v. Cong. Church, 164 N.Y. 115; Clark v. Nat. Shoe Leather Bank, 164 N.Y. 498.)
In Meserole v. Hoyt (supra) Judge O'BRIEN (at page 61), speaking for the court as to the question of law whether there is any evidence, said: "The unanimous affirmance of the judgment concludes this court, and we are required to assume, in such a case, that the evidence was of such a character as to justify the submission of the disputed question to the jury. *Page 612 It is quite true that the question whether there is any evidence tending to prove a fact is one of law, but the convention that framed the Constitution and the people adopting it had, of course, the same power to limit the jurisdiction of this court with respect to questions of law as they had with respect to questions of fact, and the effect of that limitation upon the power of this court to review the unanimous decision below, that there was evidence to sustain the verdict, is to withdraw a particular question of law which was formerly reviewable here from our jurisdiction. It was the intention of the framers of the Constitution to make the Appellate Division, when unanimous, the court of last resort upon this particular question."
The record before us discloses this situation: The city of Niagara Falls asks that defendant be restrained from maintaining upon Ninth street or Railroad avenue any obstruction, building or track, and that it be directed to remove existing obstructions; also, that said street be declared a public highway.
In the McIntyre case the prayer of complaint is similar to that of the city as to obstructions, and further asks that the plaintiff be adjudged to have an easement in such portion of the street as will provide him a right of way to and from his premises.
The theory of the city is that the property involved is a public street.
McIntyre's position is that whether a public street or not, he, as the owner of an adjoining lot, has a private easement in the alleged street which has been invaded by the defendant.
In the case of the city the court found the locus in quo is a public street, dedicated in 1853 and accepted; that the defendant is the owner of the fee of the westerly half of the street subject to the rights of the public and abutting owners. In the McIntyre case the judgment conforms to the prayer of the complaint and the findings of fact.
The contention of the counsel for appellant in his first point is that the plaintiffs failed to make out a cause of action and that the complaint should have been dismissed; nearly his entire brief is an effort to show a complete failure of proof, and that the undisputed facts support the defendant's position. *Page 613
As the Appellate Division has unanimously decided that there was evidence supporting or tending to sustain the findings of fact, and this action of the court below appears upon the face of its order, we cannot examine the questions of fact so ably argued by appellant's counsel.
No exceptions to the admission or rejection of evidence seem to us as worthy of comment except two, which we will briefly consider.
At the trial two maps of the locus in quo were offered in evidence by the plaintiffs and received over the objection and exception of the defendant; one is known as the Witmer map, made in 1853 and filed in the clerk's office of Niagara county in 1855; the other is known as the Emslie map, made in 1856 and filed in 1872. The defendant claims title in its answers, alleging it to be "exclusive of any other claim, founding such claim upon a written instrument or instruments as being a conveyance or conveyances of the said premises, or upon the decree or judgment of a competent court," etc. In other words, the defendant relies on two sources of title, (1) a judgment and sale in a foreclosure suit, and (2) upon condemnation proceedings.
It is to be borne in mind, as already pointed out, that the cases at bar were tried together, and if the maps in question were material in either case, for any purpose, the exceptions fail, as the ground of objection is the general statement that they were incompetent, immaterial and improper.
As to the Witmer map made in 1853 and filed in 1855. It appears that the condemnation proceedings were instituted in 1853, and the report of the commissioners was not confirmed until September, 1858. It is clear that this map filed in 1855 could have no effect upon the regularity of the condemnation proceedings begun in 1853.
The referee found, however, that the defendant acquired no title by the condemnation proceedings, as they were never completed by the payment of the amount awarded; that there was no evidence of the deposit of the amount awarded in the savings bank, or payment thereof to the parties entitled thereto. In view of this latter finding of fact, which is conclusive on the defendant in this court, the bearing of the map *Page 614 of 1853 on the condemnation proceedings and its admission in evidence are unimportant.
The next question is, whether the map of 1853 was competent, assuming defendant relies upon its foreclosure title? In October, 1858, about a month after the confirmation of the report of the commissioners in the condemnation proceedings, De Veaux College conveyed to one Robert B. Potter the premises now in dispute, describing in the deed the easterly line of the property as "running north nineteen degrees, east along the center of a sixty-six foot highway called Railroad Avenue to the north line of said lot number thirty-five." Potter gave a purchase-money mortgage to De Veaux College which was subsequently foreclosed and title duly passed to a purchaser. It is this title the defendant rests upon if the condemnation proceedings are irregular. In the deed to Potter, De Veaux College recognized the existence of Railroad avenue, and it must be regarded as between the parties to this conveyance and those claiming under them, as creating an easement for the purposes of access. (Bissell v.N.Y.C.R.R. Co., 23 N.Y. 61; Wiggins v. McCleary, 49 N.Y. 346;Taylor v. Hopper, 62 N.Y. 649; Matter of EleventhAvenue, 81 N.Y. 436; Hennessy v. Murdock, 137 N.Y. 317;Lord v. Atkins, 138 N.Y. 184, 191.) In view of this conveyance it was competent for plaintiff McIntyre to offer this map as bearing upon his rights as an abutting owner and grantee under De Veaux College.
It remains to consider whether the Emslie map of premises in question, made in 1856 and filed in 1872, was competent for any purpose in either suit. The plaintiff McIntyre in proving his title as an abutting owner put in evidence a deed from De Veaux College to himself, dated June 19, 1890, which described the premises conveyed by reference to the Emslie map. The record discloses that De Veaux College executed one hundred and fifty-six conveyances to different purchasers by referring to the Emslie map. It is clear that this map was not only competent, but absolutely essential in proving McIntyre's title, as his deed was meaningless without it. As there was no error in admitting in evidence the maps in question, and as we find no valid exceptions in the record, *Page 615 the judgments appealed from should be respectively affirmed with costs.