text:
    Walter Binner, Appellant, v. The George Ethridge Company, Respondent. Walter Binner, Appellant, v. George Ethridge, Doing Business as The Ethridge Company, Respondent.

      Contract — services — commissions — action to recover on contract for services — verdict for plaintiff reinstated where Appellate Division disallowed claim as matter of law and there is some evidence to sustain it — where Appellate Division dismissed complaint and there is some evidence to sustain verdict new trial will he granted — question of faet whether plaintiff’s services procured orders.

      Binner v. Ethridge Co. (2 eases), 211 App. Div. 189, modified.
    (Argued December 10, 1925;
    decided December 18, 1925.)
    Appeal, in the first above-entitled action, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict.
    Appeal, in the second above-entitled action, from a judgment, entered February 11, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Chester B. McLaughlin, Jr., for appellant.

      Leonard G. McAneny for respondents.
   Per Curiam.

The Appellate Division was right in considering this a suit to recover commissions earned and not damages for preventing the plaintiff from performing his contract. He has brought two actions on the same contract made necessary by the fact that his employer at first was the corporation known as The George Ethridge Company which went out of business on December 9, 1919. The business was continued and the plaintiff with it by the individual defendant, George Ethridge, doing business as The Ethridge Company. The plaintiff remained until August 23, 1920. He claims commissions for orders procured through his services both before and after December 9, 1919.

Against the corporation he recovered a judgment of $3,651.21 and against the individual defendant a judgment of $2,962.32. The first was reduced by the Appellate Division to $848.28, and the complaint in the second was dismissed with $595.20 costs against the plaintiff.

There were four accounts involved; that of the P. F. O’Keefe Advertising Agency, Frank Seaman, Inc., George E. Keith Company and Gardiner, Atkinson and Wells, Inc. The Appellate Division allowed the commissions on the last two accounts. As to the business received from the P. F. O’Keefe Advertising Agency and the Frank Seaman, Inc., the Appellate Division was of the opinion that there was no evidence to sustain the plaintiff’s claim that he was the procuring cause of any of these orders As to the Seaman account this is so, but as to the O’Keefe account we find evidence from which the jury might have determined that the plaintiff procured some of the orders and that the business from O’Keefe up to December 9, 1919, may have come to the Ethridge Company through the plaintiff’s efforts; that he personally secured the orders. The uncontradicted testimony is that the commissions on these O’Keefe orders up to December 9, 1919, amounted to $1,266.10 on which interest amounts to $256.87, making a total of $1,522.97. As the Appellate Division disallowed this O’Keefe claim as matter of law instead of granting a new trial, we must, as there is some evidence to sustain it, reinstate the recovery for these commissions.

The judgment of the Appellate Division is, therefore, modified by allowing the plaintiff this additional sum of $1,522.97, or a total judgment of $2,371.25, and as thus modified affirmed, with costs to appellant.

In the second cause of action the complaint was dismissed. There is some evidence, however, as to the O’Keefe account that the plaintiff may have procured some of the orders after December 9, 1919. The Appellate Division having reversed upon the facts and the law and the dismissal of the complaint being improper a new trial must be granted.

We do not mean to intimate that the plaintiff is entitled to commissions because he was prevented from procuring the O’Keefe orders. He is only entitled to commissions on such orders as were personally secured by him. Because he negotiated with the O’Keefe people, procured their good will and brought them to the defendant does not give him commissions on the entire account simply and solely for this reason. It still remains a question of fact for the jury to determine whether upon the evidence his personal services procured any of the orders and it is only on such orders as came to the defendant by reason of his services and which were procured through his efforts that he is entitled to commissions.

Our conclusion, therefore, is that the judgment of the Appellate Division in the first cause of action, or that against the George Ethridge Company, should be modified by increasing the amount allowed to $2,371.25, and as thus modified affirmed, with costs to appellant, and by modifying the judgment in the second cause of action, or that against George Ethridge doing business as the Ethridge Company, by granting a new trial, and as thus modified affirmed, with costs to appellant to abide event.

His cock, Ch. J., Cardozo, Pound, Crane, Andrews and Lehman, JJ., concur; McLaughlin, J., not sitting.

Judgment accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Kathrian L. Kern, Appellant, v. The Great Atlantic and Pacific Tea Company, Respondent.

      Negligence — stores ■— question of fact ■— whether shopkeeper in placing door-sill immediately at top of steps exercised ordinary care question for jury.

    In an action to recover for personal injuries received by a customer while leaving a store through catching her foot on a door-sill of the ordinary form and falling down steps immediately outside the door, it was for the jury to say upon all the facts whether the defendant had exercised the care which a reasonably prudent person would exercise in placing and maintaining the sill in the manner in which it was placed and maintained.

      Kern v. Great A. & P. Tea Co., 209 App. Div. 133, modified.
    (Submitted December 2, 1925;
    decided January 12, 1926.)

      Appeal- from a judgment, entered July 12, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict.

      William Dike Reed for appellant.

      Joseph F. Murray and Charles H. O’Connor for respondent.
   Per Curiam.

Between three and four o’clock on the afternoon of the 17th of May, 1919, the plaintiff went to a store kept by the defendant, located on Westchester avenue in The Bronx, New York city, for the purpose of making certain purchases. After making the purchases she started to leave the store and in doing so, she slipped or stumbled over the door sill of the door opening to the street. She testified, “ As I was going out, I tripped over the saddle or whatever you call it, and I fell down the incline of the steps. Q. Where was the saddle at the door? A. Right at the edge. Q. The edge of what? A. Of the door. * * * Q. The edge of what?. A. The floor. Q. When you stumbled there you say you went right down the step's. How did you go down the steps? A. I fell forward. * * * Q. And when you got to the entrance of the store, the front of your right foot caught in the saddle of the door and you fell forward out into the street? A. Yes, sir, struck the saddle of the door. Q. And the front of your right foot struck the saddle of the door and you went forward? A. Yes.”

Immediately outside of the door leading to the street were two steps leading to the sidewalk. Underneath this door was a sill or saddle, as it is termed in the record, five-eighths of an inch thick and in other respects of the usual or ordinary form.

The trial court submitted to the jury, as a question of fact for it to determine, whether by reason- of the construction of the sill, the way it was placed with reference to the floor of the store and the step immediately beneath it, defendant was responsible for the plaintiff’s injuries. The jury found a verdict in favor of the plaintiff but, on appeal, the judgment was reversed and the complaint dismissed.

We are of the opinion that the trial court was right in holding that a question of fact was presented; that it was for the jury to say upon all the facts whether the defendant had exercised the care which a reasonably prudent person would exercise in placing and maintaining the sill in the manner in which it was placed and «maintained.

The judgment appealed from should, therefore, be modified so as to grant a new trial and as so modified affirmed, with costs to abide the event.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment modified, etc.


text:
    The People of the State of New York, Respondent, v. Anthony J. Pantano, Appellant.

      Crimes — murder in first degree — judgment of conviction affirmed.

    (Argued December 1, 1925;
    decided January 12, 1926.)
    Appeal from 'a judgment of the Supreme Court, rendered April 27, 1925, at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of murder in the first degree.

      Robert S. Johnstone, John E. Ruston, Stanley L. Richter and Marshall Snyder for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh and James I. Cuff oí counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Pound, McLaughlin, Crane and Andrews, JJ.; Hiscock, Ch. J., Cardozo and Lehman, JJ., dissent and vote for reversal on ground of error in refusals to charge as requested by defendant.


text:
    The People of the State of New York, Respondent, v. Antonio Vanilla, Appellant.

      Crimes — robbery in first degree—judgment of conviction affirmed,

      People v. Vanilla, 209 App. Div. 908, affirmed.
    (Argued December 7, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 3, 1924, which affirmed a judgment of the Kings County Court, rendered upon a verdict convicting the defendant of the crime of robbery in the first degree as a second offender.

      George Gordon Battle for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Moses Jacobs, Respondent, v. Kate A. Johnson et al., as Executors of Charles E. Johnson, Deceased, Appellants, Impleaded with Others.

      Principal and agent — commissions — action to recover commissions on a sale of real property.

      Jacobs v. Johnson, 212 App. Div. 587, affirmed.
    (Argued December 7, 1925;
    decided January 12, 1926.)
    Appeal from a judgment, entered May 6, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment in favor of defendants appellants’ intestate, entered upon an order of the court at a Trial Term granting a motion to set aside a verdict in favor of plaintiff and directing a dismissal of the complaint, and directed a reinstatement of said verdict. The action was brought to recover commissions alleged to have been earned on the sale of a parcel of real estate owned by the defendants’ testator, located on the west side of Broadway, extending from Thirty-fifth to Thirty-sixth streets in the city of New York.

      Frederick Dulse for appellants.

      Robert Moers, David L. Podell and Charles S. Rosenschein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Geisman, Musliner & Brightman, Inc., Respondent, v. The Royal Bank of Canada, Appellant, Impleaded with Others.

      Conversion — pledge — action to recover for the alleged conversion of merchandise — defense that defendant was entitled to goods under agreement pledging them as collateral for loans.

      Geisman, Musliner & Brightman, Inc., v. Royal Bank of Canada> 213 App. Div. 818, affirmed.
    (Argued December 8, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 2, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover for the alleged conversion by defendant, appellant, of four cases of leather which had been delivered by plaintiff at a warehouse for the account of a purchaser and a negotiable warehouse receipt issued to said purchaser to whom also plaintiff delivered an invoice in triplicate. The same warehouse thereafter received for the account of the same purchaser eight other cases and issued to him another receipt. This last receipt he delivered to defendant bank as collateral for a loan and he attached thereto one of the triplicate invoices he had received from plaintiff and an invoice for four cases received from another party. Thereafter, the purchaser not having paid plaintiff for its goods, he agreed to return them and for that purpose delivered the warehouse receipt therefor to plaintiff, who after inspecting the merchandise and finding it intact left it at the warehouse for storage, surrendering the negotiable receipt and receiving therefor a non-negotiable receipt and paying storage charges in advance. The defendant thereafter took possession of the four cases and removed them to another warehouse alleging that it was entitled to possession of the goods as pledgee.

      George ZabrisJcie for appellant.

      Charles A. RathJcopf and Joseph G. Grauer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cabdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Anna Warner, Respondent, v. Henry Doscher et al., Individually and as Executors of Claus Doscher, Deceased, Appellants.

      Vendor and purchaser — real property — title — auction sale of real property “free and clear of all encumbrances”—action to recover deposit on ground that unpaid transfer tax upon estate of former owner and existing tenancies were “ incumbrances.”

      Warner v. Doscher, 213 App. Div. 117, affirmed.
    (Argued December 8, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 15, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover moneys paid by plaintiff’s assignor as a part of the purchase price of four buildings bid in by said assignor at an auction sale conducted by the defendants, as executors of the estate of Claus Doscher, deceased. The terms of sale provided: “ Title to the premises will be conveyed by an executors’ deed free and clear of all encumbrances.” The assignor refused to take title on the ground that the estáte of Claus Doscher was subject to a transfer tax which had not been fixed or paid, and upon the further ground that existing tenancies of the property constituted incumbrances thereon.

      Henry F. Cochrane for appellants.

      Harold Swain and Henry Hetkin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Crown Corset Company, Respondent, v. C. Ludwig Baumann & Company, Appellant.

      Landlord and tenant — lease — extension under option therein — provision in original lease that same might be canceled by either party upon written notice not applicable to extended term.

      Crown Corset Co. v. Baumann & Co., 213 App. Div. 113, affirmed.
    (Argued December 8, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department entered June 4, 1925, unanimously affirming a judgment in favor of plaintiff entered upon an order granting a motion by plaintiff for judgment upon the pleadings and denying a motion by defendant for a dismissal of the complaint. The action was to recover rent. The complaint alleged that plaintiff leased premises to defendant for four months from the 1st day of May, 1923, the lease containing an option permitting defendant to extend it to April 30, 1925, which it duly exercised, and continued in possession of the premises and paid rent therefor until the end of May, 1924, when it vacated the premises and refused to pay the rent for the month of June. The defense was that on March 29, 1924, defendant served upon plaintiff a notice in writing that such lease should cease sixty days after such notice and claimed that* thereby the lease was terminated pursuant to the following provision therein: “It is specifically agreed by and between the parties hereto that on or after July 1st, 1923, the landlord may serve notice to the tenant or the tenant may serve notice to the landlord that this agreement shall cease and come to an end sixty days after the receipt of written notice by one party to the other. In such event the rent for the remaining sixty days shall be the same as herein provided and at the end of said sixty days the lease shall come to an end as if such date were definitely fixed as the expiration of said lease.” The Appellate Division held that the cancellation clause was inapplicable to the extended term.

      Lawrence S. Greenbaum and Jonas J. Shapiro for appellant.

      Eugene Frayer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman> JJ.


text:
    John J. Flanagan, Respondent, v. Fred T. Ley & Co., Inc., et al., Appellants.

      Negligence—failure to light dark passageway in basement of building in course of construction and to guard opening in floor — injury to workman from falling through such opening.

      Flanagan v. Ley & Co., Inc., 214 App. Div. 776, affirmed.
    (Argued December 9, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 29, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered.upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. In the construction of a building, holes had been left in the floors for the operation of a hod-hoist. When no longer needed the openings had either been permanently closed or planked over. On the day of the accident a subcontractor, who had been authorized by the general contractor to close the openings, directed one of its workmen to fill in the opening in the basement. He removed the planks and left the opening, which was in a dark passageway, unguarded and without light, to procure material. Plaintiff, an employee of another subcontractor, having occasion in the course of his employment to go through the passage walked into the opening and received the injuries complained of. The general contractor was charged with negligence in failing to properly light the basement and the subcontractor for failure to guard the opening. •

      George W. Smyth for Fred T. Ley & Co., appellant.

      Walter L. Glenney and Bertrand L. Pettigrew for A. & G. Pierce Co., appellant.

      Arthur T. O’Leary for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Frederick C. Gratwick, Respondent, v. Carl H. Smith, Appellant.

      Partnership — conversion — action by surviving partner to recover in conversion from, executor of deceased partner a sum of money paid in satisfaction of a partnership claim and deposited to account of decedent’s estate — judgment properly awarded, for one-half of amount with interest.

      Gratwick v. Smith, 214 App. Div. 759, affirmed.
    (Argued December 9, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 9, 1925, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee. The action was in conversion. It appeared that plaintiff was a surviving partner of a copartnership to which certain moneys were due and claimed that, under the partnership, he was personally entitled to one-half of the amount. Defendant, executor of a deceased partner, claimed that the whole amount was due his decedent’s estate, whereupon the money was paid to him, under an agreement that he should hold the same pending settlement of the question in dispute and he deposited the amount to the credit of the estate. Plaintiff thereupon claimed that as surviving partner he was entitled to administer the fund and, although he admitted that there were no outstanding partnership obligations and that the only question was as to his right to one-half of the fund, brought this action to recover the whole thereof. He was awarded judgment for one-half the amount collected, with interest.

      Philip A. Laing for appellant.

      Parton Swift for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Application of Peter F. Diedrich et al., Respondents, against Christ S. Warren, as Mayor of the City of Tonawanda, Appellant.

      Municipal corporations — Tonawanda (city of) — officers — authority of aldermen to increase their own salaries.

      Matter of Diedrich v. Warren, 213 App. Div. 406, affirmed.
    (Argued December 9, 1925;
    decided January 12, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 8, 1925, which affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel the defendant to sign and deliver salary warrants in favor of the petitioners, as aldermen of the city of Tonawanda, at a rate fixed by a resolution of the board of aldermen passed over the mayor’s veto. Defendant contended that the increase was illegal for the reason that a member of the common council cannot vote for an increase in his own salary to take effect during his term of office. The petitioners argued that the resolution was authorized by section 3 of title 6 of the charter (L. 1920, ch. 350) which reads as follows: “ It [the common council] shall have the power to fix or change the salary of all officers of the city including such as are fixed by this act which shall not be diminished during the continuance of such term of office.”

      S. H. Millener for appellant.

      Philip A. Laing for respondents.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Arbitration between William Bassett et al., Copartners under the Firm Name of Bassett & O’Reilly Co., Respondents, and John Magner, Appellant.
    ■ Arbitration — claim, that arbitrators had refused to consider facts material to controversy.

      Matter of Bassett v. Magner, 212 App. Div. 879, affirmed.
    (Argued December 9, 1925;
    decided January 12, 1926.)
    Appeal from a judgment entered March 18, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of Special Term denying a motion for confirmation of the report of arbitrators herein and granted said motion. This proceeding was for the purpose of determining the amount due under and pursuant to three certain contracts between the defendant and the claimants, for the doing of certain work on the defendant’s property in the village of Rye. Appellant contended that a majority of the arbitrators, contrary to the requirements of subdivision 3 of section 1457 of the Civil Practice Act, had refused to consider facts material to the controversy.

      William A. Davidson for appellant.

      William Baruch for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Isaac Ackerman, Appellant, v. Gizella O. Ackerman, Defendant, and Alexander Forger, as Trustee in Bankruptcy of the Estate of Gizella O. Ackerman, Respondent.

      Fraud — bankruptcy — mortgage — action to foreclose mortgage — defense by trustee in bankruptcy of mortgagor that mortgage was fraudulent, without consideration and void.

      Ackerman v. Ackerman, 210 App. Div. 876, affirmed.
    (Argued December 10, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 20, 1924, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to foreclose a mortgage on real property. The answer interposed by the trustee in bankruptcy of the mortgagor alleged that the mortgage had been granted without consideration but in pursuance of a scheme to remove all equity in the property from her estate, in order to hinder, delay and defraud her creditors and to hide the assets from her trustee in bankruptcy, and that the bond and mortgage were actually held in secret trust by the plaintiff mortgagee for the bankrupt defendant. The trial court found that the bond and mortgage were fraudulent, without consideration and void.

      Harold I. Medina, Leander I. Shelley, J. W. Friedman and I. Gainsburg for appellant.

      Eugene L. Bondy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Ruth Belden, Appellant, v. Daniel S. Belden, Respondent.

      Husband and wife — separation — insufficient proof of cruel and inhuman treatment or of abandonment.

      Belden v. Belden, 207 App. Div. 545, affirmed.
    (Argued December 10, 1925;
    decided January 12, 1926.)
    Appeal from a judgment, entered February 26, 1924, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action, wife against husband; was for a separation upon the grounds of cruel and inhuman conduct and abandonment. The Appellate Division found that the defendant was not guilty of cruel and inhuman treatment of the plaintiff; that there was no conduct on the part of the defendant toward the plaintiff ifuch as to render it unsafe and improper for the former to cohabit with the latter; that the defendant did not abandon the plaintiff; and that there was no neglect or refusal of the defendant to provide for the plaintiff.

      Glenn F. Carter for appellant.

      Hubert L. Brown and Minnie L. Seeley for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Albert S. Hecht, Respondent, v. Fred T. Ley & Co., Inc., Appellant, Impleaded with Others.

      Contract — agreement to release claim for services and surrender mortgage in consideration of promise of payment of a stipulated sum.

      Hecht v. Ley & Co., Inc., 213 App. Div. 817, affirmed.
    (Argued December 10, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of' the Supreme Court in the first judicial department, entered April 20, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was upon contract by the terms of which it was alleged plaintiff released certain claims he had against the owners of a certain building in course of construction by defendant, appellant, and surrendered a mortgage upon said building in consideration of the latter’s agreement to pay him a stipulated sum.

      Clifton P. Williamson and Edward W. Bourne for appellant.

      Arthur Ofner and William H. Freedman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Catherine Melonson, Respondent, v. Grace Dolan, Appellant.

      Equity — real property — title — action to establish ownership of undivided half interest in real property.

      Melonson v. Dolan, 214 App. Div. 821, affirmed.
    (Argued December 11, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 20, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, The action was to establish ownership in the plaintiff of an undivided one-half interest in certain real property. It was alleged that plaintiff contributed one-half the consideration upon the purchase of said property by her sister, with whom she was at the time living, and that she learned for the first time after her sister’s death that title to the premises had been taken solely in the sister’s name.

      Noah A. Stancliffe and Edward J. Crowe for appellant.

      William R. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Julia Capitula, as Administratrix of the Estate of Sophia Capitula, Deceased, Appellant, v. The New York Central Railroad Company, Respondent.

      Negligence — railroads — trespass — insufficiency of evidence of wanton or reckless failure to stop train in time to avoid striking trespasser on railroad bridge.

      Capitula v. N. Y. C. R. R. Co., 213 App. Div. 526, affirmed.
    (Argued December 11, 1925;
    decided January 12, 1926.)
    Appeal from a judgment, entered July 9, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. Plaintiff’s intestate, while walking across one of defendant’s railroad bridges, was struck by a locomotive and killed. The Appellate Division held that decedent was a trespasser and that there was no sufficient evidence of wanton or reckless failure to bring the train to a stop in time to avoid the accident to sustain a verdict in favor of plaintiff.

      J. S. Carter and John H. Gleason for appellant.

      Robert E. Whalen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    New York Dock Company, Respondent, v. New York and Porto Rico Steamship Company et al., Respondents, and Howland Towing and Transportation Company, Inc., Appellant.

      Negligence — master and servant — wharves and piers — ships and shipping — injury to pier from impact of steamship being docked •—■ liability of owner of tugboat, through the negligence of the captain of which the accident occurred.

    - New York Dock Co. v. N. Y. & P. R. S. S. Co., 211 App. Div. _ 870, affirmed.
    (Argued December 15, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 9, 1925, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee. The New York Dock Company sued the defendants for an injury to its wharf caused by the impact of the steamship Carolina while being docked with the assistance of two tugboats. Defendant, appellant, Howland Towing and Transportation Company, Inc., was the owner of one tugboat. The owners of the other tugboat and the owner of the steamship were joined as parties defendant. The referee found that the injury complained of was due entirely to negligence in the navigation of appellant’s tug Howland. Appellant contended that the captain of the Howland was not acting as the servant of her owner at the time of the damage in question, but was specially employed on behalf of the party in whose work he was engaged.

      I. Maurice Wormser, William J. Martin and George V. A. McCloskey for appellant.

      Martin A. Schenck, Charles E. Hotchkiss and Alexander J. Feild for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Philip Freebold, Appellant, v. Town of Glen, Respondent.

      Negligence — towns — highways — bridges—fall of bridge while being crossed by motor truck loaded with gravel — action to recover for injury to motor truck and to driver — contributory negligence.

      Freehold v. Town of Glen, 211 App. Div. 249, affirmed.
    (Argued December 15, 1925;
    decided January 12, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 9, 1925, reversing a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries and for injury to property alleged to have been sustained through the negligence of defendant. Plaintiff drove his motor truck loaded with gravel across a bridge in the town of Glen, the bridge gave way, his truck and he were precipitated to the bed of the stream and he suffered the injuries complained of. There was evidence tending to show that he had been warned that the bridge was unsafe for a heavy load.

      Edward L. Robertson for appellant.

      Christopher J. Heffernan for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts, on opinion of Van Kirk, J., below.

Concur: Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: His cock, Ch. J,


text:
    Thomas Dwyer, Respondent, v. Interborough Rapid Transit Company, Appellant.

      Contract — action for breach of contract whereby plaintiff was to erect elevaied railroad stations —failure of defendant to complete preliminary structure on which stations were to be placed.

      Dwyer v. Interborough B. T. Co., 209 App. Div. 807, affirmed.
    (Argued December 15, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 9, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for breach of contract, by the terms of which plaintiff agreed to erect three stations on the Webster avenue elevated railroad of defendant within five months after notice from defendant’s engineer to commence work. On January 9, 1918, plaintiff received the said notice but defendant failed to erect the steel structure on which the stations were to be placed and at no time during the five months following said notice was such structure erected so that plaintiff could build the stations as provided in the contract.

      Henry J. Smith, Frederick G. Watson and James L. Quackenbush for appellant.

      M. Carl Levine for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Abigail H. Bishop, Respondent, v. The New York Times Company, Appellant.

      Libel — evidence ■—■ admissibility of testimony showing shunning and avoidance of plaintiff by her child after reading article.

      Bishop v. New York Times Co., 214 App. Div. 723, affirmed.
    (Argued December 16, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 29, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was for libel. (See 233 N. Y. 446.) The question on this appeal was whether evidence tending to show that the reading of the article in question by a child of the plaintiff had resulted in the child’s shunning and avoiding the plaintiff was admissible as proof of damage.

      Emil Goldmark, Alfred A. Cook and John M. Greenfield for appellant.

      Stanley C. Fowler and Ralph 0. L. Fay for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The Travelers Insurance Company, Appellant, v. Peet & Powers, Respondent.

      Negligence — action by insurance carrier to recover for death of workman through fire in factory caused by negligence of employee of defendant in letting fall ladder so as to strike and break bottle containing chemical solution.

      Travelers Ins. Co. v. Peel & Powers, 212 App. Div. 814, affirmed.
    (Argued December 16, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 16, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. Frederick Christman, an employee of the Oakes Manufacturing Company, a concern engaged in the business of manufacturing dyes, etc., met his death on the 17th day of October, 1916, in a fire which destroyed one of the company’s buildings. He left surviving him a widow and children to whom an award was made for his death pursuant to the provisions of the New York Workmen’s Compensation Law, as the death was accidental and arose out of and in the course of his employment by the Oakes Manufacturing Company. The cause of action for the death of said Frederick Christman was duly assigned to the plaintiff, the insurance carrier, pursuant to the provisions of section 29 of the Workmen’s Compensation Law. It was claimed that the fire was caused through the negligence of a servant of defendant who, while installing electric lighting fixtures in the building, negligently let fall a ladder in such manner that it struck and broke a bottle containing a chemical solution which mixing with other chemicals caused fire.

      E. C. Sherwood for appellant.

      Russell H. Robbins and James B. Henney for respondent^
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin and Lehman, JJ. Dissenting: Crane and Andrews, JJ.


text:
    Alta Donefer, Respondent, v. Nathan Donefer, Appellant.

      Husband and wife — separation — action for separation on grounds of cruel and inhuman treatment and abandonment.

      Donefer v. Donefer, 214 App. Div. 716, affirmed.
    (Submitted December 16, 1925;
    decided January 12, 1926.)
    ' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 3, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action, wife against husband, for a separation upon the grounds of cruel and inhuman treatment and abandonment.

      Irving L. Rollins and Leo Schafran for appellant.

      Mortimer Elliott for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Harry M. Lasker, Inc., Appellant, v. National Surety Company, Respondent. (Actions Nos. 1 and 2.)

      Principal and surety — bonds — action to recover upon indemnity bond — motion for judgment upon ground that complaint failed to allege facts coming within coverage of bond.

      Lasker v. National Surety Co. (2 cases), 212 App. Div. 511, 514, affirmed.
    (Argued December 18, 1925;
    decided January 12, 1926.)
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1925, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for judgment on the pleadings. The actions were brought to recover upon an indemnity bond whereby the defendant agreed to protect the obligee in the purchase of notes secured by a hen upon a motor vehicle, from loss which said obligee might sustain through conversion of, or defective title to, such motor vehicle. Defendant moved for judgment on the pleadings upon the ground that by the terms of the bond it applied only where such motor vehicle had actually been delivered to the maker of the notes, and he had paid at least twenty-five per cent of its sale value at the time of delivery, and that the complaint, as limited by the bill of particulars, showed that no vehicle was delivered to the supposed maker of the' so-called notes and conditional sale contracts purchased by plaintiff; that no payment on account of the vehicle mentioned or referred to in said papers was made by the supposed maker thereof; and, therefore, that plaintiff had failed to allege a state of facts coming within the coverage of the bond in suit.

      Samuel J. Rosensohn for appellant.

      Stewart Maurice for respondent.
   Judgment in each case affirmed with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Burt D. Powelson, Appellant, v. McIntosh & Seymour Corporation, Respondent.

      Commissions — services — action by salesman to recover commissions alleged to be due.

      Powelson v. McIntosh & Seymour Corp., 213 App. Div. 855, affirmed.
    (Argued December 18, 1925;
    decided January 12, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1925, affirming a judgment in favor of plaintiff entered upon a verdict for a portion of the relief demanded in the complaint. The action was to recover commissions. Plaintiff was employed as a salesman by the defendant, a corporation which manufactured oil engines of the Diesel type. He claimed to be entitled to a flat commission of ten per cent as compensation for his services in connection with certain contracts made by defendant for the manufacture and delivery of certain specified engines. This was denied by defendant.

      JohnL. Lockwood and William P. Jeffery for appellant.

      R. E. Digney and Joseph A. Byrne for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Louis Hildenstein et al., as Executors of Louis Hildenstein, Deceased, Respondents, v. Marguerite Fess, Appellant.

      Appeal — unanimous affirmance — motion to dismiss granted.

      Hildenstein v. Fess, 215 App. Div. 673, appeal dismissed.
    (Submitted January 11, 1926;
    decided January 12, 1926.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 28, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    The motion was made upon the grounds that permission to appeal had not been obtained and that no question of law was involved.

      Henry L. Schaefer for motion.

      Samuel Thomas Walkup opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author: Cardozo, J.

text:
    In the Matter of the Accounting of Grace Q. Brown et al., as Executors of and Trustees under the Will of Stephen H. Brown, Deceased. Grace Q. Brown et al., Individually and as Executors and Trustees, Appellants; Derek Richardson et al., Respondents.
    Decedent’s estate — executors and administrators — partnership — “ good will ”— accounts of executors of deceased partner surcharged for failure to collect value of interest in “ good will ”• — ■“ good will ” presumptively an asset but partners may contract expressly or by implication that it be not so considered — inference one of fact to be drawn from every relevant circumstance affecting intention of partners — permissible inference that by tacit understanding between partners there was to be no accounting for “good will” — name of living man in style or title of partnership — continuity of name may not be transferred without his consent — value of benefits of “ continuity of place ” and of such continuity of name as would belong to a “successor” to a firm of stockbrokers carrying on “ general commission,” “ odd lot ” and “ specialist ” business may be nominal — ■ provision in will relieving executors from mistakes or errors of judgment.
    1. Good will, when it exists as incidental to the business of a partnership, is presumptively an asset to be accounted for like any other by those who liquidate the business. The course of dealing, however, can stamp it with a different quality. Partners may contract that good will, though it exist, shall not be considered as property or as an asset of the copartnership. The contract may be expressly made, or it may arise by implication, from other contracts and the acts and conduct of the parties. Such an implication will be drawn the more readily when the good will, if any, is tenuous or doubtful, but the inference is one of fact, to be drawn, if at all, after intention is appraised and probabilities are measured by a scrutiny of the life of the business for every relevant circumstance affecting the intention of the partners.
    2. Where, in the course of a partnership business, new members were admitted from time to time without change in the firm name, good will was not mentioned in the partnership articles or in any books of account, incoming members paid nothing for it and one member retired without being paid anything for his share in it, the trier of the facts, in a proceeding to surcharge the accounts of executors of a deceased partner for failure to collect the value of his interest in tb.e good will, might not unreasonably infer that by tacit understanding between the partners there was to be no accounting for good will.
    3. Assuming, however, that the disposition of good will had not been varied by agreement, an examination of the record discloses that a buyer of this good will, if it had been put up for sale by the liquidating partners, would have had the benefit at most of continuity of place and of such continuity of name as would belong to a “ successor.” Writ large in the style or title of the partnership was the name of a living man who had done nothing by word or act to give the name a reality or a significance external to himself. A buyer of the good will would gain no right to the use of any style or title, whereby this man would be represented as still a partner in the business, without his consent, and, in the record, there is neither finding of consent nor evidence pointing to the conclusion that consent should be implied. (Slater v. Slater, 175 N. Y. 143, limited.)
    4. The value of the benefits of “ continuity of place ” and of such continuity of name as would belong to a “ successor,” must be determined by their relation to the several departments of the commission business carried on by the partnership. As to the general commission branch, there is a finding, unanimously affirmed, that appurtenant thereto there was an element of good will not incapable of conveyance. The relation of stockbroker and customer is not so distinctly personal or professional that good will is excluded either for reasons of public policy or as an inference of law, but it may be doubted whether a privilege so uncertain to result in custom would be worth a great deal and the surrogate would have been justified in placing the value at a much lower figure than he did or even at a nominal amount. The “ odd lot ” and “ specialist ” business are personal and individual and a buyer of the good will would gain nothing in respect of these branches of the business from continuity of place or from announcing himself the successor to the business without continuity of name. A finding, therefore, that these branches of the business had in them an element of good will for which the survivors are accountable, is erroneous.
    5. A provision in the will of the testator whereby his executors are relieved of responsibility for mistakes or errors of judgment may become important upon a rehearing in determining liability for the value of the good will, if any, incidental to the commission business. In the event that the value of such good will shall be found to be doubtful or insignificant, the surrogate may properly conclude that the failure to collect it was an error of judgment and nothing more. Matter of Brown, 211 App. Div. 662, reversed.
    (Argued November 25, 1925;
    decided January 12, 1926.)
    Appear from an order of the Appellate Division of the Supreme Court in the first judicial department entered February 6, 1925, which affirmed a decree of 'the New York County Surrogate’s Court surcharging the accounts of the executors of and trustees under the will of Stephen H. Brown, deceased.

      Franklin B. Lord and Sherman Baldwin for appellants.
    Vernon C. Brown had a right to continue in business with his partners using his name without being accountable to his brother’s estate. (Meneely v. Meneely, 62 N. Y. 427; Romeike, Inc. v. Romeike & Co., Inc., 179 App. Div. 712; 227 N. Y. 561; Koehler v. Sanders, 122 N. Y. 65; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Schinasi v. Schinasi, 169 App. Div. 887; Henry Mfg. Co., Inc., v. Henry Screen Mfg. Co., Inc., 204 App. Div. 27; Hildreth v. McCaul, 70 App. Div. 162; Lathrop v. Lathrop, 47 How. Pr. 532; Ward & Co., Ltd. v. Ward, 15 N. Y. Supp. 913; Bellows v. Bellows, 24 Misc. Rep. 482; Piggly Wiggly Corporation v. Saunders, 1 Fed. Rep. 572.) Assuming there was a good will, it was not transferable. (Story on Partnership, § 99.) A property value cannot attach to the name of a business which depends on the personal qualifications of the persons carrying it on. (Bailly v. Betti, 241 N. Y. 22; Masters v. Brooks, 132 App. Div. 874; Read v. Mackay, 47 Misc. Rep. 435;
      Matter of Caldwell, 107 Misc. Rep. 316; 195 App. Div. 890; Kremelberg v. Thompson, 87 N. J. Eq. 655; Underdown v. Underdown, 279 Penn. St. 482, 489; Rutan v. Coolidge, 241 Mass. 584; Douthart v. Logan, 190 Ill. 243; 86 Ill. App. 294; Wightman v. Wightman, 223 Mass. 398; Force v. Roby, 195 Mass. 292; Rice v. Angell, 73 Tex. 350; Smith v. Smith, 51 La. Ann. 72.) In any event the executors should not be surcharged. (Matter of King, 71 App. Div. 581; 172 N. Y. 616; Joseph v. Herzig, 198 N. Y. 456; Matter of Marx, 117 App. Div. 890.)
    ■ Charles Brandt, Jr., for respondents.
    There was a good will which attached to the firm of Vernon C. Brown & Co. (Wilson v. Williams, 29 L. R. Ir. 176; Hills v. Fearis, 1 Ch. 466; Crutwell v. Lye, 17 Vesey, 335; People ex rel. Johnson Co. v. Roberts, 159 N. Y. 82; Matter of Silkman, 121 App. Div. 216; Niles v. Fenn, 12 Misc. Rep. 471; Brett v. Ebel, 29 App. Div. 256; Mott v. Mott, 11 Barb. 127; Matter of Halle, 103 Misc. Rep. 661.) The method adopted by the referee for appraising the value of the good will of the decedent in the firm of Vernon C. Brown & Co., and the value of his interest therein, was true and correct in all respects. (Matter of Bolton, 121 Misc. Rep. 52.) The Surrogate’s- Court properly surcharged the account of the executors jointly and severally with the value of decedent’s interest in and to the good will. (Matter of Silkman, 121 App. Div. 216.)
   Cardozo, J.

Vernon C. Brown & Company were stockbrokers for many years in the city of New York. Stephen H. Brown, one of the partners, died. The survivors, denying that there was any good will to be accounted for, continued the business at the old stand and in the old name. The executors acquiesced. • For so acquiescing they have been held to be at fault, and théir accounts have been surcharged accordingly. The question is whether the decree may be sustained.

The Browns, Vernon and Stephen, were brothers. They began business in 1895 with one Watson, under the name of Watson & Brown. In 1901 Watson withdrew, and the brothers went on. Vernon C. Brown & Company ” became the name of the continued partnership. New members were admitted from time to time, but the firm name remained unchanged. Good will was not mentioned in the partnership articles or in any books of account. Incoming members did not pay anything for it. One member, Mr. Schoonmaker, retired while Stephen Browna was alive. If good will was an asset, he was entitled to share in it. The evidence is uncontradicted that nothing was paid him. We may infer that in the thought of the partners nothing was due.

At the outset, Stephen Brown like his brother was active in the business. He had a seat on the Exchange, and represented the firm upon the floor. Falling ill in 1912, he sold his seat, and, though leaving his capital intact, gave no services thereafter. His share of the profits, which before his illness had been thirty-three per cent, was gradually reduced till at his death in July, 1917, it was only fifteen per cent. The business was lucrative, though it was run, one would gather, in a more or less old-fashioned and conservative way, without advertising in newspapers or solicitation of accounts. It had four branches or departments: (1) The general commission business; (2) the so-called “ odd lot ” business, which proved to be the most lucrative of all; (3) the so-called two-dollar ” business; and (4) speculative business transacted for the firm itself. There is a finding that all the branches of the business except the last had in them an element of good will for which the survivors were accountable. The net profits of the three branches were averaged for a period of three years, allowance being made for interest on capital and for the personal services rendered by the partners. The value of the good will was fixed at two years’ purchase price of the profits so computed. On this basis, the value was $103,891.60, of which 15%, $15,583.74, was the share due to the estate. The surrogate, confirming the report of a referee, held that the accounts of the executors were to be surcharged for failing to collect this amount from the survivors. The Appellate Division unanimously affirmed.

The books abound in definitions of good will (People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70, 80; Von Bremen v. MacMonnies, 200 N. Y. 41, 47). There is no occasion to repeat them. Men will pay for any privilege that gives a reasonable expectancy of preference in the race of competition (cf. Walton Water Co. v. Village of Walton, 238 N. Y. 46, 50). Such expectancy may come from succession in place or name or otherwise to a business that has won the favor of its customers. It is then known as good will. Many are the degrees of value. At one extreme there are expectancies so strong that the advantage derived from economic opportunity may be said to be a certainty. At the other are expectancies so weak that for any rational mind they may be said to be illusory. We must know the facts in any case.

Good will, when it exists as incidental to the business of a partnership, is presumptively an asset to be accounted for like any other by those who liquidate the business (Slater v. Slater, 175 N. Y. 143; Matter of David & Matthews, 1899, 1 Ch. 378; Witkowsky v. Affeld, 283 Ill. 557). The course of dealing, however, can stamp it with a different quality. Partners may contract that good will, though it exist, shall not “ be considered as property or as an asset of the co-partnership ” (Douthart v. Logan, 190 Ill. 243, 252; Witkowsky v. Affeld, supra). The contract may “ be expressly made,” or it may arise by implication, from other contracts and the acts and conduct of the parties ” (Douthart v. Logan, supra). The implication will be drawn the more readily when the good will, if any, is tenuous or doubtful. Upon this appeal, the form of the findings precludes us from adjudging that the distribution of what would otherwise be an asset has been varied by agreement. We state, however, for the guidance of the trial court, that evidence exists from which such an agreement may be gathered. The trier of the facts might not unreasonably infer from the course of dealing between the partners when new members came in and old ones went out that by tacit understanding there was to be no accounting for good will. No doubt there must be caution before property intérests of value are thus excluded by implication. The life of the business must be scrutinized for every relevant circumstance affecting the intention of the partners. The inference is one of fact, to be drawn, if at all, when intention is thus appraised and probabilities are measured.

Assuming for present purposes that the disposition of good will has not been varied by agreement, we reach the question whether there was any good will to be disposed of upon the facts recited in the findings. To answer that question, we must consider at the outset what rights would have passed to a buyer of the good will if the surviving partners had sold it in the course of liquidation. The chief elements of value upon any sale of a good will- are, first, continuity of place, and, second, continuity of name (People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70, at p. 83). There may indeed at times be others, e. g., continuity of organization. That element is of value in business of a complex order. " Where the business is simple, the benefits of organization are slight and not so easily transmitted. Confining ourselves now to the two chief elements of value, we may assume that the buyer of this good will would have been reasonably assured of continuity of place. The firm offices were the same from the beginning of the business till the death of Stephen Brown and later. There is nothing to show that the survivors, genuinely endeavoring to dispose of the good will, would have been unable to deliver possession to a buyer of the lease. A more difficult question is presented when we ask to what extent there would have been continuity of name. “ Vernon C. Brown & Co.” was not an arbitrary symbol, like The Snyder Mfg. Co., e. g., in Snyder Mfg. Co. v. Snyder (54 Ohio St. 86). It had not gained a secondary meaning supplanting a primary meaning which had been descriptive of a man or men, and instead identifying impersonally an organization or a product. Writ large in this style or title was the name of a living man who had done nothing by word or act to give the name a reality or a significance external to himself. A buyer of the good will would gain no right to the use of any style or title whereby this man would be represented as still a partner in the business. We assume that in conducting the new business he would be privileged to describe himself, subject, however, to the rules of the Exchange, as the “ successor ” to the old one (Moore v. Rawson, 199 Mass. 493, 497, 499). He would not be suffered to go farther. One who writes his name at large in the style or title of a partnership does not dedicate to the partnership, by force of that act alone without other tokens of intention, the right to sell the name at auction upon every change of membership.

We do not overlook the provisions of the statute (Partnership Law, § 80, subd. 1; formerly Partnership Law, § 20 [Cons. Laws, ch. 39]) whereby partnership names are made capable of transfer, to the successors to a business. The sole effect of that provision is to give the approval of the law to a use that would otherwise be criminal though a transfer were attempted (Slater v. Slater, supra, at p. 149; Caswell v. Hazard, 121 N. Y. 484, 496). The statute tells us what the partners are at liberty to assign. It does not tell us what they are under a duty to assign. A case in Wisconsin states their duty in that regard with clarity and precision (Rowell v. Rowell, 122 Wis. 1). A name which in popular thought is solely or predominantly the name of a living man, may not be sold against his protest as it might if it were the impersonal symbol of an organization or a product. The objection is not merely that the partner whose name is thus appropriated may be exposed to the risk of liability for debts of the continued business (Burchell v. Wilde, 1900, 1 Ch. 551; Thynne v. Shove, 45 Ch. D. 577). If that were all, he might be adequately protected by the certificate which his successors must file under the statute (Slater v. Slater, supra). He would remain exposed to other perils though this one were averted. Business designed for him might be diverted to some one else. Worse than this, he might suffer in standing or good name “ by reason of inferiority of goods or dishonorable business conduct to which he is thereby made ostensibly a party ” (Rowell v. Rowell, supra). A different situation presents itself when the name is arbitrary or fancy” (Rowell v. Rowell, supra). The like is true when, though it may have once have designated a person, it has practically become an artificial one, designating nothing but the establishment ” (Rowell v. Rowell, supra, at p. 20, citing Rogers v. Taintor, 97 Mass. 291; Slater v. Slater, supra).

Slater v. Slater (supra), if it stands for more than this, must be limited accordingly. We think that more was not intended. Border cases will at times occur. The Slater case was one of them. Even there, however, the court recognized the distinction between names purely personal or individual, and names that had acquired, through the incrustations of time, a veneer of associations artificial and impersonal (Slater v. Slater, supra, at p. 148). This will happen oftener in trading partnerships than in those where the personal relation, even though not exclusive, counts for more. It will happen oftener where the title contains the surnames only of the members than it will when individuals are identified more sharply (Lindley on Partnership, pp. 540, 541). The question in last analysis is one of probable intention. To answer it we must know whether by reasonable intendment as gathered from the nature of the business and the course of dealing, the partner whose name is appropriated by a stranger has given consent to his associates to submit to an impersonation so disturbing and deceptive. In the record before us there is neither finding of consent nor evidence pointing to the conclusion that consent should be implied.

We have said that the members of the old firm might compete without restraint, after a sale of the good will, with the members of the new one. There are distinctions in that regard between voluntary and involuntary sales (Von Bremen v. MacMonnies, 200 N. Y. 41). After a voluntary sale, the seller, though he may compete, may not drum up or circularize the customers of the business. After a sale in invitum, he is not subject to a disability so heavy. For the purpose of this distinction, a sale by surviving partners upon a liquidation of the business, is a sale coerced by law (Hutchinson v. Nay, 187 Mass. 262; Moore v. Rawson, supra). The survivors may indeed be •bound as upon a voluntary sale if they have given the transaction such an aspect in the eyes of the buyer (Caswell v. Hazard, 121 N. Y. 484, 495; Lindley on Partnership, p. 543). The representative of the deceased partner, however, has no cause for complaint if by appropriate recitals or reservations they disclose its involuntary quality and thus limit its effect. Their duty as liquidators is done when they convey what would be conveyed upon a sale by a receiver (Hutchinson v. Nay, supra).

We conclude, then, that a buyer of this good will, if it had been put up for sale by the liquidating partners, would have had the benefit at most of continuity of place and of such continuity of name as would belong to a “ successor.” We have next to consider the relation of these benefits to the several branches or departments in which the business was conducted.

There is a finding, unanimously affirmed, that appurtenant to the general commission branch was an element of good will not incapable of conveyance. We cannot say that this finding is qualified by others to such an extent that as a matter of law it must be disregarded as erroneous.. The buyer of the good will would take over the firm records, which would give the names of the old customers. He would be in a position to notify them that he had succeeded to the business. True the old partners might send out notices that they were still in business for themselves. None the less, some customers might wander into the old place from forgetfulness or habit. Once there, inertia might lead them to give an order to brokers whom they found established in possession (Hill v. Fearis, 1905, 1 Ch. 466, stockbrokers; Rutan v. Coolidge, 241 Mass. 584, architects; Witkowsky v. Affeld, 283 Ill. 557, insurance brokers). The relation is not so distinctly personal or professional that good will is excluded either for reasons of public policy or as an inference of law (Bailly v. Betti, 241 N. Y. 22; Blakely v. Sousa, 197 Penn. St. 305; Messer v. Fadettes, 168 Mass. 140). We may doubt whether a privilege so uncertain would be worth a great deal. The surrogate would have been justified in placing the value at a much lower figure than he did, or even at a nominal amount (Rutan v. Coolidge, supra). The question is not whether the buyer would be willing to pay much or would be making a wise bargain. The question is whether a reasonable man would be willing to pay anything.

(2) The odd lot business stands on a different basis. Its essential characteristics are established by the findings. There is a rule of the New York Stock Exchange by which the unit of trading on the floor of the Exchange is declared to be one hundred shares. Dealings in smaller numbers of shares are known as odd lot transactions. Most stockbrokers do not transact an odd lot business, but there aré some that do, and Vernon C. Brown & Company was one of them. Orders for odd lots do not come through the office. They are given on the floor of the Exchange to the individual member or members of the firm who are its floor representatives. They come invariably from other brokers communicating with fellow-members of the Exchange whom they know as individuals.

A buyer of the good will would gain nothing in respect of this branch of the business from continuity of place. There was no relation between such orders and the place where the firm business was transacted. He would gain nothing from the privilege of announcing himself the successor to the business without continuity of name. The individual brokers who had been accustomed to receive these orders from fellow-members of the Exchange would still be on hand to receive them as before. The findings suggest no reason why business so individual and personal should be diverted or diminished. Very likely the new firm, when announcing its succession to the business, would advertise the fact that its board members, if there were any, would buy and sell odd lots. It might advertise a like readiness though the business it was starting had no relation of succession to any that had gone before. The appeal to favor would be hardly stronger in one case than in the other. The situation would be different if the old partners had been about to withdraw from the field of competition. While they remained in the arena, the tie of succession was too attenuated to give to the buyer in transactions so individual and personal a fair promise of advantage. One cannot gain a foothold upon a ledge of opportunity so narrow. Expectancy in such conditions may be said to have reached the vanishing point at which it merges in illusion.

The “ two-dollar ” or “ specialist ” business is personal and individual like the department just considered. The specialist is a broker who remains at one post of the Exchange where particular stocks are dealt in and there executes orders received from other brokers. He receives a commission of $2.50 for every 100 shares. Good will does not attach to business of this order for the same reason that none attaches to dealings in odd lots.

Mention should be made in conclusion of a provision of the will of Stephen Brown whereby his executors are relieved of responsibility for mistakes or errors of judgment. This provision may become important upon a rehearing in determining liability for the value of the good will, if any, incidental to the commission business. In the event that the value of such good will shall be found to be doubtful or insignificant, the surrogate may properly conclude that the failure to collect it was an error of judgment and nothing more.

The order of the Appellate Bivision and the decree of the Surrogate’s Court, so far as such decree is appealed from, should be reversed, and a rehearing ordered, with costs to abide the event.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Order reversed, etc.