author: Crane, J.

text:
    Samuel Hammer, Respondent, v. Harris Michael, Appellant.
    Vendor and purchaser — real property —• specific performance — discretion of courts of equity in decreeing specific performance must be governed by reason and facts — law does not ignore physical conditions though premises are described by metes and bounds and referred to by street number —• premises sold as tenement house and contracted to be conveyed free of violations of Tenement House Law — removal of one family and tender as two-family house an evasion, not a fulfillment, of contract.
    1. While courts of equity decree specific performance in the exercise of discretion, this discretion does not mean free will. It is governed by reason and by facts which make its judgment fair and just.
    2. Although a contract of sale described premises sold by metes and bounds and referred to them by street number, the law does not ignore or shut its eyes to the physical conditions existing at the time of contract. What the purchaser saw through the vendor’s representations, the law sees.
    3. Specific performance of a contract to purchase what appeared to be and was represented by the vendor to be a three-family tenement house will not be decreed, where the contract provided that all requirements by the Tenement House Department “ shall be complied with by the seller and the premises * * * conveyed free of the same,” and a notice of violation of the Tenement House Law was removed only by having one family move out so that it was no longer a tenement house subject to control of the tenement house department and the building was tendered by the vendor to the purchaser as a two-family house. Such action is an evasion of a contract, not its fulfillment, and courts of equity are to do equity and compel fair dealing; they are not to aid in clever attempts to escape just obligations.
    (Argued October 7, 1926;
    decided November 16, 1926.)

      Hammer v. Michael, 216 App. Div. 847, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 8, 1926, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term but reversing the second finding of fact.

      Herman S. Bachrach and Simon Berg for appellant:
    On November 25, 1924, the plaintiff was not ready, able and willing to fulfill and perform his agreement with the defendant. (Western Realty Co. v. Keeler, 143 App. Div. 458; Anderson v. Steinway & Sons, 178 App. Div. 507; 221 N. Y. 639.) A court of equity should not decree specific performance in this case. (Barrett v. Miner, 119 Misc. Rep. 230.)

      Albert A. Lustig for respondent.
    On November 25, 1924, plaintiff was ready, able and willing to fulfill and perform his agreement with the defendant. (Abraham v. Wechler, 120 Misc. Rep. 811; 210 App. Div. 876; Mackmull v. Brandlein, 152 App. Div. 733; Anderson v. Steinway & Sons, 178 App. Div. 507.)
   Crane, J.

The defendant on the sixth day of October, 1924, contracted to buy the premises owned by the plaintiff, known as 142 Hooper street, Brooklyn, N. Y. The building consisted of three floors used by three separate and distinct families, and was constructed for this purpose. The trial court found and it was conceded that the property at the time the defendant saw and examined it and at the time of the contract was occupied by three families yielding $57.50 a month from the top floor apartment; $60.00 a month from the middle floor apartment, and the ground floor which was then occupied' by the plaintiff had yielded a rental of $80.00 a month. The plaintiff so represented. The trial court also found that at the time the agreement was entered into the three apartments were provided with separate cooking facilities, separate kitchens not connected in any way with one another, and the building was equipped with fire escapes.

Under the Tenement House Laws (Cons. Laws, chap. 61) this building was a tenement house requiring the approval of the tenement house department.

The defendant, therefore, purchased what he saw and what was represented by the plaintiff — a tenement house. The trial judge so found. Under the circumstances he could not find otherwise. The agreement, said the .trial judge in his findings, provided for the purchase and sale of a three-family house yielding or capable of yielding a rental of $197.50 a month.

Although the contract of sale described the premises by metes and bounds and referred to them by street number as 142 Hooper street, the law does not ignore or shut its eyes to the physical conditions existing at the time of contract. What the defendant saw through the plaintiff’s representations the law sees. (Webster v. Kings County Trust Co., 80 Hun, 420; affd., 145 N. Y. 275; Westown Realty Co. v. Keller, 143 App. Div. 458; Anderson v. Steinway & Sons, 178 App. Div. 507; affd., 221 N. Y. 639.)

The defendant, therefore, purchased a tenement house occupied by or to be occupied by three families for which it was fitted up and prepared.

There was no misunderstanding about this between the parties and the contract provided: “All notices of violation of law or orders or requirements issued by the Tenement House Department * * * against or affecting the premises at the date hereof shall be complied with by the seller and the premises shall be conveyed free of the same.”

At the time of the closing there was a violation filed against the building which read as follows:

“ This is dated February 27, 1922. Your attention is called to the fact that the premises known as 142 Hooper Street, of which you are recorded to be the owner, does not conform to the provisions of the Tenement House Law in the following particulars:
“ 1. This building has been converted from a non-tenement into a tenement house without having plans and applications filed for approval of the Tenement House Department, and it is now occupied as such without certificate from the Tenement House Department;
a. The above building is now arranged as a tenement;
b. The above building, by this arrangement, is intended and designed to be occupied as a tenement;
“ c. The above building is now occupied by three families.”

This notice required the owner to have the plans for his tenement house approved by the tenement house department, and to obtain a certificate from the department for its maintenance as such. The plaintiff by his contract agreed to comply with this order and notice of the tenement house department; he agreed to have his plans for the tenement house approved and to obtain the department’s certificate so that the house might be used and rented as a tenement house. He has failed in his agreement; he has never obtained such approval or certificate. The family on the second floor moved out and the plaintiff then tendered the building as a two-family house, notice of violation having been removed, as the building was no longer used as a tenement house or occupied by three families. Such action is an evasion of a contract; not its fulfillment. Courts of equity are to do equity and compel fair dealing; they are not to aid in clever attempts to escape just obligations.

The trial court found that the difference in rental value between the premises as a three-family house and the premises as a two-family house is $690 a year. This finding was not disturbed by the Appellate Division. Under such circumstances the court had no power or discretion to order specific performance compelling the defendant to take a two-family house. While courts of equity decree specific performance in the exercise of discretion, this discretion does not mean free will. It is governed by reason and by facts which make its judgment fair and just. (Matter of Superintendent of Banks, etc., 207 N. Y. 11.)

As there is no claim here that the plaintiff ever intended to have his plans approved by the tenement house department or that he ever attempted to procure the proper certificate the judgment below should in my opinion be reversed for these reasons, and the complaint dismissed.

While affirming the trial court, the Appellate Division reversed the second finding of fact found herein.” This finding relates to the contract in writing, Exhibit A, which was concededly made and executed. It may be that the second finding of the defendant’s proposed findings was intended. This is to the effect that the agreement provided for the purchase and sale of a three-family house, capable of yielding $197.50 per month. The order of the appellate court does not state that this finding is reversed, but we may reasonably infer it. The evidence, however, amply sustains the proposed finding, and did in the mind of the trial judge, who decided, nevertheless, against the defendant.

If we eliminate all the circumstances surrounding the making of this contract, the nature of the building and the representations of the plaintiff, the contract may be read as referring to a building, irrespective of rentals or tenement house construction. This is the way the lower courts considered it.

But even then a court of equity would take these matters into consideration when asked to decree specific performanee. Assuming that the plaintiff did not by his written contract agree to sell a three-family house yielding $197.50 a month, and that at the time of closing there was no tenement house violation filed against the building, yet the court was not justified, in view of all the circumstances and its findings, in decreeing specific performance.

For these reasons, therefore, the judgments below should be reversed, and the complaint dismissed, with costs in all courts.

His cock, Ch. J., McLaughlin and Andrews, JJ., concur; Cardozo, Pound and Lehman, JJ., concur in the result upon the ground that according to the uncontroverted evidence the enforcement of the contract would be oppressive and inequitable by reason of the defendant’s excusable mistake as to the character of the building, and that a decree for specific performance should, therefore, be withheld. (Margraf v. Muir, 57 N. Y. 155; McClure v. Leaycraf, 183 N. Y. 36.)

Judgment accordingly.


source: Caselaw Access Project

author: McLaughlin, J.

license: Public Domain

text:
    Antonio Mollino, Respondent, v. Ogden & Clarkson Corporation et al., Appellants, Impleaded with Others.
    Negligence — principal and agent — real estate agent who had contracted to take charge of a building “ including its improvement and repair,” liable to pedestrian injured by fall of portion of chimney — nominal owner whose deed is contradicted by existing writing to which he is a party entitled to show under what arrangement property was conveyed to him.
    1. Where the owner of real property conveys the same to her attorney and at the same time enters into a written agreement with a real estate broker and the attorney providing that “ the second party shall have the sole and absolute control of said property as to its sale, lease and management, including its improvement and repair and * * * that the third party is under no liability or responsibility for any act or omission hereunder,” the second party is obligated to see that the building is kept in such repair that persons lawfully using the street upon which the building abuts will not be injured by the building or any part of it falling upon them.
    (Argued October 13, 1926;
    deceided November 16, 1926.)
    2. In an action, therefore, to recover for personal injuries, where there was evidence to sustain a finding of the jury that plaintiff was struck by a portion of the chimney on such building falling to the street and also to justify a finding that for some time prior to the accident the chimney was in dangerous condition, the broker was properly held liable. It had possession of the building and had stipulated, under the agreement, to make the necessary repairs and its failure to do so was something more than non-feasance; it was misfeasance.
    3. It being apparent from the agreement that the attorney had no interest in the property, in contradiction of the deed, parol evidence was admissible to show what the situation was when the property was conveyed to him and under what arrangement the conveyance was made, and its exclusion constitutes reversible error as to him.

      Mollino v. Ogden & Clarkson Corp., 216 App. Div. 738, modified.
    Appeal, appellant Feitner by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1926, unanimously as to appellant Feitner but one of the justices dissenting as to appellant Ogden & Clarkson Corporation, affirming a judgment in favor of plaintiff entered upon a verdict.

      Alfred G. Reeves, John S. Wise, Jr., and Harry J. Ahlheim for Ogden & Clarkson Corporation, appellant.
    Appellant Ogden & Clarkson Corporation, a real estate agent, cannot be held liable with the owner for mere nonfeasance; and the plaintiff’s remedy, if any, is against the owner alone. (Slater v. Barnes, 241 N. Y. 284; Murray v. Usher, 117 N. Y. 542; Van Antwerp v. Linton, 89 Hun, 417; Potter v. Gilbert, 130 App. Div. 632; 196 N. Y. 576; Haigh v. Edelmeyer & M. H. E. Co., 136 App. Div. 484; Scheller v. Silbermintz, 50 Misc. Rep. 175; People v. Crounse, 51 Hun, 489; People v. Weeks, 172 App. Div. 117; Cook v. Bellack, 109 Wis. 391; Joyce v. Convent Avenue Construction Co., 155 App. Div. 586; Bell v. Josselyn, 3 Gray, 309.)

      William Dike Reed and K. Courtenay Johnston for Thomas L. Feitner, appellant.
    As a matter of law, the evidence clearly shows that there was and is no liability on the part of the appellant Thomas L. Feitner since he was neither the owner nor holder of any estate or interest in the property involved in the accident. (N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 174; Johnston v. Spicer, 107 N. Y. 185; Gueutal v. Gueutal, 113 App. Div. 310; Ulman v. Cameron, 186 N. Y. 339; Wendt v. Walsh, 164 N. Y. 154; Steinert v. Steinert, 161 App. Div. 841; Salsbury v. Parsons, 36 Hun, 12; Sinnott v. McLaughlin, 198 App. Div. 630; Syracuse Savings Bank v. Holden, 105 N. Y. 415; Jacoby v. Jacoby, 188 N. Y. 124; Bates v. Ledgerwood Mfg. Co., 130 N. Y. 200.) The refusal of the trial judge to receive any parol evidence of the circumstances surrounding the making of the two instruments, or as to the intent of the parties thereto, and his instructions to the jury thereon, erroneously foreclosed the defendant Feitner from any consideration of him other than as the legal owner of the property involved in the accident. (Perry on Trusts, §§ 82, 137, 150; Foote v. Bryant, 47 N. Y. 544; Norton v. Mallory, 63 N. Y. 434; Hutchins v. Van Vechten, 140 N. Y. 115; Goldsmith v. Goldsmith, 145 N. Y. 313; Ahrens v. Jones, 169 N. Y. 555; Ensign v. Ensign, 120 N. Y. 655; Gillet v. Bank of America, 160 N. Y. 549; Mooney v. Byrne, 163 N. Y. 86; Swinburne v. Swinburne, 28 N. Y. 568.)

      Harold R. Medina, Moses Feltenstein and Harry Miller for respondent.
    The uncontradicted evidence shows that the defendant Ogden & Clarkson Corporation, by its voluntary assumption of responsibility in taking over the sole and absolute control of the property, was under a duty to the plaintiff to exercise reasonable care and there is evidence to support the verdict of the jury that the defendant Ogden & Clarkson Corporation failed to exercise reasonable and ordinary care under the circum-

      stances. ( Uggla v. Brokaw, 117 App. Div. 586; Miller v. N. Y., L. & W. R. R. Co., 125 N. Y. 118; Ahern v. Steele, 115 N. Y. 203: Miller v. Woodhead, 104 N. Y. 471; Odell v. Solomon, 99 N. Y. 635; Washington v. Episcopal Church, 111 App. Div. 402; Lansing v. Thompson, 8 App. Div. 54; Edwards v. N. Y. & H. R. R. Co., 25 Hun, 634; 98 N. Y. 245.)

      Alexander C. MacNulty for Real Estate Board of New York, Inc., amicus curice.

    Denial of the defendants, appellants’ motions to dismiss the complaint upon the grounds that there was no evidence that the plaintiff's injuries were caused by the negligence of either of the defendants, appellants, and that there was no evidence that either of said defendants, appellants, had personal knowledge or notice of any of the defective conditions that, it is alleged, caused the plaintiff’s injuries, was error. (Congreve v. Smith, 18 N. Y. 79; Holroyd v. Sheridan, 53 App. Div. 14; Paltey v. Eagan, 200 N. Y. 83; San Felippo v. American B. P. Co., 188 N. Y. 514; McNulty v. Ludwig & Co., 153 App. Div. 206: Uggla v. Brokaw, 117 App. Div. 586; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Hogan v. Manhattan Ry. Co., 149 N. Y. 23; Marceau v. Rutland R. R. Co., 211 N. Y. 203; Hudgins v. Hann, 240 Fed. Rep. 387; Hughes v. Harbor & Suburban B. & S. Assn., 131 App. Div. 185.)
   McLaughlin, J.

The plaintiff, on the 28th of March, 1923, at about 2.30 p. m., while walking on East One Hundred and Twenty-seventh street, New York city, was seriously injured by a portion of a chimney falling from the roof of a building located at 49 East One Hundred and Twenty-seventh street. He brought this action to recover for the injuries.

The action was originally brought against the two appellants and Mary A. Stickney, Minnie H. Musgrave and Alice F. Brown. The two persons last named each held a mortgage upon the premises in question. The defendant Mary A. Stickney was concededly the owner in fee of the premises upon which the building stood, until February 14, 1916, at which time she conveyed the same to the appellant Feitner. On the same day the deed of conveyance was given, Mrs. Stickney and her husband as party of the first part, Ogden & Clarkson Corporation as party of the second part, and Feitner as party of the third part, entered into an agreement. Said agreement, after reciting that it was the desire and request of the first party that said property shall be under the absolute and sole control as to sale, lease and management of the second party for the purpose of getting the same liquidated to the best advantage of the first party and of all interested therein, and to that end the second party is willing to make advances to be secured thereby, and the title thereof is to be held by the third party accordingly,” provided:

“ (1) The second party shall have the sole and absolute control of said property as to its sale, lease and management, including its improvement and repair.
“ (2) All advances made from time to time by the second party or at its request in the management of said property, shall be deemed to be at the request and for the benefit of the first party and secured by said property.
(3) And it is of course understood that the third party is under no liability or responsibility for any act or omission hereunder.”

After the conveyance to Feitner and the execution of the agreement signed by him, Ogden & Clarkson Corporation and Mrs. Stickney (just quoted), she, so far as appears, had only a remote beneficial interest in the property, and the two mortgagees had an interest only to the extent of their respective mortgages. . They were not mortgagees in possession, nor did they have any control or management of the property. These facts appearing, at the opening of the trial and before any evidence had been taken plaintiff’s counsel consented to a dismissal of the complaint as to the two mortgagees, and the action as to them was then discontinued. It was, however, continued against Feitner, Ogden & Clarkson Corporation and Mrs. Stickney, but at the close of plaintiff’s case the court dismissed the complaint as to Mrs. Stickney and denied a motion to dismiss as to Ogden & Clarkson Corporation and Feitner, to which an exception was taken by each of such defendants. A similar motion was made by the respective attorneys of Feitner and Ogden & Clarkson Corporation at the close of the evidence, which motion was also denied and an exception taken by each.

The case was then sent to the jury and it rendered a verdict in favor of the plaintiff for $18,500. Judgment to this effect was entered and an appeal to the Appellate Division resulted in the judgment being unanimously affirmed as to Feitner and affirmed (one of the justices dissenting) as to Ogden & Clarkson Corporation. Both of such defendants then appealed to this court.

I am of the opinion that the judgment as to Ogden & Clarkson Corporation should be affirmed. Under the agreement in and by which it had the “ sole and absolute control of said property as to its sale, lease and management, including its improvement and repair,” it was obligated to see that the building was kept in such repair that persons lawfully using the street upon which the building abutted would not be injured by the building, or any part of it, falling upon them. The corporation, when it took possession of the property, agreed to look after it, including its improvement and repair, and it was obligated to do this by affirmative action on its part.

There was an abundance of evidence to sustain the finding of the jury that the plaintiff was struck by a portion of the chimney on such building falling to the street. The evidence also justified a finding that at and for some time prior to the time of the accident, the chimney, a portion of which fell to the street, was in a dangerous condition and should have been made safe by the corporation. Its failure to do so was something more than non-feasance; it was misfeasance on its part in not making the necessary repairs. Ogden & Clarkson Corporation was more than an ordinary broker to sell or lease real estate. This, it is true, was a part of its duty but under the agreement it was obligated to perform the additional duty of keeping the property in repair. The corporation had possession of the building and had stipulated, under the agreement, to make the necessary repairs.

Mechem on Agency (Vol. 1 [2d ed.], sec. 1474) states the rule applicable to this case as follows: “ * * * the agent should be held responsible for injuries caused by his neglect to keep in repair premises under his control where he is charged by his principal with the duty to repair and has the necessary means, in any case in which he would be liable for the same injury if he were controlling the premises on his own account. In these cases in which the agent has both the duty (to his principal) and the power to repair, and fails to do so, the injury can fairly be regarded as the consequence of his own act.” (See, also, Baird v. Shipman, 132 Ill. 16; Carson v. Quinn, 127 Mo. App. 525; Bannigan v. Woodbury, 158 Mich. 206; Lough v. Davis & Co., 30 Wash. 204; Orcutt v. Century Bldg. Co., 201 Mo. 424; Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611; Consolidated Gas Co. v. Connor, 114 Md. 140.)

The judgment against the appellant Feitner, I am of the opinion, should be reversed because of error of the trial judge in excluding certain testimony. The agreement which was executed at the time of the conveyance to Feitner, it will be noticed, contained a provision that it was understood that he would not be liable or responsible for any act or omission hereunder.” At the trial he sought to prove just what the arrangement was between him and Mrs. Stickney when she conveyed the property to him. However, all evidence bearing on the subject was excluded and an exception taken. Feitner testified that he had been the lawyer for Mrs. Stickney for a long time and he was then asked by his counsel, Mr. Reed:

“ Q. Did you at any time live in the premises in question?
“A. No.
Q. Did you at any time purchase the premises in question?
Mr. Feltenstein [plaintiff’s counsel]: I object to that as incompetent, irrelevant and immaterial.
The Court: Objection sustained.
“ Mr. Reed: Exception.”
Feitner was then asked:
“ Q. You said that you had a conversation with them in reference to it. What was the general purport of that conversation?” Objection was made to this question and the court thereupon asked counsel for Feitner what he proposed to show and he responded, saying, “ I propose to show that Mr. Feitner merely, as a matter of convenience for the parties interested in that property, took title by virtue of a conversation between the parties.”
The Court: A conversation held before the signing of that ¿greement?
Mr. Reed: Yes, that he never Had in any way, shape or form any beneficial interest in that property.
* The Court: The objections are respectively sustained.
“ Mr. Reed: Exception.”

I think this testimony should have been admitted. Feitner was entitled to show just exactly what the situation was when the property was conveyed to him and under what arrangement the conveyance was made. He did not have control of the building. Under the agreement, Ogden & Clarkson Corporation had the sole and absolute control of said property as to its sale, lease and management, including its improvement and repair. The jury was entitled to know how the property came to be deeded to Feitner, and the purpose and object of the conveyance. It is quite apparent from the agreement that he had no interest in the property. It is true that the agreement and the deed of conveyance appear to be contradictory, and for that reason the testimony was admissible for the purpose of explaining how the two instruments came to be made.

The judgment should be affirmed, with costs as to defendant Ogden & Clarkson Corporation, and as to defendant Thomas L. Feitner should be reversed and a new trial ordered, with costs to him to abide the event.

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

Judgment accordingly.


author: Hiscock, Ch. J.

text:
    Naman J. Abounader, Respondent, v. Strohmeyer & Arpe Company, Appellant.
    Pleading — cause of action — false labels — sufficiency of complaint in action to recover under the Farms and Markets Law for false labeling — -intent of Legislature to give right of action — -legislative intent that one who sold containers with false labels should be responsible to ultimate purchaser though there was no privity between them — purchaser may recover legal expenses in defending himself from prosecution for having falsely labeled goods in his possession.
    1. Even though under the provisions of section 196 of the Farms and Markets Law (Cons. Laws, ch. 69) an action for breach of provisions of the statute might be based upon warranty, where, in such an action, no reference is made to this section in support of the complaint which sets forth with fair accuracy and completeness the facts upon which plaintiff relies, the terms “ warrant ” and “ warranty ” used therein, when interpreted in the light of all of its allegations, are' to be construed as alleging that the defendants stated or represented for the purposes of sale, within the statute, that containers held a certain amount, and the provisions of section 196 do not tend to create any inference that the pleader was trying to state a cause of action in warranty rather than one based generally on a violation of provisions of the statute.

      (Submitted September 28, 1926;
    decided November 16, 1926.)
    2. In the absence of an express provision in the statute giving to an ultimate purchaser of falsely labeled containers, however remote, "a right of action against the person who violated the statute by marketing them with false labels, the question becomes one of the intent of the Legislature in passing the statute. If it was its intent to impose the duty defined in the provisions of the statute for the benefit of the general public and any member thereof who might be misled by false labels, then a right of action would be raised in behalf of such purchaser who had been injured by violation of the duty.
    3. In the enactment of the statute in question, as a whole, it clearly appears that the Legislature had in mind the purpose of protecting members of the public from fraud and misrepresentation in the character of foods and also in the quantities of foods and allied commodities which '¡■they might purchase, and the provision of section 196 indicates an intent that the duty and responsibility of a jobber or manufacturer should go with the article which he was labeling and marketing and follow it down through the line to the member of the public who finally purchased it for consumption or use. The statute, therefore, confers a right of action upon an ultimate purchaser against the person who originally prepared for market and sold containers with false labels or statements of their contents, even though there were intermediate dealers and no privity between the last purchaser and the first vendor. The fact that penalties are ordained for violations furnishes no argument against this conclusion. Nor is any element of ordinary negligence essential. Violation becomes actionable default.
    4. In such an action plaintiff should be allowed .to establish, if he can, his expenditures for legal services employed for the purpose of extricating him from a liability for penalties based on the fact that he had falsely labeled containers in his possession. His reasonable expense in that respect became a proximate result of defendant’s violation of the statute.

      Abounader v. Strohmeyer & Arpe Co., 217 App. Div. 43, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 5, 1926, which affirmed an order of Special Term denying a motion for a dismissal of,, the complaint.
    The following questions were certified: “1. Does the amended complaint herein set forth facts sufficient to constitute a cause of action? 2. Can plaintiff be permitted under this amended complaint to recover damages sustained by reason of defendant’s alleged violations of & duty or duties imposed upon defendant by the Farms and Markets Law? 3. Should the motion to dismiss the 'amended complaint upon the pleadings and the admissions of the plaintiff, have been granted? ”

      George Gray Zabriskie for appellant.
    The amended complaint attempts to state a cause of action on the sole ground of breach of warranty, either under the Sales Act or the Farms and Markets Law, and the papers before the court show that even though a breach of statutory duty is also involved, plaintiff has no such cause of action. '(Chysky v. Drake Bros., 235 N. Y. 468; Singer v. Knott, 237 N. Y. 110; Manhattan Co. v. Kaldenberg, 165 N. Y. 1; Wilson v. Israel, 227 N. Y. 423; McGaffin v. Cohoes, 74 N. Y. 387; Matter of Tilden, 98 N. Y. 434; Behan v. People, 17 N. Y. 516; Spencer v. Met. Board of Works, 22 Ch. Div. 152.; The courts below have extended the doctrine of civil liability for violation of a penal statute beyond the permissible limits. (Van Kleeck v. Le Roy, 37 Barb. 544; 4 Abb. Dec. 479; Reno v. Bull, 226 N. Y. 546; St. L. & S. F. R. R. v. Conarty, 238 U. S. 243; Loucks v. Standard Oil Co., 224 N. Y. 99; People v. Wright, 19 Misc. Rep. 135; People v. McDermott-Bunger Dairy Co., 38 Misc. Rep. 365; Kennehan v. City of N. Y., 162 App. Div. 364; Leach v. Auwell, 154 App. Div. 170; Manhattan Bank Co. v. Kaldenberg, 165 N. Y. 1; People v. Briggs, 193 N. Y. 457.) The complaint fails to allege any damage to the plaintiff which could be recovered under any theory. (Slingerland v. Bennett, 66 N. Y. 611; Mattlage v. N. Y. El. Ry. Co., 17 N. Y. Supp. 836; Armstrong v. Percy, 5 Wend. 535; Schnurmacher v. Kennedy, 88 N. Y. Supp. 943; Flett v. Royal Bank of Canada, 207 App. Div. 273; 239 N. Y. 543; Reno v. Bull, 226 N. Y. 546; Schile v. Brokhahus, 80 N. Y. 614; Mess-more v. N. Y. Shot & Lead Co., 40 N. Y. 422; Moran
      v. Standard Oil Co., 211 N. Y. 187; 2 Sutherland on Damages, 1165; Linden v. Graham, 1 Duer, 670; Reporters Assn. v. Sun Assn., 186 N. Y. 437.)

      R. S. Johnson for respondent.
    The complaint must -be liberally construed, and if it can be implied from its allegations by reasonable and fair intendment that an action at law or in equity is set forth, it is sufficient. (Emanuel v. Walter, 138 App. Div. 818; Wetmore v. Porter, 92 N. Y. 76; Sage v. Culver, 147 N. Y. 241; Superior Brassiere Co., Inc., v. Zimetbaum, 214 App. Div. 525.) Concededly, cans of oil were put up and sealed by the defendant, and they were short in weight from that stamped on the cans by the defendant. This entitles the plaintiff to protection under the statute, and damages. (City of New York v. Fredericks, 206 N. Y. 618; People v. Armour & Co., 176 App. Div. 161; Finley v. Atlantic Transport Co., 220 N. Y. 249; New York Rubber Co. v. Rothery, 132 N. Y. 293; Baker v. Manhattan Railroad Co., 118 N. Y. 553; Friedgood v. Kline, 67 Misc. Rep. 428; Hoadley v. Dumois, 11 Misc. Rep. 52; 155 N. Y. 630; Whitney v. National Bank of Potsdam, 45 N. Y. 303; Dubois v. Hermance, 56 N. Y. 673.) The cause of action set forth in the complaint can be either for express warranty, implied warranty or negligence. (Ferguson v. Knetter, 204 N. Y. 505; Fairbanks Knitting Co. v. Metzger, 118 N. Y. 260.)
   Hiscock, Ch. J.

This appeal involves a challenge to the sufficiency of the complaint. The substantial and pertinent allegations of that pleading are to the effect that the plaintiff, a dealer in groceries, oils, etc., purchased from an intermediate wholesale dealer certain containers of olive oil which had been put up and sold by the defendant; that the latter had placed a label upon each container representing that it contained one-fourth of a gallon of such oil whereas the contents were actually less than that amount; that plaintiff made his purchases in reliance upon this label and representation and after they had been purchased inspectors of the Department of Farms and Markets discovered that he was offering for sale containers containing less than the amount of oil represented thereon and he was threatened with prosecution for the collection of penalties by reason of such facts; that he was compelled to employ counsel to defend himself against such threatened prosecution at a substantial expense and that in addition his 'reputation as a merchant was greatly damaged.x - -•

The plaintiff bases his claim to a recovery under these circumstances upon certain sections of the Farms and Markets Law .(Cons. Law, ch. 69) of which those which are important may be summarized. Section 194 provides that in the case of such containers as these were r< the net quantity of the contents of each container, shall be plainly and conspicuously marked, branded or otherwise indicated on the outside or top thereof.” Section 188 provides; tfNo person * * * shall * * * knowingly deliver less of any * * * commodity or article of merchandise than the quantity he represents * * *. The delivery by any person of a lesser quantity of any commodity or article of merchandise than the quantity he represents is presumptive evidence of knowledge by such person that the quantity delivered was less than the quantity he represented.” Section 196 is entitled, “ Guaranty furnished by wholesaler, jobber or manufacturer,” and provides: “ The name appearing on the container and the marking as provided by next to the last preceding section [section 194] shall be deemed to constitute a guaranty.” The first question which we encounter is the one whether the plaintiff by his complaint has attempted to state a cause of action, exclusively based on the theory of a warranty, it being claimed by the defendant that he cannot succeed on such a theory because of lack of privity between him and the defendant, his purchases having been made not from the latter but from an intermediate dealer. While there is considerable basis for the claim that plaintiff did attempt to state such a cause of action and did with much frequency apply the terms warrant and warranty to the representations placed by defendant on the containers, I think that this was due to a confused and inexact use of words rather than to an intent to confine his cause of action to a technical theory of warranty. The complaint does set forth with fair accuracy and completeness the facts upon which plaintiff relies and T believe that the words referred to when interpreted in the light of all of the allegations of the complaint are to be construed as alleging that the defendant stated or represented for the purposes of sale within the statute that the containers held a certain amount of oil. It may be that under the provisions of section 196 already referred "to that The name appearing on the container and t'he marking as provided * * * shall be deemed to constitute a guaranty ” an action might be based upon warranty. But no reference is made to this section in support of the complaint and, therefore, its provisions do not tend to create any inference that the pleader was trying to state a cause of action in warranty rather than one based generally on a violation of the provisions which have been summarized.

Placing this construction upon the complaint we come to the second and more important question whether the statute confers a right of action upon an ultimate purchaser against the person who originally prepared for market and sold the containers with false labels or statements of their contents, even though there were intermediate dealers and no privity between the last purchaser and the first vendor. Of course no one doubts that the statute by express provision might give to an ultimate purchaser of falsely labeled containers however remote a right of action against the person who violated the statute by marketing them with false labels In the absence of such express provision, the question becomes one of the intent of the Legislature in passing the statute. If it was its intent to impose the duty defined in the provisions of a statute for the benefit of the general public and any member thereof who, as in this case, might be misled by false labels then, as we shall see, a right of action would be raised in behalf of such purchaser who had been injured by violation of the duty. It seems to me to be obvious that such was the intent of the Legislature in adopting this statute.

As one of its first provisions the Farms and Markets Law, of which the provisions which we have quoted are part, declares that The production, manufacturing, marketing, storing and distribution of food, and of all the instrumentalities used in the production thereof * * * are matters of public interest and proper subjects for investigation, encouragement, development and regulation by the State to secure an abundant supply of pure and wholesome food, to protect the health of the inhabitants of the State, to secure the exchange of such food and instrumentalities upon a fair basis * * * to prevent frauds in the traffic therein.” So here at the very outset we find a declaration, which really was almost unnecessary in view of the character of the statute, that it was for the protection of the inhabitants of the State.” Then many of the articles which follow this declaration deal solely with the subject of foods and the particular article in question associates with the provisions which we have quoted other provisions dealing with that subject. Thus under any sensible interpretation it clearly appears that in the enactment of the statute as a whole the Legislature had in mind the purpose of protecting the members of the public from fraud and misrepresentation in the character of foods and also in the quantities of foods and allied commodities which they might purchase which was all a matter of general concern. The provision of section 196 to which we have referred, whether it furnishes a basis for a technical action upon warranty or not, does indicate an intent that the duty and responsibility of a jobber or manufacturer should go with the article which he was labeling and marketing and follow it down through the line to the member of the public who finally purchased it for consumption or use. In fact, if the Legislature did not intend by these provisions to impose a duty upon the manufacturer which should persist in favor of an ultimate purchaser independent of any direct relation or privity the statute would be largely emasculated of possible benefits, for a purchaser of a falsely labeled container would have a right of action under ordinary principles of law against his immediate vendor. We ought not to assume that the Legislature intended to limit the duties of those violating such provisions as these by any technical rules of contractual privity but that it was intended to impose a broad and far-reaching duty which would be for the benefit of those general consumers who would be the real sufferers in health or pocket if the statute was violated. (Glanzer v. Shepard, 233 N. Y. 236; Martin v. Herzog, 228 N. Y. 164.) The fact that penalties are ordained for violations of course furnishes no argument against this conclusion. Civil responsibility and public punishment by common usage have .long since been established as appropriate and complementary associates.

Holding then that this statute was passed for the benefit and protection of the general public and that it imposed upon one like the defendant a duty to the public and each member thereof, it is as we have already indicated well settled that such an one who has suffered from a disregard and violation of the duty has a cause of action for his damages against the one who has disregarded his duty. From the duty and its violation there is implied a cause of action in favor of the one for whose benefit the duty was imposed and who has been injured by its violation. No element of ordinary negligence is essential. Violation becomes actionable default.

This rule is so general and well established that it is not subject to debate or question and only a few authorities need be cited which affirm and apply it. So far as concerns text books it has been stated in Cooley on Torts (Vol. 2 [3d ed.], p. 1408) it is sufficient to say of the authorities that they recognize the rule as a general one that when the duty imposed by the statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by the breach of the duty, will supply a remedy if the statute gives none.” (See, also, 1 Shearman & Redfield on Negligence [6th ed.], secs. 13, 13-a.) In our own court it was said in Willy v. Mulledy (78 N. Y. 310) where a statute providing for fire escapes had been violated: “ Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire-escape, and the duty was imposed for the sole benefit of the tenants of the house, so that they would have a mode of escape in case of a fire. For a breach of this duty causing damage, it cannot be doubted that the tenants have a remedy. It is a general rule, that whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of such duty causing damage gives a. cause of action,” and to like effect Pauley v. S. G. & L. Co. (131 N. Y. 90). In Amberg v. Kinley (214 N. Y. 531) where this subject was discussed and the authorities reviewed it was said: “ Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense must to a great extent depend on the purview of the Legislature in the particular statute and the language which they have there employed,” and in that case it was held that failure to observe a statute relating to fire escapes gave a cause of action to one injured by such failure. (See, also, Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39.)

While it is true that some or all of the cases last cited were actions to recover for personal injuries, we see no reason to differentiate those cases from one like the present in the application of this general rule. In principle it makes no difference whether the person seeking damages has been injured in his person or in his property rights in the application of a statute which was passed for the purpose of protecting him against the violation complained of, and the following cases, in. which the rule was directly or indirectly applied, did not spring out of personal injuries. (Meshbesher v. Channellene Oil, etc., Co., 107 Minn. 104; Mazetti v. Armour & Co., 75 Wash. 622; Tomlinson v. Armour & Co., 75 N. J. Law, 748; Trafton v. Davis, 110 Me. 318; Ives v. Welden, 114 Iowa, 476.)

Finally we come to the items of damages alleged by plaintiff and which it is said are not recoverable as the proximate result of defendant’s violation even though under other circumstances a cause of action might exist. We pay no attention to the very general and figurative allegation of damages claimed to have been suffered by plaintiff in his business as the result of his purchase of the falsely labeled containers. That claim does not seem to be urged with any emphasis upon this appeal and if pressed on the trial it can be properly disposed of. But we see no reason why plaintiff should not be allowed to establish if he can his expenditure for legal services employed for the purpose of extricating him from a liability for penalties based on the fact that" he had these falsely labeled containers in his possession. By reason of his position he was threatened with prosecution for penalties and it certainly was a matter of reasonable prudence to employ counsel either to defend against or procure an adjustment of this claim and thus his reasonable expense in that respect became a proximate result of defendant’s violation of the statute and default.

We think that the order appealed from should be affirmed, with costs.

The first question certified is answered in the affirmative. The' other questions are not answered.

Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur; Lehman, J., absent.

Order affirmed, etc.


text:
    In the Matter of the Probate of the Will of Wilhelmina Staiger, Deceased. Julia Stretz et al., Appellants; Frank V. Baldwin, as Executor, et al., Respondents.
    Will — probate — evidence — legal presumption that will that cannot be found on death of testator has been destroyed with intent to revoke — presumption must be overcome by adequate proof in order to establish lost or destroyed will — not sufficient to show opportunity of interested person to destroy — testimony of alleged statements of decedent, to establish existence of will at her death, incompetent.

      1. Before a lost or destroyed will can be admitted to probate there must be evidence to justify a finding that the will was in existence at the time of a testator’s death or was fraudulently destroyed in his lifetime. (Surr. Ct. Act, § 143.) If a will, shown once to have existed and to have been in the testator’s possession, cannot be found after his death the legal presumption is that he destroyed it animo revocandi and this presumption stands in the place of positive proof. One who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient to show that a person interested to establish the intestacy had an opportunity to destroy a will. He must go further and show by facts and circumstances that the will was actually fraudulently destroyed.
    2. In a proceeding for the probate of a lost or destroyed will, testimony as to alleged declarations of the decedent, prior to her death, attempting to establish the existence of her will at her death, is incompetent and the admission thereof in evidence error.
    (Argued October 5, 1926;
    decided November 16, 1926.)

      {Matter of Kennedy, 167 N. Y. 163, followed.)

      Matter of Staiger, 217 App. Div. 743, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 25, 1926, which affirmed two orders of the New York County Surrogate’s Court and modified and affirmed as modified a decree admitting to probate an alleged lost or destroyed will.

      Martin Conboy, Henry Schoenherr and Henry T. Hall for appellants.
    There is no evidence in this record sufficient to support a verdict that the will of Wilhelmina Staiger was either in existence at the time of her death or had been fraudulently destroyed prior thereto, and the case was, therefore, improperly submitted to the jury. (Matter of Cunnion, 201 N. Y. 123; Betts v. Jackson, 6 Wend. 173; Knapp v. Knapp, 10 N. Y. 276; Matter of Kennedy, 167 N. Y. 163; Collyer v. Collyer, 110 N. Y. 481; Matter of Ascheim, 75 Misc. Rep. 434.) The testimony as to alleged declarations of Mrs. Staiger prior to her death to establish the existence of the will at her death was incompetent, and the admission thereof in evidence was erroneous. (Kennedy v. Kennedy, 167 N. Y. 163; Throckmorton v. Holt, 180 U. S. 552; Dilleber v. Home Ins. Co., 69 N. Y. 256; Schultz v. Union Ry. Co., 181 N. Y.33; Martin v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 626; Middleworth v. Lowery, 89 App. Div. 418; Rothenberg v. Filarsky, 30 Misc. Rep. 610.)

      Sol. A. Hyman and Victor E. Whitlock for executor, respondent.
    There is ample evidence to support the verdict of the jury to the effect that the will was not revoked, that it was fraudulently destroyed, was in existence at the time of the decedent’s death, and was lost after the death of the decedent. (Matter of Hopkins, 73 App. Div. 563; Sugden v. Lord St. Leonards [L. R. 1 P. D.], 154.)

      Maurice Bloch for Vera S. Higgins, respondent.
    There was sufficient evidence to sustain the verdict of the jury. (Dowling v. Hastings, 211 N. Y. 199; Meyer v. Mayo, 196 App. Div. 78.)
   McLaughlin, J.

On the 12th of May, 1923, Wilhelmina Staiger made her last will and testament, in which Frank V. Baldwin was named as executor. The will was drawn by Judge Lorenz Zeller, and he and his wife were the attesting witnesses. Mrs. Staiger died on the 6th of November, 1923. At and for some time prior to her death she owned a house located at 11 East One Hundred and Twenty-eighth street, New York city, which was occupied by herself and her daughter, Julia Stretz, and family. Mrs. Stretz was her only next of kin and heir at law.

There were two safes in the house — a wall safe in a closet in the bedroom on the second floor which was occupied by the decedent, and a safe in a room adjoining the bedroom. A short time before Mrs. Staiger’s death she had a conversation with Judge Zeller as to her will and, according to his testimony, she stated to him: “ * * * my son-in-law I think has got the combination tb the safe. * * * I have taken my will out of the safe and put it in the vault in the wall, which is a kind of a safe, and I am the only one that has a key to that.” This testimony was objected to; objection overruled, and exception taken.

The witness Perschke, brother of the testatrix, testified that a few days before the death of decedent she said to him that she had made a will and that it was in “ a place where neither Julia nor Frank, meaning her daughter or son-in-law, had any key to reach it to get out that will.” This testimony was also objected to; objection overruled, and exception taken.

The safes in the house were opened after the death of Mrs. Staiger but the will could not be found, nor was any will ever found notwithstanding the fact that a thorough search was made by a messenger from the surrogate’s office, an assistant to Judge Zeller, and a representative of the State Tax Commission.

Some time after decedent’s death, a petition was presented to the Surrogate’s Court which set up the making of the will and then alleged that it was either lost or destroyed by some one other than the testatrix, and asked that a copy of the will be admitted for probate. The probate of such paper was contested. A jury was called and it found in favor of the proponents. On appeal, the Appellate Division affirmed (two of the justices dissenting) the decree of the Surrogate’s Court admitting the copy to probate on the ground that the original will had been lost or destroyed by some one other than the testatrix. The contestants appealed to this court.

I am of the opinion that the order of the Appellate Division and the decree of the Surrogate’s Court must be reversed and case remitted to Surrogate’s Court for new trial.

There is no evidence whatever that the will of the testatrix was either in existence at the time of her death or that it had been fraudulently destroyed prior thereto.

One clause of the will disinherited the daughter and this fact undoubtedly influenced the jury in its verdict. But a mere suspicion, coupled with an opportunity, that the daughter either acting for herself or some one acting in her behalf, destroyed the will is not evidence of that fact. Before a lost or destroyed will can be admitted to probate there must be evidence to justify a finding that the will was in existence at the time of a testator’s death or was fraudulently destroyed in his lifetime. (Surrogates’ Court Act, sec. 143.) If a will, shown once to have existed and to have been in the testator’s possession, cannot be found after his death the legal presumption is that he destroyed it animo revocandi. (Collyer v. Collyer, 110 N. Y. 481; Matter of Cunnion, 201 N. Y. 123; Matter of Kennedy, 167 N. Y. 163; Knapp v. Knapp, 10 N. Y. 276.) There is no proof that Mrs. Staiger destroyed her will, but when a will previously executed cannot be found after the death of a testator there is a strong presumption that it was revoked by the testator and this presumption stands in the place of positive proof. One who seeks to establish a lost or destroyed will' assumes the burden of overcoming this presumption by adequate proof. It is not sufficient to show that a person interested to establish the intestacy had an opportunity to destroy a will. He must go further and show by facts and circumstances that the will was actually fraudulently destroyed. (Collyer v. Collyer, supra.)

The testimony, as to the alleged declarations of Mrs. Staiger prior to her death, attempting to establish the existence of the will at her death was incompetent and the admission thereof in evidence constituted error. That such declarations were not admissible was decided by this court in Matter of Kennedy (supra). (See, also, Throckmorton v. Holt, 180 U. S. 552.)

The decree and the orders appealed from should be reversed and the case remitted to the Surrogate’s Court for a new trial, with costs in all courts to abide the event.

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

Ordered accordingly.


text:
    William R. Harmon, Appellant, v. Alfred Peats Company, Respondent.
    (Argued September 27, 1926;
    decided November 16, 1926.)
    Pleading — bill of particulars — Frauds (Statute of) — limitation of actions — bill of particulars an amplification of a pleading — does not make complaint bad or answer good — does not cure omission to plead defense of Statute of Frauds — such defense not applicable to action to recover on quantum meruit —■ Statute of Limitations not applicable, in action to recover balance due for services partly rendered during period less than six years before commencement of action, where interest is demanded only from date after termination of work.
    1. A bill of particulars is an amplification of a pleading, but has not, when served after service of an answer, the same effect as if the allegations had been inserted in the complaint before answer. It does not, in such circumstances, make the complaint bad or the answer good, nor does it cure the defendant’s omission to plead the defense of the Statute of Frauds or nullify tho waiver or abandonment of that defense to be inferred from such omission. It serves merely to explain and make definite the allegations set forth in the pleading and thus limits the proof to be offered at the trial.
    2. Where a complaint is framed in a double aspect and is broad enough to permit a recovery on an express contract or on quantum meruit, treating the action as one to recover on the latter ground, the Statute of Frauds could not apply.
    3. In an action to recover a balance alleged to be due for services rendered during a period commencing more but ending less than six years prior to the commencement of the action, where interest is demanded from the first of the month following termination of the services, the Statute of Limitations does not apply.

      Harmon v. Peats Co., 216 App. Div. 368, reversed.
    Appeal from a judgment, entered March 15,1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and granted said motion.

      Claude L. Gonnett for appellant.
    The Statute of Frauds, not having been pleaded, is not an issue upon which defendant may obtain judgment. (Matthews v. Matthews, 154 N. Y. 288; Harris v. Shorall, 230 N. Y. 343; Seamans v. Barentsen, 180 N. Y. 333.) The Statute of Frauds, had it been properly pleaded, would not constitute a defense. (Levy v. McCartee, 6 Pet. [U. S.] 102; Kent v. Kent, 62 N. Y. 560.) The Statute of Limitations, whether pleaded or not, affords no ground for dismissing the complaint upon the pleadings. (Code Civ. Pro. § 413; Ramme v. Long Island R. R. Co., 226 N. Y. 327; Civ. Prac. Act, §§ 30, 242; Murdock v. Waterman, 145 N. Y. 55; Crown v. Gleason, 141 N. Y. 489.)

      Almet Reed Latson for respondent.
    The bill of particulars- was properly considered on this motion and it was not necessary for the defendant to plead the Statute of Frauds or the Statute of Limitations before making this motion. (Dwight v. Germania Life Ins. Co., 84 N. Y. 493; Herx & Eddy, Inc., v. Carlson, 210 App. Div. 417; All American Securities Co., Inc., v. Foundation Co., 211 App. Div. 684; Seamans v. Barentsen, 180 N. Y. 333; Magee v. Fish, 175 App. Div. 125; Garfunkle v. Malcolmson, 217 App. Div. 632.)
   McLaughlin, J.

This action was brought to recover the value of work, labor and services. The complaint alleged that “ heretofore and during the years 1916 and 1923, plaintiff at defendant’s request performed certain work, labor and services at the agreed price of the reasonable value of seventy thousand ($70,000) dollars, which the defendant promised and agreed to pay; ” that the same had not been paid or any part thereof except $56,500 and there remained due the balance of $13,500 with interest thereon from the first day of August, 1923, for which sum judgment was demanded.

The answer was substantially a general denial. After it had been interposed the defendant demanded a bill of particulars and such demand was complied with. The bill of particulars stated that the services were performed by the plaintiff and that the same were rendered “ during the period commencing in July, 1916, and ending July, 1923; that the agreement to pay was made in Chicago where the services were principally performed. After the bill of particulars had been served the .defendant moved, under section 476 of the Civil Practice Act, on the complaint, answer and bill of particulars, for judgment dismissing the complaint. The motion was denied and an appeal from the order denying the same was taken to the Appellate Division where the order was reversed and the motion granted. Appeal to this court followed.

The respondent contended that the action could not be maintained since the cause of action attempted to be set forth was barred by the Statute of Frauds and also by the Statute of Limitations.

The court at Special Term held that the facts showing that the cause of action was thus barred were not set forth in the answer and, therefore, no ground was presented on the motion for judgment on the pleadings which justified a dismissal of the complaint. The Appellate Division, however, held that the invalidity of the contract sued on appeared from the complaint itself when read in connection with the bill of particulars; that the defense of the Statute of Frauds or the Statute of Limitations could be raised by demurrer or, under the Civil Practice Act, by motion for judgment on the pleadings as amplified by the bill of particulars; that on such motion the complaint and the bill of particulars must be read together and, when so read, they are deemed to constitute one pleading; that the contract, taking the allegations of the complaint and the allegations of the bill of particulars, showed that it was an oral one and, therefore, could not be enforced.

The Appellate Division, as appears from the opinion delivered, misapprehended the purpose and object of a bill of particulars. It has many times been held that a bill of particulars is an amplification of á pleading. This does not mean, however, that a bill of particulars served like this one after service of an answer has the same effect as if the allegations had been inserted in the complaint before answer. A bill of particulars in such circumstances does not make the complaint bad or the answer good. It does not cure the defendant’s omission to plead the defense of the Statute of Frauds or nullify the waiver or abandonment of that defense to be inferred from such omission. It serves merely to explain and make definite the allegations set forth in the pleading and thus limits the proof to be offered at the trial. (Matthews v. Hubbard, 47 N. Y. 428.) The authorities cited in the opinion of the Appellate Division have no application to the question here presented.

The complaint in the present case is framed in a double aspect. It is broad enough to permit a recovery on an express contract or on quantum meruit. So far as a contract is concerned, the Statute of Frauds or the Statute of Limitations would be relevant but not if a recovery be sought on quantum meruit. Treating the action as one to recover on quantum meruit the Statute of Frauds could not apply.

According to the allegations of the complaint, as explained by the bill of particulars, the services were rendered during the period commencing in July, 1916, and ending July, 1923. Interest is demanded from the first of August, 1923. The Statute of Limitations, therefore, does not apply.

It follows that the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

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

Ordered accordingly.


author: Lehman, J.

text:
    East New York Electric Company, Respondent, v. Petmaland Realty Company et al., Appellants, Impleaded with Others.
    (Submitted October 5, 1926;
    decided November 16, 1926.)
    Contract — conditional sale — lien — vendor’s rights under contract of conditional sale defined by its terms — regardless of intent personal property ordinarily does not retain its character when attached to real property so it cannot be removed without its destruction or injury to building — no lien upon real property in absence of stipulation in contract.
    1. A vendor’s rights under a contract of conditional sale are defined by the terms thereof and intent, as evinced thereby, may control the result which would ordinarily flow from the manner in which personal property is attached to realty, subject ordinarily to the limitation that, regardless of intent, personal property does not retain its character as such when attached to real property in such manner that it cannot be removed without practically destroying it or when it is essential to the support of that to which it is attached. This limitation upon the effect which may be given to a contract of conditional sale cannot result in the creation of a lien on, or interest in, the real property not created by grant, principle of common law or statute.
    2. Where, therefore, a contract to furnish and install electric wiring and fixtures upon real property provided “ title to goods to vest in vendor until fully paid for in cash,” and, in an action by the vendor to impress a lien upon the real property for an amount due under the contract, the court has found that the wiring and fixtures furnished have been attached to and become a part of the building from which they cannot be removed without substantial injury, in the absence of a provision in the contract stipulating for a lien upon the real property, a conclusion of law that by the filing of the contract and furnishing of the goods the vendor acquired such a hen, is erroneous. No such hen exists under the common law and none has been created by statute.

      East N. Y. Electric Co. v. Petmaland Realty Co., 214 App. Div. 730, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 15, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      Theodore Baumeister and David E. Goldfarb for appellants.
    The failure to file its agreements prior to the advances on the mortgage precludes respondent from asserting any rights against the appellants. (Pers. Prop. Law, chap. 45, § 62; East New York Refrigerator Co. v. Halpern, 140 App. Div. 201; McCloskey v. Henderson, 231 N. Y. 130; De Bevoise v. Maple Ave. Construction Co., 228 N. Y. 496.)

      Bernard Breitbart for respondent.
    The plaintiff acquired a lien on the realty. And the judgment properly directed a.sale thereof to satisfy the same. (East New York Refrigerator Co. v. Halpern, 140 App. Div. 201; Peabody, Jr., & Co., Inc., v. Travelers Ins. Co., 240 N. Y. 511.)
   Lehman, J.

The plaintiff had made two contracts in the autumn of the year 1921 with Petmaland Realty Co., Inc., whereby the plaintiff agreed to furnish and install electric wiring and electric fixtures upon real property belonging to Petmaland Realty Co., Inc. Each contract provided that title to goods to vest in vendor until fully paid for in cash. If said property is retaken by vendor, sums paid thereon shall be deemed to have been paid for use, wear and tear.” After the plaintiff had fully or substantially performed its contracts, and the defendant had failed to pay the agreed price of $560 which was due under the contracts, the plaintiff brought this action asking, among other things, that the court “ adjudge and decree that the plaintiff has a valid and subsisting lien upon the real property above described for the sum of $560,” and that the said premises may be decreed to be sold according to law.” There is no- allegation in the complaint which would show that the plaintiff has a mechanic’s lien upon the real property of the defendants or that the plaintiff has complied with the provisions of the Lien Law (Cons. Laws, chap. 33) in regard to the creation or enforcement of such liens. The complaint alleges, and after the trial the court found, that the electric wiring and electrical fixtures so furnished by the plaintiff upon the real property above described, were attached and annexed to, and became part of the real property above described, and became part, parcel and fixture of the same, and that the same could not and cannot be detached from the said real property without substantial injury to the building.” From the findings of fact made at the trial, the court drew the conclusion of law that by the filing of the said conditional agreements and by the furnishing of the said electrical wiring and electrical fixtures, the plaintiff acquired and now has a good and valid lien upon the real property above described and against all the right, title and interest of the defendants.”

The statutory provisions regulating Contracts for the conditional sale of goods and chattels,” now article 4 of the Personal Property Law (Cons. Laws, chap. 41), do not in terms or by fair intendment create any new rights in the vendor under a contract of conditional sale. The vendor’s rights under the contract are defined by the terms of the contract itself, subject, however, to the provisions of the statute that every such contract for the conditional sale of any goods and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incmnbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed as directed in this article,” etc. (Personal Property Law, section 62.) We need not now decide whether upon this appeal we may review the correctness of the so-called finding of fact, which has been unanimously affirmed, that all the defendants except the defendant Petmaland Eealty Co., Inc. *. * * have or claim to have some interest or lien upon the premises above mentioned, which interest or hen has accrued subsequently and is subject, subordinate or secondary to the lien of the plaintiff herein.” We assume for the purposes of this appeal that any right or title which under the contract of conditional sale was reserved by the vendor in the personal property furnished by the plaintiff and attached to the real property, may still be enforced, though defendants other than the vendee subsequently may have acquired an interest in the real property. Here the plaintiff is not claiming title to the personal property or seeking to enforce rights to it. It is claiming and has, by judgment of the courts below, been awarded a lien upon the real property to which the personal property has been attached. The vendor has not by contract stipulated for such lien and the statute has not created such lien in the real property.

Unquestionably if the personal property had not been attached to the real property in such manner that it became an integral part thereof, the. plaintiff would still retain title to the personal property under the terms of the contract of sale, and would have the right to resume possession of it. The contract of conditional sale of personal property which is to be attached to real property evinces conclusively and as matter of law the intent of the parties that the property should remain personal property until it was paid for. This intent may control the result which would ordinarily flow from the manner in which the personal property is attached to the real property, and “ the character of the article as personal property [may] be preserved not only as against the vendee but, also, in the absence of statutory provision, as against the mortgagee, owner and, under certain circumstances, the subsequent grantee of the real estate.” (Davis v. Bliss, 187 N. Y. 77. See, also, DeBevoise v. Maple Avenue Construction Co., 228 N. Y. 496; McCloskey v. Henderson, 231 N. Y. 130.) The opinions in these cases indicated a limitation to the general application of the rule, viz., that regardless of intent, personal property does not retain its character as personal property when attached to real property in such manner that the property could not be removed without practically destroying it, or where it or part of it is essential to the support of that to which it is attached.” (DeBevoise v. Maple Avenue Construction Co., supra.) Except for such limitation, the plaintiff would still retain its title to the property, and could demand its return; and if its demand be refused, could sue for the conversion of its property. If such limitation applies to the circumstances of the present case the result will be that the plaintiff has lost its title to the personal property, just as any other owner of personal property loses title to his property when he attaches it to real property in such manner that as a matter of law it loses its character of personal property, regardless of the, intent with which it was attached. The limitation upon the effect which may be given to the contract of conditional sale cannot result in the creation of a lien on, or interest in, the real property not created by grant, principle of common law, or statute. Here no lien on real property was created by grant. The contract of sale merely provided for retention of title. No hen on the real property exists under the common law, and no such hen is created by the statute. It fohows that the judgments should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


text:
    Rapid Fireproof Door Co., Inc., Appellant, v. Largo Corporation, Respondent, Impleaded with Another.
    (Submitted October 5, 1926;
    decided November 16, 1926.)
    Lien — mechanic’s lien — real property — election — filing of notice of lien not an election to abandon title contractor may still have in materials furnished —■ notice of lien referring to unattached materials as previously “ furnished ” results in no transfer of title — foreclosure of prior mortgages — purchaser at sale obtains title only to property covered thereby — use by purchaser of unattached materials on ground in completion of building — contractor may have new lien for value, of material so used.
    1. The filing of a notice of lien does not'constitute an election by a contractor to abandon other rights which he may have to recover a money judgment nor does it constitute an election to abandon any title he may still have in materials furnished and regard them as annexed to the rqal property. An assertion therein that the materials have been furnished for the improvement of the real property is not to be construed as an assertion that they have been installed in and become a part thereof.
    2. Where, therefore, at a time when part of the material to be furnished by plaintiff under a contract had been actually installed in and attached to a building, and part was still lying on the ground, it filed a notice of lien and thereafter two prior mortgages upon, the property were foreclosed and the purchaser at the foreclosure sale proceeded to complete the building and used therein the material delivered by plaintiff which had not been attached, the notice of lien resulted in no transfer of title to the unattached materials, because they were described therein as previously “ furnished.” The judgment of foreclosure merely wiped out any lien which might otherwise have resulted from the filing of the notice and the purchaser at the sale obtained title to the real property covered by the mortgages, and to nothing else.
    3. A new notice of hen for the value of the materials so taken is, therefore, valid. Failure by plaintiff to remove the materials did not constitute an abandonment thereof and defendant having taken them cannot be heard to say that they were not furnished to him with his consent or at his request.

      Rapid Fireproof Door Co. v. Largo Corporation, 216 App. Div. 395, reversed.

      Appeal from a judgment, entered April 20, 1926, upon an order of the Appellate Division of the Supreme Court in the second 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.

      Hyman J. Reit and Seth V. Elting for appellant.
    Title to the materials upon the ground but not attached to the building remained in the plaintiff after the foreclosure sale to the defendant. (Warner Elevator Manufacturing Co. v. Capitol Investment Building & Loan Assn., 127 Mich. 323; Perkins v. Golden Girl, 185 Mich. 200; Arctic Ice Machine Co. v. Armstrong Co. Trust Co., 192 Fed. Rep. 114; Hoover, Owens & Rentschler Co. v. Featherstone’s Sons, 111 Fed. Rep. 81; Otis Elevator Co. v. Stafford, 95 N. J. L. 79; Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207.) The first alleged lien was invalid and of no effect, since it was not upon the premises in question. The lien was valid against the premises for the materials used and attached by the defendant. (Woelreich v. Fetiretch, 4 N. Y. Supp. 326; Pope v. Heckscher, 109 App. Div. 495; Tiley v. Thousand Island Hotel Co., 9 Hun, 424: Husted v. Mathes, 77 N. Y. 388; National Wall Paper Co. v. Sire, 163 N. Y. 122; Burger’s Metal C. & F. Co., Inc., v. Farmers’ L. & T. Co., 170 N. Y. Supp. 934; Schummer v. Clark, 107 App. Div. 207.)

      Edward A. Brown for respondent.
    The lien in suit is void. Plaintiff filed a prior lien which covered the identical material as the lien in suit. Thereafter it was made a party defendant in an action to foreclose a prior mortgage. In this action it appeared and interposed an answer asserting its lien in an attempt to enforce it. Appellant thereby elected its remedy, and the judgment of foreclosure and sale subsequently entered forever cut off appellant’s rights, and it is concluded thereby. The purchaser at the foreclosure sale took title to the material free from any claim of plaintiff. (Rapid Fireproof Door Co. v. Largo Corp., 216 App. Div. 395; American Woolen Co. v. Samuelson, 226 N. Y. 61; Sears v. Wise, 52 App. Div. 118; Giant Portland Cement Co. v. State, 232 N. Y. 396; Shipley Co. v. Magee, 165 App. Div. 866; 221 N. Y. 679.)
   Lehman, J.

The plaintiff in this action seeks to establish and foreclose a mechanic’s lien upon real property owned by the defendant Largo Corporation, for materials which have been used by the defendant in the erection of a building. A judgment in favor of the plaintiff has been reversed by the Appellate Division and the complaint dismissed. That court has held that the plaintiff did not furnish these materials “ with the consent or at the request of the owner thereof [of the premises],” and that consequently there is no basis for a claim of statutory lien. (Lien Law [Cons. Laws, chap. 33], section 3.)

The case presents a somewhat unusual situation. On the 2d day of May, 1922, the plaintiff entered into a contract with the Norab Realty Co., Inc., to furnish and install certain materials in a theatre which the Norab Realty Co. was erecting or was about' to erect on the premises upon which the plaintiff now claims a lien. The plaintiff proceeded to furnish materials and performed labor under its contract. On the 7th day of July, 1922, it filed a notice of lien upon the real property of the Norab Realty Co. The notice of lien shows that at that time the plaintiff had not fully completed its contract. Some material called for by the contract had not yet been furnished, and some labor had not yet been performed. It appears from the testimony produced at the trial that part of the material furnished by the plaintiff under its contract had been actually installed in and attached to the building, while part was still lying on the ground. In September, 1923, two actions were begun to foreclose mortgages upon the real property. This plaintiff was made a party defendant in each action, and filed its answer therein, but the answer was stricken out upon motion, and judgment of foreclosure entered. The judgment constituted an adjudication that the present plaintiff had no lien upon the real property which was not inferior to the mortgages under foreclosure. The title of the defendant Largo Corporation is derived from a sale held pursuant to the judgment of foreclosure in these actions. That title is undoubtedly free from any lien for materials previously furnished by the plaintiff with the consent or at' the request of a previous owner whose title was subject to the mortgages which have been foreclosed; but the title of the new owner may obviously be subjected to a lien thereafter, if as such owner it, in turn, by consent or request, takes part in subsequent improvement of its property.

In the present case the defendant, having purchased real property with an unfinished building, proceeded to complete the building. The materials delivered and furnished by the plaintiff upon the premises, pursuant to contract with the earlier owner, but which had not been attached to the building, were used by the defendant in this work. The plaintiff thereupon filed a new notice of lien for the alleged value of the materials so used by the defendant in the improvement of its building. The action has been brought to foreclose such hen.

Undoubtedly- the plaintiff originally furnished the materials, included in this new notice of hen; under its contract with the Norab Realty Co., Inc., for the improvement of the property, and the earlier notice of hen upon the real property of that corporation included the value of the materials for which plaintiff now seeks payment. The defendant who now owns the property had nothing to do with the original contract for the improvement of the building, and is not responsible for the value of any labor performed or materials furnished pursuant thereto. The plaintiff does not claim that it has delivered any materials upon the premises since the original contract was terminated and this defendant became the owner of the property. The judgment of dismissal determines that though the defendant has used the materials furnished by the plaintiff for the improvement of the premises, they were not furnished with this defendant’s consent or at its request, and, therefore, the plaintiff has no hen on defendant’s property.

This conclusion is undoubtedly sound if the plaintiff no longer had any title to the materials at the time the defendant used them in the completion of its building. It is not claimed that the plaintiff lost title to the materials merely by bringing them upon the premises with the purpose of thereafter using them in the improvement of real property. These materials lost their character of personal property, and the plaintiff parted with his title to them, only if they became actually or constructively attached to the real property. Though the defendant purchased the real property covered by the mortgages under foreclosure, and took title free from any subordinate lien thereon, the defendant obtained no title to personal property which happened to be on the premises and which was not covered by the mortgages. Title to the materials not at that time physically attached to the real property was not changed by the sale under foreclosure unless the previous notice of hen had resulted in some manner in a constructive attachment. The first question we must consider upon this appeal is whether the filing of hen had such effect.

The statute was intended to give contractors who improved real property and thereby added to its value with the consent or at the request of the owner, an interest in the property improved. (Schaghticoke Powder Co. v. Greenwich, etc., Ry. Co., 183 N. Y. 306.) Enforcement of the statutory hen provides a method by which the contractor may compel payment for benefit received. It is not an exclusive remedjq nor does a contractor, by filing a notice of lien, lose his right to recover in an action on contract. Indeed, the statute specifically provides that if the lienor shall fail, “ for any reason,” to establish a valid lien in an action under the provision of the statute he may recover judgment even in that action for such sums as are due him or which he might recover in an action on a contract. (Section 54.) It follows that the filing of a notice of lien cannot possibly constitute an election by the contractor to abandon other rights which he‘might have to recover a money judgment, but it is urged that it does constitute a binding and irrevocable election by the contractor to abandon any title he may still have in the materials furnished, and to regard them as annexed to the real property.

No relevant precedent or authority has been cited to us in support of this contention, and there is nothing in the language of the statute which shows an intent on the part of the Legislature to compel a lienor to abandon any right or title to materials he has furnished before he may avail himself of the statutory provisions enacted for his protection. Reason might perhaps be advanced why a judgment which results in the creation of an interest in the real property on the ground that a contractor has furnished materials for the improvement of the property should be given the effect of an adjudication that in fact the materials have been incorporated in such improvement. We do not deal with that situation, and do not pass upon its consequences. In that case the contractor would at least have acquired an interest in real property in exchange for his title to personal property. Here the contractor has obtained nothing. The plaintiff has merely attempted to exercise a statutory right. It has given notice of claim to statutory lien, but attempt to enforce the Hen has proven abortive. It has asserted that certain materials have been furnished under a contract for the improvement of the real property. It has in fact never annexed some of these materials to the real property, and its assertion that the materials were furnished is not to be construed as an assertion that they have been installed in and become part of the real property. The Lien Law does not require a contractor to complete the contract before he files his notice of lien. On the contrary, it provides expressly that “ notice of lien may be filed at any time during the progress of the work and the furnishing of the materials.” (Section 10.) The notice must in appropriate cases include a statement of “materials actually manufactured for but not delivered to the real property.” (Section 9.) Other provisions of the statute might be cited to support the inference that the Legislature did not intend that mere fifing of notice of lien would itself result in conversion of personal property into real property; and in transfer of title from the owner of the personalty to the owner of the real property. Enumeration of difficulties arising from other construction seems superfluous. We conclude that the notice of lien in this case resulted in no transfer of title to the materials which the notice described as previously “ furnished.” The plaintiff owned them at that time. It continued to own them thereafter. The judgment of foreclosure merely wiped out any lien which might otherwise have resulted from the fifing of notice. The purchaser at the foreclosure sale obtained title to the real property covered by the mortgages, and to nothing else. The defendant acted wrongfully when it took the plaintiff’s personal property and annexed it to its real property.

The question still remains whether these circumstances give rise not only to a right of action in favor of the plaintiff against the defendant, but also to a lien upon the defendant’s property for the value of the property so taken. The lien exists if the plaintiff “ furnished ” the materials “ with the consent or at the request of the defendant owner.” We have pointed out that the plaintiff originally furnished ” them upon the request of the Norab Realty Co., Inc., without defendant’s consent or request. Thereafter the plaintiff stopped work on its contract because of the fault of the Norab Realty Co., Inc. It had the right to take away the materials it had previously furnished.” If it had done so, it could have “ furnished ” the same materials to this defendant or any other person. Its failure to remove the materials did not in any way constitute an abandonment of its control over them, and the defendant did not so understand. The defendant took the plaintiff’s materials; the defendant used them in the improvement of its real property. The plaintiff undoubtedly could waive the tort and sue the defendant for the value of the materials in an action for goods sold and delivered. (McGoldrick v. Willits, 52 N. Y. 612.) The defendant, having taken the plaintiff’s materials, cannot well urge that the materials so taken were not “ furnished ” to him by the plaintiff, and if “ furnished ” to him by the plaintiff and used by him in the improvement of his real property, the defendant certainly cannot be heard to say that they were not furnished with bis consent or at his request.

Judgment of the Appellate Division should, therefore, be reversed and the judgment of Special Term affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.