text:
    Albert S. Allen, Jr., et al., as Administrators of Albert S. Allen, Deceased, Respondents, v. General Electric Company et al., Appellants.
    (Argued June 11, 1925;
    decided July 15, 1925.)

      Negligence — death from short circuit due to failure to remove packing blocks from transformer--manufacturer liable for failure to give notice and installer for failure to properly inspect.

      Allen v. General Electric Co., 211 App. Div. 834, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 5, 1925, modifying and affixming as modified a judgment in favor of plaintiff■ entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Intestate was killed as a result of a short circuit of electricity in new transformers just installed by the Niagara Falls Power Company in its switching tower at North Tonawanda. It is claimed that the short circuit was due to the presence of wooden packing blocks placed in these transformers by the defendant General Electric Company, the manufacturer, to protect the coils of the transformers against damage in transit, and which defendant Niagara Falls Power Company had failed to remove before turning on the current. The manufacturer was held hable for failure to give notice of the placing of the blocks within the transformer and the installing company for failure to properly inspect before turning on current.

      Welles V. Moot for General Electric Company, appellant.

      Franklin D. L. Stowe for Niagara Falls Power Company, appellant.

      Hamilton Ward for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane and Lehman, JJ. Absent: Pound, J. Not sitting: Andrews, J.


source: Caselaw Access Project

license: Public Domain

text:
    A. Sidney Davison Coal Company, Inc., Appellant, v. Weston, Dodson & Company, Inc., Respondent.
    (Argued June 11, 1925;
    decided July 15, 1925.)

      Contract — sale — Statute of Frauds — when evidence of alleged oral extension of time for delivery should he excluded.

    -Damson Coal Co., Inc., v. Weston, Dodson & Co., Inc., 209 App. Div. 514, affirmed.
    Appeal from a judgment, entered June 27, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of pla ntiff upon its second cause of action, entered upon a verdict and directing a dismissal of the complaint as to said cause of action which arose out of a contract, confirmed in writing, whereby the plaintiff sold to the defendant 10,000 tons of coal to be delivered at a specified rate per day beginning at once. The complaint alleged that- after part of the coal had been delivered and paid for, it was agreed by and between the plaintiff, and the defendant that the time for the delivery of the balance of said coal, to wit, 3,109 tons, was to be extended to December 1st, 1920, at which time it was duly tendered by the plaintiff and refused by the defendant. The answer denied the alleged extension and pleaded the Statute of Frauds. The Appellate Division held that evidence of the alleged oral extension of time to perform should have been excluded, and for failure to show performance within the written contract time the complaint should have been dismissed.

      Leander I. Shelley, Harold B. Medina and Jacob M. Krane for appellant.

      Chauncey Belknap and T. T. Cooke for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bell Fireproofing Company, Respondent, v. Manufacturers Trust Company, Appellant.
    (Submitted June 12, 1925;
    decided July 15, 1925.)

      Banks and banking —• action to recover balance — checks drawn by treasurer of plaintiff to order of one of its creditors and deposited to personal account with defendant on forged indorsement not chargeable against plaintiff’s account.

      Bell Fireproofing Co. v. Manufacturers Trust Co., 212 App. Div. 831, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 5, 1925, unanimously 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 a balance of plaintiff’s deposit in defendant’s bank. The defendant charged against the plaintiff’s account five checks aggregating $5,000, all of which had been drawn in the plaintiff’s name by its treasurer, George J. Jorge, to the order of Henry Bieg, who was a creditor of the plaintiff when each of the checks was so drawn to his order. All five checks were drawn in payment of bills rendered by Henry Bieg to the plaintiff for merchandise sold by Henry Bieg to the plaintiff in the regular course of business. It was shown that George J. Jorge (now deceased) wrote upon each of the checks an indorsement thereof in the name “ Henry Bieg ” and then indorsed each check in his own name and deposited the same in his personal account with the defendant bank.

      Arthur W. Clement and Charles de la Vergne for appellant.

      John T. Loughran, John W. Hannan and James A. Delehanty for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Moscow Machine Tool and Engine Company, Respondent, v. Oscar L. Richard et al., Copartners under the Firm Name of C. B. Richard & Company, Appellants.
    (Argued June 12, 1925;
    decided July 15, 1925.)

      Lien — money had and received — action to recover surplus moneys arising from sale under Lien Law — defense that plaintiffs corporate existence had been ended by Russian Soviet Government — claim against Russian government may not be offset against money due to plaintiff.

      Moscow Machine Tool & Engine Co. v. Richard, 212 App. Div. 869, affirmed.
    Appeal ' from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 26, 1925, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion to strike out defendant’s answer and for summary judgment. The complaint alleged that plaintiff was a corporation duly organized under the laws of the government of Russia prior to 1914; that for some time prior to January 14, 1920, defendants held and claimed a lien upon machines and tools which were the property of plaintiff, and that about January fourteenth they caused these machines to be sold at public auction in compliance with the Lien Law; that as a result of such sale a surplus was realized of $10,450.90, which defendants received and held subject to plaintiff’s order and for its account; that defendants did not within thirty days from the date of the sale pay over this balance to plaintiff or deposit it with the chamberlain of New York city, pursuant to the requirements of section 204 of the Lien Law, and in spite of demands made upon defendants, have retained this balance, no part of which sum has been repaid to plaintiff. The defense was that plaintiff’s corporate existence was terminated by the Soviet Republic and its property confiscated and that defendants are entitled to retain the surplus proceeds as an offset against a claim of theirs against the Soviet government for property seized in Russia.

      J. Charles Weschler for appellants.

      Henry H. Abbott and William B. Shealy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nina H. Peabody, Respondent, v. Interborough Rapid Transit Company, Appellant.
    (Argued June 12, 1925;
    decided July 15, 1925.)

      Stocks and stockholders ■— guaranty — action to recover arrears of dividends guaranteed by lessor of corporate property.

      Peabody v. Interborough Rapid Transit Co., 213 App. Div. 857 j affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 4, 1925, affirming a judgment in favor of plaintiff entered upon two orders of Special Term granting motions for judgment. The action was to recover arrears of dividends alleged to be guaranteed by defendant under a provision of a lease between the Manhattan Company, in which plaintiff was a shareholder, and defendant whereby the latter leased the railroads and property of the Manhattan Company. Upon each stock certificate held by plaintiff appeared the indorsement of the defendant in the following form: “ Dividends amounting to six per cent, per annum and an additional amount if earned not exceeding one per cent, per annum until January 1, 1906, and after that date dividends of seven per cent, per annum upon the par value of the outstanding capital stock of the Manhattan Railway Company are guaranteed and will be paid by the undersigned in accordance with the terms and provisions of a certain indenture made between the Manhattan Railway Company and the undersigned, entered into the 1st of January, 1903. Interborough Rapid Transit Company. By J. H. Campbell, Treasurer.”

      J. Osgood Nichols and James L. Quackenbush for appellant.

      Frank C. Laughlin, Stewart W. Bowers and Arthur A. McGivney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Kapossky, Respondent, v. William T. Berry, et al., Individually and as Copartners under the Firm Name of Industrial Surgical Clinic, Appellants, Impleaded with Others.
    (Argued June 12, 1925;
    decided July 15, 1925.)

      Malpractice •— physicians and surgeons — negligence — action to recover for injury arising through alleged malpractice and negligence of nurse at surgical clinic.

      Kapossky v. Berry, 212 App. Div. 833, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered- January 31, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for alleged malpractice. Plaintiff had been injured by having a heavy bag of sugar fall upon his shoulder, temporarily paralyzing his arm and was sent to defendant’s for treatment. His arm was there placed in a baking oven and left so long that it became burned, from which it was claimed an ulcer developed causing permanent injury to the arm.

      Theodore H. Lord and James B. Henney for appellants.

      Harold L. Warner and Thomas A. O’Connor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Greylock Construction Company, Inc., et al., Appellants.
    (Argued June 12, 1925;
    decided July 15, 1925.)

      State — contract — pleading — action by State to recover on contract — counterclaim may not be interposed without its consent.

      People v. Greylock Construction Co., Inc., 213 App. Div. 21, affirmed.
    Appeal from a judgment, entered May 20, 1925, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed an order of Special Term denying a motion to strike out certain parts of the answer and counterclaim and granted said motion in an action to recover for an alleged breach of contract. The question was whether in a contract action brought by the State against an individual a counterclaim on contract might be interposed without its consent.

      Arthur E. Rose for appellants.

      Albert Ottinger, Attorney-General (John H. Machan and Charles E. McManus of counsel) for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., McLaughlin, Crane, Andrews and Lehman; JJ. Cardozo, J., votes for for dismissal. Absent: Pound, J.


author: Lehman, J.

text:
    In the Matter of Proving the Will of Joanna May, Deceased. William D. May, Jr., et al., as Executors of Leslie W. May, Deceased, et al., Appellants; Florence M. Miller et al., Respondents.
    Will — probate — sufficiency of testimony that paper was properly executed and published—failure of paper itself to show testamentary intent on part of testator — erroneous admission to probate.
    1. Testimony of a subscribing witness to a paper propounded as a will that the decedent declared that the instrument was her last will in. the presence of both witnesses; and of the other witness — that “ the word ‘ will ’ was never used that day. I was not asked to sign her 11011, but her last wishes and request, and in my mind I would call that a will ”— may be sufficient to sustain a finding that the paper was properly executed and published by the decedent, but it does not dispose of the question whether in fact the instrument was a will or only the decedent’s “ last wishes and request.”
    2. The informality of a paper, and the looseness of its language, would be no bar to the courts giving to any directions contained therein testamentary effect if can be gleaned from its language an intent on the part of the decedent that the paper should have1 2such effect, but where the paper propounded contains no express testamentary declaration, no attestation clause, no appointment of executors and no words of gift, except in so far as a bequest or devise may be inferred, and where, reading the paper in the light of all the circumstances, it shows on its face a recognition that the decedent’s previous will leaving all her property to her husband was still in full force and that it was intended merely as a careful memorandum addressed by decedent to her husband expressing her wishes and desires as to the ultimate disposition of her property but without derogation of his full property rights conferred by the earlier instrument, the paper itself fails to show testamentary intent on the part of the decedent and its admission to probate is error.

      Matter of May, 210 App. Div. 852, reversed.
    (Argued May 14, 1925;
    decided July 15, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 31, 1924, which affirmed a decree of the New York County Surrogate’s Court admitting to probate a paper propounded as the last will and testament of Joanna May, deceased.

      Joseph H. Kohan for William D. May et al., as executors of Leslie W. May, deceased, appellants.
    The document was not properly declared by Joanna May as her last will and testament, nor did she subscribe the documents in the presence of both subscribing witnesses, nor acknowledge her signature on the instrument to the subscribing witnesses. (Matter of Turell, 166 N. Y. 330; 47 App. Div. 560; Matter of Cogan, 184 App. Div. 198; 226 N. Y. 860; Matter of McDonough’s Estate, 201 App. Div. 203; De Haas’ Will, 9 App. Div. 561; Matter of Moore’s Will, 109 App. Div. 762; 187 N. Y. 573; Matter of Simmons’ Will, 56 Hun, 642; 124 N. Y. 663; Mitchell v. Mitchell, 16 Hun, 97; 77 N. Y. 596; Matter of Keefe’s Will, 155 App. Div. 575 ; 209 N. Y. 535; Matter of Lanby, 148 N. Y. 403.) The proponent is barred from maintaining the present proceeding so long as the former decree entered on her appearance which admitted the will of 1896 to probate, remains unimpaired. (Redf. on Surr. Courts [7th ed.], p. 968, § 1069; Matter of Goldsticker, 192 N. Y. 35; Matter of Wohlgemuth, 110 App. Div. 644; 184 N. Y. 578; Matter of Tilden, 56 App. Div. 277; Matter of McGoughran, 124 App. Div. 312; 192 N. Y. 565; Hoyt v. Hoyt, 112 N. Y. 493, 504; Fox v. Fee, 167 N. Y. 44.)

      John A. Dutton for William D. May, "individually and as executor of William D. May, appellant.
    The instrument itself does not either expressly or impliedly purport to be a will. On the contrary, it is couched in language which clearly indicates that it was intended merely to convey certain requests and desires of Mrs. May to her husband concerning a portion of her property already given to him by her then existing will. (Matter of Cunnion, 201 N. Y. 123; Osburn v. Rochester T. & S. D. Co., 209 N. Y. 54; Jessup Surr. Practice [1925 ed.], § 313.) There is no evidence in the case to sustain a conclusion of law that Mrs. May declared to both witnesses that the paper was her will. .On the contrary, it affirmatively appears that, with respect to one of the witnesses, she she did not so declare. (Matter of Ellery, 139 App. Div. 244; Jessup Surr. Practice [1925 ed.], 356; Matter of Bryant, 148 N. Y. Supp. 917; Matter of Sarasohn, 47 Misc. Rep. 535.)

      Benjamin E. Messier and Joseph A. Duffy for respondents.
    The due and proper execution of the will was in every respect established. (Matter of Sniffin, 113 Misc. Rep. 307; Matter of Talbot, 91 Misc. Rep. 382; Matter of Haviland, 17 Misc. Rep. 193; Matter of Akers, 74 App. Div. 461; 173 N. Y. 620; Matter of Bassett, 84 Misc. Rep. 656; Matter of Phillips, 98 N. Y. 267; 34 Hun, 627; 3 Dem. 459; Willis v. Mott, 36 N. Y. 486; Matter of Holmberg, 83 Misc. Rep. 245; Matter of Stockwell, 17 Misc. Rep. 108; Matter of Laudy, 161 N. Y. 429; Matter of Carey, 24 App. Div. 531.)
   Lehman, J.

On October 27, 1916, the surrogate of the county of New York, where the decedent resided, admitted to probate, as her last will and testament, an instrument which was duly executed and published by the decedent in the year 1896 whereby she bequeathed and devised all her real and personal property to her husband, William D. May, and appointed him her sole executor. Letters testamentary were issued to him under which he acted until his death in 1920. In the record of the proceedings for the probate of this will there are two papers purporting to be waivers of citation executed and acknowledged by decedent’s two daughters. In December, 1922, her daughter Florence M. Miller presented a petition for the probate of a paper signed by the decedent Joanna May and two witnesses in the year 1916 shortly before the death of the decedent, and on November 7, 1923, the surrogate made a decree admitting this paper to probate and revoking the letters testamentary issued upon the probate of the earlier will.

The instrument propounded as 'the later will was dictated to and written out by the decedent’s daughter. Florence M. Miller in the presence of her sister, yet both sisters stood by while an earlier instrument was propounded as the last will and testament of the decedent. One of the subscribing witnesses testified that the decedent declared that the instrument was her last will in the presence of both witnesses. The other witness testified that “ the word will was never used that day. I was not asked to sign her will, but her last wishes and request, and in my mind I would call that a will.” The testimony may be sufficient to sustain a finding that the paper was properly executed and published by the decedent (Matter of Will of Cottrell, 95 N. Y. 329; Matter of Will of Bernsee, 141 N. Y. 389), but it does not dispose of the question whether in fact the instrument was a will or only the decedent’s last wishes and request.”

The paper propounded is extremely informal. It contains no express testamentary declaration, no attestation clause, no appointment of executors. It begins with the words “ Harley Merry House to go to my two daughters Florence and Blanche.” It contains no words of gift, bequest or devise except in so far as a bequest or devise might be inferred from the words above quoted and from similar words such as “to my three grandchildren, $500 each, to be put in the savings bank until they become of age.” Undoubtedly the decedent indicated by these words a desire that “ Harley Merry House ” should eventually become the property of her two daughters and that her three grandchildren should eventually receive $500 each, and there are similar indications of desire in regard to other portions of her property. The informality of the paper, and the looseness of its language, would be no bar to our giving to any directions contained therein testamentary effect if we can glean from its language an intent on the part of the decedent that the paper should have such effect. The courts must endeavor to find from the language used the actual intent of the decedent; if, from such language, it appears that the decedent intended to dispose of her property, or part of it, by means of the instrument signed by her, and to give that instrument the force of a will, it may be admitted as a will or as a codicil to her earlier will; if, on the other hand, it appears from the paper itself that the decedent intended that paper merely to express her wish or desire that part of her property should be eventually disposed of by her husband as therein suggested, it may be given no greater force than the decedent intended.

The will executed by decedent in 1896 gave to her husband all her real and personal property. Although the paper signed by the decedent twenty years thereafter has been admitted to probate as her last will and testament and the letters testamentary issued upon the probate of the earlier will have been revoked, it seems clear that the testatrix had no intent to revoke the earlier instrument. On the contrary, although the later paper does not expressly name the decedent’s husband, or leave any property to him, at least half of the instrument consists of expressions of desire, evidently addressed to him in. the second person, which certainly show that the decedent assumed that her husband would possess and dispose of all her property, at least in so far as she had not indicated a different intent as to part of it. She tells him, “At your death I desire you to leave our two homes at Amityville and 70th Street to. our four' children.” And again, “ If you sell the two homes I desire that you will not put all the money from them in the business so that in case of bad business you will be sure to have some ready money for your comfort and old age.” This is not language which, though informal, yet shows an intent to devise for life; it is an expression of desire as to the ultimate disposition of property which the decedent recognized she had already devised to her husband. The same intent is shown by the words, “ when you are through wdth all household effects, furniture, etc., or at your death, I wish them to go to our two daughters, Florence and Blanche.” Perhaps it may not be entirely without significance that the paper contains also a request to her husband to live with one of her daughters which concededly does not concern the disposition of the decedent’s estate.

Reading the paper in the light of all the circumstances, we conclude that it shows on its face a recognition that the decedent’s previous will leaving all her property to her husband was still in full force and that it was intended merely as a careful memorandum addressed by decedent to her husband expressing her wishes and desires as to the ultimate disposition of her property but without derogation of his full property rights conferred by the earlier instrument. We need not consider under these circumstances the effect of the failure of the proponent and her sister to demand the production of the instrument and to offer it for probate until years had elapsed after the probate of the original will and after the sole legatee named therein had died leaving a will which in many respects carried out the wishes of the decedent. We need not speculate as to whether the parties did not themselves originally place upon the paper the same construction which we are placing upon it. The paper itself fails to show testamentary intent on the part of the decedent, and' the order of the Appellate Division affirming’ the decree for its probate should be reversed, with costs to appellants, and the application for probate denied.

Cabdozo, Pound and McLaughlin, JJ., concur; His cock, Ch. J., concurs in result; Cbane and Andbews, JJ., dissent.

Order reversed.


author: Hiscock, Ch. J. Cardozo, J.,

text:
    Irving Ader, as Administrator of the Estate of Bernard Ader, Deceased, Respondent, v. Molly Blau, Defendant, and Herman S. Emil, Appellant.
    Pleading — misjoinder — cause of action against one defendant for causing death through negligently maintaining a fence cannot be joined in same complaint with cause of action against physician for causing death through malpractice •—• question who is liable for death 'not a common one within meaning of section 209 of Civil Practice Act — sections 211 and 212 do not authorize joinder of two such causes of action — both sections limited and must be construed in light of section 258 — defendants not joint tort feasors — causes of action do not arise out of transactions connected with same subject of action.
    1. Two causes of action, the first of which alleges in substance that the death of plaintiff’s intestate was solely caused by the negligence of one defendant in erecting and maintaining an iron picket fence whereby intestate, was injured in a manner .which caused infection and death, and the second of which alleges that intestate came to the other defendant as a physician and surgeon for treatment and that the latter so negligently treated him that, solely by reason of such negligent treatment, intestate died, cannot be united in one complaint.
    2. Section 209 of the Civil Practice Act, providing who may be joined as parties plaintiff, is not helpful, even argumentatively, to this attempt to join defendants. The question “ who is liable for the death of the plaintiff’s intestate,” is not such a common one as is contemplated by that section.
    3. Sections 211 and 212 of the Civil Practice Act, which provide who may be joined as parties defendant, even when considered by themselves and without reference to any other provisions, do not authorize any such inclusion of causes of action in one complaint as has been attempted in the present action. Section 211 contemplates a ease where a fundamental, common set of facts either entitles a plaintiff to relief against all the defendants even though such relief may be predicated upon different relationships or in the alternative against one of two or more defendants, and section 212 deals with a case where a given set of facts entitles the plaintiff to relief against all of the defendants in some degree or form, but where he may not be entitled to the same measure or kind of relief against one as against another and where his right to relief may give him an additional cause of action against one defendant which does not arise against another.
    4. But, in addition, both sections are clearly limited by and must be construed in the light of section 258 of the Civil Practice Act, which relates to and governs joinder of causes of action, and as the inclusion in one complaint of the two causes of action which have been joined in this action is not authorized by any other than subdivision 9, unless that subdivision and the general clause relating to consistency authorize what has been attempted, there is a misjoinder.
    5. The plaintiff in order to meet the requirement that causes of action in order to be united in the same complaint must be consistent is obliged to maintain that a cause of action against one defendant for causing the death of an intestate by the negligent maintenance of a picket fence is consistent with a claim that another defendant caused such death by negligent and unskillful surgical treatment. Such contradictory and repugnant theories cannot be consistent and plaintiff at this point fails to sustain his complaint.
    6. The rule that a plaintiff may consistently and properly join as defendants in one complaint several joint tort feasors applies only where different persons by related and concurring acts have united in producing a single or common result upon which the action is based. But persons are not joint tort feasors within the meaning of this rule when, as alleged, one causes death by one set of negligent acts and another, as alleged, causes death by an entirely different and separate form of negligence.
    7. Neither can it be said that the causes of action are brought to recover “ upon claims arising out of * * * transactions connected with the same subject of action.” The phrase “ the same subject of action’! is applicable to a given state of facts wherefrom the plaintiff seeks different kinds of relief, but all of which spring from the same state of facts and, therefore, are connected with the same subject of action. In the present suit the different causes of action do not arise out of transactions connected with the same subject of action.
    8. The Appellate Division erred in its view that “ The subject of the action is to recover damages for death caused by negligence or nuisance or both.” That is the object of the action or the cause of action. The “ subject of action ” in this action is the negligent act resulting in injury causing the death of the intestate and upon which, under the statute, plaintiff predicates a cause of action and seeks to recover damages. In one case the subject of action is the wrongful act of one defendant in maintaining the fence and in the other cause of action it is the wrongful act of defendant in negligently treating the intestate. The two causes of action each against a different defendant do not arise out of transactions connected with the same subject of action. So again plaintiff’s complaint fails of survival when it is subjected to the test imposed by subdivision 9 and must be condemned as faulty.

      Ader v. Blau, 211 App. Div. 532, reversed.
    (Argued June 1, 1925;
    decided July 15, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 26, 1925, which reversed an order of Special Term granting a motion to strike out the second cause of action and to strike the name of defendant, appellant, from the summons and complaint and denied said motion.
    The following questions were certified:
    1. “ In an action by the administrator of a decedent to recover damages for a wrongful act, neglect or default by which the decedent’s death was caused (Decedent Estate Law, § 130), may the plaintiff join as defendants two or more parties who are alleged to have been responsible for such death, but where the alleged wrongful acts, neglect or breach of duty are separate and distinct? ”
    2. “ In an action by the administrator of a decedent to recover damages for a wrongful act, neglect or default by which the decedent’s death was caused (Decedent Estate Law, § 130), may the plaintiff administrator join in one complaint a cause of action against one defendant for negligence or nuisance causing death, and another cause of action against another defendant, a physician, for alleged malpractice in treating the decedent for the injuries alleged in the first cause of action, which malpractice is alleged to have caused the death? ”
    3. “ Are the causes of action alleged in the complaint properly joined under the provisions of the Civil Practice Act? ”

      Jay Leo Rothschild and Gustave Posner for appellant.
    The causes of action pleaded in the complaint do not arise out of the same transaction, nor are they connected ■with the same subject of action within subdivision 9 of section 258 of the Civil Practice Act. (De Wolfe v. Abraham, 151 N. Y. 186; Paul v. Ford, 117 App. Div. 151; Reed v. Livermore, 101 App. Div. 254; Chipman v. Palmer, 77 N. Y. 51; Slater v. Mersereau, 64 N. Y. 138; Mangan v. H. R. Tel. Co., 50 Misc. Rep. 388; Sternfels v. M. S. R. Co., 73 App. Div. 494; Lynch v. Elektron Mfg. Co., 94 App. Div. 408; Gardner v. Friederich, 25 App. Div. 521; Burd v. Bleischer, 208 App. Div. 499.) The causes of action pleaded in the complaint are inconsistent and, therefore, cannot be joined. (Olsen v. Bankers Trust Co., 205 App. Div. 669; Logan v. Whitley, 129 App. Div. 666.) Joinder of defendant, appellant, with the other defendant is not authorized under the Civil Practice Act. (De Wolfe v. Abraham, 151 N. Y. 186; Lamming v. Galusha, 135 N. Y. 239; F. & C. Steamship Corp. v. Berwind-White Coal Mining Co., 229 N. Y. 89; 137 West 66th Street, Inc., v. Lawrence, 118 Misc. Rep. 486; S. L. & Co. v. Bock, 118 Misc. Rep. 756; Payne v. B. T. Recorder Co., 1921, 2 K. B. 1; Mathews v. Mathews, 240 N. Y. 28; American Bank v. Goss, 236 N. Y. 488; Akely v. Kinnicutt, 238 N. Y. 466; Bossak v. Nat. Surety Co., 205 App. Div. 707.)

      Nathan Bert Friedman and James M. Gorman for respondent.
    The death statute of this State impliedly permits the joinder as defendants of all persons who contributed to the death. (Sullivan v. Dunham, 161 N. Y. 290; Griffin v. Bliss, 202 App. Div. 443; Randolph v. Snyder, 139 Ky. 159; Flavord v. Hunter, 126 Ky. 685; Lewis v. Taylor Coal Co., 112 Ky. 845; Welch v. Creech, 88 Wash. 429.) Death by wrongful acts constitutes one single and indivisible tort. All persons who contribute to that tort are proper defendants. All Wrongs causing the death may be joined whether they are concurrent, separate, successive or independent of each other, and whether they sound in negligence, nuisance, trespass or any other form, of wrong. (Mangan v. H. R. Tel. Co., 50 Misc. Rep. 388; Sternfels v. M. S. R. Co., 73 App. Div. 494; Stern v. International Ry. Co., 167 App. Div. 503; Gross v. P. P. & B. R. R. Co., 65 Hun, 191; Lynch v. Elektron Mfg. Co., 94 App. Div. 408; Seifken v. Erie R. R. Co., 107 N. Y. Supp. 1060; Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Gardner v. Friederich, 25 App. Div. 521; Burd v. Bleischer, 208 App. Div. 499; Slater v. Mersereau, 64 N. Y. 138.) .The scheme of the Civil Practice Act permits the joinder of these causes of action and. of these defendants and justifies the separate causes of action alleged in this complaint. (Smith v. Earle, 202 App. Div. 305; Fleitman v. Colonial Finance Co., 203 App. Div. 827; Sherlock v. Manwaren, 208 App. Div. 538; Griffin v. Blis, 202 App. Div. 443; Moskin v. Paine, 200 App. Div. 304; First Construction Co. v. R. T. Construction Co., 122 Misc. Rep. 145; Sherwood v. Holbrook, 98 Misc. Rep. 668; Hatch v. Heinze, 172 App. Div. 679; 137 East 66th St. v. Lawrence, 118 Misc. Rep. 486; S. L. & Co. v. Boch, 118 Misc. Rep. 756; Cowles v. Eidlitz & Son, 121 Misc. Rep. 340.)
   Hiscock, Ch. J.

This action is brought .by plaintiff under the statute to recover damages for the death of his intestate, a young boy. In pursuance of this purpose he has brought his action against two defendants setting up a separate cause of action against each. In the first cause of action he alleges in substance that the death of his intestate was solely caused by the negligence of the defendant Blau in erecting and maintaining an iron picket fence which was dangerous and attractive to children and whereby intestate was injured in a manner which caused infection and death. In the second cause of action against defendant Emil, he alleges that intestate being injured by a picket fence, came to defendant Emil, as a physician and surgeon, for treatment and that the latter so negligently treated him that, solely by reason of such negligent treatment, intestate died.

By a proper motion the appellant Emil argued the proposition that these two causes of action could not be united in one complaint but, while the Special Term agreed with his views, the Appellate Division in an elaborate opinion overruled them and denied his motion and, by his appeal, the question is now presented whether two such causes of action respectively against separate defendants may be united in one complaint. Certainly if this can be done a step has been taken away from prior rules of practice and procedure which will be regarded as a long and conspicuous one even in these times when the desire for procedural reform and improvement has become strong, widespread and fruitful. Of course we ought not to be led into taking it even under the alluring desire for progress and improvement if it is forbidden by controlling rules and statutory provisions.

The answer to the questions which are submitted- to us is governed by several sections of the Civil Practice Act. Section 209 of that act has only a remote bearing.. It provides: “ All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate actions any common question of law or fact would arise,” and it seems to be thought that a liberal provision for the joinder of plaintiffs ought to be helpful in an attempt to uphold the joinder of defendants. But if it were possible, under any circumstances, to make a provision for the joinder of plaintiffs helpful argumentatively to an attempt to join defendants, that situation would not be presented by the facts of this case. The question which seemed, in the court below, to be thought to be one of fact common to both causes of action set out in this complaint, who is liable for the death of plaintiff’s intestate,” is not in our opinion such a common question as is contemplated by this section. (Akely v. Kinnicutt, 238 N. Y. 466.)

Section 211 provides that “ All persons may be joined as defendants against whom the right to any rehef is alleged to exist, whether jointly, severally or in the alternative; and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities.” Section 212 provides that It shall not be necessary that each defendant shall be interested as to all the rehef prayed for, or as to every cause of action included in any proceeding against him.” It is not claimed that section 213 covers this action.

In our opinion these sections even when considered by themselves and without reference to any other provisions do not authorize any such inclusion of causes of action in one complaint as has been attempted in the present action. Section 211 contemplates a case where a fundamental, common set of facts either entitles a plaintiff to rehef against ah the defendants even though such rehef may be predicated upon different relationships or in the alternative against one of two or more defendants. An illustration of the latter condition would arise where the plaintiff had a single cause of action upon an obligation which entitled him to rehef against one defendant if a relationship of principal and agent existed between that defendant and the other one giving the obligation and which would entitle him to relief against the latter if no such relationship existed. Section 212 deals with a, case where a given set of facts entitles the plaintiff to; relief against all of the defendants but where he may not, be entitled to the same measure or kind of relief against; one as against another and where his right to relief may-give him an additional cause of action against one defendant which does not arise against another. But the section contemplates a case where there exists one set of' facts entitling the plaintiff to relief against all of the) defendants in some degree or form.

But, assuming that we might be tempted or forced to> construe these sections standing by themselves as authorizing the present- action, we are not at liberty to do this,, for they are clearly limited by and must be construed’, in the light of section 258 of the Civil Practice Act which, relates to and governs joinder of causes of action and', which, so far as applicable, provides: “ The plaintiff may' unite in the same complaint two or more causes of' action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought, to recover as follows * * *

“ 9. Upon claims arising out of the same transaction, or1 transactions connected with the same subject of action,, whether or not included within one or more of the other subdivisions of this section * * *.

It must appear upon the face of the complaint tha,t; all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other.”

The inclusion in one complaint of the two causes of' action which have been joined in this action is not authorized by any other subdivision of said section than subdivision 9 and, therefore, we come to the decisive inquiry whether that subdivision and the general clause relating. fco consistency authorize what has been attempted by the plaintiff in this case. We shall consider first the latter requirement. As has been pointed out the cause of action alleged against each defendant is complete, independent and exclusive of any other cause of action. Whatever the plaintiff might have done in the way of trying to connect the two causes of action he has rejected any such possibility and preferred to stand on another theory. Obviously if the death of his intestate was caused by the negligence of the defendant Blau in maintaining a fence upon which the intestate received such injuries that his death resulted therefrom, the defendant Emil did not do anything to cause the death and, vice versa, if the defendant Emil by his negligence so treated an injury not connected with the offense of the other defendant as to cause death the other defendant is not liable. The plaintiff in order to meet the requirement that causes of action in order to be united in the same complaint must be consistent is obliged to maintain that a cause of action against one defendant for causing the death of an intestate by the negligent maintenance of a picket fence is consistent with a claim that another defendant caused such death by negligent and unskillful surgical treatment, and it seems almost too clear for serious debate that such contradictory and repugnant theories cannot be consistent. Of course we do not overlook the well-established and familiar rule upon which reliance has been placed that a plaintiff may consistently and properly join as defendants in one complaint several joint tort feasors. But that rule only applies where different persons by related and concurring acts have united in producing a single or common result upon which the action is based. If two railroads each negligently manages its trains so as 'to cause a collision causing an injury which results in death clearly both could be joined as defendants in a single action. But persons are not joint tort feasors within the meaning of this rule when, as alleged, one causes death by one set of negligent acts and another, as alleged, causes death by an entirely different and separate form of negligence. They do not concur in producing the same and identical result — the same death so to speak. Pursuing the illustration which we have just used, if it should be alleged that the train of one railroad negligently ran over a man and injured him so that he died and that another railroad finding the same man by its tracks, not fatally injured, treated him so negligently that solely by its acts it killed him, it could not seriously be contended that those two railroads within the tort feasor rule could be joined as defendants in the same cause of action on the theory that they had jointly and concurrently caused the death complained of. Two persons cannot be sued as joint tort feasors where it is alleged that one defendant caused death by a picket fence alleged as an independent and exclusive act of negligence and that another defendant caused death by negligent surgical treatment alleged as an independent and disconnected act. Plaintiff at this point fails to sustain his complaint.

Then going still farther and considering subdivision 9 which defines causes of action which may be united in one complaint, plaintiff encounters still other objections to his complaint which are insuperable. That subdivision as has already been stated permits the joinder in one complaint of causes of action “ upon claims arising out of the same transaction or transactions connected with the same subject of action.” It is plain that plaintiff’s two causes of action do not rest upon claims arising out of the same transaction.”

Neither, in our judgment, can it be said that the causes of action are brought to recover “ upon claims arising out of * * * transactions connected with the same 0 subject of action.” The difficulty here arises in determining what is meant by the words the same subject of action ” and which phrase has been said by a distinguished judge to be well chosen * * * because it is so obscure and so general as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice.” (New York & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592, 604.)

We think, however, that an interpretation has been given to the language by a series of decisions and textbooks which makes it usually applicable to actions seeking equitable relief and not to ordinary actions of law like the present one and that even if it be applicable to the latter class of actions it does not permit that joinder of causes of action which has been attempted. Some decisions and the opinions written in connection therewith may be referred to as illustrating its lack of application to the present case. In Corcoran v. Mannering (10 App. Div. 516) a remainderman complained that a life tenant had received rents from and failed to pay taxes levied upon the devised premises and further that the plaintiff advanced money to pay the expenses of probating the will of the common testator and took from the defendant an assignment of the rents to secure such advances, and the appointment of a receiver was asked for. It was held that the action was one in equity and that both claims related to the same subject, namely, the real property and that, therefore, the transactions were connected with the same subject of action. The opinion distinctly recognized the difference between such an action and actions at law for damages where independent causes were attempted to be united and said that the rule is plain and the distinction between the cases clear.” In Porter v. International Bridge Co. (45 App. Div. 416, 419), where it was argued in support of a demurrer that there were united in one complaint two causes of action, one in ejectment for possession of the land and another to have declared void an alleged easement and for injunction against trespass, it was said: Both causes of action are connected with the same subject of action, to wit, the occupancy of plaintiff’s land,” and, therefore, might be united in the same complaint under the provision now being considered. In New York & N. H. R. R. Co. v. Schuyler (supra), where an action was brought to have spurious certificates of stock issued to many people canceled as clouds upon the title of the genuine stockholders, it was held that claims against different stockholders might be united in one complaint, it being said, The common point and center of the litigation is the stock, property and franchises of the plaintiff’s corporation, in which the defendants claim specific shares and proportions as holders of the false certificates. * * * They are of precisely the same nature, they turn upon the same question, and they are a cloud upon the same estate.” (p. 608.)

In Shepard v. Manhattan R. Co. (117 N. Y. 442, 450) the plaintiffs asked damages caused by the existence of an elevated structure in front of their premises and also an injunction against the continuance of the obstruction in the street in the operation of the road, and the complaint was demurred to on the ground that causes of action were improperly united in the complaint. But the court interpreting the clause of subdivision 9 which we are now considering said, The subject of the action is the construction and operation of the railroad, and the appropriation and the intrusion by the defendant of and upon property rights, and the damages occasioned thereby,” and that a cause of action for the maintenance of the operation of the railroad and a cause of action for temporary damages sustained both arose out of the same transaction, namely, the intrusion by the defendant upon the property rights of abutting owners.

And still again, in Lamming v. Galusha (135 N. Y. 239, 243), where in a somewhat similar action the plaintiff united with a demand for equitable relief one for damages caused by interference with the use of real estate, it was held that his claims arose out of transactions connected! with the same subject of action and the court said: “ The subject of the action in this case was the injury committed by the defendant in maintaining a public nuisance which subjected the plaintiff to injuries specified * * *. The injuries were distinct in character, * * *. But they both proceeded in a general sense from the same wrong, the unlawful obstruction of the highway by the defendant, and they were all, we think, transactions connected with the same subject of action.” (See, also, Lattin v. McCarty, 41 N. Y. 107.)

Thus we see that this clause as it has been interpreted by the courts is applicable to a given state of facts where-from the plaintiff seeks different kinds of relief, but all of which kinds of relief spring from the same state of facts', and, therefore, are connected with the same subject of action.

The opposite view which has been applied to ordinary actions at law is expressed in various cases. In Keep v. Kaufman (56 N. Y. 332) the complaint contained a cause of action for breach of covenant of quiet enjoyment and also one for the action of defendant in obtaining entrance to the premises in question and removing some of plaintiff’s goods and it was held that these legal causes of action could not be joined in one complaint although they related to the same premises.

In Wiles v. Suydam (64 N. Y. 173, 179) a complaint set forth a cause of action against a defendant because of a failure to make and record the certificate required by the act relating to manufacturing corporations and also a causé of action seeking to charge him as trustee with the debt because of failure to file an annual report. It was held that these two causes of action could not be united in the same complaint, it being said: “ The causes of action are independent of each other; the transactions ’ are differeht, and there is no legal affinity between them. The language of the last clause (the one we have been considering) is itiore applicable to equitable actions where the controversy is in respect to specific property, real or personal. It is difficult to define in this case the ‘ subject of action.' The object of the action is to recover the debt; but is the debt the subject of action? In some sense it, perhaps, may be so regarded, while in another the subject of action may be regarded the penalty or forfeiture.” (See, also, Pomeroy on Legal Remedies, secs. 4724c et seq.)

When we apply the principles thus laid down to the present action we believe that the different causes of action do not arise out of transactions connected with the same subject of action; Subject of action ” does not mean the same thing as “ cause of action ” or “ object of action ” and we think that the Appellate Division. erred in its view that “ The subject of the action is to recover damages for death caused by negligence or nuisance or both.” That is the object of the action or the cause of action and if we should adopt that interpretation of the statute we would simply have a provision that causes of action might be united when arising out of transactions connected with the same cause of action, a result which would be meaningless. The subject of action ” in this action is the negligent act resulting in injury causing the death of the intestate and upon which, under the statute, plaintiff predicates a cause of action and seeks to recover damages. But of course the two causes of action are not connected with the same subject of action, for we again come back to the different negligent acts alleged in the two causes of action. In one case the subject of action is the wrongful act of one defendant in maintaining the fence and in the other cause of action it is the wrongful act of defendant in negligently treating the intestate. The two causes of action each against a different defendant do not arise out of transactions connected with the same subject of action. So again we think that plaintiff's complaint fails of survival when it is subjected to the test imposed by subdivision 9 and must be condemned as faulty.

Our conclusion, therefore, is that the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and the Appellate Division and the third question submitted answered in the negative, it being unnecessary to answer the others.

Cardozo, J.,

dissents upon the ground that a negligent tort-feasor is not relieved of liability because the injury has been aggravated by the malpractice of a surgeon (Sauter v. N. Y. C. & H. H. R. R. Co., 66 N. Y. 50); that the two causes of action are, therefore, not inconsistent, since proof of the one will not exclude the other, but both may coexist; that each of the defendants has thus contributed to a single casualty which is the subject of action, i. e., the death of the child to the pecuniary damage of the parents; that a death so occasioned supplies a unifying center which connects the subject of action in one count with the subject of action in the other (Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552, 556, 557; Terkuile v. Marsland, 81 Hun, 420, 424, 425; Deagan v. Weeks, 67 App. Div. 410); that until the adoption of the Civil Practice Act, the objection would have been a good one that each of the causes of action does not affect all the parties to the action (Code Civ. Pro. § 484), but that by Civil Practice Act, section 258, this requirement is omitted with the result that joinder is allowed.

Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur with Hiscock, Ch. J.; Cardozo, J., dissents in memorandum.

Order reversed, etc.


author: Hiscock, Ch. J.

text:
    Louis Bailly, Appellant, v. Adolfo Betti et al., Respondents.
    Pleading — partnership — answer setting up defenses and raising issues may not be utilized in sustaining order dismissing complaint — complaint stating cause of action for dissolution of partnership and accounting improperly dismissed — firm name of business dependent solely on personal and professional skill of partners not an asset which can be sold — complaint not dismissed because action was commenced before termination of partnership where it is alleged that defendants deny partnership and refuse plaintiff participation in assets — court of equity will take jurisdiction and grant relief according to conditions at time of trial.
    1. An answer setting up affirmative defenses and creating various issues of fact may not be utilized in sustaining an order dismissing the complaint on a motion for judgment on the pleadings. The correctness of that decision depends entirely on the question whether the allegations of the complaint, accepting them as true and accurate, show that plaintiff is entitled to some relief and to a consideration of evidence which he may offer to sustain his allegations.
    2. A complaint states a cause of action which alleges that the plaintiff and others by a written contract and earlier agreements entered into a copartnership expiring June 1, 1924, for the purpose of giving musical performances and concerts under a certain name; that in consideration of his becoming a member some of the defendants contributed to the partnership the name and other properties; that they gave musical performances and played for records; that in December, 1923, the defendants notified plaintiff that they would not continue the partnership after June 1, 1924, denied that he had any interest as partner in the firm name or any of its assets except some sheet music and announced their intention to continue with some other person to give musical performances under said name without compensation to plaintiff, and refused to account for plaintiff’s interest in the copartnership property; and which demands as relief that the copartnership be dissolved, its assets sold, and asks for an accounting and an injunction.
    3. The name alleged to have been adopted as a copartnership name is not, however, an asset which can be sold and its proceeds distributed amongst the copartners. A business dependent solely on the personal skill and professional qualifications of the persons carrying it on does not possess a good mil or copartnership name which can be sold or transferred to any one who might desire to purchase on a sale.
    4. A contention that the complaint should be dismissed because the action was commenced before the date on which the alleged copartnership was to terminate is erroneous. A court of equity will entertain an action for an accounting where it is necessary so to do in order to compel one partner to carry out his agreement with another one in the transaction of copartnership business even though a dissolution is not asked for, and in this case the plaintiff brings himself within this principle by allegations that the defendants are denying the copartnership and are refusing to give him that participation to which he claims to be entitled in copartnership assets and profits.
    5. In any event at the time the order was made directing a dismissal of the complaint the copartnership had by its terms expired and under such circumstances a court of equity in such a case as this will take jurisdiction of a cause of action and grant relief in accordance with conditions as they exist at the time of the trial.

      Bailly v. Belli, 213 App. Div. 810, reversed.
    (Argued June 5, 1925;
    decided July 15, 1925.)
    Appeal, by permission, from a judgment entered March 13, 1925, upon an order of the Appe late Division of the Supreme Court in the first judie al department, which unanimously affirmed an order of Special Term granting a motion by defendants for judgment' on the pleadings.

      William Montague Geer, Jr., and George M. Clarke for appellant.
    The plaintiff as a partner in the Flonzaley Quartet was entitled, upon dissolution of the partnership, to require that the trade name be put up for sale to the quartet member or members making the highest bid, or to the public, and meanwhile to enjoin its use by the other partners. (Coatsworth v. L. V. Ry. Co., 156 N. Y. 451; Candee v. Baker, 131 App. Div. 641; Joseph v. Herzig, 198 N. Y. 456; Slater v. Slater, 175 N. Y. 143; Dayton v. Wilkes, 17 How. Pr. 510; Freeman v. Freeman, 86 App. Div. 110, 113; Morgan v. Schuyler, 79 N. Y. 490; Spears v. Willis, 151 N. Y. 443; Brown v. Leach,
      189 App. Div. 158; Holmes v. Darling, 213 Mass. 303; Ferin v. Bollis, 7 Abb. Pr. 202; Bininger v. Clarke, 10 Abb. Pr. [N. S.] 264; Morgan v. Schuyler, 79 N. Y. 490; Williams v. Wilson, 4 Sandf. Ch. 405.) Plaintiff became entitled to an immediate accounting and other equitable relief when defendants, after agreeing with an outsider to take plaintiff’s place in the quartet, gave notice terminating the partnership at a future date, and thereupon denied that a partnership existed between themselves and the plaintiff. (Lord v. Hull, 178 N. Y. 9; Sanger v. French, 157 N. Y. 213; Holmes v. Darling, 213 Mass. 303; Rowley on Part. § 786; Joseph v. Herzig, 135 App. Div. 141; 198 N. Y. 456; Warnier v. Boessneck, 5 App. Div. 240; 159 N. Y. 538; Breckenridge v. Cary, 195 App. Div. 156; Murphy v. Whitney, 140 N. Y. 541, 547, 548; Earle v. Earle, 173 N. Y. 480, 490; 73 App. Div. 300; Kraemer v. World Wide Trading Co., Inc., 195 App. Div. 305.)

      Edwin T. Rice for respondents.
    The complaint states no cause of action for equitable relief. (Sheldon v. Houghton, Fed. Cas. No. 12748; Masters v. Brooks, 132 App. Div. 874; McClure v. Leaycraft, 183 N. Y. 36.) The action was prematurely brought. (Delaware Trust Co. v. Calm, 195 N. Y. 231; Cowles v. Rochester Folding Box Co., 179 N. Y. 87; Sherman v. Foster, 158 N. Y. 587; Mann v. City of Utica, 54 How. Pr. 334; Pond v. Harwood, 139 N. Y. 111; Warmer v. Boessneck, 5 App. Div. 240; 159 N. Y. 538; Wormser v. Metropolitan Street Ry. Co., 184 N. Y. 83; City of Rochester v. Rochester Ry. Co., 109 App. Div. 638.)
   Hiscock, Ch. J.

This appeal involves the question whether plaintiff’s complaint sets forth a cause of action. The answer embraces denials of many of its allegations and sets up various affirmative defenses which, in effect, fundamentally and positively contradict the plaintiff’s claims. But while this pleading may create various issues of fact to be considered on a trial of the case, of course they cannot be utilized in sustaining the order which has been made dismissing plaintiff’s complaint. The correctness of that decision depends entirely on the question whether the allegations of the complaint, accepting them as true and accurate, show that plaintiff is entitled to some relief and to a consideration of evidence which he may offer to sustain his allegations.

The action arises out of the affairs of a group of distinguished artists organized for the purpose of rendering musical compositions. The plaintiff, amongst other things, alleges that in April, 1921, both by a written contract of which a copy is attached to the complaint and earlier agreements he and the defendants Betti, Pochon and d’Archambeau entered into a copartnership expiring June 1, 1924, for the purposes of giving musical performances and concerts under the firm name and style of Flonzaley Quartet and that the defendant de Coppet became a party to the agreement for the purpose of guaranteeing the profits of the quartet; that in consideration of plaintiff’s becoming a member of the said partnership the defendants except the defendant Charlton contributed to the said partnership as assets the name Flonzaley Quartet and various other properties; that the quartet gave musical performances and played for records of the Victor Talking Machine Company during the seasons covered by the contract but that in December, 1923, the defendants Betti, Pochon and d’Archambeau gave plaintiff notice that, they would not continue the partnership with him after June 1, 1924, and denied that he had any interest as partner in the Flonzaley Quartet or any of its assets except some music sheets and, in connection with the defendant de Coppet, who claims the right so to do, have announced their purpose to continue with some fourth person secured in the place of plaintiff to give musical performances under said name without any compensation to plaintiff for his interest and have refused to account to him for his interest in the property and assets of said copartnership. On these allegations he demanded as his substantial relief that the copartnership be dissolved; that its assets including the firm name Flonzaley Quartet be sold and an accounting had of all of the copartnership assets including said name and that the defendants be enjoined from continuing to give musical performances after June 1st, 1924, under said name.

Containing these allegations we think that the complaint set forth a cause of action and that it was error to dismiss it.

First. We agree with the views entertained by the courts below that the name Flonzaley Quartet alleged to have been adopted as a copartnership name was not an asset which could be sold and its proceeds distributed amongst the copartners. It is well settled that the good will of a copartnership carrying on a commercial trade or business may include the copartnership name. But in cases where this has been held there was a copartnership business which had established a good will because of such elements as reasonable prices, good quality of merchandise and fair dealing which were more or less impersonal and not solely attributable to the personal qualifications and characteristics of the persons who established the business and in such cases it could be said with reason that the transferable good will included the copartnership name under which the business had been developed and grown up. (Slater v. Slater, 175 N. Y. 143.) It has, however, never been held that a business dependent solely on the personal skill and professional qualifications of the persons carrying it on possessed a good will or copartnership name which could be sold or be transferred to any one who might desire to purchase on a sale. The contrary proposition is abundantly established. (Morgan v. Schuyler, 79 N. Y. 490, 493, 494; Masters v. Brooks, 132 App. Div. 874; Sheldon v. Houghton, Fed. Cas. No. 12748, p. 1239; Moore v. Rawson, 199 Mass. 493; Slack v. Suddoth, 102 Tenn. 375; Austen v. Boys, 2 DeG. & J. 626; Arundell v. Bell, 52 L. J. Ch. 537; Farr v. Pearce, 3 Madd. 74.)

But aside from this copartnership name we think that the plaintiff alleges the existence of copartnership assets and copartnership profits in which he is entitled to share and from participation in which he claims he is being debarred by the other defendants.

Second. It seems to have been thought that the plaintiff's complaint should be dismissed because his action was prematurely brought, it having been commenced before the date on which the alleged copartnership was to terminate. This view as applied to the facts of this case is erroneous. A court of equity will entertain an action for an accounting where it is necessary so to do in order to compel one partner to carry out his agreement with another one in the transaction of copartnership business even though a dissolution is not asked for. (Sanger v. French, 157 N. Y. 213; Lord v. Hull, 178 N. Y. 9.) In this case the plaintiff brings himself within this principle by allegations that the defendants are denying the copartnership and are refusing to give him that participation to which he claims to be entitled in copartnership assets and profits.

But the plaintiff is entitled to maintain his action as against this objection of prematureness on another ground. At the time the order was made directing a dismissal of the complaint the copartnership had by its terms expired and plaintiff was entitled to an accounting in respect of its affairs. Under such circumstances it was not material even if the plaintiff had brought his action prematurely because a court of equity in such a case as this will take jurisdiction of a cause of action and grant relief in accordance with conditions as they exist at the time of the trial. (Delaware Trust Co. v. Calm, 195 N. Y. 231; Warnier v. Boessneck, 5 App. Div. 240; affd., on opinion below, 159 N. Y. 538.)

Therefore, confining ourselves as we are bound to do simply to a consideration of the complaint, we think that it alleges facts which, if sustained by the proofs, will entitle plaintiff to relief and that, therefore, the orders and judgment entered thereon dismissing the complaint should be reversed, with costs in all courts, and the motion for judgment on the pleadings denied, with costs.

Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Orders reversed, etc.


text:
    The General Supply and Construction Company, Appellant, v. Robert Goelet, Respondent, and The Unit Concrete Steel Frame Company, Appellant, Impleaded with Others.
    Contract — waiver — rescission — failure to complete building contract within time stipulated — waiver, by owner, of time as element of contract — damages for delay — wrongful termination of contract by owner — breach not waived by contractors bringing action to foreclose lien based upon a quantum meruit •—■ owner entitled to counterclaim for damages suffered by failure to complete within stipulated time — erroneous allowance of damages actually suffered rather than stipulated damages fixed by contract — contractor entitled to interest on its claim.
    1. Where by the terms of a building contract the entire building was to be completely finished at a stated time, in default of which the contractor agreed to pay to the owner a stated sum as liquidated damages for each day it should remain unfinished, and, the work not being completed at the time stipulated, the contractor was nermitted by the owner to continue the work, the owner thereby waived time as an essential element of the contract, but none the less the failure to complete at the time fixed in the contract constitutes a breach and gives rise to a cause of action for damages caused by the delay.
    2. Having indicated his purpose to keep the contract alive in spite of delays on the part of the contractor, the owner could not suddenly abandon the purpose and treat as essential an element in the contract which he had previously waived, as ground for termination, and where, by another provision of the contract, the owner might terminate it at any time upon certificate of the architect that the work was being unreasonably delayed, the termination thereof without such a certificate or restoration of time as an element of the contract by notice to complete within a reasonable time, was wrongful.
    3. A holding by the Appellate Division that even if the attempted rescission was wrongful the contractor acquiesced in such rescission by bringing this action to foreclose a lien based upon a quantum meruit, and, therefore, waived the owner’s breach, is erroneous. The form of action may recognize that the express contract is terminated; it does not recognize that the termination was lawful or the result of agreement by the parties. There was no intention to waive and no position assumed by the contractor inconsistent with its present claim that the termination was wrongful.
    4. Notwithstanding the owner’s wrongful termination of the contract he is entitled to counterclaim for damages suffered by the plaintiff’s failure to complete the work at the time fixed in the contract. The plaintiff asking for the reasonable value of the work is entitled to recover that value only subject to the owner’s right to a set-off in the amount of the damage caused to him by failure to do that work within the time allowed by contract, regardless of whether or not the owner wrongfully prevented the plaintiff from completing the contract thereafter. The contractor is entitled to damages for such breach by the owner; the owner is entitled to damages for previous default by the contractor which could not be affected in any way by the owner’s breach nor reduced below the amount then fixed by the passage of time.
    5. It was error for the Appellate Division to allow to the owner the damages actually suffered rather than the stipulated damages fixed by the contract. The plaintiff’s form of action does not show acquiescence in the termination of the contract and in any event since the defendant’s counterclaim is based upon the plaintiff’s breach of that contract, the terms of that contract measure the extent of plaintiff’s obligation, and must be resorted to for the purpose of determining whether the plaintiff has defaulted in carrying out that obligation and the limit of liability the plaintiff assumed for such default.
    6. Plaintiff is entitled to interest upon its claim (Lien Law, § 3) even though it be reduced by allowance for delay, the amount of which is not unliquidated, but stipulated.

      General Supply & Const. Co. v. Goelet, 207 App. Div. 646, modified.
    (Argued June 9, 1925;
    decided July 15, 1925.)

      Appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1924, modifying and affirming as modified a judgment entered upon the report of a referee in an action to foreclose a mechanic’s hen.

      Franklin Nevins, Alfred C. Petté, Benjamin G. Paskus and Asa B. Kellogg for appellants.
    The termination of the contract by the owner on March 23, 1908, was altogether wrongful and constituted a breach of the contract by him, because, having permitted the work to proceed after July 1, 1907, the time limit fixed in the contract was waived and he could not thereafter restore time as an element of the contract and exercise the right of rescission for delay in completion'without first giving to the contractor notice to perform, within a reasonable time fixed in said notice, which he did not do. {Fraenkel v. Friedman, 199 N. Y. 351; Steiger v. London, 141 App. Div. 383; Lawson v. Hogan, 93 N. Y. 39; Dunn v. Steubing, 120 N. Y. 232; St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89; Taylor v. Goelet, 208 N. Y. 253; Brede v. Rosedale Terrace Co., 216 N. Y. 246; Leahy v. Lucius Eng. Co., 186 App. Div. 354; 227 N. Y. 660; Simmons v. Ocean Causeway, 21 App. Div. 30; Pierson Co. v. American Steel Export Co., 194 App. Div. 555; Elmohar Co. v. Philips, 188 App. Div. 100.) There was no acquiescence by the contractor in the owner’s action in evicting it from the work, or in the owner’s attempted cancellation of the contract, and no waiver of the owner’s breach of the contract. (Raile v. Peerless A. P. Co., 192 App. Div. 506; Clark v. Mayor, etc., 4 N. Y. 338; Jones v. Judd, 4 N. Y. 411; Wright v. Reusens, 133 N. Y. 298; Simmons v. Ocean Causeway, 21 App. Div. 30; Day v. Eisle, 76 App. Div. 304; Purdy v. Nova Scotia Midland Ry. & Iron Co., 11 Misc. Rep. 406; O’Dwyer v. Smith, 38 Misc. Rep. 136; Niles v. Sire, 46 Misc. Rep. 321; United

      States v. Behen, 110 U. S. 338.) In any event, there was no acquiescence in such cancellation by the defendant lienors and the referee and the Appellate Division so found. (American Radiator Co. v. City of New New York, 223 N. Y. 193; Foshay v. Robinson, 137 N. Y. 134.) Because of his wrongful act in terminating the contract the owner was not entitled to set off or recoup either liquidated or actual damages for delay in completion. (Patterson v. Meyerhofer, 204 N. Y. 96; Leahy v. Lucius Eng. Co., 186 App. Div. 354; 227 N. Y. 660; Kenneth v. Newgold, 183 App. Div. 652.) The owner was not entitled to recover or recoup actual or general damages for delay, for the further reason that liquidated and special damages were the damages expressly pleaded. (Ward v. Hudson River Building Co., 125 N. Y. 230; Lampman v. Cochran, 16 N. Y. 275; Day v. Town of New Lots, 107 N. Y. 148; Romeyn v. Sickels, 108 N. Y. 650; Northam v. D. C. Mut. Life Ins. Co., 177 N. Y. 73; Lamphere v. Lang, 213 N. Y. 585; Messmore v. N. Y. Shot Co., 40 N. Y. 422.) The contractor and the defendant lienor Unit Company are entitled to interest on the amount of their recovery from June 20, 1908, and April 10, 1908, respectively, or, in any event, from the time of the commencement of the action. (Van Clief v. Van Vechten, 130 N. Y. 571; White v. Livingston, 69 App. Div. 361; 174 N. Y. 538; Faber v. City of New York, 222 N. Y. 255; Blackwell v. Finlay, 233 N. Y. 361; Van Rensselaer v. Jewett, 2 N. Y. 135; McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 463; Mygatt v. Wilcox, 45 N. Y. 306; McCullum v. Seward, 62 N. Y. 316; Mercer v. Vose, 67 N. Y. 56; White v. Miller, 78 N. Y. 393; Robbins v. Carll, 93 N. Y. 656.)

      Frederick Hulse and Harry N. French for respondent.
    The contractor having been in default for nearly nine months to complete its contract, and the owner being then justified in concluding that the contractor would not finish the work within any reasonable time, the owner had the right to take over the work of completing the building on March 21, 1908, paying the plaintiff for the services it had rendered, but deducting therefrom the damages that he had suffered. (Wyckoff v. Taylor, 13 App. Div. 240; Dillon v. Masterson, 10 J. & S. 176, 181.) Even if it be assumed that the defendant owner was not acting within his rights in taking over the work, the plaintiff having insisted on full compensation must allow the defendant owner’s claim for damages as a set-off. (Lennon v. Smith, 124 N. Y. 578; Shaw v. Republic Life Ins. Co., 69 N. Y. 286; Burgie v. Hicks, 203 Fed. Rep. 340; Bovee v. Barrett, 116 App. Div. 20; Schulze v. Farrell, 142 App. Div. 13.) The allegations of the defendant owner’s answer are such as to permit him to recover either actual' general damages or actual special damages or liquidated damages. (Winter v. American Aniline Co., 236 N. Y. 199.) The plaintiff is not entitled to interest. (Anthony v. Moore & M. Co., 135 App. Div. 203; Delafield v. Village of Westfield, 41 App. Div. 24; 169 N. Y. 582; Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11; Sweeney v. City of New York, 173 N. Y. 414; Coates v. Village of Nyack, 127 App. Div. 153; Chambers v. Boyd, 116 App. Div. 208; Zimmerman v. Loft, 125 App. Div. 725; Shafer Fruit & Cold Storage Co. v. Upton Cold Storage Co., 133 App. Div. 796; Fox v. Davidson, 111 App. Div. 174; Beckwith v. City of New York, 121 App. Div. 462; O’Reilly v. Mahoney, 123 App. Div. 275.)
   Lehman, J.

On or about the 22d day of August, 1906, the plaintiff entered into a written contract with the defendant Goelet whereby the plaintiff obligated itself to provide all the material and perform all the work for the erection of the “ mason work, structural iron and steel work and carpenter work ” in connection with a building, on premises owned by Goelet. The contract provided that the entire- building is to be completely finished and shall be ready for occupancy on or before the 1st day of July, 1907, and in default thereof the Contractor shall pay to the Owner the sum of Two Hundred Dollars as liquidated damages for each and every day that the said building shall remain uncompleted and unfinished and not ready for occupancy, after the date above mentioned.”

The work was not completed on July 1st, 1907, and the plaintiff was permitted by the owner to continue performance of the work. The owner thereby waived time as an essential element of the contract (Taylor v. Goelet, 208 N. Y. 253); but none the less the failure to complete at the time fixed in the contract constitutes a breach and gives rise to a cause of action for damages caused by the delay. (Deeves & Son v. Manhattan Life Insurance Co., 195 N. Y. 324.) The work was still far from finished on March 23d, 1908, and on that date the owner, against the plaintiff’s protest and resistance, ejected the plaintiff from the premises and prevented it from proceeding with the work under the contract. The Appellate Division has made a finding that at that time the defendant Goelet was justified in concluding that the plaintiff would not, within any reasonable time, finish the work of erecting the building.

The continued delays of the contractor in the past might perhaps reasonably give rise to the inference that it would not proceed with reasonable speed in the future. We may assume that at the time the owner put the contractor off the work, he had, with reason, ceased to hope or expect that the contractor would mend his ways, yet the owner had no right to terminate the contract in the manner he did. He had provided in the contract protection for himself against unreasonable delays' on the part of the contractor, first, by stipulating that the work must be completed by a definite date; second, by provision for stipulated damages for each day’s delay in the completion of the work after that date; third, by provision that the owner might terminate the contract at any time upon certificate of the architect that the work was being unreasonably delayed and that such delay was sufficient ground for termination of the contract. He terminated the contract and ejected the contractor, not for failure to complete the work in the contract time, but for unreasonable delay thereafter, and he failed to comply with the provision of the contract which made the architect’s certificate a condition precedent to the right to take such action. Though he may have been justified, as the Appellate Division has held, in his belief that the contractor would not thereafter mend his ways and finish the work within a reasonable time, yet where such delay did not amount to abandonment he could not rescind the contract for that reason, except according to its terms. (Brady v. Oliver, 125 Tenn. 595; McTague v. Sea Isle C. L. & Building Assn., 57 N. J. L. 427; Taylor v. Goelet, 208 N. Y. 253.) He was not left entirely at the mercy of a dilatory, contractor, even if the architect did not find and refused to certify that the contractor’s delays were sufficient ground for termination. Though time was waived as an essential element of the contract, it could be restored by notice to complete within a reasonable time stated in said notice. (Taylor v. Goelet, supra.) Having indicated purpose to keep the contract alive in spite of delays on the part of the contractor, the owner could not suddenly abandon the purpose and treat as essential an element in the contract which he had previously waived, as ground for termination. (Brede v. Rosedale Terrace Co., 216 N. Y. 246.) The termination of the contract in this case without the required previous notice and without a certificate from the architect in accordance with the terms of the contract was wrongful.

After the attempted termination of the contract the plaintiff brought this action to foreclose his hen for the reasonable value of the work done and the materials furnished. The courts below have found that the plaintiff is entitled to recover such value. The defendant owner does not seriously dispute his obligation or claim that under the circumstances even a right to terminate the contract in the manner attempted would justify a refusal to pay for work performed or material furnished while the contractor was allowed to continue performance of the work. The substantial dispute between the parties upon this appeal concerns the question of whether the owner, in spite of his refusal, which we must hold was wrongful, is entitled to offset or counterclaim for damages suffered by the plaintiff’s failure to complete the work at the time fixed in the contract.

The Appellate Division has held that even if the attempted rescission was wrongful the plaintiff acquiesced in such rescission by bringing this action to foreclose a lien for the value of labor and materials furnished and, thereby, waived the owner’s breach. It seems to us that the form of action which the plaintiff has chosen for the vindication of the rights which he had after he was put off the work may not be given such effect. While the right to recover the value instead of the agreed price of the labor and materials furnished may be said to be based upon an implied contract, that contract was implied in law and not by intention of the parties when the owner wrongfully terminated the contract. The form of action may recognize that the express contract is terminated; it does not recognize that the termination was lawful or the result of agreement by the parties. If complete performance by the owner was a condition precedent to his right to recover for damages suffered by failure on the part of the contractor to finish the work in accordance with the contract, if performance by the contractor was thwarted by failure of performance on the part of the owner, it is clear that the owner’s breach of contract was not waived by the contractor. There was no intention to waive and no position assumed by the contractor inconsistent with its present claim that the termination was wrongful.

Wrongful interference with the work could not, however, have thwarted the contractor in performance of his obligation to complete the work eight months before that interference, and by its nature it could not have constituted the breach of a condition precedent to the contractor’s obligation to complete at the time set. On July 1, 1907, the plaintiff was in default under his contract. That default gave rise to a claim for damages caused by the delay of the contractor and a right to terminate the contract. Failure to enforce the right to terminate the contract promptly constitutes to that extent a waiver of the default, but we have repeatedly held that it constituted no waiver of the claim for damages. Speed or delay on the part of the contractor in thereafter completing the work might diminish or increase the consequential damages suffered by the owner through the contractor’s failure to complete at the stipulated time, but no speed could wipe out completely the contractor’s failure to comply with his contractual obligation nor deprive the owner of his right to consequent damages. The value of completion of the contract thereafter would be less than its value at the stipulated time. The time of ultimate completion merely fixes the amount of damages; the basis of the cause of action is the breach of the contractor’s obligation to complete at the earlier date. When the contractor was put off the work, the owner had suffered damage by the failure of the contractor to complete eight months before, during which time the owner lost the use of the building. Nothing the contractor was prevented from doing or could possibly do would wipe out the damage. So it has been held that in an action for failure to complete a building on August 1st, a plea that the contractor had nearly performed the work on September 1st and was prevented from completing by the plaintiff is insufficient. (Shields v. Perkins, 2 Bibb [Ky.], 227. See, also, Shute v. Hamilton, 3 Daly, 462.) The plaintiff herein, asking for the reasonable value of the work, is entitled to recover that value only-subject to the owner’s right to a set-off in the amount of the damage caused to him by failure to do that work within the time allowed by contract, regardless of whether or not the owner wrongfully prevented the plaintiff from completing the contract thereafter. The contractor is entitled to damages for such breach by the owner; the owner is entitled to damages for previous default by the contractor which could not be affected in any way by the- owner’s breach nor reduced below the amount then fixed by the passage of time.

The question still remains whether the damages which the owner may set off are the stipulated damages of $200 per day fixed by the contract, or the actual damages suffered. After the first trial of the action the Appellate Division reversed a judgment in favor of the plaintiff (149 App. Div. 80, 87), and in directing a new trial stated that the damages to which the owner was entitled were his actual damages, and that in view of the fact that the plaintiff’s cause of action is based upon a quantum, meruit the contract no longer governs, and is to be resorted to only to determine how long plaintiff was in default in completing the work. In that view, the owner’s damages are limited to the period between the time when the contractor agreed to perform and the time when the owner prevented further performance.” In accordance with the rule so enunciated, the Appellate Division after the second trial allowed the damages actually suffered, though the amount of these damages is larger than the amount of the stipulated damages. There is evidence that damages were actually suffered in the amount allowed, but since we are of opinion that the plaintiff’s form of action does not show acquiescence in the termination of the contract and in any event since the defendant’s counterclaim is based upon the plaintiff’s breach of that contract, the terms of that contract measure the extent of plaintiff’s obligation, and must be resorted to for the purpose of determining whether the plaintiff has defaulted in carrying out that obligation and the limit of liability the plaintiff assumed for such default. The Appellate Division has correctly resorted to the contract to determine that, under its terms, delay on the part of the owner, even though it might have contributed to plaintiff’s failure to complete the contract at the stipulated date, could not affect the plaintiff’s obligation under the terms of the contract unless claim for extension of time is presented to the architect and allowed by him. No reason is shown why the agreement of the parties for stipulated damages should not be given similar effect in measuring plaintiff’s liability. The allowance of damages to the defendant in the sum of $62,794 as an offset to plaintiff’s claim should be reduced to the sum of $52,800, the amount of the stipulated damage from July 1st, 1907, to March 21st, 1908.

The courts below have refused to allow the plaintiff interest upon its claim. The Lien Law (Cons. Laws, ch. 33, section 3) provides that a contractor has a lien for the “ principal and interest of the value or the agreed price ” of labor or materials furnished. The contractor has the right to expect prompt payment for work and materials; the statute contemplates that if payment is withheld he is entitled to interest until payment is made. While even under the Lien Law interest may not be allowed where the claim is reduced by allowance upon an unliquidated counterclaim (Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11), we are not disposed to limit the language of the statute beyond its fair construction so that it would deprive a lienor of right to interest upon the reasonable value of labor and materials furnished which are not of extraordinary character, though the claim be reduced by allowance for delay, the amount of which is not unliquidated but is stipulated. The defendant for a period of many years has failed to pay the plaintiff the excess of the value of its work over the stipulated damages for delay. Compensation to the plaintiff is incomplete unless accompanied by interest upon this excess.

The judgment of the Appellate Division should be modified as indicated, and as modified affirmed, without costs to either party as against the other.

His cock, Ch. J., McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., concurs in result; Pound, J., absent.

Judgment accordingly.