text:
    In the Matter of the Judicial Settlement of the Accounts of Horace G. Young, Trustee.
    (Surrogate’s Court, Ulster County.
    July, 1896.)
    1. Wills—Instruction—Net income.
    Testator devised his estate to his executors in trust to manage, to collect all moneys, rents, and profits, and to do all acts as testator might have done if living. He also directed the executors, out of the income of the estate, to keep the homestead in repair, and to pay all assessments, taxes, and insurance thereon; to pay to the widow 90 per cent, of the “ net income ” of the estate, and authorized them to employ servants and agents, to be compensated from any funds of the estate, in the discretion of the executors. Held, that by ‘1 net income ” testator meant the income which should be left after payment of all ordinary and proper expenses of conducting and preserving the estate including repair of building, taxes, and compensation of employés of the estate.
    2. Trusts—Compensation op trustees.
    A sum which the beneficiaries of an estate agree shall be paid to the trustees in addition to their commissions is chargeable against the income of the estate alone, though the remainder-men, as well as the life beneficiaries, are benefited by such services.
    3. Same—Effect of agreement.
    An agreement by testator’s widow, to whom testator bequeathed a share of his income of the estate, that the trustee should receive a certain sum for his services, in addition to his commission, is not an equitable assignment by her of a portion of the rents and profits of the trust.
    4. Same—Payments prom income op the estate—Taxes.
    Taxes on property devised in trust, accruing during the lifetime of testator,' are chargeable against the principal of the estate, and not against the income.
    5. Same Assessments.
    Streetrpaving assessments against real estate devised in trust are chargeable against the principal of the estate, and not against the income.
    6. Same—Costs op litigation.
    A bill of costs against an executor, in an action by him to recover possession of property which was in the possession of a third person at the time of testator's death, is one of. the expenses incident to ascertaining the amount of the estate, and therefore is chargeable against the principal of the estate, on an accounting by the executor as testamentary trustee.
    Judicial settlements of the accounts of Horace G-. Young as trustee under the will of Thomas Cornell, deceased.
    H. C. Soop, for Horace G. Young, trustee ; A. T. Clearwater, for Mary Augusta Coykendall, Thomas Cornell Coykendall, Harry S. Coykendall, and Edward Coykendall, and for S. D. Coykendall, as general guardian, and as special guardian for Katharine Coykendall, Robert B. Coykendall, Frederick Coykendall, and Frank Coykendall; Cardozo Bros., for Catharine Ann Cornell and Nellie L. Carpenter.
   BETTS, S.

—This is an intermediate accounting of Horace Gr. Young as testamentary trustee under the last will and testament of Thomas Cornell. Objections are filed by Catharine Ann Cornell, the present life legatee of a portion of the net income and remainder-man, and by Nellie L. Carpenter, a contingent life legatee and remainder-man, to certain items contained m the account and two supplemental accounts filed on this hearing. The trustee renders his account in two schedules,— one of principal account and the other of income account,— and the objections filed are to the general effect that the trustee has charged to income account certain items which should be wholly charged to principal account, or apportioned between principal and income accounts. It is a question, in the main, from which fund certain payments shall be made.

The will of Thomas Cornell, so far as necessary to dispose of the questions presented on this accounting, provides, after a direction to his executors to pay his debts and funéral expenses, and to erect or complete a mausoleum, as follows:

“ Third. All the rest, residue, an d remainder of my said estate, real, personal, and mixed, of every name or nature whatsoever, I give, devise, and bequeath unto my executors and trustees hereinafter named, and to their successors, with full power to sell all or any part of my said estate, as they may deem advisable, from time to time, at either public or private sale, and upon such terms as they shall deem proper, and to invest and reinvest the proceeds from such sales or any moneys that may come into their hands as they think best, without regard to any statute or law regulating such investments, and without any personal liability of either of my said executors or their successors, or any such action, or for any loss or depreciation my said estate may suffer because of such investment; to be held by my said executors, and their successors in trust, for the following purposes and uses only, to wit: (1) To manage, improve, protect, and care for my said estate; to collect all rents, moneys, interest, dividends, and profits my said estate may have from any source, from time to time, as they shall accrue; to invest and reinvest the same and all moneys that may come into their hands from the sale of any real estate, securities, or other property for the best interest of my said estate, in their judgment; to execute all deeds and papers that may be necessary for the transfer of all or any part of my said real estate, or any other property I may die seised or possessed of; to vote upon any of my securities and hold office in any corporation in which my estate is interested, and to do any and all other acts they may deem necessary or prudent for the proper management and protection of my said estate, the same as I myself might do if living, present, and acting in their stead.”

By the second subdivision of the third clause, the executors and trustees are directed to preserve and keep my said estate together intact, except so far as is herein otherwise directed,” during the continuation of- the two lives in being, which measures the duration of the estate committed to the executors and trustees. The will further provides:

“ (3) To allow my beloved wife, Catharine Ann Cornell, during the period of said ‘ two lives,’ if she shall live so long, if not, during her natural life, the sole, exclusive, and uninterrupted use, occupation, and possession of my homestead property in said Rondout, in the city of Kingston, N. Y., as ‘it is now owned, occupied, and enjoyed by me, including house, barns, outhouses, greenhouses, and connecting and contiguous lands, together with all the household furniture therein contained, including written and printed books, pictures, plate and plated ware, fixtures, ornaments, bric-a-brac, and jewelry; also all my horses, harness, carriages, and sleighs, robes, livery and barn furnishings; all of which said property, during said period, I will and direct my executors, out of the income of my estate, to keep in such repair and condition as she may direct, to pay all assessments, taxes, and water rents against said property, and insurance upon the same. (4) To pay over unto my said beloved wife, Catharine Ann, for her own sole use, benefit, and disposition, during the period of said ‘ two lives,’ if she shall live so long, or, if not, during her natural life, ninety (90%) per cent, of the net income of my said estate, in lieu of dower, or of any rights she may have in and to any part of my estate, except as herein provided, the remaining ten (10%) per cent., to revert to my estate, * * * (8) If my said wife shall survive the ‘ two lives ’ aforesaid, then, at the expiration of the last of said tw o lives,’ to pay over unto my said wife the principal of my entire estate, real, personal, and mixed, as it shall then exist, to her and her executors, administrators, heirs, and assigns forever. * """ * Seventh. I will and direct that my executors and trustees shall jointly and severally have power to hire and employ servants and agents, upon such terms and conditions as they may think best, to aid them in the management of my said estate, and to pay such servants and' agents from any funds of my estate, in their discretion, for all such services by them performed.”

The trustee has charged against the income account the salaries and expenses of II. C. Soop for legal services, and R. B. Jones and Edward Derrenbacher for clerical services, and the amounts paid Rogers, Ruso & Kelly and II. M. Johnson for services as stenographers, and $929.79 paid the state treasurer for taxes on wild lands ; and Mrs. Cornell and Mrs. Carpenter allege that these items should be apportioned between principal and income accounts. He has also charged $200 per month, paid to himself, for services under an agreement hereinafter more fully considered to income account; and the contestants allege, in their objections to the account and “first supplemental account, that this sum should not be charged against the income account, and in the objection to second supplemental account allege that this sum should be apportioned between the principal account and the income account, and should not be wholly charged against the income account. An item of $583.28, paid Messrs. Parker & Fiero for costs and disbursements, and an item of $593.10, paid James E. Phinney, city treasurer, for certain special assessments are charged by the trustee against income account, and contestants allege that these two items should be wholly charged against the principal account.

As the authority of the trustee to make any of these payments is derived from the will, it becomes necessary for this court to construe this will in order to properly determine the questions herein presented. This the surrogate’s court has jurisdiction to do on an accounting. Code Civ. Proc. § 2472; Garlock v. Vandevort, 128 N. Y. 374; 40 S. R. 418. The first part thereof to be considered will be the testator’s phrase net income,” as hereinbefore quoted. Thomas Cornell died the possessor of an ample fortune, which he had accumulated, and over which he exercised a careful personal supervision. He was president of many large corporations, and had been for many years identified with large business interests. His estate consisted principally of improved and unimproved real estate in this city, farm, forest, and wild lands in Ulster and Greene counties, large transportation interests in the Ulster & Delaware Bailroad Company, the Ilaaterskill Bailroad Company, the Bondout & Bhinebeck Ferry Company, and the Cornell Steamboat Company, and large banking interests in the First Hational Bank of Bondout, and he was prominently connected with many other business interests of magnitude and importance. He had seen this property grow up and assume the proportions that it had at the time of his death. Ho one knew so well as he, whose untiritig industry and frugality had amassed it, its earning capacity, and the possibilities of its development. His will provides a comprehensive scheme for retaining this wealth in his own family. Almost every contingency which the ingenuity of man could foresee is fully provided for. He was an old man, and his wife was nearly or quite as old, and is now upward of 70 years of age. A will must be construed in its entirety, and effect given to what was the manifest intention of the testator. This will breathes, in almost every line, the determination of its strong-willed maker to keep his estate together until it should be turned over to its ultimate beneficiaries. His first solicitude seems to have been for an adequate provision for his wife. The $3,000 per month she is now receiving, in addition to the use and occupation of the homestead and its belongings, show how well he succeeded in that intention. After making this provision of 90 per cent, of the net income for her, he provides that the remaining 10 per cent, shall revert to his estate. With acres of land in the heart of this city, rapidly increasing in value, with the unappeasable desire to aggrandize and enlarge his estate, he makes no direction to his trustees to sell this real estate, except in their discretion. He further directs that 10 per cent, of the net income shall be added to his estate, and directs his executors and" trustees to keep his estate intact. Every will, in conformity, of course, to the general rules for construction, must be determined by the intention of the testator. Measured by this standard, I must hold that by the phrase “ net income ” this testator meant puch income as should be left after payment of all the ordinary, proper, and necessary expenses of conducting and conserving his estate, including the repairs of buildings, taxes, and salaries and wages of all necessary employés of the estate. This testator knew , that some portions of his estate yielded little orno income, while other portions yielded a large income. It was, however, for his estate as an entirety that he always provided. He was satisfied with his own investments. He gave no direction to sell any particular property, nor change any particular investment, but directed his trustee to preserve and keep my said estate together intact,” etc., giving him, however, the power to realize on investments when necessary for the estate, or when the trustee deemed it advisable.

It is urged on behalf of the widow that the testator could not have intended that all expenses for the care and preservation of the estate should be taken from the income, as that might leave the widow destitute of any income. It would seem to be a sufficient answer to that to point out the large income she is now receiving nnder the construction of the will adopted by the trustee and aj>proved by this court. But there is another, and, to my mind, a more convincing, reply to that proposition. By the fifth subdivision of his will the testator provides as. follows:

“ Fifth. I will and direct that, in the event my said wife shall refuse to waive her right of dower, and except under the terms of this will, that then, and in such event my executors, after paying over unto my said wife her dower interest in my said estate, shall manage and dispose of the remainder of my estate in the manner hereinbefore directed in the event my said wife-should not survive said ‘ two lives,5 and as if she had failed to-survive said two lives,5 and had died at the date of her refusal to except under the terms of the will.”

It will thus be seen that not even solicitude for hié wife’s-income was allowed to stand in the way of the cherished testamentary scheme the testator had evolved, and that the widow perforce must accept of the provision made for her, or take her legal dower right only. These facts may seem harsh and stern, but they flow naturally from an examination of this will. We may not know how far they may have been softened by financial benefactions prior to decease. We do know that the selection by. the widow of the benefits arising from the will, rather than her statutory rights, shows that she approved the testamentary scheme, at least so far as she was concerned, and she is now enjoying the large income thus provided for her. If any portion of the principal estate is taken to pay expenses of management and conducting it, of course the principal is. depleted and reduced, and " the income likewise reduced. By that act, at once, the intention of the testator to not only retain his estate intact, but to augment it by the addition of 10 per cent, of the net income, is frustrated. By so doing, notwithstanding the most prudent and careful management by the trustee, and the increase in values of the real estate by the result of natural laws, the estate might easily be seriously impaired and its income steadily decreased instead of increasing as it now is, and as the testator evidently intended it should do.

The construction here adopted is supported by the case of Dannat v. Jones, 2 Dem. Sur. 602, affirmed by the general term, 37 Hun, 430, and by the court of appeals, 103 N. Y. 621. In this estate the testator, a brewer, authorized the executors to continue his business so long as they should think it advantageous, the profits to be distributed according to a previous clause of his will. The previous clause directed that the net proceeds of the income of certain real estate and personal property should be paid to certain designated beneficiaries during their lifetime. The business was continued, and on the accounting the executors charged as disbursements against income the wages of operatives, expenses of collecting accounts, procuring discounts, for trade raising,” procuring signs, trade losses, horses lost, and tools worn out, which were allowed, and the •court held that what remained was the profits of the business. It will be seen that in this case the profits of the business were to be divided, and the term “ net profits ” is not used. The surrogate’s court held, however, that “ profits ” meant net profits ” and its decision was sustained by the court of appeals. This would seem not to be so strong 'a case as the one before me, where “ net income only is used. See, also, In re Albertson, 113 N. Y. 439 ; 22 S. R. 728. It must be borne in mind that the amount of this estate has been substantially ascertained, and that the debts and liabilities of Thomas Cornell have been in the main ascertained and adjusted; so that, with a few exceptions, which will be specifically referred to, the expenses and disbursements now here are not for settling the estate, but for carrying it on, and conserving it by the trustee.

Under the construction above given to this will, the objections to charging salary of II. C. Soop, R. B. Jones, and Edward Derrenbacher to income account are disallowed. Under the seventh clause of the will, hereinbefore quoted, the trustee is given power to hire and employ servants and agents, and to pay them from any funds of the estate, in his discretion. Having exercised this power by employing these parties, and having fairly exercised his discretion under the strict terms of the will by paying them from the income, it is also doubtful if any court can properly interfere with the fair exercise of that discretion. Under an agreement dated May 30, 1893, executed by this trustee, Catharine Ann Cornell, and the other parties interested, this trustee has paid to himself, from income account, for his services in and about the estate, the sum of §200 per month from May 1, 1893. That portion of the agreement under which this payment was made is as follows:

“ The parties of the second part consent and agree that the party of the first part may receive and retain the further sum of $2,400 annually from the estate of Thomas Cornell, as compensation for his services as executor and trustee as aforesaid, commencing May 1, 1893.”

And.it was further provided that this was to continue for 10 years, and that such salary and compensation should be in addition to legal fees and commissions. Objection is now made , that this should not be charged against the income account, but should be apportioned between income and principal account. Certain benefits were to be had by the life beneficiary under this agreement. In the decree of this court passing and"approving the accounts of this trustee to June 30, 1894, this salary of the trustee paid from the income account was allowed without objection by these contestants, as were also the benefits that Mrs. Cornell was to receive under this agreement. So far as the record discloses, the first intimation that the trustee had that this item of his account would be questioned was when these objections were filed in this court, February 11, 1896. It is argued in the elaborate brief of the. attorneys for Mrs. Cornell that the trustee, by deducting this $200 per month from the income account, in effect takes this amount direct from her income. That by so doing the trustee treats this agreement as an equitable assignment to him by the life tenant of the rents and profits of the trust, and that an agreement of that kind is absolutely void under the statute. In that contention, I think, he is in error. Mrs. Cornell, as we have seen, is not entitled to all the income of this estate, but to 90 per cent, of the net income thereof. As no objection has been made to the trustee rendering these services, Mrs. Cornell must have known he was to render the estate extra services for this extra compensation. As the value of these services is not questioned, he must be assumed to have earned the amount received, and the income of the estate to have been increased to that amount, or to some amount. If extra services were necessary, in addition to the regular employés of the trust, and this trustee did not perform them, some one else, of necessity, would, and be paid therefor from income. It may easily be that the net income of the estate was increased by these services, instead of diminished, and in that event Mrs. Cornell would be benefited, instead of injured. There is certainly no evidence to show that the net income was diminished, and upon that theory only, if at all, could the statute against assignment of income be held to apply. The rule is that statutory commissions only shall be allowed executors and trustees, but the courts have sanctioned extra payment to executors where extra services were performed. In Re Meikle (Surr.) 20 N. Y. Supp. 88, 97, the executors only agreed that one of their number for extra services to the estate should have house rent worth $30 per month. The remaining heirs (who had not agreed to such extra compensation) objected thereto, but it was allowed. In Lent v. Howard, 89 H. Y. 169, one of the executors took charge of the real estate of deceased at the request of the other executors, and managed and controlled the same. It was held that he was entitled to extra compensation therefor. In this case the will gave $1,000 to each of the executors for his services, in addition to his fees. There being no question as to the value of the extra services of the trustee, and he having performed his part of the agreement with no notice shown of Mrs. Cornell’s desire to withdraw her consent prior to this accounting, I hold that he is entitled to the extra compensation in accordance with the agreement, and that it is properly charged against income account.

How, as to the wild-land back taxes paid to A. B. Colvin, state treasurer, amounting to $929.70 and $83.62. The vouchers show that these payments were for an accumulation of back taxes, and that a portion thereof had accrued prior to the death of Thomas Cornell. The trustee will separate these payments, and charge that portion of the amounts which accrued prior to that time, and the interest thereon as computed by the comptroller, to the principal estate, as that portion is a debt of the estate, and should not be paid from income. The remainder must be charged to income account. This tax bill is against a large number of pieces of real estate, some of which are productive and some are not. There is no way by which the productiveness or the relative productiveness of certain portions of the real estate can be estimated and compared, and this court adjudge that one portion of taxes be paid from principal account, and the other from income account. Taxes of this kind, accruing subsequent to the death of Thomas Cornell, must be paid from income. The testator, by his will, treated his estate as a whole, and the trustee properly follows the same rule. In Be Albertson, supra.

The objection to the payment from income of the special assessment of $593.10 to James E. Phinney, city treasurer, presents a different question. The assessment was for Union avenue sewer extension and grading and paving Chestnut and Downs streets, in the city of Kingston. The testimony is that these streets had never been paved, graded, or sewered before; that immediately after this improvement to Downs Street the lots of the estate situated on that street appreciated to the extent of $100 each. The number of lots does not appear. This is a municipal assessment for a permanent improvement to the real estate. It is not at all in the nature of annually recurring taxes, nor of taxes for repairs to streets that had once been paved, graded, and sewered. Under the decisions in Peck v. Sherwood, 56 N. Y. 615, and Thomas v. Evans, 105 N. Y. 601, 611, 612, 8 St. Rep. 647, this assessment must be apportioned between income and principal account. The amount involved is not large, and the apportionment may be difficult, but the objection is taken, and the apportionment will have to be made by the trustee, with the aid of the Northampton tables. There is this distinction, however, between those cases and the one here: there the parties were actually life tenants in possession and remainder-men ; here there is no actual life tenant. Mrs. Cornell is the life legatee of the net income, and has no title whatever, to any of the real estate except the homestead; nor is there any one now who is the actual vested remainder-man. However, the remainder is fully provided for, and, no matter where it eventually alights, the legal principié of the division is not disturbed. cIt can easily be seen that in this estate, with many building lots situated on unimproved streets, a municipal ass'essment for an expensive new pavement or sewer might make a very serious inroad on the income, while the principal estate would be greatly benefited by the improvement, and its apportionment as herein provided for adjusts the burden upon the two interests in an equitable manner. See In re Housman, 4 Dem. Sur. 408, 409.

The objection to the payment from income of the bill of Parker & Piero, attorneys in the Overbaugh ejectment case, and of Rogers, Ruso •& Kelly, stenographers in the Ulster County Savings Institution Case, both seem to me well taken. The first bill is for costs recovered in an unsuccessful attempt by this estate to eject Sarah B. Overbaugh from the possession or certain premises claimed by the estate, and which she was in the possession of at the time of the death of Thomas Cornell. This was a proceeding towards ascertaining the amount of and settling the estate by the executor, and not a proceeding by the trustee to conserve it after it had come into his possession, or to preserve it from attack. The second bill was for a stenographer in attendance at the trial of an action brought against the estate upon a bond of Mattheiv T. Trumpbour, executed by Thomas Cornell in his lifetime. This is a proceeding to ascertain the debts and liabilities of the estate. Both of these accounts are proper and natural expenses in settling the estate, not in administering the trust created by the will. In the decree of October 31, 1893, settling the accounts of the executors, and turning the estate over to the trustee, both of these claims were provided for, and Horace Gf. Young, as executor, was directed to retain in his hands sufficient assets of the estate to fully provide for the result of these actions. Those bills should be charged against principal account. The trustee will credit the principal estate with 10 per cent, of the net income Horn the date to which the last accounting approved by the decree of this court was rendered. A decree may be handed up in accordance with this memorandum.

Ordered accordingly.


source: Caselaw Access Project

author: NAN WYCK, C. J.

license: Public Domain

text:
    John McQueen v. John Brown.
    (City Court of New York, General Term.
    October 30, 1896.)
    Trial—Taking case from jury.
    Testimony of defendant, corroborated by that of his son, does not overcome the contradiotdry testimony of plaintiff to such an extent as to entitle him to a dismissal on the merits or the direction of a verdict in his favor.
    Appeal from trial term.
    Action by John McQueen against John Brown for. work and labor. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, made on the minutes, defendant appeals.
    Bobt. H. Racey, for appellant; J. Baldwin Hands, for respondent.
   NAN WYCK, C. J.

—This cause was tried without an objection or exception by either plaintiff or defendant, except that •defendant had noted an exception to the denial of his motion on the minutes for a new trial. The defendant did not move for a nonsuit, nor for a dismissal on the merits, nor did he request the direction of a1 verdict in his favor. The action was for a balance for work and labor performed by plaintiff in and about a building belonging to defendant,—the plaintiff testifying in support of his contention that the work was done as alleged, and that the balance was due and unpaid; while the defendant testified that there was a fixed price for part of the work, and that he had paid such price, and a further sum for the reasonable value of the other work, and he was corroborated by his 15-year-old son. This conflicting evidence on the main issue had to be submitted to the jury, and it would have been error for the judge to have taken the case from the jury, even if defendant had properly requested a dismissal or verdict in his favor, and the motion for new trial was properly denied.

The judgment and order appealed from are affirmed, with costs.


author: VAN WYCK, C. J.

text:
    Ford J. Sweet v. Metropolitan St. R. Co.
    (City Court of New York, General Term.
    October 30, 1896.)
    .Judgment—Opening default—Stipulations.
    Since the husband’s cause of action for the loss of his wife’s services from personal injuries does not die with her, it is error to require defendant, in an action therefor, to stipulate, to secure an order opening a default, that, in case of the death of the wife before trial, judgment may be entered on the inquest taken on the default.
    Appeal from special term.

      Action by Ford J. Sweet against the Metropolitan Street-Railroad Company. From so much of an order opening a default as requires defendant to stipulate that, in case plaintiff’s wife dies before the case is tried, plaintiff may have a final judgment on the decision and findings of the jury already taken on such default, defendant appeals.
    Henry A. Robinson, for appellant; Brown & Dexter, for respondent.
   VAN WYCK, C. J.

—The plaintiff sues to recover damages-sustained by him by reason of personal injuries to his wife through defendant’s negligence. The husband certainly can recover, in such action, damages caused by loss of his wife’s-domestic services, the expenses necessarily incurred by him by reason of her injuries, and the loss of her society and the comforts thereof; while the wife has her action for the general damages from the injury to her person, and for the loss of her earning power over and above her domestic services. London v. Cunningham (City Ct. N. Y.), 20 N. Y. Supp. 882. The-wife’s cause of action for the general damages for her personal injuries dies with her. Therefore, if she had been the plaintiff' herein, taking the inquest, it would not have been unreasonable to have required the defendant to stipulate, as a condition for opening the default and setting aside the inquest, that, if she should die before the cause was retried, final judgment might be entered upon the decision and findings of the jury, on the inquest; for otherwise the defendant, although guilty of' negligence, would, by reason of her death, and the setting-aside of the inquest, entirely escape liability for her cause of action, unless her death had resulted from its negligence. But-in this case the plaintiff is the husband, whose cause of action for the wife’s injuries will not die with her, and his cause and the proof thereof could have been fully protected by requiring the defendant to stipulate, as a condition for setting aside the inquest, that in case of her death before the trial of the cause, then that her testimony as taken on the inquest, or at plaintiff’s, option, as more fully taken on her immediate examination before trial, should be read upon the trial. And the order appealed from will be so modified and affirmed,- without costs..

All concur.


text:
    Peter M. Wilson v. Henry D. Steers et al.

    (City Court, of New York, General Term.
    October 30. 1896.)
    1. Appeal—Exclusion oe evidence.
    The exclusion of evidence on an objection which states no grounds, and none having been called for by the adverse party, will be sustained if any ground existed for its exclusion.

      2. Trial—Evidence—Objections.
    Where the time of the maturity of the note in suit has been proven both by putting the note in evidence and by admissions in defendant’s pleading, it is proper to exclude, as a waste of time, further evidence offered by defendant to show the time of maturity.
    Appeal from special term.
    Action by Peter M. Wilson against Henry D. Steers and others on a promissory note. From a judgment entered on a verdict directed in favor of plaintiff, and from an order denying a motion for a new trial, defendant Steers appeals.
    C. H. & J. A. Young & Terry, for appellant; Ira D. Warren, for respondent.
   VAN WYCK, C. J.

—The action is upon a promissory note, against the payee and the maker, in which the maker alone defends, and he, by pleading, admitted the execution and delivery by him of the note ; but he alleges that the same was given to the payee, who held a first mortgage on the same real property upon which he held a second mortgage, under an agreement that, if he (the maker) should purchase the property at foreclosure sale, then the note was to be retained as payment of the interest on the first mortgage, but that if he did not purchase the property the note was to be returned to him by the payee, and that he did not purchase the property. The plaintiff discounted the note for the payee, and the verdict was directed for him at trial because of the failure of the defendant to introduce any evidence whatever. However, the defendant (appellant) contends that he made proper effort at trial, and was prevented by an adverse ruling from proving that the payee had diverted the note from the alleged purpose for which it was given, and that by reason thereof he is entitled to a reversal here, because of the rule that if a promissory note is obtained by fraud, or diverted from th.e purpose for which it was given, and is sued upon by a subsequent holder, and y the defendant maker submits proof of the fraud or diversion, the plaintiff must then malee proof of the bona fides of his holding, and the burden to do so is upon him. The rule is correct. Shifter v. Boggs (City Ct. N. Y.), 37 N. Y. Supp. 219. But did the maker herein properly endeavor to make such proof ? The record shows that his only effort to make such proof Avas made just after the plaintiff had rested, and Avas as follows :

“ Defendant’s counsel offers in evidence a letter to Mrs. Thompson to shoiv the purpose for Avhich the note was given. We offer in evidence the letter to Mrs. Jane L. Thompson, which was Avritten, and Avhich states the conditions upon which the note was sent' to her. (Objected to. Sustained. Exception. Defendant rests.)

The record does not show that the letter was shown to or seen by the court or by plaintiff’s counsel, or produced at all, or marked for identification, or by Avhom it Avas written, or that it was ever delivered, or .what it contained, except counsel’s mere assertion that it stated the conditions upon which the note was sent to the payee, or what were the conditions mentioned in the letter; and the letter does not appear in the record, nor was it exhibited on the argument of this appeal. Appellant’s counsel concedes that there are several grounds upon which the court could have properly sustained the objection to his offer, but contends that it was error to sustain this objection, because it was general; that is, it did not assign any grounds of objection. This contention should have been made at trial, by requesting the court to direct plaintiff’s counsel to specify the grounds of his objection, and such request would have undoubtedly been granted. But no such request was made, and the rule in such case is as stated by our .appellate authority : Where evidence is excluded upon an objection which stated no. grounds, and none are called for by the adverse party, he is not misled, but may be supposed to understand them ; and, if any ground in fact existed for the -exclusion, it will be assumed that it was placed on the right ground. Miner v. Stolts (Com. Pl.), 32 N. Y. Supp. 2. It is not error to sustain a general objection if any sufficient ground for it exists, provided that no request be made that the ground be specified. Abb. Tr. Brief, p. 57. Where the objection is general, stating no grounds, and the decision is with the- objector, the objection is sufficiently stated; and error does not lie for rejecting the evidence, as the opposite counsel has a right to have the objections stated but if he does not call for them he is not misled, and may be supposed to understand them. Height v. People, 50 N. Y. 395. When evidence is excluded upon a mere general objection, the ruling will be upheld if any ground in fact' existed for the exclusion. It will be assumed, in the absence of any request by the opposing party or the court to make the objection definite, that it was understood, and that, the ruling was placed upon the right ground. Tooley v. Bacon, 70 N. Y. 37. However, there is a different rule where the objection is overruled and the evidence is received, and in such case the rule is: Where there is a feneral objection to evidence, and it is overruled and the evience is received, the decision of the trial judge will be sustained, on appeal unless there be some ground which could not have been obviated if it had been specified, or unless the evidence called for was, in any aspect of the case, incompetent. Quinby v. Strauss, 90 N. Y. 664.

The appellant’s counsel asked the following question of plaintiff" while cross-examining him: “ Q. At what period ivas that note payable from the date ? (Objected to as a waste of time. Sustained. Exception.) ” The appellant’s counsel now assails the correctness of that ruling, and invokes in aid of his contention the rule that where an objection to testimony on a specific ground is made at trial, and is sustained, and the evidence excluded, no other ground of objection which could have been obviated will be .listened to on appeal in support of the ruling. Hew ton v. Harris, 6 H. Y. 345. Where specific objection is made to evidence offered, every ground of objection not specified which is capable of being obviated by evidence is waived. Marston v. Gould, 09 H. Y. 220. When this question was put, the note dated February 10, 1894, had already been marked in evidence, and by its terms was payable in three months after date, and the defendant had, in his pleadings, specifically admitted the making of the note described in the complaint as made on that day and payable at that time; and, moreover, the note itself had just been handed to thfe witness when the question was asked. It certainly would have been a waste of time to have permitted any further proof of the date and time of payment of the note which had already been absolutely established, was uncontradicted, and was indisputable under the pleadings.

The judgment and order must be affirmed, with costs.

All concur.


text:
    James Haynes v. James W. McKee.
    (City Court of New York, General Term.
    October 30, 1896.)
    1. Pleading—Summons—Nature of action.
    The summons cannot be considered in determining the nature of an action.
    2. Pleading and proof—Recovery in contract on complaint in tort.
    Plaintiff cannot recover, as money had and received, a sum alleged to have been paid to defendant in reliance on misrepresentations knowingly made by him.
    Appeal from special term.
    Action by James Haynes, as executor, against James W. McKee. From a judgment entered on a dismissal of the complaint on the merits after refusing plaintiff’s request to be allowed to go to the jury on certain questions, plaintiff appeals,
    Arnoux, Ritch & Woodford, for appellant; Isaac N. Miller, for respondent.
   VAN WYCK, C. J.

—This action against the defendant individually was commenced by Mary L. Haynes, and on her death continued by her executor, the present plaintiff, and her alleged cause is that in March, 1892, one Alida H. King deposited in the Hnion Dime Savings Institution $1,000 in trust for plaintiff; that said King died in May, 1893, without having drawn therefrom said sum, or any interest thereof; that in June, 1893, the defendant, who had duly qualified as executor of Mrs. King’s will, stated and represented to her that she was not the owner of or entitled to said money so deposited in trust for her, but the same was an asset-of Mrs. King’s estate; that plaintiff, not knowing that she was entitled to said sum, and relying upon the truth of said statements and representations, delivered to defendant a draft on said institution for the said sum, for which defendant obtained from said institution its check to her order for such sum, which she indorsed, and, so indorsed, delivered to the defendant; and that “ the said statements and representations were false and untrue, and were so known by defendant to be.” The plaintiff at the trial rested without having proved that the defendant had made any statements or representations whatever to Mrs. Haynes at or before or after the time that she gave him, first, the draft on the institution, and then its check to her order and indorsed by her, although plaintiff did prove that such payment wras made to defendant by marking in evidence the institution’s check to her order, indorsed by her and then by defendant, and paid by the bank upon which it was drnvn. The defendant moved for a non-suit upon the ground, among others, that the evidence showed that this payment was voluntarily made to defendant, and that the allegations of the complaint that the same had. been procured by false representations had not been proved, but his motion was denied. The defendant proved that he received this sum; had turned it into the general fund of Mrs. King’s estate, of which he was executor; had charged himself with it in his accounting of her estate; had finally distributed the entire assets of her estate among her legatees, except one, and that the assets were not quite sufficient to pay the legatees in full. But still no proof appears in the case that the defendant had made any statements or representations whatever to Mrs. Haynes, plaintiff’s intestate; and on defendant’s request, at the close of the case, the court dismissed the complaint on the merits, against plaintiff’s objection and exception, and his request to be allowed to go to the jury “ upon the question whether the money, when deposited by Mrs. King, accompanied by her subsequent declaration, was not a gift; whether in June, 1893, she [meaning, of course, Mrs. Haynes] was not the owner of the property; and whether the money was not paid over by her to McKee by reason of representations made by him as to the ownership of that fund."

The court had just denied defendant’s motion to dismiss on his first ground, which was failure of proof of Mrs. Haynes’ ownership of the fund; and this ruling is fully justified by Martin v. Funk, 75 N. Y. 135, which decides: Where one deposits his own money in a savings bank, and requests and receives a pass book containing an entry that the account was with him in trust for another person named, a valid trust is created in favor of such person, although the depositor retains the bank book until his death. The court then requested plaintiff’s counsel to point out the evidence, if any, -which proved the alleged false and fraudulent representations, and the relianee of plaintiff’s intestate upon those representations as inducing her to part with her title ; and the record shows that it was after argument of plaintiff’s counsel, in response to the court’s request, that the motion to dismiss was granted. It is ■certain that counsel failed to point out such evidence, for none such is in the record. The appellant’s counsel now contends that the complaint showed a cause of action ex contractu, as for money had and received, and not simply one ex delicto-; that because of the notice in the summons that judgment, on failure to answer, will be taken for a specific sum, a clear intimation is given that plaintiff sues in assumpsit, and that such notices are only proper in actions ex contractu; that the allegation in the complaint of a demand of, and the prayer for, judgment for a definite sum, showed conclusively an indication ■or election that the cause of action was one on contract. But at the trial he made no effort to have his complaint amended, nor did he give the slightest intimation that the cause of action was not in tort, or that he would waive the tort that Avould entitle him to an execution against defendant’s body; but on the contrary he seemed to have contended tenaciously for that feature of the complaint upon which depended his ultimate resort to such an execution, for he requested to be alloAved to go to the jury only upon two questions,—one the OAvnership in plaintiff’s intestate, upon, which the court ruled Avith him, aud the other whether the money was paid by her to defendant by reason of the representations made by him as to the OAvnership of the fund. As to the summons Avith notice : The summons only serves to bring the party into court, but does not make a part or aid in the interpretation of the pleadings. If the complaint does not folloAv the summons, the remedy of the party is by motion. Graves v. Waite, 59 1ST. Y. 162. The prayer of the complaint does not qualify the principal allegations of this complaint, which are that certain statements and representations were made by defendant; that plaintiff, relying upon them, gave a sum of money to him; and that “ said statements and representations were false and untrue, and were so known by defendant to be.” These are the allegations which characterize and give form to this action, and this is especially so of the allegation that defendant knew them to be untrue and false; and it is this last allegation Avhich makes the cause of action alleged one in Avhich an order of arrest can be granted under section 549 of the Code, and under Avhich action the fraud must be alleged in the complaint and proven on trial to entitle the plaintiff to recover, and a judgment against him will not bar a' neAV action on the contract. Even if proof had been submitted that the representations Avere made, Avere relied upon, and were false, still the complaint in this action must have been dismissed unless proof Avas made that defendant knew them to be true Avhen he obtained the money. Marsh v. Falker, 40 N. Y. 562. But a new action could be maintained on the contract. Code, § 549.

An allegation that defendant knoAvingly made a false repre- • sentation does not let in evidence that he made false representations without knowledge. Abb. Tr. Brief Pl. 725; Marshall v. Fowler, 7 Hun, 237.

In the Anew that has been taken of this case, it is unnecessary to further discuss appellant’s brief. The judgment is affirmed, with costs.

All concur.


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    New York Novelty Co. v. Ferd. H. Mela.
    (City Court of New York, General Term.
    October 30, 1896.)
    Evidence—Sufficiency.
    Plaintiff claimed that defendant, his landlord, agreed to pay §100 - towards alterations on the premises. Defendant testified that he only agreed to pay the cost of the labor in making the alterations on representations by plaintiff that he had the materials therefor, and that the labor would not cost over §30. Plaintiff paid §135 for the alterations, but did not furnish the material. Held, that the fact that defendant, before suit, offered to pay plaintiff $50, warranted a finding that he • agreed to pay for the labor, and that the labor was worth $50."
    Appeal from special term.
    Action by the New York Hovelty Company against Ferd. H. Mela. Judgment was entered on a verdict in favor of' plaintiff, and from an order denying a motion for new trial defendant appeals.
    Charles Putzel, for appellant; Edgar A. Lauer, for respondent.
   VAN WYCK, C. J.

—The plaintiff contended by proof and pleading that defendant agreed to pay not exceeding $100 for-certain alterations to be made in steam-pipe connections in defendant’s premises, which he had leased to plaintiff for a three-years term at $7,500 rent annually ; while the defendant-testified that, at the conversation he had with plaintiff’s agent - about the steam-pipe connections to be made, this agent said that - his company already had the pipes in the premises from which they intended to move, and that the pipes could be taken out and brought to defendant’s premises if defendant would pay for making the connections, and that in response he (defendant) • had thought it over, and considering that it probably would cost $25 or $30, and that as he-did not care for a matter of $20 or $30, he would stand it. The old pipe was not taken out and brought to defendant’s premises, but plaintiff caused the connections to be made with new pipe, and paid $125 for such pipe and the labor for connecting same. The plaintiff’s agent - testified that before action was brought the defendant had offered to pay $50, which was refused. The jury found for plaintiff for $50, evidently concluding that defendant had agreed to pay for the labor, but not for the material, and that as defendant had offered to pay $50 the labor was worth that sum. The appellant’s contention is that, because the plaintiff’s witnesses had testified that it was entitled to $100 or nothing, the verdict should have been for plaintiff for that amount, or for the defendant. The jury, as it had the right, believed a part of plaintiff’s evidence and a part of defendant’s evidence, and their verdict is not against evidence or weight of evidence.

Judgment and order affirmed, with costs.


text:
    John S. Ferguson v. Henry Zeltner et al.

    (City Court of New York, General Term.
    October 30, 1896.)
    Evidence—Conclusiveness.
    In a contest between the attorney of an accused held on extradition proceedings and persons attaching money deposited in place of bail for accused as belonging to accused, the attorney testified that he collected the money on an order from accused, that accused paid the same to him as a retainer, that he deposited it as bail, and that he secured through a lawyer whom he associated with himself in the case the withdrawal of a portion of the money, and permitted such lawyer to retain a portion thereof. The attorney’s testimony, was corroborated by the testimony of accused. Held that the question of ownership of the money was for the jury.
    Appeal from trial term.
    Action, by John S. Ferguson against Henry Zeltner and others. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for new trial, plaintiff appeals.
    R. Burnham Moffatt, for appellant; Edgar J. Lauer, for respondents.
   VAN WYCK, C. J.

—This action was originally against the sheriff, who had attached a fund deposited in the hands of the city chamberlain as bail for the release of a prisoner held under extradition proceedings for larceny, and is continued by substitution of the attaching creditors as"defendants instead of the sheriff. This fund of $3,000 was deposited by this plaintiff as bail on release of such prisoner, and the plaintiff’s contention by his testimony was that, upon such prisoner’s request, he came to Hew York as his counsel on Hovember 28th, and on that day received from the prisoner a written order for $3,000 on one Martin, who was indebted to the prisoner in that sum, and collected such sum from Martin, and, on depositing the $3,000 as bail, secured the prisoner’s release on the same day. The plaintiff testified that this $3,000 was paid to him as a general retainer by the prisoner, hence was his property, and as such deposited by him as bail, and was not subject to an attachment in an action by these defendants against the prisoner. The only testimony on behalf of plaintiff was his own and that of such prisoner, both taken by commissibn at Pittsburg, Pa., and read on trial. It appears that plaintiff, by the same New York counsel who defended the prisoner, secured a withdrawal of $1,250 of this $3,000 because defendant’s attachment was only for $1,750, and such counsel retained $1,000 of this-$1,250 for his fee for defending the prisoner; the plaintiff, however, testifying that he permitted this because he had retained such counsel for the prisoner. The defendants, of course, could offer no proof as to the ownership of the fund, and, the plaintiff not requesting the direction of a verdict in his favor, the case was submitted to the jury, on the testimony of plaintiff and the prisoner, for the determination of the question of ownership of the fund; and their verdict for defendants was a finding that the prisoner, and not his counsel (the plaintiff), owned the $3,000 when it was deposited in lieu of bail to secure his release from custody. There "is not an exception by appellant in the case, except to the denial of his motion for new trial. This was a proper case to submit to the jury, and their'verdict will not be disturbed, judgment and order affirmed, with costs.


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    Charles G. Moses v. Henry B. Helmke.
    (City Court of New York, General Term.
    October 30, 1896.)
    Real-estate agent—Compensation.
    To entitle a real-estate agent to his commissions for negotiating a sale it is not necessary that a contract of sale should have been executed, provided the purchaser was able and willing to buy at the seller’s price and terms.
    Appeal, from trial term.
    Action by Charles G-. Hoses against Henry B. IIelmke.. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant appeals.
    Hoffman Miller, for appellant; Mark Ash, for respondent.
   VAN WYCK, C. J.

—The plaintiff, areal-estate broker, sues-to recover commissions for securing for defendant, at his request, a purchaser of his real property, for the price and upon the terms fixed by him. The record and brief indicate that defendant’s (appellant’s) case was tried largely upon the theory that a real-estate broker, who, by his negotiations, at the seller’s request, has produced a purchaser willing and able to buy at the seller’s price and terms, has not earned his commission until the seller and purchaser have actually executed a written contract of sale and purchase, enforceable at law for-damages, and in equity for specific performance. But such is not the law of this state, and the rule here is that where a broker employed to effect a sale of property has found a purchaser of sufficient responsibility, able and willing to take upon the terms named, he has performed his contract and is entitled to his commission. And this is the rule whether the property be real or personal, or whether the purchase price is to be paid in cash, or in other property at an agreed price. The proof of plaintiff is that at defendant’s request, through plaintiffs negotiations, he secured one Friedman to agree to exchange his property for defendant’s property for prices and upon terms satisfactory to defendant, and that defendant, in parting with Friedman, said to him that his lawyers could draw the contracts and send them over to his (defendant’s) lawyers “ to see if the form is correct, and I will sign them ; ” that defendant made an engagement for Tuesday, to sign the contract, but did not keep the engagement; that on Wednesday defendant wrote to the broker as follows:

“Hew York, Feb. 27, 1895.
“ Mr. Chas. Griffith Moses—Dear Sir: One of the parties who I told you was negotiating for my Brooklyn house has finally accepted my offer, and the contracts were signed this morning. 1 can assure you that I am sorry that you did not make the deal, as you have worked hard, and I will put anything that I can in your way that would be profitable to you. The principal reasons for my declining the Washington Heights property, and taking the other in preference, are the price, assessments, the probability of the city taking off some 22 ft. to widen Depot lane, the doubts of being able to get a street cut through where I would prefer, the facilities of getting to the property, and other important reasons. Thanking you for your attention, and hoping soon to be able to send you some business,
“Very truly, II. B. Helmke.”

Mr. Friedman testified that he and defendant had agreed fully upon the terms of the exchange, and that he owned the property which he was to give defendant in exchange jointly with another, and that such other had authorized him to make the trade. In defendant’s letter by which he informed the broker that he had signed a contract to sell his property to other parties, his specified reasons for his refusal to sign the contract with Friedman are the price, assessments, probable loss of 22 feet to widen a street, and doubts about having a street cut through just where he wished it; but in his testimony at the trial he gives as his reason for failing to agree to the exchange that it was a condition precedent to his making this exchange that he should also purchase the Bath-born adjoining property, and that he objected also because the mortgage on the Friedman property could not be paid off within 30 days, but he made no proof about the assessments, price, loss of 22 feet to widen, street, or doubt about having street cut at particular place. The respective contentions of the parties were fully and clearly submitted to the jury, who were charged that if they found that the minds of these parties, Helmke and Friedman, who were to exchange properties, did not meet on all- the material conditions and terms of the bargain, then the broker cannot recover. If there was any difference between them, then their minds had not met, and they had not fully agreed, and in that case the broker would not be entitled to his commission. But if they found from all the evidence that their minds did meet, and that they had fully agreed upon the terms of the exchange of their property, then the broker is entitled to his commission, whether the contract was put in writing or not. This charge was in accordance with the law relating to brokerage for sale of property for cash, or by exchange for other property. In view of the shifting excuses given by defendant for his alleged failure to agree as to the sale by exchange, it would not be surprising that the jury had concíudéd that the true reason for his failure to carry out his agreement was that he had secured another purchaser for his property, on more advantageous terms to him, and their verdict for plaintiff will not be disturbed.

Judgment and order affirmed, with costs.


author: FITZSIMONS, J.

text:
    Augusta Ebenreitter v. Julius Dahlmam et al.

    (City Court of New York, General Term.
    November 2, 1896.)
    Conversion of goods—Proof of damages.
    . In an action for the wrongful seizure of a stock of goods plaintiff may show what proñt.she could have realized on a sale of the goods.
    Appeal from trial term.
    Action by Augusta Ebenreitter against Julius Dahlman and Isaac Marx, substituted defendants, for damages for the wrongful taking of goods owned by plaintiff. From a .judgment in favor of plaintiff, defendants appeal.
    O. I. Wise, for appellants; A. H. Berrick, for respondent.
   FITZSIMONS, J.

—This is an action for damages for the wrongful taking of certain goods and chattels owned by the plaintiff. The defendants were sued as indemnitors of the sheriff, and were substituted as defendants in his stead, as provided for by the Code of Civil Procedure. This appeal is based upon "the theory that plaintiff failed to establish her claims as owner, that it was not proper to admit testimony establishing a loss of prospective profits, and upon certain alleged errors in the admission or exclusion of evidence and in the justice’s charge. There is abundant evidence proving the plaintiff to be the owner of the goods in question, and the value of the same. Of course, this was denied by the defendants’ witnesses, and the issue of fact so made was for the decision of the jury, and their finding in plaintiff’s behalf we shall not disturb. The. business carried on by the plaintiff at the time of tailing was that of a retail butcher. The stock then on hand and the fixtures in the store were seized and sold by the sheriff. It ivas proper for the trial justice to allow testimony that would certainly show what profit the plaintiff could have realized upon the sale of the stock owned by her and so taken, and to no greater extent ivas testimony offered. Such testimony was properly allowed. Schile v. Brokhahus, 80 ¡N". Y. 614. We find no error made in the admission or exclusion of evidence as to the judge’s charge. It was a very fair, full, and impartial one, and, in our opinion, correctly submitted to the jury. The rules of law applicable to this action, besides defendants’ request to charge, covering, as they do, about 15 folios, were all charged as requested. ¡Not content with this, after the retirement of the jury they made other requests to charge, covering several folios. Every request charged in plaintiff’s behalf by the court, at the request of her counsel, was excepted to by the defendants’ counsel; but, even after all this, we have discovered no error in the charge.

The judgment therefore is affirmed, with costs.

All concur.


text:
    Bauned Friend et al. v. Gottlieb Jetter.
    (City Court of New York, General Term.
    October 30, 1896.)
    Brokers—False representations—Evidence.
    False representations by a real-estate agent concerning property of which he was negotiating a sale are not made out by evidence of the purchaser that 'he relied on such representations, where it appears that he signed the contract of sale after making independent inquiries as to the subject of the alleged representations.
    Appeal from trial term.
    Action by Bauned Friend and another against Gottlieb Jetter. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for new trial, defendant appeals.
    E. J. Myers, for appellant; David Leventritt, for respondents.
   VAN WYCK, C. J.

—The plaintiffs sue for commissions for negotiating the sale of defendant’s real property by exchange for the house and lot in Willett street of one Greenwald. The defendant, by paragraphs 6 and Y of his answer, alleges that plaintiffs, at his request, negotiated the transactions in regard to this exchange, and that he agreed to make an exchange of his property for the said Willett Street property, and offered to make an agreement accordingly,” but relied upon certain representations made by plaintiffs in reference to the Willett Street property, which were false. It appears by the record that plaintiff’s negotiations brought the owner of the Willett Street property and the defendant together on the day that plaintiffs’ Exhibit A was executed by defendant and such owner. This exhibit, as defendant says it should be read, is as follows:

“ New York, June 5, 1894.
“ Received from Frank Greenwald $1.00 as deposit on sale of my houses numbers 1590 and 1592 Madison avenue, New York City, for the price of $64,000, subject to a first mortgage of $40,000 at five per cent., and I agree to take in exchange the house No. 52 Willett street for the price of $40,000, subject to a first mortgage of $18,000 at five per cent., and a second mortgage of $8,850 at six per cent., payable every three months, $187.50 with the six per cent.; and the whole amount from the second .mortgage must be paid in six years ; and I agree to take back a purchase-money mortgage oh the houses in Madison avenue of $5,500 on each house at six per cent., and it shall be payable every six months $200 on each, with six per cent. The contract shall be made in the office of Mr. Himmel, No.-Chambers St., June 5th, at 1 p. m.
“ Gottlieb Jetter.
“ Franz Grunwald.”

After the execution and delivery of this contract, and upon ■ the same day, the defendant, with his attorney, met Greenwald for the purpose of having a more formal contract drawn up and executed ; but at this meeting no other contract was executed, and defendant testified that he then refused to make any other contract, and that Greenwald did not refuse; and says that the grounds of his refusal were, as expressed by him: “ Í signed the paper [Exhibit A] because I was given to understand that the property [Willett street] brought $3,400 to $3,500, and afterwards I changed my mind because I understood that there were no leases on it. I certainly made that contract because I was given to understand there were leases on that property bringing in a certain income every year; and after-wards, when I found out it was not so, then I refused to carry out the contract.” The defendant testified that Greenwald made no statement to him about the leases and rents, and that he was not present when they were made, but that the statements about the leases and rents were made by plaintiffs (the brokers) to him when they offered him the property, and that the only statement he complained of is the statement about the leases and the rent. Thus it appears that the defendant’s own contention was-that he was perfectly willing to have fully carried out his “ agreement to make an exchange of his property for said Willett Street property,” except for the falsity of the statements made to him by plaintiffs, when they offered him the Willett Street property, “ that said last mentioned premises were in possession of tenants who had yearly leases thereon, and that the rents of said property amounted to $3,500 annually.” The answer alleges “ that the rental of said premises did not exceed $3,200.” The defendant testified that on the day he signed Exhibit A, and before he signed it, he went up to the Willett Street house, and saw the tenants. “ I asked about the rent, and what rent they [tenants] were paying. I went there and inquired about the rent. They told me what Tent they were paying.” Although defendant says the tenants told him what rent they were paying, he nowhere testifies what amount of rent they told him they were paying, nor as to what the rents of the premises actually were, nor as to the rental value thereof; hence he has failed to make an issue on his allegation that the rental was not $3,500, and did not exceed $3,200. As to the alleged representation that the premises were in the possession of tenants who had yearly leases, the answer alleges that the premises “ were in the possession of tenants under monthly hirings and hirings other than yearly hirings,” and the defendant testified that when the plaintiffs offered him the property they stated that it was in possession ■of tenants under yearly leases ; that the owner made no such statement, nor was he present when it was made; and that he (defendant) went up to the house on the day Exhibit A was signed by him, and before it was so signed, to inquire of the "tenants about the rents, and says, “ I did not inquire whether they had any leases or not, because I thought that part was all right.” 'When he says that he did not inquire about the leases because he thought that part was all right, he must be understood as saying that he thought that that part of the alleged representations referring to yearly leases which plaintiffs had made to him when they offered him the property was all right. He testified that when he made this inquiry of the tenants about the rents he found the store ■of the premises empty, and yet he immediately, on the same day, proceeds to sign Exhibit A, without making any inquiry whatever of the owner or the plaintiffs in reference to the -empty store, the yearly leases, or amount of rents. The plaintiffs testified that they made no statement to defendant about leases or rents, and that defendant had not assigned, as the grounds of his refusal to carry out his agreement, that such statements had been made, and were false, but that defendant himself, in reply to the inquiry of his attorney, "made at the time of his refusal, if there were any leases on the property, stated that he had been in the building, and knew all about it, and that there were no leases; and this attorney was at the trial, but did not contradict this testimony of the two plaintiffs. The appellant contends that the court, by the charge, took from the jury every question except this one in reference to the false representations as to the leases ; but, even so, it was not error. In reading the defendant’s testimony in the light of his cross-examination and the allegations of his answer, it appears that the court would have been justified in directing the verdict against him.

Judgment and order affirmed, with costs.


author: PATTERSON, J.

text:
    Edward Michaelis et al. v. Charles Gahren.
    (Supreme Court, Appellate Division, First Department.
    October 3, 1896.)
    Real-estate agents—Right to commissions,
    A two-years’ delay for the purpose of removing a cloud from a title-to real estate will not defeat the recovery of commissions by brokers employed to purchase the property, if a deed is finally accepted by the purchaser, and the steps of the transaction are connected.
    Appeal from court of common pleas, trial term.
    Action by Edward Michaelis and Emil M. Michaelis against Charles Gafaren- for broker’s commissions on the purchase of real estate. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial* defendant appeals. ,
    R. E. Deyo, for appellant; C. Fine, for respondents.
   PATTERSON, J.

—The plaintiffs sued in the court of coimmon pleas to recover the value of services alleged to have been rendered by them as real-estate brokers to the defendant. They had a verdict, from the judgment entered upon which, and from an order denying a motion for a new trial, this, appeal is taken.

The employment of the plaintiffs, and the rendition of some service pursuant to that employment, were proven beyond dispute. It was shown that Mr. Gafaren, being desirous of purchasing the property mentioned in the complaint, authorized the plaintiffs to enter into relations with one Flanagan,, who was the agent of the owner, and to negotiate with him for the purchase of the lots, and that, after several efforts-made by one of the plaintiffs, the defendant and Flanagan were brought to accord respecting the terms of a contract; that a memorandum was made of those terms, and signed by both Flanagan and the defendant, and $500 were paid by the-defendant on account of the purchase money of the lots. That-being so, the plaintiffs’ relation to the subject ordinarily would have terminated, but in the memorandum referred to is a statement to the effect that a formal instrument was to be executed, for which purpose the parties were to attend at the office of the attorneys for the owner, where the further details were to be arranged. The evidence shows that when, pursuant to this provision of the memorandum, the parties met at the office of the attorneys above referred to, an objection to the title was taken, which appeared to be of sufficient gravity to cause either a termination of "the whole negotiation between the defendant and the owner of the premises or a suspension of that negotiation until that objection could be overcome. That presents the only real issue there is in the case. Was, there an abandonment by the defendant of the whole transaction or not ? Some two years after the employment by the defendant of the plaintiffs, the premises were conveyed to the-defendant. The claim of the plaintiffs is that such conveyance was made pursuant and related back to the original understanding as contained in the memorandum, and that, notwithstanding the delay, it was a transaction completed with the party, and substantially upon the terms secured by the plaintiffs as brokers. The learned judge at the trial submitted that question to the jury very clearly and fairly, and, there being evidence strongly tending to support the plaintiffs’ claim, there is no reason why we should interfere with the verdict.

It was shown that at the time of the execution of the memorandum by Flanagan, ostensibly acting as agent, and the defendant, the sum of $500 was paid on account of the purchase price, which sum was retained by Flanagan until the defendant accepted the deed, two years afterwards; and then Flanagan took his commissions chargeable against one of the vendors from that amount, and paid over the balance to the vendor’s attorneys. There was also testimony to show that at some time during that period of two years the vendors’ attorney brought suit for the construction of a will affecting the title to the premises, and to rectify the title, and that during the pendency of that suit one of the plaintiffs and Gahren had conversations in which the latter stated,, in substance, that he was still in the expectation of getting the property; that he was indifferent as to time, for the lots were rising in value.. There was enough to show a continuous connection between, the first step taken by the plaintiffs in the matter and the last one, consisting in the delivery of the deed by the vendors to the defendant. It is unnecessary to rehearse the testimony on behalf of the defendant. The issue was fairly raised and distinctly left to the jury. The learned judge, in substance, charged that, if there were an abandonment of the understanding between the parties as expressed in the memorandum, and an entirely new transaction undertaken by the defendant himself, under new conditions and changed circumstances, the plaintiffs could not recover; and that was stating the law as favorably as could have been demanded by the defendant.

A number of exceptions appear to have been taken during the progress of the trial to the admission or rejection of evidence, but the learned counsel for the defendant has not called our attention to any one of them, confining himself in his brief' (the case was submitted without argument) to a general statement of the facts, and to exceptions taken to the charge of the-judge and to his refusal to dismiss the complaint. The motion to dismiss the complaint was made on no less than ten grounds, not one of which, as the case stood, possessed any merit. It was clearly shown that the plaintiffs did perform services, and there were facts from which it might be inferred by the jury that the execution of the memorandum between Gahren and Flanagan contained the terms of an agreement afterwards -completed. There was a consideration for the promise shown. The memorandum executed between Flanagan and Gahren might not have contained a contract which Gahren could ■specifically enforce against the owner of the premises, but that question was not involved, for the real issue in that particular connection related to the adoption by the owner subsequently of the services of the broker, and the terms contained in that memorandum. All the other grounds assume conditions of the evidence to exist which do not appear upon the record.

It is urged by the defendant that where an agent undertakes to perforin a service, and does not succeed, others may avail themselves of what he has done, and carry the transaction'to a successful termination, where the agent’s failure results in his retirement from the transaction. Cases are cited which are said to sustain that view, and it is argued that that condition of things appeared upon the record at the close of the plaintiff’s case, and should have led to a dismissal of the complaint. An exception was taken to the statement of the learned judge that there may be grounds that this negotiation so opened by the plaintiffs ultimately led to the very ■sale which was made.” Whatever criticism these words may be open to, it is not the one now made by the appellant. "There was evidence—and very direct and necessary evidence —that it did so lead;. and, if it did not, there could be no re-no very. It was for the jury to say whether the whole subject was one continuous and connected transaction, beginning with the signing of the memorandum between Flanagan and Gahren and the conveyance of the property by the owners to Gahren pursuant (substantially) to the terms of that memorandum, and virtually carrying out a contract negotiated by the plaintiffs. It is beyond controversy that the plaintiffs procured that original memorandum to be made. In this connection it is said that the terms were different, because $75,000 was paid ' ior the property, and not $72,500; but there is evidence to show that the additional sum was a mere enhancement of the contract price, and so understood to be, by reason of taxes, assessments, or charges that had accrued upon the property intermediate the date of the memorandum and that of the transfer of the property by deed. That would seem to be a "way of equalizing the loss of interest on the purchase price on the one side and the „ expenses of the property for taxes, etc., on the other side.

It is further claimed that the judge erred in his charge by -stating to the jury that, because Gahren allowed the $500 to remain in the hands of Flanagan, that was some evidence that the original negotiation was not abandoned by Gahren. But the learned judge did not so charge. He merely stated that the plaintiffs so claimed, and made no further comment upon it, except in such a way as to indicate that it was not to be taken into consideration without also regarding the explanation that had been given about it, as appears from the concluding sentence of his charge. The other exceptions do not require particular consideration. The law was properly stated to the jury, and upon the only real question of fact there was quite an abundance of evidence to authorize the verdict.

The judgment and order appealed from must be affirmed, with costs.

All concur.