author: Bischoff, J. Pryor, J.

text:
    John B. Devlin, Adm’r, Resp’t, v. The Mayor, etc., of New York, App’lt, and Thomas Hope, Adm’r, et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

      1. Municipal corporations—Contract—Form op action.
    Plaintiff sues as assignee of an undivided portion of a contract for street cleaning to recover for a breach thereof on the part of the city and' for moneys earned at the time of such breach, making the other owners of the ■contract defendants. Held, that although the complaint prayed judgment for common law relief only, yet as all the parties necessary to a complete determination were before the court, it could grant such relief as the facts showed the plaintiff to be entitled to, irrespective of whether it be denominated legal or equitable.

      2. Same—Failure of defendants to serve answers on co-defendant—
    Waiver.
    A judgment in such action awarding affirmative relief against the city in favor of its co-defendants is not unauthorized because copies of their answers seeking relief were not served on the city, where the latter proceeded to trial without raising the objection under an order of reference, directing the determination of the rights of plaintiff and the other defendants in any sum found due from the city.
    3. Same—Title to moneys due—Receiver pendente lite.
    Pending this action another was brought to determine the rights of the parties and for an accounting of moneys received on the contract by a. trustee, in which action a receiver pendente lite was appointed with leave to sue, but such receiver has since died. Held, that the pendency of such action and the appointment of the receiver did not preclude a recovery in. this action ; that a receiver so appointed acquiies no title to the property in dispute, but only the possession thereof.
    4. Same—Injunction.
    An injunction restraining parties from receiving payment does not hinder them from litigating their rights to judgment.
    5. Same—Bribery.
    Proof that the contractor left a sum of money on a table in a room adjoining the common council chamber, to which other persons had access, is insufficient to show that the contract was procured by bribery, where all the surviving members of the common council testify that they did not know of the contractor’s act, and that neither they nor any one for them ever received any portion of said sum.
    6. Same.
    Neither does it affect the validity of the contract that the brother of the mayor had a personal interest in the contract, or acted for an acquaintance or client who had such an interest.
    7. Same.
    Assuming that the contract was secured by bribing officials, it was operative, unless the corporation saw fit to disaffirm it; and having permitted work to be done thereunder, although it subsequently rescinded it on another ground, it was liable for the work done and the subsequent breach.
    8. Same—Measure of damage.
    The measure of damage for breach of the contract in such case is the difference between the amount which the city agreed to pay, together with the profit on the sale of garbage, ashes, etc., permitted by the contract, and the actual cost of performing the work.
    9. Same—Evidence—Opinions.
    The parties who were engaged in the work under the contract were permitted on the trial to give their opinions as to the value of the contract and the probable amount of profit it would have yielded during the unexpired time, but gave no evidence as to the cost of the work or the amount of garbage, etc., yielded. Held, that the admission of such evidence was reversible error. '(Pryor, J., dissents.)
    10. Same—Pleading—Demand—Law's 1860, chap. 379.
    Chapter 379, Laws 1860, requiring the making and pleading of demands upon, and refusal by the comptroller, as conditions precedent to the maintenance of actions against the city, affected the remedy only; and, as the subsequent repeal thereof by Laws 1870, chapter 388, operated upon pending actions, an objection that the complaint did not conform to the act of 1860 in this respect is ineffectual.
    Appeal from a judgment entered upon the report of a referee.
    Action by the assignee of part of two demands against the defendant, The Mayor, etc., of New York, one for moneys earned under a contract made between the assignor and said defendant for the cleaning of the streets of the city of New York, and the other for damages arising from said defendant’s unlawful rescission of the same contract, w hereby further performance on the part of the plaintiff and his assignors was prevented.

      Joseph J. Martin, for plaintiff and defendants other than The Mayor, etc., resp’ts; T. C. Cronin, for defendants other than The Mayor, etc., and Charles F. Blish, as adm’r, resp’ts; E. T. Schenck, for defendant, Charles F. Blish, adm’r, resp’t; Francis Lynde Stetson and Franklin Bartlett, for defendant, The Mayor, etc., app’lt.
   Bischoff, J.

Pursuant to a resolution adopted by the common council approved by mayor on lltli day of February, 1861, the corporation of the city of New York on the 26th day of February, 1861, entered into a contract in writing with Andrew J. Haclcley, by the terms of which he undertook to clean

and keep clean “ all the paved streets, avenues, lanes, alleys, and all gutters, wharves, piers and heads of slips in the city of New York,,r as therein particularly provided, for a period of five years from the day of the date of the contract, and the corporation agreed to pay him for such services an annual sum of $279,000 in semi-monthly instalments. The contract also expressly permitted Haclcley to. dispose of “ all ashes, garbage, rubbish and sweepings of every kind ” for his own benefit. Immediately after it was awarded and entered into Haclcley conveyed a quarter interest in the contract each to Lewis Davis, Anthony S. Hope, and Thomas Hope, and on the 16th day of May, 1863, when further performance of the work was prevented by the municipal authorities, Haclcley’s entire original interest had by mesne assignments been transferred, one-eighth to Charles Devlin, one-half to Samuel Donaldson, one-quarter to Charles D. Blish and one-eighth to Tilly R. Pratt. Haclcley and his assignees at once entered upon the performance the work and so continued unfil the 16th day of May, 1863, when, as before stated, the officers of the municipal government refused to permit them to proceed and assumed control of the street cleaning, assigning as the ground for so doing that Haclcley and his assignees had failed to carry out the contract on their part. At this time there remained due and unpaid from the corporation five semi-monthly instalments of $11,625.00 each, which had become payable by the terms of the contract, and a further sum of $2,345.00, the proportion for three days, had accrued for the instnl - ment next to become pavable, amounting in the aggregate to the sum of $60,450.00.

After an ineffectual attempt on the part of Devlin, Donaldson and Blish to induce the proper municipal officers to adjust their respective claims for moneys earned under the contract and for damages resulting from the corporation’s alleged breach of it, Devlin, in January, 1864, instituted this action to recover his share of both demands. As co-defendants with the corporation he named Anthony S. Hope, Thomas Hope, Samuel Donaldson, Charles D. Blish and Tilly R. Pratt, asserting in his complaint that they severally claimed to be entitled to some portion of the moneys due and the damages recoverable under the 'Hackley contract from the defendant, the Mayor, etc.

A former trial resulted in a judgment for plaintiff upon both demands urged against the corporation, but on appeal the court,of appeals reversed it on the particular ground that the recovery erroneously included, as an element of the damages resulting from the breach of the contract, benefits which would have accrued to Hackley, or his assignees, from sub-contracts had they been permitted to proceed with their performance of the work. The authority of the mayor and common council to enter into the contract with Hackley, the assignability of the latter’s interests, the right to enforce these interests by his assignees, and plaintiff’s right to recover in this action for moneys earned under the contract as well as for damages resulting from its breach by the corporation, were, however, sustained. Devlin v. The Mayor, 63 N. Y., 8. On the second trial any justification of the corporation’s rescission of the contract because of Hackley’s, or his assignees’ non-performance or negligent performance, was substantially abandoned. The plaintiff again recovered to the extent of his interest therein, both for moneys earned and damages, and a like recovery was awarded against the defendant, the Mayor, etc., in favor of each of its co-defendants.

It is now urged on behalf on the defendant-appellant, the Mayor, etc., that this action is for common law relief only; that plaintiff’s rights as assignee of part of the several demands made against it under the Hackley contract are of equitable cognizance, enforceable only by an action in equity, and hence that plaintiff was not, nor is his administrator, entitled to maintain this action. We do not differ, from the view taken by the general term of this eourt on a former appeal, and concur that the only relief sought by plaintiff against the defendant, the Mayor, etc., at the inception of the action, was for the enforcement of common law demands, Devlin v. The Mayor, 54 How. Pr., 50-58, and are, nevertheless, of the opinion that the action was properly brought.

That a part owner of one entire demand may recover bis share from the debtor in assumpsit was ruled in Risley v. Phenix Bank, 83 N. Y., 318. Under our system of remedial justice, introduced by the adoption of the Code of Procedure, both legal and equitable relief may be administered in the same action. It matters not that the complaint prays judgment for common law relief only. If the court has acquired jurisdiction of all,the parties necessary to a complete determination of the controversy, and the facts alleged and proved entitle the plaintiff to particular relief, that relief must be accorded him irrespective of whether or not it is denominated legal or equitable. The right of recovery no longer depends upon any distinction in the form of procedure, but upon the facts averred and proved. The Code has swept away all ancient distinction between “ legal ” and “ equitable ” actions and has_ substituted therefor one form of action, a “ civil action.” “In a" purely legal action, or, to speak more correctly, in an action where the plaintiff sets forth and mainly relies upon a legal primary right or title, and asks a remedy which is purely legal, he may still invoke the aid of an equitable right or title which he holds, or of which he may avail himself, in order to maintain his contention, and obtain the legal relief which he seeks. This is a more indirect union of legal and equitable rights and causes of action than exists in any of the instances heretofore discussed ; but it is ¡none the less a union." Pomeroy’s Remedies and Remedial Rights, 2nd ed. 105, § 85. To the same effect is Stevens v. The Mayor, 84 N. Y., 296. Here the complaint sets forth every fact essential for the predication of the claims for moneys earned under the contract and for damages resulting from its breach by defendant, the Mayor, etc. It likewise avers that the plaintiff and the defendants other than the Mayor, etc., are entitled to the whole of .such claims in the proportion of their several interests therein as the assignees of Hackley. If these allegations are sustained by the proof, what does it matter that plaintiff’s rights are “ equitable,” not “legal.” He would in either case be entitled to recovery and the court would be enabled to proceed to a complete determination of the controversy.

Next defendant-appellant, the Mayor, etc., urges that though plaintiff’s right to recover in this action upon sufficient proof be ■conceded,- the judgment is, notwithstanding, erroneous, in so far as it awards affirmative relief against defendant-appellant and in favor of its co-defendants; that, assuming the action to be controlled by the provisions of the Code of Procedure which was in force at the time of its commencement, § 274 does not authorize ■such a judgment, and, if the provisions of the Code of Civil Pro•cedure, § 1204, are held to apply, it appears affirmatively from the evidence that the defendants to whom the relief was awarded •did not comply with the provisions of § 521, which require as a •condition to the award of affirmative relief to a defendant, against .a co-defendant, that a copy of the answer of the defendant seeking the relief be served upon the defendant against whom it is sought .at least twenty days before the trial.

Whatever merit, however, this contention might otherwise have presented is entirely dispelled in the instance of the judgment appealed from, because the defendant-appellant elected to proceed to trial without objection, under an order referring all the issues for trial to a referee, which, by adoption of a former like order, specifically directed the latter, if he should determine that there is .any money due from the defendant-appellant by reason of the matters set forth in the complaint, “ that he also decide and determine to whom the same shall be paid, and the rights and interests of the said plaintiff, and the other defendants, respectively, in and to the sum of money so found due from defendant, the Mayor, aldermen and commonalty." Derham v. Lee, 87 N. Y., 599; Chapmans. Forbes, 128 id., 532; 34 St. Rep., 351. We do not fail to observe that defendant-appellant did object to the award of affirmative relief against it in favor of its co-defendants, but this was not until the trial was concluded, and obviously, therefore, after the objection was waived. So also, it may be seriously questioned whether, after affirmance by the court of appeals of the order denying defendant-appellant’s motion to vacate the referee’s report, Devlin v. The Mayor, 128 N. Y., 615; 38 St Rep., 1013, the present objection to the judgment is still available, and whether in any event the objection should not have been presented by motion to vacate the judgment instead of by an appeal therefrom.

It appears that after this action was commenced Charles Devlin instituted another action in the supreme court against the same defendants for an accounting by Anthony S. Hope, as trustee of the Hackley contract, for moneys received by him, and to have the ultimate rights of the parties to those moneys and the moneys and the damages recoverable from the corporation determined ; that in the supreme court action against Cyrus Curtiss was appointed receiver of such moneys and damages with power to sue therefor; that this power was subsequently revoked- and a suit commenced by the receiver dismissed for want of prosecution ; that the supreme court action is pending undetermined and the order appointing a receiver remains in force; but that Mr. Curtiss is deceased and that his successor has not been appointed. In view of the foregoing defendant-appellant urges that neither the plaintiff nor its co-defendants can recover in this action because the title to any claim for moneys earned and damages for breach of contract against the corporation under the Hackley contract was vested in Mr. Curtiss as receiver, and upon his death devolved upon the supreme court pending the appointment of his successor. In support of its contention counsel for defendant-appellant'cité cases which affect the rights of receivers appointed of the property of judgment debtors in supplementary proceedings. Those cases, however, are readily distinguishable. A receiver appointed of the property of a judgment debtor is invested with title by express provision of law. Code Pro. § 298; Code Civ. Pro., § 2468. Mr. Curtiss’ appointment was pendente lite only. No transfer by act of the parties appears to have been made to him. A receiver so appointed acquires no title to the -property in dispute. His right is one of possession merely as an officer of the court, and the title remains precisely where it was when he was appointed. Keeney v. Home Ins. Co., 71 N. Y., 396; Decker v. Gardner, 124 N. Y., 335; 36 St. Rep., 267. True, the parties, may be under a disability by reason of the injunction issued in the supreme court action which prevents them from receiving payment, but that does not hinder them from litigating their rights, against defendant-appellant to judgment, and the Code of Procedure (§ 121) permitted, as the Code of Civ. Pro. (§ 756) now-permits, an action to be prosecuted to judgment in the name of the original parties notwithstanding that there may have been a devolution of interest subsequent to its commencement.

That plaintiff may render himself liable to punishment for violation of the injunction issued in the supreme court action cannot operate as a defense to or relieve defendant-appellant from any just obligation owing by it to him. If defendant-appellant intends-to dispute the right of the plaintiff and its co-defendants to receive payment of any sums awarded them by judgment in this action because of the pendency of the supreme court action and the appointment of a receiver and the issuance of an injunction therein, such must be done upon application to the supreme court.

From, the evidence introduced in support of defendant-appellant’s plea that the Hackley contract was secured by means of bribery, and that it is, therefore, void on ground of public policy, we can discover no such preponderance as would justify our reversal of the referee’s finding that there was no bribery. It can serve no useful purpose to discuss the evidence in detail, since in any event the plea is untenable. That Thomas Hope gave Hackley $40,000, and that the latter, acting upon the suggestion contained in an anonymous letter, deposited the sum in a paper package upon a table in a vacant room adjoining the assembly chamber of the common council, and to which persons other than Hackley and the members of the common council had equal access, unquestionably shows, if we assume the truth of the confession of a self-impeached witness, that Hackley not only intended to bribe, but that he actually parted with a large sum of money for that purpose to some unknown person, but in view of the sworn denial of all but two members of the common council, who were deceased at the time of the trial of this action, and whose credibility is unimpeached, that they knew of Hackley’s act, or that they or some one for them ever received any part of the sum deposited by him, and in the absence of any evidence from which their knowledge of Hackley’s act or their receipt of any portion of the money so deposited by him may be reasonably inferred, it is the merest conjecture to say that any member of the common council was bribed and thus to cover these public officials with infamy, and that without according them as much as a trial of the charge.

There have been instances where public officials have succumbed to corrupt influences in the performance of duty, and such may again occur. But are we, therefore, justified in placing them all under the ban of suspicion, and to convict them upon accusation only ? Is it a fair inference from the fact that one person was known to give the bribe, that he found even one of the officials who were concerned in the award of the contract ready to take it? To do so would be to argue and draw conclusions, not from general rules, but from exceptions thereto, and subject a class to indictment because of the criminal act of a member; a position neither justified by logic or experience. Beckless accusations of this kind are sometimes made which upon investigation prove to be even without the shadow of support, being but ruthless aspersions of character, and we, as judges, sworn upon our oaths to a fearless and impartial discharge of duty, should guard against the influences of temporary partisan clamor, lest we.stoop to the perpetration of injustice, and so become derelict to the trust reposed in us. In criminal prosecutions the truth of the accusation must be established by the evidence beyond a reasonable doubt; in a civil action by a preponderance of the evidence. Ho surmise, no conjecture and no suspicion is allowable in either case, but the presumption of innocence must prevail in the absence.of legal proof. N.Y. & Brooklyn Ferry Co. v. Moore 1 Silvern. Ct. App., 52; 1 St. Rep., 374.

Nor does it help defendant-appellant’s plea any that a brother of the then mayor of the city had either a personal interest in the-contract awarded to Hackley, or acted on several occasions for an acquaintance or client who had such an interest. By what authority may we say that the relatives of one in public office must abstain from all contact with matters concerning the public lest they will give substance to an accusation of corruption ? To assume the "truth of the accusation against the mayor from the fact alone that his brother, or his brother’s client, was interested in the contract would be monstrous. To indulge such assumptions generally would tend to render public office a degradation. It would cease to be honorable preferment. Every public servant, no matter how faithful his devotion to the public interest, may be assailed by like imputations. We think it a much more plausible, and the only possible deduction from the facts established on the trial, that Hackley’s eagerness to secure the contract caused him to fall a victim to> the imposture of some unknown and unascertained person, who by some undisclosed means had'learned that the former’s bid for the contract was favorably considered by the common council.

Aside from the insufficiency of the evidence, and as already intimated, we are of the opinion that the plea that the contract was-void because tainted with bribery is ineffectual. No doubt a promise made to induce another to act corruptly in the public service is absolutely void and of no effect on grounds of public policy. But in such a case the parties to the contract are in pan delicie Not so with a contract entered into by a public official on behalf of the state or a municipal body and which in itself involves only the performance of lawful acts and the observance of public affairs, though it was secured by the other contracting-party through corrupt means. In such a case the official is but the agent of one of the contracting parties. The parties to the contract are not in pari delicto, and as in other instances of contracts induced by fraud, the contract is not void but voidable at the-election of the party defrauded. Cobb v. Hatfield, 46 N. Y., 533 ; Gould v. Cayuga Bank, 86 id., 75. Now, assuming that Hackley did secure the contract awarded him by inducing the official.-- < oncerned in its award to act corruptly, it was notwithstanding that-fact operative as against him unless the corporation saw fit to dis-affirm it. A contrary rule would have enabled Hackley to urge-his own wrongful acts to evade liability under the contract. It was not necessary, therefore, that the corporation should ratify the contract, and having entered upon its performance it cannot escape liability for the work done or the breach subsequently committed in the absence of proof that the contract was disaffirmed by it upon discovery of Hackley’s fraud. It was not claimed for defendant-appellant that the contract was disaffirmed, and the pleadings and evidence conclusively shows that no disaffirmance was attempted. The work continued for two years and three months, dun ing which time all but five of the semi-monthly payments were made to Haekley or His assignees. On May 16, 1863, it was rescinded on the part of the corporation because of alleged default in performance on Hackley’s part or the part of his successors in interest. After that time nothing remained to be disaffirmed, as the contract was at an end.

Assuming, however, that the corporation could thereafter avail itself of, its right to disaffirm, it then appears from the counterclaim in this action for damage claimed .to have been, sustained by the defendant-appellant, from Hackley’s alleged breach of contract, that the right was not only never exercised, but that the contract was expressly affirmed. _ Upon no other theory could the enforcement of the counterclaim have been attempted. ■ .

We are, however, of .the opinion that the judgment must be reversed upon other grounds. The measure of the damages-which are recoverable in this action against the defendant corporation for breach of its contract is the difference between the amount it agreed to pay, to which should be added the amount of profits which Haekley, or his assignees, would have derived from the sale of ashes, garbage, manure, etc., and the actual cost to be incurred in completing the work remaining unperformed at the time of the breach. Devlin v. The Mayor. 63 N. Y., 8. Turning to the evidence upon which plaintiff and the defendants, other than the May or,etc., rely for the amount of their recovery, it will be found to consist wholly of the testimony of Charles D. Blish, Samuel Donaldson, William H. Adams and John Satterlee, the several persons who at different times during its progress had charge of the work under the contract Neither of these witnesses testified, even remotely, to the cost of the work, or the actual amount of ashes, garbage, manure, etc., yielded from performance during the several seasons of the year, and so we are not afforded any basis for computing the amount of damages. In each instance the witness was permitted, against the repeated objection of counsel for the defendant-appellant, to testify directly to his estimate and opinion as to the value of the Haekley contract and the probable amount of profit which it would have yielded to the contractor, or his assignees, during its unexpired time. This kind of testimony has so often been condemned by the courts as incompetent that reference to particular cases seems unnecessary. See, however, Wakeman v. W. & W. M'fg Co., 101 N. Y., 205; Reed v. McConnell, id., 270 ; 1 St. Rep., 23. It is entirely speculative, and, if received, substitutes the opinion of the witness for the facts, thus usurping the province of the court and jury to determine the extent of the damages from evidence which admits at least of some degree of computation. The exception taken to the admission of the objectionable evidence pointed out, therefore, must be sustained.

The exceptions last referred to affect only so much of the judgment as awards recovery for damages resulting from the corporation’s breach of contract, and as the referee has found the amount due from the defendant-appellant for moneys earned separate and apart from the other damages, the judgment may be affirmed upon the stipulation of the respondents to abandon their claim for damages. Goodsell v. Western Union Tel Co., 109 N. Y., 147; 15 St. Rep., 73.

At the time of the commencement of this action chapter 379 of the Laws of 1860 continued in force. Section 2 thereof provided that no action or special proceeding should be prosecuted or maintained against the mayor, etc., of New York unless the complaint or necessary moving papers alleged that at least twenty days had elapsed since the claim or claims upon which the action or special proceeding is founded were presented to the comptroller for adjustment, and not then unless the complaint or moving papers further alleged that upon a second demand in writing upon the comptroller he had neglected or refused to make an adjustment or payment thereof. This requirement constituted a Condition precedent to plaintiff’s right "to institute and maintain the action and non-compliance therewith, if still in force and applicable to the case at bar, would be fatal. Reining v. Buffalo, 102 N. Y., 808; 2 St. Rep., 10. Objection to the insufficiency of the complaint because of its omission to allege the several demands upon the comptroller and his neglect or refusal to adjust or pay the claims was raised by counsel for the defendant-appellant at the opening of the trial, and again when the introduction of evidence was closed, by motions for dismissal, and to their denial due exception was taken. A further motion to dismiss the complaint was made for insufficiency of the evidence to sustain the several causes of action, it not appearing that any demand sufficient to satisfy the requirement of the statute was in fact made. This was likewise denied and due exception taken to the ruling. We do not, however, regard either the omission to make the demand or the omission to allege the demand in the complaint as jurisdictional, Russell v. The Mayor, 1 Daly, 263; Sheel v. Appleton, 49 Wisc., 125, and think that like other statutory provisions which are made for the benefit of a party to the action both the demand and its non-allegation may be waived, Roberts v. Baumgarten, 126 N. Y., 336; 37 St. Rep., 482; Sherman v. McKeon, 38 N. Y., 274; Shutte v. Thompson, 15 Wall., U. S., 151, but are unable to accede to the proposition of counsel for the respondents that the objections were waived in the present instance because not raised on the former trial.

The reversal of the former judgment had the effect of relegating the parties to precisely where they stood at the time of the first trial, and any objection which was predicable then of the insuffi- . ciency of the complaint or proof was available on the second trial. Nor would we be able to aid respondents by amendment of the complaint to conform to the requirement of the statute referred to since it is apparent, from the evidence and the referee’s finding, that the necessary demands were not made.

But the statute requiring the demands and their allegation in the complaint, however, did not in any sense abridge respondent’s contractual rights or impair defendant-appellant’s obligation. ' It affected the remedy only, Taylor v. The Mayor, 20 Hun, 292; affd. 82 N. Y., 10, and its subsequent repeal by chapter 383 of the Laws of 1870, which is in conflict therewith,was operative upon pending actions. Stocking v. Hunt, 3 Denio, 274; Supervisors of Onondaga v. Briggs, id, 173; Matter of Palmer, 40 N. Y., 561. Upon the repeal of the statute in force at the time of the commencement of this action respondents had a vested right of action against appellant-defendant arising under the contract with Haclcley upon common law principles, which remained unaffected by subsequent legislation in so far as the effect of the latter would be to impair it. Myer on Vested Eights, 105, etc., and cases cited. Hence the exceptions which are founded upon the objections that the complaint does not conform to the requirements of chapter 379 of the Laws of 1860, and that the proof was insufficient under the same statute are ineffectual.

It is unnecessary to discuss the question of respondents’ rights to the allowance of interest upon the damages recoverable by them for defendant appellant’s breach of contract, since upon the exceptions taken to the admission of incompetent evidence, and already noticed, the judgment must in any event, in respect to those damages, be reversed. But we incline to the opinion that the interest was properly awarded. Wilson v. City of Troy, 135 N. Y., 98; 48 St. Rep., 364; Sutherland on Damages, vol. 1, §348; Dana v. Fiedler, 12 N. Y.,40, 50.

Our conclusion is that the judgment appealed from should be reversed and a new trial ordered with costs to the appellant-defendant against the respondents to abide the event, unless the respondents will stipulate to waive any claim against defendant-appellant for breach of contract inclusive of the interest thereon, in which event the judgment, in so far as it awards recovery for moneys earned up to May 16, 1863, is affirmed, but without costs to either party as against the other.

Judgment reversed, and new trial ordered, with costs to defendant-appellant to abide the event, unless respondents stipulate to waive any claim against defendant-appellant for damages for breach of contract, inclusive of the interest thereon, in which event the judgment in so far as it awards recovery for moneys earned under the contract on May 16, 1863, is affirmed, without costs to either party as against the other.

Bookstaver, J., concurs.

Pryor, J.

(dissenting). After a chequered career of nearly years controversy courts, case has terminated at last in a judgment in favor of the respondents for a sum very little short of a million dollars. Except under compulsion of obvious and essential error, I cannot consent, by reversal of the judgment, to start the cause again on a course of doubtful and indefinite litigation, from which, by the death and disappearance of witnesses, it is not likely to issue in a result as consistent with the interests of justice as the conclusion now before us.

So long ago as 1875 the court of appeals settled the principles upon which, if the respondents be entitled to a recovery, the amount of their indemnity should be adjusted; namely, a credit for the money actually earned in performance of the contract, and an allowance for the money they would have earned but for the wrongful repudiation of the contract. In conformity with this decision, the referee determined the sum for which he directed judgment.

That the appellant established no defense to the action, and that the respondents were entitled to a judgment, is a result from which, in the opinion of my brethren, there is no possible escape. But, while affirming the judgment in so far as it awards compensation to the respondents for actual earnings under the contract, they reverse it as to the allowance of damages for breach of the contract by the appellant. And they subject the respondents to the hard alternative of renouncing the substantial benefit of their judgment, or else submitting to another trial of their claim under circumstances which preclude the possibility of establishing it by attainable evidence.

Ordinarily upon reversal of a judgment, whether for error in law or in fact, the respondent, if he have a case, is at no loss to repair the defect which caused his miscarriage. But as, in the present instance, the respondents are defeated for lack of evidence, and as by lapse of time other evidence is by necessity unavailable, the new trial awarded them is obviously an illusory advantage. And yet, if the judgment be invalid, we have no choice but to reverse it.

The measure of damages to the respondents for the breach of the contract by the appellant “ is the difference between the contract price and what it, would have cost to perform the contract.” Devlin v. Mayor, 63 N. Y., 9. It is not denied that the referee duly observed the rule of damages thus authoritatively propounded; but the position in the prevailing opinion is, that his conclusion as to the amount of damages is -without the support of legal evidence.

Conceding, for argument, that evidence of opinion and speculation by the witnesses as to the amount of damages be in the case; still the error in its admission is obviated by the explicit assurance of the referee that he excluded it from consideration. Only prejudicial error invalidates a judgment; and the evidence disregarded cannot possibly prejudice.

But, my associates say, rejecting the illegal evidence, the conclusion of the referee stands upon no proof. I am clearly of the contrary opinion.

The sum to which the respondents are entitled being the difference between the contract-price and the expense of the work, the question before the referee was; what would have been the amount of that expense? The conclusion that nothing in the record authorizes an answer to the inquiry involves, in my judgment, a misconception of the evidence. On the contrary, the cost of the work is shown by the testimony of witnesses who give, not a surmise nor an estimate, but positive proof of the fact from their own personal knowledge. Men of skill and experience who superintended the performance of the contract, deposing from recollection and from memoranda of expenditures made at the time under their supervision, detail minutely the cost of the work for each and every ward of the city. The cost of the work was reduced in proportion to the value of the garbage and ashes, reserved as a perquisite of the respondents ; and that value is made apparent by indisputably competent testimony.

Opinion as to the value of the contract may have been inadmissible, Reed v. McConnell, 101 N. Y., 270; 1 St. Rep., 23, but the actual profits upon work under the contract is not the subject of speculation but of knowledge; and to such profits as a fact competent testimony was adduced. Disregarding, however, this class of evidence, as the referee reports that he did, and still his inference as to the amount of damages stands upon the solid ground of legal proof.

“ A person violating a contract should not be permitted entirely to escape liability because the amount of the damage he has caused is uncertain. Prospective profits, so far as they can properly be proved, and which would certainly have been realized but for the defendant’s default, are allowable as damages, although the amount is uncertain.” Wakeman v. Wheeler & Wilson Mf'g. Co., 101 N. Y., 205. With this rule for guidance, I am conducted to a secure and satisfactory conclusion. By the testimony of witnesses speaking from knowledge and to facts, the damages found by the referee are sufficiently shown; and my unhesitating conviction is, that his decision is so supported by the evidence as to preclude this court from disturbing it. Baird v. Mayor, 96 N. Y., 567; Betjeman v. R. R. Co., 48 St. Rep., 721, G. T. of Com. Pleas; Aldridge v. Aldridge, 120 N. Y., 614, 617; 31 St. Rep., 948.

The judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, unless respondents stipulate to waive their claim for breach of contract, in which event the judgment is affirmed, without costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Thompson-Houston Electric Company, App’lt, v. The Durant Land Improvement Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Lease—Breach oj? contract.
    _ Plaintiff leased a building of defendant, who covenanted to deliver to plaintiff the property demised on the first day of the term “in a sound and substantial condition, and in a state of good repair.” Subsequent to the execution of the lease the fire department of the city declared the building demised to be unsafe and dangerous, and therefore, by order of the court, required a certain portion thereof to be torn down and rebuilt, which order was not complied with. Plaintiff went into possession, and has never abandoned the premises or rescinded the lease, or claimed to have been evicted. Held, that plaintiff could not be relieved from the obligation to-pay the rent reserved in the lease:
    2. Same—Damages.
    Where a tenant sues his landlord for damages for failure to put the demised property in repair by a certain time, after due notice so to do, it is not sufficient to predicate a specific finding of damages that sub-tenants might have hired if the repairs were made; it must appear that sub-tenants actually hired and broke their agreement because of the delay in the repairs.

      3. Same.
    Where a tenant could have made comparatively slight alterations and have charged them to the landlord, and has not only failed to make them, but has also failed to show any attempt to sub-let the premises as they are. or to prove that the rental value is less without the repairs, the full rental value of the part of the premises not used by the tenant in his own business, as damages suffered by the failure of the landlord to make the stipulated repairs, cannot be allowed.
    4. Same—Repairs made by tenant.
    Where the lease covenanted that the hollers and engines then in tho premises should be put in “a sound and substantial condition and in a stale of good repair," by the first day of the term, the tenant is entitled to the amount paid by him in making necessary repairs to the boilers and engines, as damages for the landlord’s failure to perform his covenant.
    5. Same—Insurance.
    Where a tenant neglected to effect the insurance on the demised premises, and the landlord did, as was his right under the lease, and the tenant claimed that the rates paid were excessive. Held, that without the clearest evidence that the landlord acted in bad faith, or negligently, in effecting the insurance, the amount paid by him should be allowed lu'm in addition to the rent.
    Appeal from judgment entered upon report of a referee.
    The facts appear in the opinion of the referee, as, follows: Ti-ieodore F. Miller, Referee.—The plaintiff, a lessee, having successfully defended in the district courts numerous summary proceedings for eviction for non-payment of rent, brought this action against the defendant corporation, The Durant Land Improvement Company, the assignee of the lessors, for equitable relief, subsequent to the suggestion contained in the opinion of the general term of this court in the action, The Durant Land Improvement Company v. The East River Electric Light Company, delivered in June, 1889.
    The premises described in the lease and complaint, Nos. 421 to 431 East 24th street, and 428 to 434 East 25th street, New York city, consist of the old Durant sugar house, now seven stories in height. The structure, formerly known as the Durant sugar house, the construction of which is hereinafter fully described, was lower than the present building, the sixth and seventh (gallery) stories having been added some time prior to the execution of the lease.
    In November, 1888, the plaintiff entered into an agreement for a lease, and subsequently, on the 4th day of January, 1888, the lease in question was executed, to take effect May 1, 1888.
    At the time the lease was executed in January, 1888, there was in the building a vacuum pan extending from the ground floor throughout the building, occupying a space of varying area in each -floor, which, when taken out in the spring of 1888, left an open space in the flooring of each story about sixty feet square.
    The plaintiff, before its lease went into effect, and prior to May, 1888, commenced preparing foundations for a large steam engine to be used in connection with its electric light plant at this station ; and during this period the defendant was having the vacuum pan, extending throughout the building, removed and the floors restored.

      This work and other work covenanted by the defendant to be done were not completed on May 1.
    The issues raised by the ¡Leadings are these: The complaint alleges, in substance, the agreement for a lease, of November 15, 1887, between Frederick C. Durant and others, the assignors of the defendant, and one Moore, whereby the Durants agreed to make and deliver to Moore or his assigns an indenture of lease, to commence May 1, 1888, of the premises described in the complaint and leases of portions thereof as the same should be ready and fit for occupancy at the request of said Moore ; that the annual rental reserved to be paid by the lease was $14,500 ; the assignment, for a good and valuable consideration, to plaintiff, The East River Electric Light Company, of said agreement; that prior to May 1, the plaintiff, The East River Electric Light Company, with the permission of the makers of said agreement, entered into possession of parts of the first and second floors of said building; that on or about the 4th of January, 1888, the said Durants leased and rented to the plaintiff the premises described in the complaint (above referred to), for the term of thirty-three years from the first day of May, 1888, with the privilege of two renewals ; that the said Durants conveyed the premises to the defendant corporation, subject to the aforesaid lease; that it was known to the lessors that the upper floors were required for manufacturing purposes; that before, and after May 1 the lessors entered upon the said premises with a large force of workmen, and proceeded to dismantle the same by tearing down columns of wood from top to bottom, and from wall to wall; that the defendant, or its assigns, has been in control of the third, fourth, fifth, sixth and sixth and a half floors, and parts of the first and second floors of the premises, and that by means of having taking away the stairs or staircases, and having floored over the hatchways, and removed beams and girders, and torn up the floors, cut off access to the premises, and thereby failed to deliver possession thereof to the plaintiff as stipulated in the lease; that said building was condemned in proceedings instituted by the fire department of the city of New York, and declared to be unsound and in a dangerous condition ; that by the terms of the lease the rent of the premises, or of that portion of the beneficial use of which the plaintiff was deprived, was suspended and abated until plaintiff was put in full possession; that thirty days notice to put in certain staircases on the Twenty-fifth street portion of the premises was duly served upon the owners; that defendant prevented plaintiff from obtaining possession; that under a covenant in the lease it was agreed that all “ alterations, improvements, rebuildings, additions of and to the said property which should be required at any time during the said term by any present or future law, ordinance or authority whatever, should be made by the lessors at their own expense, provided such alterations, improvements, rebuildings and additions should be such as are of a permanent nature, and become a part of the freehold ;that in the proceedings instituted by the fire department to have the building declared unsafe, it was adjudged by the verdict of a jury that the premises were dangerous and unsafe, and that an order or precept of the court required the owner to put the said building in a safe and sound condition; that thereby the plaintiff had been prevented from obtaining possession of the greater part of the said premises, and will be unable at any time to carry out the terms of the agreement for the reason that the work directed to be done under the findings of the jury will materially decrease the amount of space in the buildings, and will decrease the amount of air and light; that the said Frederick C. Durant, Charles W. Durant and Howard M. Durant, “did, prior to the making and executing of said lease, falsely represent to the plaintiff that the boilers, machinery and appurtenances in said building were in good condition, and suitable for the purposes for which they would be required by the plaintiff, which was known to the lessors, but that in fact the said boilers and machinery were in bad condition, entirely useless and unsuitable for the purposes for which they were required, whereby plaintiff has suffered damage in the sum of $50,000.
    The complaint then alleges that various summary proceedings for eviction for non-payment of rent were brought in the district courts, and that finally, in one of them (above referred to), the court suggested that, as no affirmative or equitable defense or counterclaim could lee set up in summary proceedings, the disputes between the parties, as to the amounts due upon the lease, if any, should be established in a court of competent equitable jurisdiction, under which, it is alleged, this action is brought; that plaintiff has built up, and is carrying on, an extensive business in the furnishing of electricity for heat, light and power to customers, having spent large sums of money in and upon the premises, and upon the machinery, for that pin-pose; that the plaintiff, by reason of the facts alleged, has been unable to give possession to persons with whom agreements to take portions of the premises leased had been entered into for the supply of steam and electric power, and that it has thereby suffered special damage in the sum of $110,000; that by reason of the failure of the defendant to put the building in good and substantial repair, and in sound condition, the risk assumed by insurance companies is about doubled, and that plaintiff was required to pay $2,500 each and every year for the excess of premium alleged to have been thus made necessary over and above the proper insurance premium ; that the defendant is irresponsible, pecuniarily, and that by reason of the premises no measure of damages allowed by law would compensate the plaintiff if defendant were allowed to proceed with such summary proceedings ; and for this reason, and to prevent multiplicity of suits, plaintiff demands judgment, that it be adjudged and decreed that defendant has never delivered to the plaintiff the premises described in the complaint in good and substantial repair and in sound condition, and that they are, therefore, not entitled to any rent and should be restrained from bringing any action at law to collect the same, or any summary, proceedings, and that the defendant, its officers and agents, should be restrained from bringing such action or instituting such summary proceedings in any court for the non-payment of rent, or from otherwise interfering with the equitable and peaceable enjoyment of that portion of the premises occupied by the plaintiff, with temporary injunction and for the damages above referred to.
    The answer of the defendant puts in issue nearly all the allegations of the complaint, except that it admits the making of the lease and its covenants, and that prior to the 1st of May, 1888, the building was condemned by the fire department, and declared to be unsafe and unsound, but it denies the materiality of said allegation and alleges that the said fact contained in the said complaint is immaterial.
    The answer further sets up as a separate defense and by way of counterclaim the lease referred to and assignment to the Durant Land Improvement Company, and that the said lease was accepted by the plaintiff and became binding upon the parties to this action ; that the annual rental of $14,500 in four equal quarterly instalments, in advance, on the 1st da.y of May, August, November and February, became due and payable, and that on the 1st of May, 1888, the defendant, then the owner of the premises, duly tendered the plaintiff the possession of the premises and duly surrendered the same to the plaintiff; that plaintiff accepted the premises, and ever since the 1st of May, 1888, has been and still is in possession and occupation of the same, and that it has fitted up in the premises an electric lighting station and has continuously used the premises in the prosecution of said business, and that there is due the defendant the entire rental reserved in said lease from May 1, 1888, to the present time, which the plaintiff neglects and refused to pay; that in addition to said rent there became due, as additional rent, taxes, assessments and charges imposed upon said premises, which plaintiff has neglected to pay ; that ■ there also became due, as additional rent, the amount paid as premiums for fire insurance, over and above a premium at the rate of one-half of one per cent, which the lessor agreed to assume.
    The answer then demands judgment for the rental reserved in the said lease and the additional sums paid for taxes and insurance premiums which plaintiff had neglected to pay.
    The important provisions of the lease executed January 4.1888, taking effect May T, 1888, which govern the questions in controversy, to be regarded in deciding the issues raised, áre (1) that the lessee and assigns agreed to hire the premises described in the complaint, “ including all shafting, pulleys or hangers formerly a portion of above and now on the premises above described, but not put up. Large engine on first floor with all counter-shafts, pulleys, hangers and belting belonging thereto. Boilers, smolce-stack, two feed water-tanks, two feed water-pumps. All piping and connections as now existing in the boiler and other houses and under adjacent streets to the East river. Also platform scales. All as per inventory to be annexed hereto,” for the term of thirty-three years, at $14,500 per annum, payable quarterly on the 1st day of- May, August, November and February of -each year.

      (Í2) That “ the parties of the first part will deliver and surrender to the party of the second part, its successors or assigns, the property hereby demised on the first day of the term herein provided for, in a sound and substantial condition, and in a state of good repair.’’

    (3) That “ the said parties of the first part, their heirs, executors, administrators or assigns at any time after the date of this lease, and upon thirty days notice in writing to that effect, given to them by the party of the second part, its successors or assigns, shall and will as soon as practicable after the giving of such notice, complete the seventh floor of the building hereby leased, in the same manner as the portion of the said seventh floor now laid.”
    (4) That “ the said parties of the first part,' their heirs, executors, administrators or assigns, at any time after the date of this lease, and upon thirty days notice in writing to that effect given to them by the party of the second part, its successors or assigns, shall and will as soon as practicable after the giving of such notice, put in and build two staircases in the Twenty-fifth street portion of the building hereby demised, and one staircase in the Twenty-fourth street portion of the same building, and also alter the location of the hatchways and of the Otis elevator now in said building, and alter in size the large freight elevator.”
    (5) That “ It being, however, mutually understood and agreed by and between the parties hereto, that if there should be imposed for insuring the said property, as hereinabove agreed, a premium at a rate greater than the rate of one-half of one per cent, and if the said greater premium is imposed by reason of this letting, or of any sub-letting by the party of the second part, its successors or assigns, of the said property demised, or by reason of any additions, alterations, rebuildings or improvements made by the said party of the second part, its successors or assigns, to the said property, then, and in that event, any portion of the premium necessary to be paid for insuring said property in the manner hereinabove specified, which shall be in excess of a premium at the rate of one-half of one per cent on the amount of insurance, shall be borne and paid by the said party of the second part, its successors or assigns, at its or their own proper charge and expense. Provided further, however, that if the rate of insurance premium shall exceed one-half of one per cent, then and in that event the party of the second part, its successors or assigns, may themselves effect such insurance upon the aforesaid property in such company or companies as may be satisfactory to the parties of the first part, tlieir heirs, executors, administrators or assigns. And that in the event of said party of the second part, its successors or assigns, not paying such excess of premium for insurance, then the parties of the first part, their heirs, executors, administrators or assigns, may themselves pay such excess of premium, and the amount so paid by them shall be added to the amount of rent falling due on the quarter day next ensuing."
    The premises and building included in this lease comprised a seven-story building with a frontage of ninety feet on Twenty-fourth street, running through the entire block to Twenty-fifth street, with ninety feet frontage on the latter steeet. It was formerly, before the upper stories wrere added, known as the Durant Sugar House, and was occupied as a sugar refinery, in which heavy, vibrating machinery was used and. heavy loads carried.
    The building, throughout its entire length and breadth, was supported internally by a series of wooden posts, twelve by twelve, set fifteen feet apart, in squares, extending throughout the entire building, the posts in each story resting directly over and in the same vertical line with similar posts on the floor below.
    On these posts in each story rested girders laid upon iron T plates, carrying the floors and the loads on the floors directly to the square posts or columns.
    This system of columns throughout the building served to carry the weights or loads imposed on each floor; the walls were thus largely relieved of the loads upon the floors of the building and bore only their own weight and the weight of one-half the flooring and loading of the building lying between them (the walls) and the first row of posts, about fifteen feet distant.
    It is undoubtedly true that some of the walls were seriously bulged. The testimony of the various witnesses as to their condition is verified by the photographs in evidence, and by the observations of the referee during his inspection, made at the request and in the presence of the counsel of both sides, and establishes that the Twenty-fourth street wall was bulged out between the second and fourth stories, and then receded or battered in from a true perpendicular line from the fourth story up, although the centre of gravity fell within the base of the wall.
    The long wall on the easterly side, running 200 feet from Twenty-fourth to Twenty-fifth streets, weaved and battered in near the centre to some extent.
    The westerly wall was also partially bulged ; numerous cracks of various sizes were to bo found in some of the walls.
    It is admitted in the answer that the proceedings instituted by the fire department for the condemnation of the building, after a trial by jury, resulted in a verdict declaiming the unsafety of the walls, and in an order for a precept directing that they be taken down. It does not appear, however, that this precept has ever been executed ; nor does it appear why it has not been executed.
    The building and walls, nevertheless, remain practically as they were at the time of this trial four years ago, and the building has-been used continuously by the plaintiff, notwithstanding this verdict was then rendered.
    Hnder this lease of May 1, 1888, the plaintiff had the right to take possession of all parts of the demised building. It did occupy all of the premises it required for the business of supplying power and light by electricity, occupying portions of the basement and first floor for the large new engine it put in the building, and. so much of the second story as was necessary for the operation of its dynamos.
    From the evidence, I am satisfied that this lease was delivered, and its acceptance has never been in any manner revoked or annulled by either party.
    The plaintiff, under this lease, has retained title to the property for the term demised aslessee,andhashad at all times since, and still has, the right to possession as against the defendant and all the world, and the exclusive right to enjoy its provisions and to enforce the performance of all the covenants contained therein on the part of the lessor; the defendant lessor, -on the other hand, having executed this lease and given possession to plaintiff, in consideration of the covenants of the plaintiff to pay the rent'reserved, is entitled to receive the rent stipulated under the lease.
    The claim that plaintiff is in possession under the agreement of lease of November, 1887, and not under the lease executed January 4, 1888, cannot be maintained.
    The plaintiff actually occupied a portion of the premises after the execution and delivery of the lease and was clearly vested with the legal right to occupy the whole premises. Plaintiff'could not retain this lease and claim that its occupancy was under some other title.
    Plaintiff did not refuse to enter into possession because defendant had not completed the alterations covenanted to be made by it, but went into beneficial possession.
    No rescission of the lease was made, or attempted to be made. Had the plaintiff been sued "in ejectment, this lease would have been a defense against the defendant and all others, so far as the evidence in this case discloses title.
    It is claimed that the plaintiff was not put in full possession by the defendant, as it is claimed the Knickerbocker Storage Company were, on May 1, and continued after that date, in possession of a portion of the premises on the second and third floors.
    This evidence is immaterial, even if the fact be disregarded that after the making of the lease certain of the persons largely interested in the plaintiff corporation acquired a large and, it is ■claimed, a controlling interest in the Storage Company, thereby, defendant argues, taking possession in effect of the portion of the premises then occupied by the Storage Company. Although weight should be attached to this fact, nevertheless there is no pretense that the Storage Company had any title paramount to that of the plaintiff.
    Under the.facts and circumstances proven, the claim that plaintiff was not put in possession of the premises cannot be maintained, for it is well settled that the lessor is not required to give actual, physical possession of demised premises to the lessee ; it is sufficient that he give the lessee the legal right to take possession. Gardner v. Ifeieltas, 3 Hill, 330.
    In this case there was no pretense that the plaintiff’s title as lessee, on May 1,1888, did not give it the legal right to take possession of all the demised premises.
    But it is also claimed, strenuously, by the plaintiffs that, because of the condition of the walls of the building and the proceedings which terminated after the verdict of a jury in a precept requiring the owner to rebuild them, that the plaintiff was and is relieved from its obligation to pay rent.
    The defendant did covenant to deliver the property demised “ in a sound and substantial condition and in a state of good repair,” and it is urged that “ the property demised ” was not delivered “ in a sound and substantial condition and in a state of •good repair,” in that (1) the building itself was unsound and (2) the boilers and machinery were unsound and not in good repair.
    The pleadings admit, substantially, these proceedings of condemnation. Much testimony was given upon the question of the soundness of the walls; the record and judgment order in the condemnation proceedings were not received in evidence for the reasons stated in the record. But as both sides urged the materiality of this issue, each side was allowed to make common law-proof of the facts.
    The evidence taken in this case is, as stated by the counsel, practically the same as was given before the learned judge and jury who tried the fire department proceedings. Were it material to the decision of this case, and had the plaintiff given any evidence upon which a judgment for money damages could be predicated, because of the alleged unsafety of the walls of the building, there is ample evidence to have sustained a finding that they were not, on the first of May, in a “ sound and substantial condition, and in a good state of repair,” as stipulated in the lease, although plaintiff has treated them as sound.
    After this decision, the plaintiff did not surrender its lease or possession; nor did it claim an eviction; on the contrary, it remained, occupied and used the premises precisely as it had done before this adjudication.
    After the adjudication in the fire department proceedings the plaintiff might possibly have elected to treat that determination as an eviction in law, and would, perhaps, have been justified in surrendering the lease and abandoning the premises and thus been relieved from further liability to pay rent.
    While the lease does provide that the landlord shall “ pay for all alterations, improvements, rebuilding and additions of and to the said property which shall be required at any time during the term hereby granted by any present or future law, ordinance or authority -whatsoever, which shall be made or procured to be made by the parties of the first part, at their own proper cost and expense, provided however that such alterations, improvements, rebuilding and additions, as are hereinabove covenanted to be made by the parties of the first part, shall be such as are of a permanent nature and become a part of the freehold, and shall not be such as are rendered necessary by reason of the use to which the said property is or shall be put ”; and also that the said parties of the said first part “should have the right to the possession or control of the said demised premises or as much thereof as may be requisite for such time as may be necessary, by reason of such damage, in the same manner and to the same extent as though this lease were not in existence, but without prejudice to any other right or obligation of the parties hereto, and during the time the party of the second part, its successors or assigns, are deprived of the use or possession of the premises hereby demised by reason of such damage and rebuilding by the parties of the first part, the rent hereinbefore reserved, or such part thereof as shall be justly proportionate to the portion or portions of the said demised premises of which the said party of the second part shall be deprived by reason of such damage or rebuilding or by reason of the possession or control of said premises by the pai'ty of the first part, shall be suspended and abated.”
    Nevertheless, the plaintiff has seen fit neither to abandon the premises nor to rescind this lease. It has remained in continuous possession and has had the full benefit of the building, as fully as if it had been a new building of unquestionable safety. It has conducted its business, as far as the evidence shows, as fully and successfully as it could have done in any building of unquestioned safety.
    It is claimed by the defendant that there is evidence to show that this building, when used as a sugar refinery, safely carried a load much heavier than that now imposed upon it by plaintiff’s business, or by the business of any tenant likely to hire any portion of the upper floors ; and it is claimed that the building is in precisely the same condition, so far as appearance and the bulging of the walls are concerned, as it was when used as a sugar refinery.
    The building has not fallen ; nor is its present condition, as far as the evidence discloses, any different, practically, from its condition when the plaintiff entered into occupation.
    The plaintiff, therefore, not having claimed that it was evicted, and not having surrendered the premises or the lease, cannot be relieved from the obligation to pay the rent reserved in the lease.
    The question of the safety or unsafety, soundness or unsoundness of the building, is immaterial in this case. I have, therefore, expressly refused to make any findings upon this question, and have inserted in the findings a statement that the determination and judgment herein is not based upon and does not decide, as between the parties, the issue of the soundness or safety of the walls of the building. It is sufficient, for the purposes of the decision of this case, to find that plaintiff has been in possession and had the beneficial use of the premises up to this date; and there is no reason why the decision of this case should disturb or affect, in any way the rights and liabilities of the parties in the future, as fixed or affected by the determination in the fire department, proceedings.
    The question presented here was, has the plaintiff established any money damages that can be offset against the rent, on account of the alleged unsoundness of the building ? Some testimony was given tending to show that persons seeking to hire space in the building in the spring of 1888 refused to hire when they heard or were told that the building had been declared unsafe. In one case the plaintiff refused to give a lease upon that ground. But the testimony is too indefinite to require or sustain any finding of any specific sum as damages for the alleged breach of covenant to deliver the property demised (as to the loalls of the building) to plaintiff on the 1st day of May, 1888, “ in a sound and substantial condition, and in a state of good repair.”
    The plaintiff seeks also to offset against its liability upon its covenant to pay rent damages for alleged breach (1) of the covenant of defendant to make alterations and repairs, to wit: To open and
    build two new stairways near the Twenty-fifth street end of the building, altering the hatchways, Otis elevator, etc., covenanted by the defendant to be made and done before the 1st of May, provided a notice should be given to do said work more than thirty days prior to May 1, 1888 ; and (2) damages for alleged failure to deliver on the said date possession of the boilers and steam engines, as part of the “ demised property,” in a sound and substantial condition and in a state of good repair.
    These claims will be considered separately.
    (1) Damages for failure to make alterations and failure to complete alterations in time. I have found, as a matter of fact, upon the evidence, that the plaintiff company gave the defendant, more than thirty days before the first of May, a notice to make certain alterations in the stairways, elevators, etc., which was written upon the drawing, Plaintiff’s Exhibit, “ Gr,” June 15, 1891.
    There is no doubt that the material alteration or repair undertaken to be made by the defendant landlord was the taking out of the vacuum pan and the restoring of the posts and floorings throughout the building in this space, about 60x60, near the Twenty-fifth street end of the building. This work was not done on the first of May. It is, therefore, claimed by the plaintiff that there was a loss of the rental value of each floor, forming a total area of 23,950 square feet, at approximate rates amounting to $30,366 per year, for the entire period since May, 1888, because, as plaintiff alleges, it “ has' been prevented from obtaining possession of the greater part of said premises,” and that the “ building has remained ever since untenantable by reason of the failure of the defendant to make the alterations ” above referred to.
    This claim cannot be allowed. It is undoubtedly true that the plaintiff was prevented by reason of the failure of the defendant to complete the floors on the first of May, from renting portions of the premises to certain tenant.
    It appears that one Steinfeld offered to hire and did hire thirty by seventy on the southeast corner, fifth story, at $41.66 per month; that he took possession, and left soon after, because of the lack of convenient access by stairs and elevators to the floor where he had hired space. I have allowed plaintiff the sum of $500, less one month’s rent paid, or $458.34, with interest from June 1, 1888, as the loss of the year’s rent of this tenant was the natural and necessary result of this breach of defendant’s covenant.
    It appears that the Excelsior Paper Bag Company would have hired 4,800 square feet at $1,300; as Mr. Townsend testifies, they backed out because they required possession May 1, and could not get access. The evidence does not satisfy me that there was an actual hiring which was lost to plaintiff by reason of the failure of the defendant to keep the covenant referred to.
    That parties might have hired is not sufficient to predicate a. specific finding of damages. It must appear that the tenant actually hired and broke his agreement because he could not get possession May I, or because the stairways or elevators were not put in.
    ■ The Bates Laundry Company would have hired 3,000 square feet at fifteen cents, but plaintiff refused to give it possession, saying the building had been declared unsafe.
    In the case of Lundgren, who moved out from the shop over the boilers, no proof of rent was made.
    Nor have I allowed the claim for the rental value of the unoccupied portions of the building on and above the second story at the rates per square foot claimed and proven by the plaintiff for the whole year from May 1, 1888, to May 1, 1889,. for as much as it is not shown that the plaintiff could have rented those portions of the building had the same been completed on or before the first of May. Nevertheless it is true that the plaintiff was entitled to the occupancy of the premises duly completed on the first of May, and they were not so completed.
    I have found as a fact, upon the conflicting evidence of the various witnesses, that the floorings were not completed until or toward the middle of May, and the roof was not repaired and certain outside work was not completed until the first of August; that the building was not substantially completed as required under the notice given by the plaintiff, so far as defendant attempted to alter the same, until August 1, 1888; and I have, therefore, allowed the plaintiff the amounts set forth in my report as the fair rental values of the various portions of the-building not actually occupied by plaintiff, during the period the repairs being made by the landlord were delayed, under the rule-laid down in Hexter v. Knox 63 N. Y., 561, and earlier cases.
    Although the building has never been completed in respect to-the putting in of the staircase on the Twenty-fifth street side and the change of elevators agreed to be made, I cannot hold that the-doing of this work was such an important matter as that it debarred plaintiff from the beneficial use of the various stories after-August 1, or prevented it from letting them.
    It is true that access to these stories was inconvenient, because-they could be reached only through the Twenty-fourth street narrow stairway ; but this did not wholly destroy their rental value or render them untenantable for the purposes such floors may be commonly used. No evidence has been given to show the difference m the rental value between premises situated as these are, and premises provided with the additional means of ingress and egress stipulated in the lease to be put in by the landlord.
    The plaintiff could readily have made these repairs and alterations ; and had they been made by plaintiff, or had their cost been shown, I should have allowed them as damages, Where the tenant could have made these comparatively slight alterations and have charged them to the landlord, and has not only failed to make them, but has also failed to show any attempts during the last three years to let the premises as they are, or to prove that their rental value is less and how much less than they would have been with the additional stairways and elevator, I cannot allow the full rental value of all the floors not used by plaintiff for its business, since 1888, as damages necessarily or naturally suffered by it by reason of the failure of the landlord to make the stipulated alterations.
    Their cost, when the magnitude and the importance of the building and rent reserved are considered, would have been relatively insignificant. This case is unlike those cited where the alterations were indispensable'to the beneficial enjoyment of the premises for the purposes for which they were let.
    If there be anything in the claim that the premises were unrentable because these alterations were not made, it would have been no more than the exercise of- good faith on the part of this tenant to have made the repairs itself and charged them to the landlord. Hexter v. Knox, supra.

    A different rule should be applied as to the duty of the parties to make such slight alterations, from the rules applicable where the alterations and improvements to be made by the landlord under his lease involve a large outlay, or where it is proved the tenant has not the means to make them. In the latter case, the tenant should not be expected to make the alterations. Where, however, the expenditure is relatively small, he should make the repairs himself and charge the cost to the landlord; or at least show diligence in attempting to rent the premises as they are left by the landlord.
    For these reasons, I have allowed the plaintiff as damages for the said breach of covenant only the amounts above stated.
    (2) Damages for alleged failure of the defendant to deliver on May 1 possession of the boilers and steam engine, as part of the “ property demised,” in a “ sound and substantial condition, and in a state of good repair." When the lease was made in January, 1888, the boilers, which with the engine were part of the demised premises, must have been known to the plaintiff to have been old and worn to a certain extent; their type, age and general characteristics could have been and probably were fully understood by Mr. Moore. It is true they were partially hidden by scenery stored in the boiler-room; but enough was known of them by the plaintiff to apprise its officers of the fact that they were not new and modern boilers and engine. In fact Moore had a scientific examination and test made by McGovern, a mechanical engineer, whose testimony shows that he made a careful test of several of the boilers, partly in December, 1887, and partly in February, 1888,
    The old engine, which was of an antiquated type, could have been and undoubtedly was seen by the plaintiff’s representatives. It cannot be successfully maintained that the plaintiff was entitled to boilers and steam engine of modern, approved, and highly economical types, such as are undoubtedly required to carry on the business of an electric light company with satisfactory economy and profit.
    On the other hand, plaintiff was justified in relying upon the covenants in the lease, that these particular boilers and engines, such as they were, should be put on the 1st of May in “a sound and substantial condition and in a state of good repair,” as a portion of the demised premises.
    The evidence as to the condition of the boilers and engine is confusing and unsatisfactory.
    It is claimed by some of the plaintiff’s witnesses that the boilers were in such bad condition that it was impossible to put them in a sound and substantial condition so that they could be used at all; and that the engine was substantially worthless. I cannot assent to this contention.
    The boilers were undoubtedly old, worn, and of a non-economical type, and out of repair when the lease went into effect. The receipt for the boilers in February, then given by plaintiff, is not a conclusive admission that they were in the condition covenanted in the lease. I am convinced that they could have been repaired, so as to have been in the condition covenanted for in the lease, and so as to have been satisfactory to any tenant willing to use such boilers (Griffith & Wondrum), and such an engine as plaintiff hired.
    It is probably true that such boilers and engine were so poor and wasteful as to be unserviceable to plaintiff in its business, in which, undoubtedly, boilers and engines of the highest economy and refinement are necessary for profitable use. I am satisfied, therefore, that new engines and boilers were put in by the plaintiffs for the purpose of economical administration, and need not have been put in because those hired by them were so bad that they could not have been repaired and used; neither their cost nor the interest on their cost can, therefore, be allowed as the proper measure of damage for breach of this covenant.
    The case was reopened after submission to permit plaintiff to make definite the unsatisfactory and incomplete -evidence put in before the case was closed. Lahey, plaintiff’s witness, testified That plaintiff had spent “ close on to $6,000 ” in repairing the boilers and engine, but when he came to prove details, he proved expenditures by vouchers equal to only a little more than $1,800 “ on the engine.” Justice seemed to require that plaintiff should be permitted to prove, if it could, exactly what it did expend in Repairing boilers and engine.
    When the case was opened positive evidence was given showing that $6,034.08 was necessarily spent in repairing and patching the boilers and engine. I have deducted from the sum of Exhibits “P-1 ” and “2” of May 28, 1891, aggregating the sum of $10,068.08, the sum of $2,734.08 paid Lahey, chief engineer, and his assistants, Clarey and Wallace, who were regularly emplojmd by plaintiff, and who would have been employed in the care of any boilers and engine that might have been in use. They claim they worked overtime on repairs, but it appears they received no additional pay' for their work on these repairs.
    I have also deducted $1,300 received by plaintiff for the old boilers as “scrap," leaving the aforesaid balance of $6,034.08, which, I believe, is the fullest indemnity to plaintiff for damage suffered by it by reason of the failure of defendant to perforin its covenant in respect to the boilers and engines.
    DEFENDANT’S CLAIM FOR INSURANCE PAID BY IT.
    The covenant in the lease governing this question has been quoted to the effect that if there should be imposed for insuring the property a premium- at a rate greater than that of one-half of one per cent., and if the said increased rate should be imposed by reason of the letting or of any sub-letting, the plaintiff should be charged with such excess of premium over the rate of one-lialf of one per cent, premium.
    The plaintiff has neglected to effect the insurance; and the landlord has, as was his right under the lease, effected insurance at the rates stated in my report, expending therefor the sums set forth in my report, which it claims to recover in addition to rent under the same terms of the lease.
    The plaintiff maintains, on the other hand, that this rate was excessive and that such insurance should have been effected by the landlord at a rate not to exceed three fourths of one per cent, or one per cent
    lhave concluded to allow the defendant landlord the amounts so paid by it as premiums for the following reasons:
    The tenant, if its contention be true, might have effected and paid the insurance on its own account; it saw fit not to do so; under these circumstances any claim that the landlord, in paying the rate it did, acted in bad faith or negligently, should, before it is allowed, be sustained by the clearest evidence. I am satisfied that the landlord exercised good faith and ordinary prudence in effecting such insurance. The testimony of the various experts called to establish the fact that the rates paid by the landlord were excessive was most unsatisfactory. It clearly appears that there is no fixed market rate of insurance upon risks of this character, and that competition is such that agents with special facilities may place insurance at very much lower rates than other agents of equally good standing and of as large experience.
    The rate of insurance may have been increased by reason of the fact that the building had been condemned as unsafe. If satisfactory evidence had been submitted to show that insurance premiums were increased any certain and definite amount by reason of this fact, I should have allowed such claim; but the plaintiff failed to offer any evidence of this character. The mere general statement by insurance agents that the rates of insurance were increased because of such condemnation, affords no basis for computing any just allowance to be made plaintiff on this account. I have, therefore, allowed the claim of the defendant, as above stated.
    TAXES.
    By the provisions of the lease above referred to, the plaintiff, tenant, was required to bear, pay and discharge all taxes and assessments and charges ordinary and extraordinary, during the term created by the'lease. It has not done so, and the defendant has shown that the sums found in my report have been paid by it up to date on account of said premises, which I have allowed.
    Water rates, amounting at this date to $ have also become liens on the property.
    As to one item, plaintiff has presented to the commissioner of public works of the city of New York a claim that it is, in effect, a duplicate charge, and- has asked for a reduction, which has not as yet been granted. A provision will be made in the findings protecting plaintiff from the effect of this prima facie adjudication of its liability to pay this disputed item in full, should it be hereafter reduced.
    The decision of the questions in this case has not. been free from embarrassment, especially as to the claim of the plaintiff that it should be credited with the full rental value of the unoccupied portion of the premises from the date of the'lease to the present time. I have given this claim deliberate consideration and cannot assent to it in any view. The only evidence of attempted renting was in or about 1888. Where the plaintiff has failed to show any attempts to rent any portion of the vacant floors since this time I cannot understand how it expects to maintain such a claim. It is no answer to say that the building may have been unsafe.
    It seems the plaintiff and its officers have treated it as safe and tenantable by maintaining possession and dominión over it in every part. Plaintiff cannot, therefore, be heard to say that it should not be used by them, or subtenants, and that they should not attempt to rent it. For all that appears from the evidence, the upper floors or parts of them might have been rented, either May 1, 1889, 1890 or 1891; on the other hand, they might not have been rented. I cannot render a judgment based upon what I may guess would have been the fact.
    To allow plaintiff a profit, as is asked, of $15,000 per year over its rental, as damages for remaining idle during these four years while it legally occupied the building to the exclusion of defendant, in the absence of any evidence of attempt to rent other than those proved to have been made in the spring of 1888, would be wholly unwarrantable, as must appear from the very statement of the proposition.

      William H. Kelly, Henry B. Twombly and William B. Putney, for appl’t; Charles J. Hardy and Ksek Cowen, for resp’t.
   Per Curiam.

In so far as the decision of the case turned upon questions of fact, a careful study of us that we should not be authorized to reverse the judgment because inconsistent with the preponderant proof. Baird v. The Mayor, etc., 96 N. Y., 567.

As to the propositions of law upon which the judgment proceeds," an examination of the authorities assures us that they are well supported, and were correctly applied by the referee.

In view of the adjournment of tbe court until November, the preparation of an argument to sustain our conclusions would involve a delay in the determination of the appeal of which the parties might well complain. And, after all, we are by no means sure that anything of moment can be added to the very thorough and satisfactory consideration of the points in controversy by the learned referee.

Upon the opinion of the referee the judgment is affirmed, with costs.

Bookstaver, Bischoff and Pryor, JJ., concur.


author: Bookstaver, J.

text:
    Arthur J. Robbins et al., Resp’t, v. Simon Arendt et al., Imp’ld, App’lts.

      (New York Common Pleas, General Term,

      Filed June 19, 1893.)

    1. Mechanic’s lien—Owner—Consent.
    One Smith, the owner of a building, entered into a contract with defend» ant Hutton to furnish hardware to the building, and the latter made a sub-contract with plaintiffs. Subsequently a mortgage was foreclosed and the premises sold to defendant Arendt in August, the deed being dated at that time, but not delivered until November. Held, that prior to the delivery of the deed Arendt was not the owner within the meaning of the statute, could not object t o anything going on about the building and coulu not be held to have impliedly consented to the work.
    2. Same.
    A part of the material was delivered by plaintiffs after the delivery of the deed to Arendt, but it appeared that Smith had paid the contractor in full, including plaintiffs’ claim. Held, that plaintiffs could not acquire a lien after such payment.
    Appeal from a judgment of the general term of the city court affirming a judgment rendered at a trial term of that court

      George W. McAdam, for app’lts; Phillips & Avery, for resp’ts.

       Reversing 49 St. Rep., 923.

   Bookstaver, J.

This action was commenced in the city court to foreclose a mechanic’s lien filed against the property on the northeast corner of Amsterdam avenue and Ninety-first street in. this city. ' It was brought on the theory that the defendant, Arendt, as the owner of the property, consented to the furnishing-of the materials and to the improvement of his property thereby; and that inasmuch as such owner had made no contract with anybody for the furnishing of the labor and materials, he was liable to the plaintiffs by reason of such consent. This theory was; maintained with much ingenuity both on the trial and on the appeal to this court But we do not think the facts found by the court below sustain the contention or the conclusions of law reached by it

Even on respondents’ theory this judgment cannot be maintained in "its integrity. For it appears from the findings that one Edward Smith was the immediate predecessor of the defendant, Arendt, in the ownership of the property in question subject to a mortgage held by the defendants, Kind & Lipman, and was such owner when he entered into a contract with the defendant, John W. Hutton; to furnish among other tilings the hardware required in the buildings on this property, and when Hutton made his subcontract with plaintiffs. It also appears that the property was sold under a decree of foreclosure and sale of the above mentioned mortgage on the 31st day of August, 1891, at public auction, and bid in and purchased by the defendant, Arendt, but that the deeds for the same were not acknowledged or delivered to the purchaser until the 20th day of November, 1891, although dated the 31st of August of that year. Under these circumstances, respondents contend that Arendt’s title relates back to the date of the deed, or that at least he became the equitable owner of the property from that date, and as such could and did consent to the improvements made thereon and should be compelled to pay therefor.

This rule has been applied in the case of private contracts between parties when the work was done with the knowledge and consent of the purchaser after the contract and before the delivery of the deed. Rollin v. Cross, 45 N. Y., 766, 770. But in this case Arendt purchased at a public foreclosure sale by order of the court, and a different rule obtains. In such case the purchaser only acquires title on the delivery to him of a deed duly acknowledged. Strong v. Dollner, 2 Sandf., 444; Cluson v. Corley, 5 id., 453 ; Mitchell v. Bartlett, 52 Barb. 319 ; Cheney v. Woodruff, 45 N. Y., 98. Until that time the owner of the equity if in jjossession will be deemed the owner, Knapp v. Brown, 45 N. Y., 207 ; Reid Y.Bank of Tenn., 1 Sneed, 262 ; Otley v. Haviland, 36 Miss., 19; Marston v. Stickney, 60 N. H., 112, and a mortgagee will not be deemed an owner unless he is in actual possession of the premises under his mortgage. Cox v. Broderick, 4 E. D. Smith, 721; Ombony v. Jones, 19 N. Y., 234.

In the case at bar, Smith, the owner of the equity of redemption, was in possession at least to the 20th of November, and the mortgagees, Kind & Lipman, were never in possession. It follows, therefore, that none of the appellants could be regarded as owners before Arendt received his deed, and that none of them could object to anything going on about the building, nor could they enforce any rights or obligations nor be bound to pay merely because they knew what work was done or material furnished. They were neither legal nor equitable owners, and it required more than mere knowledge to bind them. No one can be said to impliedly consent to a thing he cannot stop. Nor can his estate be bound without his consent and against his will. Riggs v. Chapin, 27 St. Rep:, 271; Havens v. West Side E. L. & P. Co., 20 N. Y. Suppl., 764; 49 St. Rep., 771.

The word owner ” is carefully defined in paragraph one of the mechanic’s lien act to be the “ owner in fee or of a less estate, a lessee for a term of years or vendee in possession under, a contract existing at the time of the filing of the notice of lien or the owner of any right, title and interest in real estate which may be sold under execution.” Arendt’s bid and right to the deed was a chose in action, if anything, and not subject to levy or sale under execution. Paragraph five of the act expressly provides that in cases when the owner has made an agreement to sell and convey the premises to the contractor or other person, such other shall be deemed to be the owner within the intent and meaning of the act until the deed has been actually delivered and recorded conveying the premises pursuant to the agreement.

The court below, however, found that $225 worth of the materials furnished by the respondents under their contract with Hutton was delivered after the 20th day of November,' 1891, that is, after Arendt became the owner by the delivery of the referee’s deed, and they contend that the judgment should be sustained for this amount at least, and so it would under the findings of consent, etc., were it not for the further finding in the case, that Smith (the former owner) had paid Hutton, his contractor for this hardware, the full amount of his contract including the respondents’ claim and obtained his receipt therefor. It has been uniformly held by this court and sustained by the court of appeals, that one who has furnished materials or done work upon a building for a contractor or for a portion of the work cannot acquire a lien therefor against the owner after the latter has in good faith paid the contractor in full for the work done under the contract according to its terms. Hagan v. American Baptist Society, &c., 14 Daly, 131; 6 St. Rep., 212; French v„ Bauer, 16 Daly, 309 ; 32 St. Rep., 326 ; affirmed 134 N. Y., 548; 48 St. Rep., 333; Carman v. McIncrow, 13 N. Y., 70; Lumbard v. R. R. Co., 55 id., 491; Crane v. Genin, 60 id., 127 ; Larkin v. McMullin, 120 id., 206; 30 St. Rep., 902; Post v. Campbell, 83 N. Y.. 282; Gibson v. Lenane, 94 id., 183. In French v. Bauer, supra, the principal contractor was given the benefit of his full lien when there was money coming due on subsequent instalments. Had Smith remained the owner there could be no question but that the lien sought to be enforced in this action could not have been sustained as against him, for there is no finding that it was not paid in good faith and without collusion and in accordance with the terms of the contract between Smith and Hutton. This certainly relieved Smith from any obligation to the plaintiffs.

But respondents insist that Smith was a stranger to the property and his payment should not be regarded; in other words, that it was immaterial what took place between Smith and, Hutton. But, as before shown, Smith was not a stranger to the property; on the other hand, he owned the equity of redemption, and was in possession at the time he made the contract with Hutton, and, as stated by the learned judge who tried the case, in his opinion, (although the fact is not included in his findings) that at that time’Arendt had agreed with Smith that he should have until the 20th of November, at least, the opportunity to dispose of the premises, or to obtain a loan on the same, and thus pay the mortgage which he owed to Kind & Li pm an.

The contract by Smith, therefore, appears to have been made in the hope of finishing the building and selling the same and thus retrieve himself. He, therefore, had an interest in making the contract. Then, too, the respondents made their contract with Hutton for the hardware and trusted him. If they did not trust him entirely, but also looked to the property, it was their duty under numerous decisions to have filed their liens before the payment was made to Hutton according to the terms of their contract It is quite true that, as the event happened, the value of the property to Arendt was enhanced by the hardware furnished by plaintiffs ; but this was only because Smith failed in his endeavor to procure another purchaser or a new loan. And this alone cannot make Arendt or any of the defendants an insurer of the honesty ■and good faith of Hutton to his sub-contractor. There is no rule, either o£ law or equity, which we know of which compels Arendt under these circumstances to pay the plaintiffs the sum which Smith once paid to his contractor, simply because that contractor did not pay over the money to those entitled tp the same.

The judgment should, therefore, be reversed, with costs of the appeal to the appellants.

Bischofe and Pryor, JJ., concur.


text:
    Marshall Barber et al., Resp’ts, v. Albert Gray, App’lt.

      (New York Common Pleas, General Term,

      Filed June 19, 1893.)

    Counterclaim—Failure to prove.
    "Where the counterclaim set up in an atiswer is for unliquidated damages, the amount thereof is not admitted by a failure to reply and the defendant is required to establish them by proof as upon an assessment of damages; and where he fails to do so, the court is justified in directing a verdict for plaintiff.
    Motion for reargument.

      Herman Fromme, for app’lt; Michael H. Cardozo, for resp’ts.

       See 51 St. Rep., 493; 58id., 937.

   Bookstaver, J.

When the court announced its decision on this appeal, it is quite true that it was placed upon the ground that the damages claimed were unliquidated, and the appellant asked too much on his motion, but although the reason stated for the ruling of the court may have been insufficient, the decision was correct. In making the announcement we did not overlook the fact that the two counterclaims were pleaded as defenses as well as counterclaims; and that by omitting to reply the plaintiff had for the purposes of this action admitted the coal delivered to have been of inferior quality, and mixed with dirt. But the defendant did not on the trial avail himself of the advantage given .him by the state of the pleadings. All the items of his counterclaims were for alleged damages sustained by him by reason of the inferior quality of the coal, and its being mixed with dirt. The amount of these damages, however, was clearly unliquidated, and the counterclaims were not for a sum or sums of money fixed by the terms of the contract, or capable of being determined therefrom by computation only. The amount of the counterclaims, therefore, was not admitted by failure to reply, and the appellant was required to establish them by proof as upon an assessment of damages. This he entirely failed to do. When, therefore, the court directed a verdict in favor of the plaintiffs for the full amount, no error was committed, as at that time there was no proof that the coal was of less value than the agreed price. It seems to us that this case is upon all fours with Scribner v. Levy, 23 St. Rep., 354.

The motion for a reargument should, therefore, be denied, with ten dollars costs.

Bischoff and Pryor, JJ., concur.