text:
    Valentine E. N. Cook, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    1. Railroad—Elevated—Valije of easements.
    In an action against an elevated railroad, it is error for the referee to refuse to find as a fact that the easements of light, air and access pertaining to plaintiff’s land, taken for the use of the railroad, have only a nominal value in themselves, aside from any damage to said land.

      ■2. Same—Proof of damage.
    Where plaintiff purchased several years after the railroad was operated, and it appears that prior to its construction the values of property fluctuated greatly owing to other causes, the sales of the particular piece of property afford no basis for estimating whether the price paid by plaintiff was less than the market value of the property before the railroad was built.
    3. Same.
    In such case, where there is no proof of the rentals received before plaintiff acquired the property, it is impossible to determine that there has been a loss of rental. Proof of the course of rentals of neighboring property is no proof that plaintiff suffered in the same degree, or at all.
    Appeal from a judgment of this court entered upon the report of a referee. r
    The action was to restrain the operation of a branch of the elevated railroad running in front of plaintiff’s premises, No. 889 East Thirty-fourth street, between Second and Third avenues in the city of New York, and for damages. The judgment granted an injunction to become operative in ninety days unless defendants paid the plaintiffs $1,500, at which sum the damage to the fee value of the premises was fixed. Damages for loss of rentals from September 28, 1888, to February, 1892, amounting to $676, together with interest, were also allowed.

      J. Aspinwall Hodge, Jr., for, resp't; R. L. Maynard, for app'lt.
   Daly, Ch. J.

The judgment will have to be reversed for error in the refusal of the referee to find, as fact, at the defendants’ request, that the easements of light, air and access, the only property in the street pertaining to the plaintiff’s land taken for the use ■of the railroad, have only a nominal value in themselves, aside from any damage to the said land. Bookman v. N. Y. El. R. R. Co., 50 St. Rep., 703; Sutro v. Met. El. Ry. Co., id., 701.

It is contended by respondent’s counsel that the refusal to find as requested would be material only in case that the evidence warranted a finding of benefits to the remaining property, which should be allowed as an offset against consequential damages, and the language of the opinion in the Bookman case above cited is referred to in support of this contention. The opinion in the élitro case does not so limit the effect of the refusal to find ; and in the case before us it cannot be safely affirmed that the referee did not, in estimating the damage to the plaintiff’s premises by the operation of the railroad, allow for more than nominal value with respect to the easements taken, apart from the abutting land. His refusal to find as requested without any qualification as to the materiality of the finding, leaves us no option but to order a new trial.

But upon the evidence in the case it would also seem that there was no sufficient proof of damage to the fee value of plaintiff’s premises nor a diminution of rental value traceable directly to the construction, maintenance or operation of the defendants’ railroad in East Thirty-fourth street, between Third avenue and the East river. The plaintiff bought the house and lot in September, 1888, nine years after the construction of the elevated railroad was commenced, and eight years after it went fully into operation. He purchased from one Rimoldi for $11,000. Rimoldi had bought the premises about two years before, October, 1886, from Mrs. Moore for $10,000. Mrs. Moore acquired the property in the year 1867, for $10,000, from Mrs. Bull. According to the testimony of plaintiff’s experts values fluctuated greatly between 1867 and 1879, the date of the commencement of the elevated road, reaching their highest point in 1873, and then, on account of the panic in that year, falling steadily, down to 1877, when the lowest point, was reached. The sales of this particular piece of property, therefore, afford no basis for ascertaining whether the price paid by the plaintiff in 1888, $11,000, or that paid by Rimoldi in 1886, $10,000, was less than the market value of the property before the railroad was built; an important fact in determining whether the railroad injuriously affected its fee value.

We should find, however, important evidence as to the effect, of the railroad upon fee values as well as rental values in a comparison of the rents actually received from the abutting property before and after the construction of the road. But with respect to plaintiff’s property we are met with an absolute want of all evidence as to the actual rents earned by it before the plaintiff acquired it in 1888. From the time he purchased he has received an average of over $1,030 per annum (the referee finds a little less); but whether that is more or less than was ever before received from the property no witness can. tell. The house was let for many years to tenants, but no records of the rents collected have been preserved. In the absence of such evidence it is not possible to affirm with reasonable certainty that the present owner sustains any loss of rentals, and thus an important fact is wanting in determining whether the property brings less than it would bring if the railroad were not there.

Proof of the course of rentals of neighboring property was received upon the question at issue, but without a knowledge of the course of rentals of plaintiff’s house there is no proof that the plaintiff suffers in the same degree as his neighbors, or in any degree, from the railroad. The plaintiff’s property might yield now as much or more than it brought in the highest period of values in 1875, as well as at the lowest point in 1878, just before the railroad was constructed. Unless it can be shown that it does not, the proof of plaintiff’s loss and damage is wanting. We held in a late case, Brush v. Manhattan R. Co., 44 St. Rep., 111, where there was evidence that plaintiffs received as much rental after the railroad was built and operated as before, that he had proved no damage-; and we also held that under such circumstances evidence of diminution of rents of neighboring property did not establish a loss of rental value in his own, but only showed that he had not experienced the losses sustained by other owners on the street.

The course of depreciation- in neighboring property establishes nothing in plaintiff’s favor unless his rents have actually depreciated. All property in Thirty-fourth street has not suffered the same percentage of depreciation. The plaintiff’s neighbors may have lost and he may have escaped loss. The opinion of experts that values are less than in 1872 or 1878 will not help the plaintiff, who does not show that the rents of his property are less, than in those years. For the reason that there is no preponderance of proof in plaintiff’s favor on the issue of fact, as well as for the error first referred to, the judgment must be reversed.

Judgment reversed and new trial ordered, with costs to abide the event

Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    Herman Kahn, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    1. Railroad—Elevated—Value oe easements.
    In an action against an elevated railroad, it is error for the referee to refuse to find as a fact that the easements pertaining to the plaintiff’s lands, taken for the uses of the railroad, aside from any damage to the land from the said taking, have in themselves only a nominal value.
    3. Same—Proof of damages.
    Proof of the amount of the rents received before and after the construction of the road furnishes a proper basis for a finding as to actual loss of values.
    Appeal from a judgment of this court, entered upon the report of a referee. The action was to restrain the operation and maintenance of a branch of the elevated running in front of plaintiff’s premises, No. 306 East Thirty-fourth street, between First and Second, avenues, in the city of New York, and for damages. The judgment granted the relief prayed for, unless within ninety days the defendants paid $2,500 assessed as damages to the fee value of the premises caused by the railroad. Damages for loss of rents were allowed, $2,168, from October, 1882, to March 10, 1892.

      J. Aspinwall Hodge, Jr., for resp't; R. L. Maynard, for app'lt.
   Daly, Ch. J.

The referee was requested by the defendants to find as a fact that the easements pertaining to the plaintiff’s lands, taken for the uses of the railway, aside from any damage to the land from the said taking, have in themselves only a nominal value. This was refused, and the defendants excepted. It was error to refuse to find as requested as fact, and the error requires the reversal of the judgment. Bookman v Manhattan Ry. Co., 50 St. Rep., 703; Sutro v. Met. El. Ry. Co., id., 701.

The respondent's contention that the refusal to find as requested is immaterial, has been discussed in the case of Cook against the same defendants (herewith decided), and the conclusion there reached applies to this case. We assume, in so deciding, that the printed case shall be taken to be amended in respect of the request to find under consideration, by the substitution of the word “easement ” for “ assessment,” as there is no disagreement between counsel as to the fact.

If it be proper to express an opinion upon the facts of this case, and we think it is, because in the Cook case above mentioned we have reversed upon the facts as well as the law, we feel justified in saying that there seems to be evidence upon which to base a finding" ■of damage to the fee and rental value of the plaintiff’s property. We assume that the finding of $2,168 loss of rentals from October 20,1888. was intended to be a finding of loss of rentals from October 20,1882, there being a manifest error in the printed book in respect ■of the dates; and, as we so understand the finding, the evidence appears to justify it.

The referee evidently made due allowance for all the causes which, apart from the injurious effect of the elevated railroad, were claimed to have contributed to prevent that recovery of rents and values in the Thirty-fourth street east of the Third avenue which may be found in other localities. Among such causes was the opening up of eligible residential neighborhood in the upper part of the city due to the rapid transit system. But there remains the fact that the maintenance and operation of the road in front of these premises without benefiting them in the slightest degree made them undesirable for tenants and so affected their rental value and their fee value, as indicated by the depreciation of rents. In this case the plaintiff furnishes evidence, which is wanting in the Cook case, of the rents received before the construction of the road. The difference between the rental obtained before the road was built and that obtained afterwards is between two and three hundred dollars per annum, and while it is not certain as to which year prior to 1879 the highest rental was received, still the fact is proved which enables a competent conclusion as to actual loss of values to the plaintiff.

Judgment reversed, new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.


text:
    Rosanna Mooney, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    Railroad—Elevated—Value of easements.
    A refusal of the referee in an action against an elevated railroad to find, as fact, that the easements pertaining to plaintiff’s land, taken for the use of the railroad, aside from any damage to the land, have in themselves only a nominal value, is error.
    Appeal from a judgment of this court, entered upon the report of a referee.

      The action was to restrain the operation and maintenance of a branch of the elevated railroad running in front of plaintiff’s premises, No. 310 East Thirty-fourth street, between First and Second avenues, in the city of New York, and for damages. The judgment granted the relief prayed for, unless the defendant, within ninety days, paid plaintiff $2,500, assessed as damages to the fee value of the property caused by the railroad. Damages in $1,756 was also allowed for loss of rents from October 20, 1882, to March 10,-1892.

      J. Aspinwall Hodge, Jr., for resp't; R. L. Maynard, for app'lts.
   Daly, Ch. J.

The judgment will have tobe reversed for error the refusal of the referee to find, as easements pertaining to the plaintiff’s land, taken for the uses of the railroad, aside from any damage to the land from the said taking, have, in themselves, only a nominal value. Bookman v. N. Y. El. R. R. Co., 50 St. Rep., 703; Sutro v. Met. El. Ry. Co., id., 701. The exception to this finding has been discussed in the <cases of Cook and Kahn against the same defendants, herewith decided.

The observations which we have made in the Kahn case, above ' referred to, apply equally to the case before us, so far as the questions of fact are concerned. The plaintiff here furnished evidence of the rentals obtained from the property before and after the construction and operation of the defendants’ road. While the testimony as to prior rentals does not fix with certainty the year in which those rentals were received, still there was a basis for a competent conclusion that the plaintiff had been actually damaged by a diminution of rentals, traceable to the elevated railroad, and by a loss of fee value, as indicated by the depreciation of rents, and that the railroad had not been of the slightest benefit to her property. The estimate which the referee placed upon damages to the fee value and to the rental value were by no means extravagant, and appear to be justified by the evidence. But, for the error pointed out, a new trial must be granted.

Judgment reversed, new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.


text:
    Rosa E. Rainsford, Resp't, v. Thomas J. Temple, App'lt.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    Contempt—Supplementary proceedings.
    A judgment debtor cannot be held guilty of contempt for disposing of property acquired after the service of the injunction ordér in supplemen- • tary proceedings; the injunction relates only to property or debts in existence at the time of its service.
    Appeal from an order of the general term of the city court, affirming an order of the special term adjudging the defendant guilty of contempt in disobeying the injunction contained in an order for his examination in supplementary proceedings.

      James K. Averill, for app'lt; Henry A. Forster, for resp't.

       Modifying 51 St. Rep., 144.

   Daly, Ch. J.

This appeal brings up the question whether a judgment debtor, who has been served with an injunction order in supplementary proceedings, may dispose of subsequently acquired property while the injunction order is in force. It is not claimed that the money received by the defendant after the service of the order had been previously earned by him, but the decision is sought to be upheld on the broad ground that after the service of the ordinary injunction in supplementary proceedings the judgment debtor can make no disposition of money subsequently earned, or borrowed, or received as agent, while the injunction remains in force.

This contention is made for the first time. It has been invariably held that the injunction relates only to property of the judgment debtor existing at the time of the service of the order. See cases cited under §§ 2447 and 2457 of the Code of Civil Procedure. The difference in the language of the enactments of the former Code, § 298, and the Code of Civil Procedure, § 2451, has not, so far as our attention has been called to any case, been held to authorize an injunction against the disposition of property not in existence when the order is made.

On the contrary, the city court, in a case arising under the present Code, has decided that the injunction does not extend to property acquired, or money earned, after the date of the order in supplementary proceedings. Sandford v. Goodwin, 20 Civ. Pro., 276, note. The case of Newell v. Cutler, 19 Hun, 74, cited to sustain the decision appealed from, was plainly that of a judgment debtor using wages earned before the order was served, but collected afterwards, a case in harmony with the current of decisions which held such earnings subject to the order.

The former Code provided: “The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt from execution, and any interference therewith.” The present Code provides: “The judge * * * may make an injunction order, restraining any person or corporation, whether a party, or not a party, to the special proceeding, from taking or suffering any transfer or other disposition of, or interference with, the property of the judgment debtor, or the property or debt concerning which any person is required to attend and be examined, until further direction in the premises.”

It is contended, under the latter provision, that the authority to-restrain the transfer of the property or debt concerning which any person is required to attend and be examined is intended to cover after acquired property. The words fail to convey such meaning. They rather seem to have reference to specific property or debts then in existence, and not such as may be created after the order.

It is claimed, however, in support of the order, that the case shows that the judgment debtor disposed of a certain balance which stood to his credit in the bank at the time the Order was served upon him, April 6, 1892. This balance was $51.30. But there was outstanding at the time of the service of the order two of his checks previously drawn in March, aggregating $40. There is nothing to show that the judgment debtor knew that these checks had not been presented by April 8th, on which day he deposited $50, earned subsequent to the service of the order, and drew out $42.50. It is not contradicted that this draft was upon the last deposit, and was not an attempt to appropriate the $51.30 left in the bank to meet the checks previously drawn, and so im charge of contempt can be maintained on that account. There ■ was left, however, a small balance of $11.30 unappropriated by previous checks, which was subject to the injunction order, and which he subsequently drew out in disobedience to it. This was the extent of the contempt, and the order finding him guilty of disposing of $778.60, and fining him that sum, is erroneous and must be modified.

Order appealed from modified by reducing the fine to $11.30 ■and costs of supplementary proceedings, and, as so modified, affirmed, without costs of appeal in this court, or in the city court, to either party.

Bischoff and Pryor, JJ., concur.


author: Van Wyck, J.

text:
    The John Douglas Co., Resp't, v. William V. Moler, App'lt.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    I. Pleading—Counterclaim.
    There is no rule of law or practice that requires a person who may have a claim c-n contract against another to counterclaim for the same whenever such other may, as plaintiff, bring an action on contract against him; but he can defend such action either under denial or plea in abatement, and still hold his right of action for such claim. Section 507 of the Code permits, but does not command a defendant to counterclaim.
    2. Same.
    A defendant cannot counterclaim on the same cause of action upom which he has already sued the plaintiff.
    3. Same—Demurrer.
    To make it “appear on the face of the counterclaim”that there is another action pending between the parties for the same cause, within § 495 of the Code, it is not necessary that it appear within the very allegation of the answer which is labeled counterclaim; but when defendant specifically alleges in his answer that the cause of action sued upon by him. in the other action was the same as his cause of counterclaim set up in his plea labeled counterclaim, he makes such allegation a part of such plea.
    Appeal from interlocutory judgment sustaining plaintiff’s demurrer to counterclaim and defense consisting of new matter, and from judgment entered on verdict directed for plaintiff.

      Jacob Fromme, for resp’t; F. J. Moissen, for app’lt.
   Van Wyck, J.

The complaint alleges a cause of action on contract for goods sold by plaintiff to defendant. The answer contains a general denial, sets up a counterclaim on contract for services rendered to plaintiff by defendant upon which he demands an affirmative judgment, and interposes as a defense, consisting of new matter, that this defendant in an action now pending in the supreme court sued this plaintiff for the same services for which he counterclaims in this action, and that this plaintiff, who is the defendant in that action, can and should counterclaim therein for the goods sued for by him in this action. This plaintiff demurred to the counterclaim and defense consisting of new matter set forth in the answer herein. To the counterclaim under § 495 of the Code, which permits demurrer to •counterclaim when defendant demands affirmative judgment, and it appears that there is another action pending between the same parties for the same cause; and to the defense consisting of new matter under § 494, which allows demurrer to a defense consisting of new matter contained in the answer on the ground that it is insufficient in law upon the face thereof. The defense demurred to is undoubtedly insufficient in law, for there is no rule ■of law or practice that requires a person who may have a claim on contract against another to counterclaim for the same whenever such other may, as plaintiff, bring an action on contract against him, but he can defend such action either under denial or jfiea in abatement, and, whether successfully or not, still hold his light of action for such claim against such person. Section 507 of the Code permits, but does not command a defendant to counterclaim.

In the allegation of the answer herein setting up the defense consisting of new matter, it is specifically set forth that the cause of action alleged in the complaint in the supreme court action by this defendant as the plaintiff therein is the same cause of action as that contained in the allegation of his answer constituting his counterclaim herein. Thus it appears by positive allegation upon the face of the answer that the defendant here seeks to counterclaim on the same cause of action upon which he, as plaintiff, has already sued in the supreme court the plaintiff herein as defendant therein. This he is not allowed to do under the prevailing rule of practice. Ansorge v. Kaiser, 22 Abb. N. C., 305.

Under § 495 a demurrer by plaintiff is permitted where it “appears on the face of the counterclaim ” that there is another action pending between the same parties for the same cause, and defendant’s counsel contends that “ appears on the face of the counterclaim ” must be strictly construed, and that so construed it means that it must appear within the very allegation of the answer which is labeled counterclaim, and that although the defendant specifically alleges in another part of his answer demurred to that his cause of counterclaim set up in the paragraph of his answer labeled counterclaim is the same cause of action upon which, as plaintiff, he has sued this plaintiff, as defendant, in the supreme court action now pending, still the demurrer is not maintainable because this fact does not appear on the face of and wholly within his plea as so labeled. If this contention was the rule of practice a cause could be forced to trial at circuit, and the court and jury would be compelled to listen to defendant’s proof of the specific allegation of his answer, only to-be immediately followed by a direction of a verdict against such defendant.

When the defendant specifically alleged in his answer that the cause of action sued upon by him in the supreme court was the same as his cause of counterclaim set up in his plea labeled counterclaim, he made such allegation a part of such plea. Cragin v. Lovell, 88 N. Y., 258.

After the court below sustained plaintiff’s demurrers and the interlocutory judgment thereon was entered this cause was tried at circuit upon the issues raised by defendant’s general denial, and resulted in a verdict directed for plaintiff and upon which judgment was entered, from which defendant appeals, but there is no record before us to review the same, as no case seems to have been made and settled.

To enable the general term to review upon appeal a judgment entered upon the verdict of a jury directed by the court, a case must be prepared and settled as required by | 997 of the Code. Delano v. Harp, 37 Hun, 275.

Judgments affirmed, with costs.

McGown and Fitzsimons, JJ., concur.


text:
    James Garvey, App'lt, v. The United States Horse & Cattle Show, Resp't.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    1. Parties—Partnership.
    In an action for work, labor and services and materials furnished, the answer set up that the cause of action, if any, accrued in favor of a partnership composed of plaintiff and one C. It appeared that the bill was made out in the firm name; that a check given in payment was drawn to the order of the firm, and 0. testified that the labor and material was furnished by the firm. Held, that a verdict for defendant was proper.
    3. New trial—Newly discovered evidence—Affidavits.
    Affidavits of witnesses who are to testify on the new trial must be submitted on the motion therefor.
    Appeals by plaintiff from a judgment entered on verdict of jury returned in favor of defendant, and from order denying motion for a new trial on newly-discovered evidence.

      J. Baldwin, for app’lt; Samuel Hoff, for resp’t.
   Van Wyck, J.

These two appeals will be considered and disposed of together. First, as to the appeal from the judgment; the fourth paragraph of the answer sets up as a separate defense that the cause of action, if any, accrued in favor of the co-partnership firm of Garvey & Campbell, composed of the plaintiff and one William F. Campbell.

The plaintiff unreservedly accepted this challenge of the answer and the record shows that the cause was tried almost solely upon this issue, as to whether the cause of action could be maintained by the plaintiff alone. The bill against the defendant for the labor performed and the materials furnished, and for the recovery of which this action was brought, was made out, with plaintiff’s consent, in the name of Garvey & Campbell. The defendant’s check of $1,130 as payment on account of this bill is drawn to the order of Garvey & Campbell and is indorsed first Garvey & Campbell, and then James Garvey, the plaintiff.

William F. Campbell testifies unqualifiedly that this labor and material was furnished to the defendant by a copartnership firm composed of himself and the plaintiff. It is enough to say that the evidence going to prove that the copartnership existed and that the labor and materials were furnished to defendant by such copartnership was overwhelming, and hence the verdict for the defendant was eminently proper.

Now as to the appeal from the order denying a motion for new trial on the ground of newly-discovered evidence. The plaintiff’s affidavit upon this motion states, “ Since the former trial of this action I have discovered that Lawrence Garvey, Thomas A. Garvey, James Flanagan and William Turner can give evidence upon the tiial of this cause that will establish that there was no copartnership between said Campbell and myself in doing said work I have been informed by said persons, which information I believe to be true, that said Campbell admitted to them that there was no such copartnership.”

The affidavits of Thomas A. and Lawrence Garvey, both of whom are the brothers of the plaintiff and were employed upon the work in question, were submitted on the motion, but no affidavits of Flanagan and Turner were presented because, as stated, they refused to make any. Lawrence Garvey’s affidavit says, “ Campbell was not a partner of the plaintiff in performing said work, and I know this from conversations I have had with said Campbell and the plaintiff.” The affidavit of Thomas E. Garvey, who was present at the trial and was called as a witness on behalf of the plaintiff, says: “ I have very frequently seen and conversed with said Campbell about said work, and I never heard him claim or state that there was a partnership until the trial of this action.” The plaintiff’s affidavit says: “ The said James Flanagan and William Turner refuse to make affidavits of the facts to which they will testify.” Affidavits of the witnesses who are to testify on a new trial must be submitted, Adams v. Bush, 1 Abb. Ct. App. Dec., 7, and can be forced from such witnesses under § 885 of the Code. Applying to the affidavits submitted the familiar rules applicable to motions for new trials on newly discovered evidence the conclusion is forced that the motion for a new trial was properly denied by the court at special term. These rules are ; the evidence must be discovered since the trial; it must appear that it could not have been obtained on the trial by the exercise of reasonable diligence; it must be material to the issues; it is not sufficient if it merely tends to impeach witnesses; it must not be cumulative; it must also be reasonably certain that a new trial will change the result. Kanter v. Rubin, 18 N. Y. Supp., 168; 45 St. Rep., 277.

The judgment is affirmed, with costs, and order is affirmed, with costs.

McGowtf, J., concurs.


text:
    Thomas Whitehead, Resp't, v. Lewis B. Halsey, App'lt.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Brokers—Commissions.
    Defendant placed a house in the hands of plaintiff’s assignor for sale; the latter negotiated with Mr. Stokes of the Hoffman House, and a sale was finally made to one G., who leased the same to Stokes. The final negotiations were had with defendant, who told plaintiff’s assignor that he suspected the party he spoke of was negotiating for the property, and if it turned out that if they were buying for the estate of G. and it was leased to the Hoffman House, he would pay the commission. G. testified that he purchased for his wife and leased to Stokes. Held, that a verdict for plaintiff was not against the weight of evidence.
    Appeal by defendant from judgment entered upon verdict returned against him by a jury, and from an order refusing new trial.

      James Flynn, for resp’t; J. Cochrane, for app’lt.
   Van Wyck, J.

The action is to recover commissions for services rendered by Mr. Peck, plaintiff’s assignor, in selling a house and lot for defendant. The defendant placed the property Ho. 11 West Twenty-fourth street, which adjoined the Hoffman House and the property of Mrs. Elbridge T. Gerry, in the hands of Mr. Peek for sale in 1889, and from time to time Peck spoke to Mr. Stokes of the Hoffman House interest and other parties about the property, and Mr. Stokes said he would lease or buy the same if lie could get it right, and later in the negotiations Stokes told Peck that he would not buy it himself, but said: “ I know a party who will buy it if I can make satisfactory arrangements with them for a lease,” and at first be did not say who this party was, but that the owners of the Hoffman House property were inducing them to buy it, and that then he could take a lease of it; and later on Stokes told Peck that the party who would buy it was Elbridge T. Gerry.

Mr. Peck made a full report to the defendant of these conversations and negotiations with Mr. Stokes. Mr. Stokes testified that Mr. Peck was the first brok.er who called his attention to the property, and that after some negotiations Peck said that the very least he could do was $50,000, and that at his' suggestion, he, Stokes, saw Mr. Gerry about purchasing the property, and that Gerry bought the same and leased to him, and that he now occupies it under that lease. Mr. Gerry testified that Mr. Stokes mentioned to him that there was a house and lot adjoining the Hoffman House on the side street for sale, and that it would be a valuable addition to the property if he (Gerry), would purchase it, and that Stokes stated the terms . on which he would like to rent it. Mr. Gerry says that he purchased the property for his wife at $50,000 and leased the same to Stokes. Mr. Peck testified: “I had a conversation with Mr. Halsey and got a telegram from him shortly before the contract of sale of the house was made; that telegram had reference to the proposed sale" to Mr. Gerry; I went and saw defendant on receipt of this telegram; defendant then said to me : 11 suspect that the party you have been talking about is negotiating for the house; a gentleman came in either this morning or yesterday morning and asked me if I owned the house, 11 West Twenty-fourth street and said : “I have come to talk with you about buying it; I will make you an offer for it, • an offer of $45,000 ; ” ' I am stating what Mr. Halsey told me; ‘ but I told him that would not be entertained for a moment, and he said: “ What will you take, or will you entertain an offer of $50,000 ? ” I said I would entertain that offer, and the man went out and was gone a short time and came back and offered me $50,000 for the property ;’ defendant told me this and then I asked defendant who it was and he said Mr. Craickshanlc; I then said : ‘Well, now, I see you understand as we have been talking, Mr. Halsey, we are going to reach a point; now where do I stand?’ and defendant said: ‘Yes, they were buying it; they may buy it for somebody else ; but if they are buying it for the estate of Mr. Elbridge T. Gerry and those people, and it is leased to the Hoffman House, I know it is through your negotiations, and I will pay you the amount of your commission.’ I said : ‘That is satisfactory, but you know it is to go there.’ ”

Mr. Halsey said further that Mr. Cruickshank said to him : “ I suppose the commission goes with this sale the usual way,” and Mr. Halsey said : “I told him no, not at all; that there are other parties interested in this matter if it goes a certain way.”

The verdict for plaintiff, the assignee of Peck, is not against the weight of evidence, and no error of law having been made, the. judgment and order appealed from should be affirmed, with costs. Fitzsimons, J., concurs.


author: Fitzsimons, J.

text:
    Louis A. Jackson, Resp't, v. The New York Post Graduate Medical School & Hospital, App'lt.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Master and Servant—Wrongful discharge.
    A servant is bound to carefully protect the interests of his master, and if with bad motive, or carelessly or thoughtlessly, -he does that which is likely to substantially injure his master, his discharge is justifiable; but the master cannot through mere caprice discharge him; that only may be done because fair and just reasons exist therefor.
    Appeal from judgment in favor of plaintiff.
    Action for breach of contract of employment.

      James K. Averill, for resp’t; James L. Skillen, for app’lt.
   Fitzsimons, J.

The plaintiffwas under a written contract by defendant to secure and obtain contracts ing in two certain publications issued by defendant. The compensation for such services was fixed at 50 per cent of the gross sum received from such advertisements, the term of employment was five years.

The plaintiff received his compensation for the first year’s work. The defendant refused to permit him to render it further services under said agreement and dismissed him for alleged misconduct. This action is brought to recover damages, the sum claimed being the amount that plaintiff claimed he could have earned during the second year if he were permitted to continue his work.

The law applicable to this case is well settled. The plaintiff was bound to carefully protect the defendant’s interests, and if with bad motive or carelessly or thoughtlessly he did that which was likely to substantially injure the defendant, his discharge was justifiable. But defendant could not through mere caprice discharge him. That only may be done because fair and just reasons existed therefor.

The defendant charged the plaintiff with many delinquencies, many of them were denied, and those remaining were explained by plaintiff and apparently his explanation of the latter was accepted by the jury, as were also his denials of the others, and they believed that no just cause existed entitling defendant to discharge him, and certainly there is more than enough testimony in the case to justify their finding, and, therefore, the only remaining issue to be disposed of was, the amount of damages due defendant by such wrongful discharge, which they fixed at $1,200.

We find no error, and the judgment must be affirmed, with costs.

McGtown, P. J., and Yah Wyck, J., concur.


text:
    Esther Kampinsky, App'lt, v. Johanno Hallo, Resp't.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Negligence—Contributory.
    Where a person, with knowledge of the dangerous and defective condition of demised premises, moves into and occupies them until injured by the fall of the ceiling, he is guilty of contributory negligence in so doing, and cannot recover for such injuries.
    Appeal from judgment dismissing the complaint in an action for negligence.

      Samuel I. Frankenstein, for app'lt; Kurzman & Frankenheimer, for resp't.
   Fitzsimons, J.

Conceding that the contention of is correct; that the trial justice was wrong in compelling her to elect upon which statement in her complaint she relied to support the action brought; and that the complaint should be considered as a whole, yet the ruling of trial justice dismissing the complaint was correct. Each one of the three statements contained in the complaint specifically alleges that she was well aware of the dangerous and defective condition of the demised premises, and notwithstanding the possession by her of that knowledge, she moved into and continued to occupy said premises until the time when she was injured by the fall of the ceiling. It is, therefore, very apparent that she was guilty of contributory negligence ; and as that fact appeared upon the face of the complaint, the trial justice was right in dismissing the same.

Judgment affirmed, with costs.

Yah Wyck, J., concurs.


text:
    John R. Berbling, Resp't, v. Frederick Glaser, App'lt.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Promise—Agreement by tendee to pay debts of vendor.
    A vendee of a business, by agreeing as part of the purchase price to pay debts of the vendor contracted in such business, becomes not a surety or guarantor for the payment of such debts, but a principal, and liable to the creditors primarily and as an original debtor.
    Appeal from judgment in favor of plaintiff.

      Roesch & Fennel, for app'lt; Philips & Avery, for resp’t.
   Fitzsimons, J.

On June 12, 1891, the defendant purchased from Messrs. Idler & Sutton a restaurant in Stone street, this city. In addition to the purchase price, $4,000, mentioned in the bill of sale, it appears that defendant, as a further consideration, agreed to assume and pay the debts of Idler & Sutton contracted as proprietors of said restaurant. One of the debtors was the plaintiff, to whom was owing $363.85.

If there is sufficient evidence in the case establishing affirmatively the consideration or purchase price for said restaurant, as contended for by plaintiff, then there is no doubt that defendant by making such agreement with Idler & Sutton became not a surety or guarantor for the payment of their debts above mentioned, but a principal, and liable to such creditors primarily and as original debtors, and his liability to pay such debts established.

The question, “whether or not such was the consideration price for said restaurant and the agreement made between defendant and Idler & Sutton,” was submitted to the jury, and they found in the affirmative. A careful perusal of the whole evidence in the case convinces us that their finding was authorized and justified.

Finding no error the judgment is affirmed, with costs.

McGown, J., concurs.


text:
    Adolph Filer, App'lt, v. Tobias Korn, Resp't.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Discontinuance—Costs.
    Courts will not favor the settlement of actions, where the same is collusively made for the purpose of defrauding an attorney out of his costs.
    Appeal from so much of an order granting motion for discontinuance as requires the payment of costs.

      Myer J. Stein, for app’lt; A. H. Berrick, for resp’t.
   Fitzsimons, J.

The plaintiffmade a motion to discontinue this action on the ground that the parties hereto had settled their differences. The motion was granted upon the payment of costs.

That part of the order requiring payment of costs appears not to satisfy plaintiff, and therefore this appeal.

It is very true, as appellant’s counsel contends, that the courts favor settlements of lawsuits by parties thereto, but where it is collusively done, for the purpose of defrauding an attorney out of his costs, such settlements do not receive favorable recognition nor are they encouraged by judges.

Lawyers should also discourage such a practice; we are told that the laborer is worthy of his hire, and carrying out that notion we say that a lawyer is worthy of his bill of costs, at least, and should not be deprived of the same.

' We may be depended upon in all proper cases, and this is one, to aid him in the procuration of his just dues.

Order affirmed, with costs.

McG-own and Yah Wyck, JJ., concur.


author: Kennedy, S.

text:
    In the Matter of the Estate of Sidney Smith, Deceased.

      (Surrogate's Court, Madison County,

      Filed March, 1893.)

    Collateral inheritance tax—Appraisal op property omitted.
    While the decree of the surrogate in a proceeding under § 13 of the act is conclusive upon the state and the property affected thereby cannot be reappraised; yet where property was withheld from the appraiser, whether intentionally or otherwise, and therefore was not appraised, such omitted property may be assessed in proceedings under §§ 16 and 17.
    Motion to dismiss collateral inheritance tax proceeding.

      H. M. Aylesworth, disk. att'y (H. B. Coman and S. D. White, of counsel), for petitioner; William Man (S. M. Lindsley, of counsel), for resp’ts.
   Kennedy, S.

Sidney Smith, a resident of Madison died on the 29th day of October, 1886, leaving a large amount of personal and real estate in possession of his committee. On the 28th day of December, 1886, the surrogate of this county appointed Adon Smith administrator of his estate, and he thereupon duly qualified and entered upon the discharge of his duties. On the 3rd day of March, 1887, said administrator filed in the office of the surrogate an inventory of the personal estate of said decedent, which amounted to the sum of $390,872.83. On the 26th day of February, 1887, the surrogate appointed William M. Henderson appraiser for the purpose of ascertaining the amount of the inheritance tax to which the state was entitled. On the 26th day of March, 1887, said appraiser filed his report, whereby he appraised the property of said decedent liable to said tax at the sum of $484,000. The surrogate, after making certain deductions from the reported amount of the estate, adjudged the value of the property liable to taxation at the sum of $270,000, and assessed a tax of $13,500 thereon, which was duly paid by said administrator. On the 23rd day of October, 1888, a judicial settlement of said estate was had before the surrogate, and distribution was ordered according to law.

On the 3d day of July, 1890, H. M. Aylesworth, then district attorney of this county, upon due notice from the county treasurer, presented to the surrogate a petition, wherein it was alleged, upon information and belief, that the personal estate of said Smith, instead of being $390,000, was in fact more than $700,000, and that said appraisal was procured by said Adon Smith and others by false and fraudulent representations as to the amount and value of said estate, and by fraudulent concealment from the appraiser as to the true condition thereof. Upon these facts, said Aylesworth asked, among other things, that a citation be issued requiring all persons interested in the property liable to the inheritance tax to appear in surrogate’s court and show cause why said tax should not be paid, and for such other order, decree and relief as might be just and proper; whereupon a citation was issued in accordance with the prayer of the petition. Upon the return of the citation, the administrator and some others of -the interested parties appeared specially and filed answers alleging, among other matters of defense, a lack of jurisdiction in the surrogate to entertain the proceedings, because of the fact that there had been an appraisal of the estate, and the surrogate had already assessed the tax due thereon, and the same had been paid. The surrogate overruled the objections of the respondents, whereupon they appealed to the general term of the supreme court. After argument upon the issue raised by the petition and answers, the-court affirmed the ruling of the surrogate. From this decision the respondents did not appeal. Subsequently, they appeared in surrogate’s court and filed their answers in this proceeding.

At the close of the evidence on the part of the petitioner the respondents again moved to dismiss the proceeding upon the ground of lack of jurisdiction by the surrogate to entertain the same.

The respondents rely upon the opinion in the Matter of the Estate of Wolfe, 137 N. Y., 205; 50 St. Rep., 406, as authority for the position assumed by them, to wit, that after one appraisal has been had, the surrogate cannot require another appraisal to be made while the counsel for the petitioner claim that it has no application to this case and rely upon other reasons and decisions in support of their theory of the law.

We shall hold, however, that the Wolfe case amply justifies the practice adopted in this proceeding, plainly suggests the ground upon which it may be maintained, clearly and concisely points out the procedure by which the inheritance tax may be collected, and the principles which underlie the system of taxation in this state introduced by chapter 483 of the Laws of 1885, known as the collateral inheritance tax act.

As a basis for our conclusions of law, we quote from Judge Gray’s opinion, as follows:

“ When we read all the provisions of this act, it is perfectly apparent that an especial system of taxation was created for the benefit of the state, with all the necessary machinery for its working; the control of which was vested in the surrogate’s court, with a jurisdiction exclusive in its nature. In the assessment of a tax upon property passing by will or by the intestate laws, the responsibility is imposed by law upon the surrogate. He acts for the state, and he is commanded to assess and fix the tax to which the property is liable. * * * When the machinery of this system of taxation is set in motion under § 13 of the act, whether upon the application of interested parties, or upon his own motion, the surrogate, by force of its‘provisions, is at once vested with tiie office and the functions of an assessor for the state, whose duty it is to assess for its use a tax; and in whom, not only by virtue of the office, but by the further provisions of § 15, inheres the authority, and upon whom rests the obligation to determine the question of whether the property of the decedent, which passes to others, is subject or liable to taxation by the state. * * * I can see no difference between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act and that upon which, in the general system of taxation in the state, tax assessors act in the assessment of persons or property for taxation.”

Parallel illustrations will show that Judge Gray is correct when he says that there is no difference in the principle upon which a surrogate and town assessors act in the assessment of persons and property, and we now point out their similarity as follows :

The town assessors are required to ascertain by diligent inquiry all the taxable property, real and personal, within their town, and to assess the value thereof.

It is the duty of the surrogate to appraise the property of a decedent at what was the fair and clear market value thereof at the time of the death of the decedent; and, in order to fix the value of the property of persons whose estates shall be subject to the payment of said tax, the surrogate is authorized to appoint some competent person as appraiser, as often as and whenever occasion may require the appraisal of the decedent’s property.

Chapter 453, of the Laws of 1865, in relation to property liable to, but omitted from, assessment by the assessors, authorizes the assessors to enter the omitted property on the assessment roll at the valuation of the preceding year, and the board of supervisors are required to lay a tax thereon at the rate per cent, of tax imposed upon land or property in said town the preceding year.

Chapter 483, of the Laws of 1885, the Inheritance Tax act, §§ 16 and 17, points out the procedure to be followed in case a tax has been assessed but not collected, or in case it is due, but has been omitted from assessment by the surrogate. Judge Gray says the tax may be due because the surrogate so determined under § 13, or where no proceedings have been had for its appraisement.

Having shown that the principles upon which the surrogate and town assessors act are similar, we state the result of this application in this case.

The surrogate appointed an appraiser for this estate. The appraiser examined and appraised all the property which the administrator presented to him for appraisal, and made and filed his report. He had no authority then, as he now has, to subpoena witnesses and interrogate them under oath as to the true condition of the estate. He had no personal knowledge of it, and all that he could do was- to accept the voluntary statement of the administrator or others as to its character and of what it consisted. There is no dispute but that the report of the appraiser, upon which the surrogate acted, appraised all the property presented to him-by the administrator for his consideration or valuation, and all the property mentioned in the inventory filed by the administrator. As to this property, thus appraised, upon which the surrogate has assessed the tax, we hold that the decree of the surrogate is conclusive upon the state, and that such appraisal, assessment and decree cannot be attacked in this proceeding.

If it be true that a large amount of property was withheld from the consideration of the appraiser, whether intentionally or otherwise, and as to which the" appraiser had no knowledge, and the same was, for this reason, not appraised, we shall hold, as to such omitted property, that the state has the legal right to institute such proceedings for the recovery of such tax as may be due thereon. This omitted property has never had its day in court. It has never been submitted to the jurisdiction of the appraiser or surrogate, and, therefore, has never been put in jeopardy. It has, intentionally or otherwise, eluded the tax due the state. All that the Wolfe case decides is, that where property has once been submitted to the surrogate for taxation, his decree, if wrong, can only be reviewed upon appeal, and cannot be attacked in another proceeding. It does not hold that other property, upon which a tax is due, cannot be assessed under §§16 and 17, in another proceeding for that purpose. The statute says that the surrogate shall appoint a competent person appraiser, as often as and whenever occasion requires; and the reason given by the courts for this provision of the law is, that property may" be fraudulently concealed, accidentally overlooked, or it may not be known to the representative of the decedent at the time of the appraisement.

We do not understand by this that property which has once had its day in court, for the purpose of taxation, can be re-appraised, unless, for some cause, such appraisal has been, on appeal, or otherwise, re-opened or set aside by the court. Only such property as has been omitted from appraisal is to be taken into consideration.

We, therefore, hold that if the allegations of the petitioner in this proceeding are true, the state has the legal right to an appraisal of the property of Sidney Smith, deceased, which has not been appraised, and upon which the tax has not been assessed by the surrogate in the former proceeding for that purpose.

The” motion of the respondents for the dismissal of this proceeding is, therefore, denied.


author: Hatch, J.

text:
    Michael J. O'Leary et al., Pl'ffs, v. Martin McDonough, Def't.

      (Superior Court of Buffalo, Trial Term,

      Filed February, 1893.)

    Contract—Evidence.
    A paper appearing to be a contract may be shown not to be in fact the contract between the parties, but that it was delivered for a particular purpose; and to defeat an action thereon, the real contract resting in parol may be shown.
    Upon the trial defendant obtained the verdict of a jury, which plaintiff moves, upon the minutes of the court, to set aside.

      George T. Wardwell, for pl’ff; George H. Frost, for def't.
   Hatch, J.

The motion presents a single question; stated, it reads: Can a written contract, complete in all respects, executed and delivered by the person sought to be. charged, be shown not to be in fact the contract between the parties; but that in fact such contract was executed and delivered for a particular purpose; and to defeat a right of action thereunder, can the real contract resting in parol be shown ? Notwithstanding the multitude of words, upon oral argument, and the length of brief, as a silent monitor, I am convinced that this question has long been settled by authority. Simply stated, the question is, may a paper appearing to be a contract be shown not to be such?

In Grierson v. Mason, 60 N. Y., 394, evidence of this character was held competent for the precise purpose for which it was offered here, and a result similar to the one reached in this case was upheld. The rule therein announced has never been departed from by any well adjudged case since and whenever cited its approval has been uniform. Union Trust Co. v. Whiton, 97 N. Y., 177; Schmittler v. Simon, 114 id., 184; 23 St. Rep., 160; Thomas v. Scutt, 127 N. Y., 133-138; 38 St. Rep., 692.

In the latter case it is said, in speaking of the rule: “ The real exceptions may be grouped into two classes, the first of which includes those cases in which parol evidence has been received to show that that which purports to be a written contract is in fact no contract at all * * * Such proof does not recognize the contract as ever existing as a valid agreement, and is received from the necessity of the case to show that that which appears to be, is not and never was a contract.”

In Grierson v. Mason, supra, it is said: “ Such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy or effect.”

This language answers every objection urged. While it may be possible to pick up isolated answers of defendant tending to show that the contract was to evidence the relation between the parties,- yet his answer and his testimony, taken as a whole, authorized the jury to find that the contract relied upon was not the contract between the parties.

The motion is, therefore; denied, with costs.


text:
    Charles J. Close, Pl'ff, v. Richard K. Noye, Def't.

      (Superior Court of Buffalo, Trial Term,

      Filed February, 1893.)

    Manufacturing companies—Stockholders—Stock issued for property.
    The legislature had power, by virtue of the reservation in the act for the incorporation of manufacturing companies of the right to amend, alter or repeal the same, to repeal the amendatory statute of 1858 exempting stock issued for property from liability for debts of the company, and whus by amendment to impose a future liability on a stockholder from which previously he had been' exempt.
    Action brought to charge a stockholder of a manufacturing company with liability for the debts of the company.

      Simon Fleischmann, for pl'ff; Adelbert Moot, for def't.
   Hatch, J.

It is that a known as the ■“American Bit & Brace Company ” was legally organized; that defendant became a stockholder thereof March 1, 1888, when he received eight shares of the par value of $100 each, and between that date and March 8, 1889, he received eight shares more,' making in all sixteen shares. This stock was issued to defendant by virtue of an agreement, made with the company, to receive the same in consideration of the use of a building and power, necessary for the company in the prosecution of its business. The capital stock of the company was never paid in full, and no certificate was ever made and filed stating the amount of the capital stock, or that any part thereof had been paid in.

The indebtedness which is the subject matter of this suit, arose out of a loan of $10,000 for which the company gave its notes. They not being paid at maturity were consolidated in one note, renewed, and thereafter plaintiff became the holder of the same before maturity, for value. The note not being paid when due, judgment was obtained against the company, and execution issued thereon, which was returned unsatisfied; thereupon this action was brought. It is insisted by defendant that he is relieved from liability, for the reason that the stock was issued to him for the purchase price of property necessary for the use of the company; that it is therefore exempt from liability for the debts of thecompany by virtue of the statute existing at the time when the stock was issued to him ; that as the stock was thus exempt from liability for the debts of the company, he thereby became vested with a contract interest, which could not thereafter be affected or impaired by act of the legislature or by any other method. Both positions of defendant are controverted. In the view I take of this cáse, it is essential to determine but one of these questions. It may be conceded, for present purposes, that the stock was issued to defendant in payment for property and that the statute of 1853, 3 R. S. (8th ed.), 1961, exempts such stockholder from liability created under the act of incorporation.

It, however, still remains as the fact that prior to the creation of the debt, and while defendant was a stockholder, this act was repealed. Laws 1890, chap. 564. Consequently, there was no exemption of this stock at the time when the indebtedness arose. We, therefore, come to the question, was it within the legislative power to change the law, that liability might be created ? By virtue of § 19 of the act authorizing the creation of the company, 3 R. S., 8th ed., 1958, the legislature reserved the right to alter, amend or repeal the same. By virtue of this reserved power, it has been held to be within the legislature’s province to impose, by way of amendment, a future liability upon a stockholder, where before, by express provision of law, he was exempted from liability. Matter of Lee's Bank of Buffalo, 21 N. Y., 9.

This is the doctrine of the court of appeals, affirmed in the same case by the supreme court of the United States, under the name Sherman v. Smith, 1 Black, 587, and, so far as I am able to dis-cover, remains the law at this day. I am' quite aware that in some states, in some opinions, and in some text books, phrases, with perhaps sustained statements, may be found, in apparent conflict with this view. They do not, however, exist in this state, for here the statements and decisions have remained consistent and uniform in support of such doctrine. Mayor v. Twenty-third St. R. Co., 113 N. Y., 311; 22 St. Rep., 958; Union Hotel Co. v. Hersee, 79 N. Y., 454, where the court say : “ In such cases subscribers to the stock of corporations whose charters are liable to be .so changed or altered mast be regarded as consenting to the change.” Bailey v. Hollister, 26 N. Y., 112; Matter of the Empire City Bank, 18 id., 199; McLaren v. Pennington, 1 Paige, 102; Poughkeepsie & Salt Point Plank Road Co. v. Griffin, 24 N. Y., 150; The Reciprocity Bank, 22 id., 9.

The principle underlying this determination has recently been the subject of decision by the supreme court of Rhode Island, State v. B. & S. Manuf'g Co., 46 Alb. L. J., 504, where the doctrine herein contended for is supported.

These views lead to a judgment for plaintiff, with costs.


author: Dwight, P. J.

text:
    Edward A. Milliman, Resp't, v. George Huntington, Impl'd, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Specific performance—Incomplete agreement.
    Plaintiff gave to H., in writing, an option to purchase a farm of 120 acres, at §500 an acre, within a certain time, the price being payable one-fifth down and balance to he secured by mortgage of not less than three years at 6 per cent., plaintiff to have the privilege of retaining one undivided third “ on the same terms as the purchasers.” It also provided that a contract would be given on receipt of the first payment, and a deed when the total of one-fifth was paid. The option was accepted, hut the time for drawing the contract was extended, and it was never drawn. It also appeared that defendant was to form a syndicate to purchase this land, which he never did. Ile'd, that the instrument was not so much a contract for the sale of land as an agreement to make a contract; that its terms, especially as to the terms upon which plaintiff could retain the one-third interest and as to the time the mortgage should run, were too indefinite and uncertain to entitle H. to specific performance or to constitute a defense to an action for specific performance of a subsequent contract of sale of the land to another party, to which H. was made a party as having an interest in the premises.
    Appeal by the defendant, Huntington, from a judgment of the county court of Riagara county, entered on the findings and decision of the court.

      A. Moot, for app’lt; A. K. Potter, for resp’t.
   Dwight, P. J.

The action was to enforce the ance of a contract of the defendant, Dold, to purchase from the plaintiff a farm of about 120 acres in the town of Wheatfield, in Miagara county, which contract was executed with the plaintiff February 24, 1892, and to determine the claim of the defendant, Huntington, to an equitable interest in the same property, by virtue of a contract between him and the plaintiff which was executed on the 17th day of February, 1892.

The answer of the defendant, Dold, admitted the title of the plaintiff to the premises described, in the complaint, saving and excepting the interest of the defendant, Huntington, if any, therein ; admitted all the other material allegations of the complaint; averred his readiness to perform the contract on his part whenever the claim of Huntington, of which the latter had given him notice, should be extinguished, and demanded judgment establishing the respective rights of the plaintiff and Huntington in the-premises, and that upon performance by him, Hold, of the contract on his part, the plaintiff and Huntington be adjudged to convey to him the whole of said premises.

The answer of Huntington sets out, in substance, his version of the contract-or agreement between himself and the plaintiff; avers that it provided for an election by the plaintiff, which was after-wards exercised by him, to retain an undivided one-third of the premises, and that it provided for the execution, by the parties thereto, of a formal instrument, embodying its provisions, on the 18th day of February, 1892, at Tonawanda; that the parties met at the time and place mentioned, when the defendant, Huntington, was ready and willing and offered to perform the terms of the agreement on his part, and to execute the formal contract as agreed, and requested the plaintiff to do the same, but that, at the request, of the latter, the time for the closing of the agreement was extended to include the 20th of the same month; that on that day the parties again met, when the defendant, Huntington, was still ready and willing and again offered to perform on his part, and demanded performance by the plaintiff, but that the latter then refused and still refuses to perform on his part; that the said agreement provided for a release clause to be inserted in the mortgage to be given by the defendant, Huntington, and that he offered to waive the insertion of such or any release clause, and to execute the mortgage for three years or any other term satisfactory to the plaintiff. And said answer avers that by reason of said contract, the defendant, Huntington, obtained and now holds the equitable title to an undivided two-thirds of the premises described, and a right or interest therein prior-and superior to any right or interest of the defendant, Hold, by reason of the alleged contract with him, set out in the complaint; and said answer demands judgment dismissing the plaintiff’s complaint as to the defendant, Huntington, with costs.

It is thus apparent that the only real issue in the case was between the plaintiff and defendant Huntington, viz.: whether the latter had any interest in the premises described, by virtue of his contract with the plaintiff, which could stand in the way of the full performance of the contract of the plaintiff with the defendant, Dold, and that question may be otherwise stated to be whether the contract of Huntington was one of which specific performance could be, to any extent, enforced.

There is no disputed question of fact in the case; counsel for the appellant concede that the facts are correctly found by the learned county court. The facts so found which relate to the contract of Huntington are, in substance, as follows:

On the 21st of January, 1892, the plaintiff, at the request of Huntington, signed and delivered to him an instrument in writing in the following terms:

“ January 21, 1892.
“ In consideration of the sum of one dollar paid to me this date, the receipt whereof is hereby acknowledged, I hereby agree to give George Huntington the right to purchase my home farm fronting on the Niagara river about one mile west of Gratwick station, consisting of about 120 acres more or less, for the sum of $500 per acre, if taken within twelve days of this date, terms, one-fifth down, balance to be secured by bond and mortgage of not less than three years duration, with six per cent interest, payable semi-annually, I to have the privilege of retaining one undivided third interest on the same terms as the purchasers.
“ The mortgage to be subject to release of any part or all the property on conditions to be hereafter agreed upon.
“ First payment of one-fifth down to be made as follows, viz.: $4,000 within ten days after February 1st, and the balance within thirty days from first payment.
‘‘A contract will be given on receipt of first payment of $4,000 and a deed when the total of one-fifth, or $12,000 is paid up, said sum to include the one-third interest, or $4,000, which I retain.
“(Signed) E. A. Milliman.”

On the 2d day of February the plaintiff, at the request of Huntington, indorsed on the above the memorandum “ Option extended to February 17th,” and signed it.

On the 17th of February both parties signed a further agreement, indorsed on the same instrument, as follows:

“ The terms of the within contract are hereby accepted by both parties hereto. The parties to meet February 18,1892, and sign a formal contract at Tona wanda, George Huntington to pay $500 at the signing of the contract to bind the bargain, the same to be applied on the purchase price.
“February 17, 1892.
“ (Signed) George Huntington.
E. A. Milliman.”

On the 18th day of February both parties signed a still further agreement, indorsed as before, as follows:

“ In consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, the time within which to close up the within contract is hereby extended up to and including February 20, 1892, all the terms to remain the same.
“ Dated February 18, 1892.
“ George Huntington.
“E. A. Milliman.”

Nothing was ever paid by Huntington on account of these agreements, or either of them; nor was anything ever done by the parties, or either of them, by way' of performance of such agreements, or either of them.

The agreement of January 21, 1892, above quoted, does not express the entire agreement made between the plaintiff and Huntington at the time it was made; but, in addition to what is expressed therein, it was at the same time, and as part of the same agreement, verbally agreed between them that a company or syndicate would be gotten up by or through the influence of Huntington to purchase the premises described in the complaint; and the words in the agreement, “I to have the privilege of retaining one undivided third interest on the same terms as the purchasers,” were intended to give the plaintiff the privilege, at his election, to take an interest in the company or syndicate so to be formed. Huntington never procured the formation of such company or syndicate.

And as conclusions of law the court found (1) that the defendant Huntington had no right or claim to the property described in the complaint, nor interest therein, nor is entitled to have the agreement set forth in the findings of fact, or any modication thereof specifically performed; (2) that the plaintiff is entitled to a specific performance of his contract with the defendant Hold ; and he directed judgment accordingly, with costs against the defendant Huntington.

Upon the foregoing statement we can have no doubt of the correctness of the conclusions of the learned county court. The series of instruments or memoranda signed by one or both of the parties seem to constitute not so much a contract for the sale of land as an agreement to make a contract, some of the provisions of which still rested in parol, some remained to be subsequently agreed upon, some were so uncertain and indefinite that their specific performance could not be decreed. The fact found by the court, that it was a part of the original agreement between the parties that Huntington was to organize or procure the organization of a syndicate to purchase the land, is fully borne out by the evidence aliunde and it rests wholly in parol. It, or something of similar effect, is necessary to give any intelligible meaning to that provision of the written agreement which gives to Milliman “ the privilege of retaining one undivided third interest, on the same terms as the purchasers.” The reference in these last words is necessarily to purchasers other than or including Huntington ; and as there is. ño other mention of such “ purchasers ” in the written memoranda, it become necessary to resort to evidence aliunde to explain it. That resort being had, it is plain that the provision just quoted is entirely indefinite ; for what terms or .price would finally be obtained from the purchasers was altogether uncertain. A letter from Huntington, which is in evidence, under date of February 12th, shows that it was a part of the scheme conceivedi by him that the purchasers or members of the syndicate should come in “ on the basis of $600 per acre," but whether that part of the scheme would be fully realized remained to be demonstrated, and, therefore, the terms upon which Milliman might, at his election, retain an undivided one-third interest in the property and enterprise, were left wholly uncertain. For that reason, if for no other, the contract is incapable of specific enforcement. 1

Another important provision of the contract was expressly left to be subsequently agreed upon. That was the provision relating to the release of portions, or the whole of the property from the mortgage to be given by the purchaser or purchasers. Whether the objection on this ground to the specific' enforcibility of the contract can be obviated by a waiver of the provision on, the part of the defendant Huntington, as being one wholly for his benefit, is a question upon which we are not entirely agreed and upon which we do not pass.

But the same cannot be said of the provision in respect to the time which the mortgage should have to run. By that provision the large balance of four-fifths of the purchase price of $60,000 was “to be secured by bond and mortgage of not less than three years duration.” It is impossible for the court to say that this limitation of time was for the benefit solely or chiefly of the purchaser. On the contrary, in these days of low rates of interest, the investment of $48,000 on good security, at six per cent, payable semi-annually, was a very favorable one, and one which the vendor might well desire to extend for as long a time as possible. But the provision for the duration of the mortgage was entirely uncertain except on the minimum, side, and was incapable of being rendered certain except by further agreement of the parties. The offer of the defendant to make the mortgage for any time to be named by the plaintiff was a liberal one, no doubt, but it did not render the contract enforceable as it was made, and, in an action for the specific performance of a contract, even equity will not compel a man to make a new contract, however favorable to himself, in order that it may be specifically enforced.

A contract which, as in this case, is required by the statute of frauds to be in writing, must be all in writing in order to be valid; and, in order to be specifically enforced it must, in the nature of things, be certain and definite in all its material provisions. Bailey & B. v. Ogdens, 8 Johns., 399; Abeel v. Radcliff, 13 id., 297; Wright v. Weeks, 25 N. Y., 153; Buckmaster v. Thompson, 36 id., 558; Brown v. N. Y. C. R. R. Co., 44 id., 79; Stanton v. Miller, 58 id., 192; Drake v. Seaman, 97 id., 230; S. C., 27 Hun, 63.

For failure to comply with these well nigh elementary rules we regard the contract in "this case as neither entitling the defendant Huntington to the affirmative relief asked for in his answer, nor as constituting any defense to the cause of action set out in the complaint.

The judgment appealed from should, therefore, be affirmed.

Judgment of the county court of Niagara county affirmed, with costs against the defendant Huntington.

Macomber, Lewis and Haight, JJ., concur.


author: Lewis, J.

text:
    Simon Paltrovitch, Resp't, v. The Phœnix Insurance Co. of Hartford, Conn., App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Insurance (fire) —Requirement of notarial certificate—Waiver.
    The policy provided that the insured should, “if required, furnish a certificate of the magistrate or notary * * * living nearest the place of the fire.” Plaintiff, without being required, furnished such certificate, after diligent search for the nearest notary, which was retained by the company for about three weeks, when it was returned, with notice that the company refused to receive it, as the notary was not the one living nearest to the place of the fire, and requiring him to furnish a certificate as mentioned in the policy. The notary who made the certificate resided within a block of the fire, and had a sign there; three others, who were lawyers, boarded with their parents nearer the fire, but their offices were half a mile away. Held, that the clause in question should receive a reasonable construction, and that in view of plaintiff’s good faith in the matter, the long retention by the company, and their failure to inform him as to the residences of the other notaries, it ^should be held to have waived a literal compliance with the provision
    Appeal from a judgment in favor of the plaintiff, entered in the Erie county clerk’s office February 25, 1892, upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court.

      C. M. Bushnell, for app’lt; Moses Shire, for resp’t.
   Lewis, J.

Defendant issued two policies of fire insurance to the plaintiff. One of them covered the stock of goods of plaintiff in his store, for the amount of $2,000. The other was for $1,100, and covered his household furniture, clothing, etc. The property insured was in plaintiff's building upon William street in the city of Buffalo.

A fire occurred on the 11th of May, 1891, which totally destroyed a portion of the insured property and damaged other parts thereof; and this action was brought to recover $2,525.75. The jury rendered a verdict for the plaintiff in the sum of $1,100.

if the plaintiff was entitled to recover the defendant had no cause for complaint as to the amount of the verdict. The serious question presented by this appeal arises under a condition of the policies providing, “ That the insured should, if required, furnish a certificate of the magistrate or notary * * * living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.” Proofs of the loss were made out in due form and served upon the company June 15, 1891. Accompanying'the proofs was the certificate of A. J. Roehner, a notary, in form as required by the policies, to the effect that he was acquainted with the character and circumstances of the insured, and believed that he had without fraud or evil practice sustained loss and damage on the property insured to an amount mentioned, which was larger than that claimed by the plaintiff in his complaint. The proofs, including the certificate, were retained by the company until the 8th day of July, 1891, when they were returned to the plaintiff with a written notice to the effect that he was required to furnish to the company the certificate mentioned in the policy, and the notice further stated that the company refused to accept the certificate of Mr. Roehner, voluntarily served bj7 the plaintiff, on the ground that he was not the nearest magistrate or notary to the place of the fire. The company had not theretofore required the plaintiff to furnish any certificate.

The plaintiff testified that after the fire occurred he made search for the nearest notary to the place of the fire; that he inquired in a good many places, and the people said they did not know of any notary nearer to the place of the fire than Mr. Eoehner; that Mr. Eoehner resided on Broadway, a block or a block and a half away from the place of the fire, the distance from the fire being 1,455 feet; that he was a real estate and insurance agent, and had a notary’s sign out at his place; that Mr. Eoehner had made out the proofs of loss for the plaintiff; that he supposed and believed after making these inquiries that he was the nearest notary to the place of the fire.

The defendant introduced evidence showing that there were three notaries whose residences were nearer to the place of the fire than that of Mr. Eoehner. None of them were housekeepers, but all boarded and lodged with their parents, in the neighborhood of the fire. Neither of them had any notarial sign at his residence. Two of them testified that they never did any business as notaries at their residences. The other one testified that he did sometimes accommodate his neighbors at his home by taking their acknowledgment or an affidavit. They were all lawyers, having their offices in the business part of the city, from a half to three-quarters of a mile from their residences.

This provision of the policy should receive a practical, reasonable construction. Its purpose is to protect the company from fraudulent claims made against it. It was said by Oh. J. Nelson, in Turley v. North American Fire Ins. Co., 25 Wend., 378, in speaking of a similar clause in a policy, “ This clause of the contract of insurance is to receive a reasonable interpretation. Its intent and substance, as derived from the language used, should be regarded. There is no more reason for claiming a strict, literal compliance with its terms than in ordinary contracts. Full legal effect should always be given to it for the purpose of guarding the company against fraud or imposition. Beyond this we should be sacrificing substance to form, following words rather than ideas.”

In speaking of the facts of the case the judge continues: “The magistrate, it appears, resided some three or four blocks north of the place of the fire, and kept his office, or place of business, two or three blocks south, usually passing it several times daily. A case can scarcely be imagined where the locality of the officer would afford a better opportunity to acquire knowledge of the facts to which the certificate relates. An alderman of the city resided across the street and nearer to the fire than Judge Lansing. But whether nearer than his office is not stated. The latter place may be regarded in ascertaining the magistrate most contiguous within the meaning of the condition. His business relations arising out of his official and professional pursuits transacted there will be presumed to afford the requisite information so far as locality is concerned. For all the purposes of the condition it is the place most favorable to the company. It seems the residence of a notary happens to be a few feet nearer the fire than the office of the judge, and we are asked to go into a nice calculation of distances and settle the point upon the laws of mensuration. De minimis, etc., is a sufficient answer to this objection. The spirit •of the condition requires no such mathematical precision from the assured. Its object is completely secured by the proximity of the certifying magistrate." It was incumbent upon the plaintiff to use due diligence to find the nearest notary to the fire and obtain his certificate, as required by the policy. The policy calls for a certificate from a notary or magistrate living nearest the place of the fire. If the word “ living ” is used as synonymous with “ residing,” then it is certain the certificate was not made by the nearest notary. If the purpose of the provision is to secure a certificate from a notary whose place of business is nearest to the fire, an officer who could be found during business hours, then Mr. Roehner was the nearest notary.

So far as appears from the case, Roehner’s certificate was as effectual a protection to the company against fraud as the certificate of either of the other notaries would have been. The company having ascertained that there were notaries residing nearer the fire than Roehner, after retaining the proofs for some twenty-three days, returned them to the plaintiff, as above stated. The notice failed to give the plaintiff .the information the company had obtained. If a certificate from Mr. Schattner, who was the notary residing nearest the fire, was really desired by the company, his certificate would probably have been furnished if the plaintiff had been informed of the facts. The notarial certificate, as we have seen, was furnished by the plaintiff voluntarily,, the company not having called for it. If it had been made by the nearest officer to the fire, the company would not have been justified in calling for a new certificate. Had the new certificate demanded been furnished, it would have had the effect "to extend the time for the payment of the loss twenty-three days. A month or- more after tire return of the proofs of loss the defendant, under a clause in the policy permitting it, required the plaintiff to appear before a referee and submit to an examination as to his loss. It is claimed by the respondent that this was a recognition of the validity of the policies, and that defendant thereby waived its previous right to insist upon a forfeiture, and we are referred as authorities for this claim to the cases of Titus v. Glens Falls Ins. Co., 81 N. Y., 418, 419; Carpenter v. German American Ins. Co., 47 St. Rep., 865. The policies, however, in those cases, did not contain the provision found in this policy, to the effect that the requiring of such an examination should not waive a forfeiture.

The jury found, upon evidence sustaining their finding, that the plaintiff in good faith obtained the certificate from the nearest officer he could find after diligent search, and that by so doing he complied with the provisions of the policy in that regard; and we think in view of this finding, and the retention of the proofs of loss, including the certificate, by the company ,for so long a time, and the failure of the company to advise the plaintiff of the information it had obtained as to the residences of the notaries residing nearer the fire than did Roehner, it should be held to have waived the literal compliance with the condition in question.

The facts of the case of Gilligan v. Commercial Fire Ins. Co., 20 Hun, 93, relied upon by the appellant, are unlike the facts here. The property insured in the Gilligan case was in the small village-of Fairhaven, Vt., where the residences and places of business of all the magistrates and officials, we must assume, were well known to the plaintiff. He failed to furnish a certificate from the nearest magistrate, and no excuse appears in the case for his failure so to do. An objection was made to the certificate for that reason by the insuring company, and the plaintiff failed to furnish another certificate. The decision in that case was placed upon the authority of Inman v. Western Fire Ins. Co.; 12 Wend., 452. Justice Learned, in his opinion, says, that while it seemed to him iniquitous for the company to insist on the letter of such a provision, he felt bound by the decision in the Inman case. The policy in theInman case provided that “«the assured sustaining a loss or damage by fire shall forthwith give notice thereof to the insurer.” The fire occurred on the 23d day o£ February, and notice of loss was not given until the 2d of. April following, and the court held that the insured had failed to comply with the provisions of the policy in giving the notice, and put its decision upon that ground. The case at bar we think can be distinguished from these cases.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Macomber and Haight, JJ., concur.


text:
    Henry F. Dehn, Resp't, v. Marcus A. Mandeville, Impl'd, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Pleading—Verification.
    To entitle the defendant to serve an unverified answer to a verified complaint where the complaint does not contain allegations showing that the acts complained of constituted a crime, it is incumbent upon him to make it appear in some way that there are allegations in the complaint in respect to the truth of which he could not be interrogated if under examination as a witness.
    3. Same—False imprisonment.
    A complaint alleging that defendants detained the plaintiff in jail without probable cause, but which does not state that they acted wilfullv or with intent to injure the plaintiff, does not show that defendants committed a crime or misdemeanor.
    Appeal from a special term order, entered in the clerk’s office of Niagara county on the 12th day of December, 1892, denying the defendant’s motion for an order requiring the plaintiff’s attorney to receive an unverified answer to the plaintiff’s verified complaint in the above entitled action.

      P. F. King, for app’lt; Geo. W. Cothran, for resp’t.
   Lewis, J.

The complaint allegedthat the defendants imprisoned and kept the plaintiff detained in the common jail of Niagara county for the space of about eighteen days without any reasonable or probable cause whatever, contrary to the laws of the state and against the will of the plaintiff. There' is the further allegation, that the plaintiff was arrested in the town of Newfane and transported through the public streets and highways-from his residence in said town to the common jail aforesaid.. This latter clause does not seem to be important, as the complaint fails to state that the defendants had anything to do with the plaintiff’s arrest and transportation.

The defendants are- charged with detaining the plaintiff in the jail without probable cause, etc. It is not alleged that the defendants acted wilfully. The complaint was duly verified.

The defendant, Mandeville, served an unverified answer, containing simply a general denial of the allegations of the complaint. It was returned because - it was not verified, and the defendant thereupon moved for an order requiring the plaintiff’s attorney to receive the answer unverified. The motion was denied.

If it was made to appear upon the hearing of the motion that the appellant would be privileged “from testifying as a witness concerning any of the allegations in the complaint, the motion should have been granted. The verification of a pleading may be omitted when the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading. Code Civ. Pro., § 523.

A witness is not required to give testimony which will tend to accuse him of a crime or misdemeanor. Code Civ. Pro., § 837.

To be entitled to the benefit of these provisions of the Code, it must in some way be made to appear that the testimony will have that effect.

While the complaint does not contain some of the allegations usually found in complaints in actions for false imprisonment, we assume that to be the cause of - action stated, for such is the contention of the counsel for both parties.

The facts charged in the complaint fail to show that the defendants committed a crime or misdemeanor in what they did to the plaintiff.

It is suggested by the appellant’s counsel that the facts alleged might form a material link in the evidence to establish the crime of kidnapping.

“ A person who wilfully seizes, confines, inveigles or kidnaps another with intent to cause him, without authority of law, to be secretijr confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held, or kept, or detained against his will ” is declared by subdivision 1 of § 211 of the Penal Code to be guilty of kidnapping.

There is nothing charged in the complaint bringing the defendant’s acts ■ within the subdivision of the Code. There is no allegation of the intent with which the acts were done, and it is not charged they were done wilfully.

All the allegations of the complaint may be true, and yet the defendants have been acting in what they did as keepers of the jail, believing they had the right, and that it was their duty to detain the plaintiff in the jail.

Neither are the defendants charged with committing an assault upon the plaintiff, for there is no allegation that they acted with intent to injure the plaintiff.

The act and intent must concur to constitute the crime.

The complaint not containing allegations showing that the acts complained of constituted a crime, it was incumbent upon the defendant to make it appear in some way that there were allegations in the complaint in respect to tire truth of which he could not be interrogated if under examination as a witness.

It is true that it is sufficient if they might have that tendency, but to be entitled to the order asked for that must have been made apparent to the court, either by a perusal of the complaint, or in some other manner. Facts stated in an ordinary complaint upon a promissory note might form a link in a chain of evidence tending to convict a party of a crime, but-it would not be claimed that he could, for that reason, avail himself of the provisions of the Code mentioned without making the fact appear in some manner. The rule is stated by O’Brien, J., Goff v. Star Printing Co., 21 Abb. N. C., 214, as follows:

“An examination of the cases will, however, bear the construction that a distinction is made between cases where the complaint itself does not show that the defendant would be privileged, and cases where, from their very nature, it is evident that the defendant could not be compelled to testify.” Malony v. Dows, 2 Hilt., 247; Lynch v. Todd, 13 How. Pr., 546.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur; Haight, J., not sitting.


text:
    Henry J. Negus, Resp't, v. Louis W. Becker el al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Party wall—-Increase of height.
    Plaintiff and defendants’ grantor entered into a party wall agreement by_which plaintiff was to erect a wall sufficient to sustain a three story building. Defendants undertook to erect a three story building on their lot, and employed a contractor who carried the wall up about eighteen feet, when a severe wind storm blew it upon plaintiff’s house and damaged it. Held, that defendants had a right to increase the height of the wall, but in making such addition did so at their peril, and were bound to insure the safety of the operation, and became responsible for the damage caused, irrespective of the question of negligence.

      2. Same—Estoppel.
    The clause in the agreement requiring the wall to be of sufficient strength to support a three story building, such as defendants were erecting, only estopped plaintiff from claiming that the wall was overweighted, and fell for that reason.
    Appeal by the defendants from a judgment in favor of the plaintiff entered in Cattaraugus county, March 1, 1892, upon the . verdict of a jury.

      William H. Henderson, for app’lt; Hudson Ansley, for resp’t.
   Lewis, J.

The plaintiff and one Andrew H. Krieger owned respectively adjoining lots of land in the village of Salamanca on the 1st day of June, 1886, and on that day they entered into a written contract, ¡Negus agreeing to erect a party wall of stone and brick upon the line of the lots, of sufficient size and dimensions to sustain a three story brick building. Krieger was to pay one-half of the cost of the wall, and it thereafter was to be owned jointly by the parties as a party wall. Negus built the wall and Krieger paid him one-half the cost thereof as agreed. Krieger thereafter conveyed his lot, including his interest in the party wall, to the defendants and they thereupon proceeded to erect upon the lot a three story brick building. They let the contract for constructing the building to one H. 0. Robinson. Robinson carried up the party wall some fifteen to eighteen feet higher than the wall built by Negus, and while thus engaged in building the wall a severe wind storm arose which caused the wall to fall upon the plaintiff’s building and seriously damaging it The amount of the plaintiff's damage was conceded by the defendants to be $1,156.49. At the close of the evidence the parties asked for a direction of a verdict in their favor respectively. The court denied the defendants’ motion, and directed a verdict for the plaintiff for the amount of his damages as stated. The defendants duly excepted to the refusal of the court to grant their motion and also to the direction of a verdict for the plaintiff.

The defendants’ counsel claims that a cause of action was not made against his clients, for the reason that the wall was being built by a contractor, and not by the defendants personally; that the relation of master and servant did not exist between the defendants and the contractor, and that, therefore, the contractor’s negligence could not be imputed to the defendants. This claim is made upon the assumption that the cause of action stated in the complaint is for the negligence of the defendants.

We do not so understand the complaint. The defendants’ right, to use the wall as they did is not questioned, but it is claimed that they built upon it at their own peril and became responsible for any damage which its use occasioned the plaintiff, without regard to the question of negligence in the manner of doing the work,, and so the rule of law is laid down in Brooks v. Curtis, 50 N. Y., 639, and in Schile v. Brokhahus, 80 id., 619.

Judge Rapallo says, in Brooks v. Curtis, supra, that either of the adjacent owners of a party wall has a right to increase the height thereof if it can be done without injury to the adjoining building and the wall is clearly of sufficient strength to safely bear the addition, but in making such addition he does it at his. peril, and if injury results he is liable for all damages. He must insure the safety of the operation. The party making the change is absolutely responsible for any damage which it occasions.

Our attention is called by the appellants’ counsel to the clause' in the contract requiring the plaintiff to build a party wall of sufficient strength to support a three story brick building, such as the defendants were building when the wall fell, as bearing upon the right of the plaintiff to complain of the addition made to the wall by the defendants.

We do not see that this clause cuts any figure in the case, for it is conceded the wall was of ample strength to sustain the addition made to it by the defendants, and it did not fall from any inherent, defect, but was blown over by a severe and unusual wind. The contract estopped the plaintiff from making the claim that the wall was overweighted, and fell for that reason, and that would seem to be the only effect of the clause mentioned.

The cause of action was established; the case was properly disposed of at the circuit. We find no reason for disturbing the verdict.

The judgment appealed from should be affirmed.

Dwight, P. J., Macomber and Haight, JJ„, concur.