text:
    Cornelius Beecher, Resp’t, v. John Schuback, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Mechanic’s lien—Sub-contractors.
    If nothing be due the contractor, a sub-contractor may not enforce his lien against the owner.
    2. Same—Abandonment of work.
    Nothing being due since filing the sub-contractor’s lien, if the contractor abandon the work before a substantial completion of the building according to contract, the. sub-contractor may not enforce his lien.
    8. Same.
    When by the contract the architect’s certificate is a condition of payment, the payment is not due without such certificate, unless it be unreasonably withheld.
    4. Same—Certificate of architect.
    If the architect named in the contract die, and another be substituted by the owner and accepted by the contractor, the certificate of that other is necessary.
    5. Same—Completion of work by owner.
    If under an option by the contract the owner proceed to complete the building, a sub-contractor may not recover unless payment w-as due before the commencement of the action.
    8. Appeal—Judgment cannot be upheld on theory not suggested below.
    On appeal a judgment may not be upheld upon a theory and stato of fact not suggested on the trial, and repugnant to that on which tho-judgment was rendered.
    Appeal from judgment by referee.'
    Action against owner to foreclose mechanic's lien of sub-contractor. Others claiming liens as sub-contractors were joined as defendants.

      Charles B. Meyer, for app’lt; N. A. Chedsey, for resp’t, Beecher; S. V. R. Cooper, Wm. J. Lippman, Henry W. Smith, Philips & Avery and Fromme Bros., for def’ts, resp’ts.
   Pryor, J.

If because the case does not purport to contain all the evidence, we are confined to the consideration of questions of law, Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948, still .a finding of fact without proof is legal error; Halpin v. Ins. Co., 118 N. Y., 165; 28 St. Rep., 788, which may not be obviated by any presumption as to the actual evidence on the trial. Van Bokkcelen v. Burdell, 130 N. Y., 141; 41 St. Rep., 312.

On the close of the case the appellant moved for a dismissal of the complaint upon specific allegations of insufficiency in the. evidence to support the action. Moreover, by proper exceptions to findings, and to the refusal of a finding that at the commencement of the action nothing was due and unpaid to the contractors, the appellant presents the questions the decision of which disposes of the appeal. Turner v. Weston, 133 N. Y., 650; 45 St. Rep., 301.

The sub-contractors claim through the contractor; and if nothing was due to him nothing was due to them. “ They are under the same obligations to prove performance and to the same extent that he would be. Their rights as lienors are measured by his rights under the contract. We think that there was nothing due upon the contract when the lien was filed, and that the judgment cannot be supported on that ground.” Van Clief v. Van Vechten, 130 N. Y., 571, 580; 42 St. Rep., 786.

We are of the opinion that, upon the uncontroverted evidence, nothing was due from the defendant to the contractors at the time they abandoned the work; and that the finding of the referee to the contrary is without support in the evidence.

The contract price of the buildings was forty-three thousand dollars. Before the filing of the liens thirty-four thousand one hundred and seventy dollars had been paid to the contractors. By the contract the balance of thirteen thousand dollars was payable only on the completion of the building. The referee finds that seven thousand and forty-one dollars and thirty-eight cents was due to the contractors at the time they abandoned the work.

In other words, he finds, both in effect and in terms, that the •contract was substantially fulfilled and the buildings substantially •completed pursuant to the agreement; and that so the contractors were entitled to the final payment. And yet the referee finds that “ after the contractors had substantially completed the said building and fulfilled the said contract and withdrawn from the said building, the defendant owner paid, laid out and expended moneys, to the amount of eleven hundred dollars and sixty-two cents, for work and materials to finish and complete the same, in regard to work and materials which he claimed at that time and on the trial should have been furnished and supplied by the contractors, according to said contract and specifications and the agreements between them, from time to time, during the progress of the construction of said building; and that the defendant owner did complete said building, and that he is entitled to an allowance and deduction in his behalf from the contractors for the following expenditures made by him after the said contractors had left the building, his expenditures made by him to complete said building and fulfil said contract in regard to omissions made by said contractors unintentionally and without fraud on their part.”

Looking to “ the following expenditures ” as found by the referee, it is seen that, beyond question, they were made, not to supply inadvertent omissions and casual defects, but for substantial .additions to the building so as to complete it in conformity with the contract and specifications. The cautious insertion, therefore, of the qualifying phrase “ unintentionally and without fraud,” is ineffectual to show the requisite completion of the building and fulfilment of the contract, in order to entitle the contractors to the final payment. Mo matter though the referee formally find that the contractors earned the final instalment; a specific finding must prevail over a general finding; and between inconsistent findings the appellant is entitled to the benefit of the most favorable.

Upon the face of the findings, therefore, it is clear that the contractors never performed the condition indispensable to their right to the final payment. Van Clief v. Van Vechten, 130 N. Y., 579; 42 St. Rep., 736. We should add that other essential deficiencies in the work are apparent upon the uncontradicted evidence.

We are of the opinion further, that to entitle the contractors to the final payment, the architect’s certificate was indispensable. The: contract so provides;"' but the answer is that the architect therein named was dead, and that so the condition is avoided. But, another architect was substituted by the owner and accepted by the-contractors; and in plain reason his certificate stood for that of his, predecessor. In the absence of all evidence that the certificate; was fraudulently or unreasonably withheld, a recovery under the contract is inadmissible. Smith v. Brady, 17 N. Y., 175 ; Nolan v, Whitney, 88 id., 650 ; Bowery Nat. Bank v. Mayor, 63 id., 336.

The judgment being insusceptible of support upon the ground that the contract was fulfilled and the money earned, an attempt is made to maintain it on the principle of Van Clief v. Van Vechten, supra, namely, that upon the default of the contractor the, owner proceeded to complete the building pursuant to a provision pf the contract. But, the infirmity of the position is that no evidence sustains it, and that the conclusion of the referee" stands-avowedly and exclusively on the assumption that the contractors, duly performed the agreement and themselves earned the money. The inevitablé inference from the evidence is that, upon the abandonment of the work by the contractors, the owner chose to treat the contract as at an end, and proceeded to put his property in condition for profitable use. In Murphy v. Buckman, 66 N. Y.. 297, the provision in the agreement being identical with that before us, the owner gave the-three days notice of election to complete the work himself, and so renounced the right to insist upon a forfeiture by the contractor. In Van Clief v. Van Vechten supra, the owner, in his answer, counterclaimed an allowance for completing the building; and the evidence showed that he took possession and completed it pursuant to the contract. In the case at bar the owner gave no notice of election, and made no demand in pleading on account of his expenditures in completing the building; and the proof fails to establish that he did furnish it in conformity to the contract. Indeed, upon the evidence, it is not apparent that the building is yet completed.

We may not, at this stage of the litigation, uphold the judgment upon a theory and state of fact of which no hint was given at the trial, and' which are directly in conflict with the findings and conclusions on which the referee rendered judgment.

Assuming for argument, however, that the defendant-owner did elect to complete the building underand pursuant to the contract; still, the uncontroverted evidence is that he did not complete it, if ever, until after the 1st of November, 1889, the date of the commencement of the action. Indeed, the referee finds the time of the ultimate completion of the building to be the 31st of December, 1889. In any event, therefore, the action is premature. Preusser v. Florence, 4 Abb. N. C., 137, general term, court of common pleas: Leiegne v. Schwarzler, 10 Daly, 547; Bailey v. Johnson, 1 id., 61, 67; Sullivan v. Brewster, 1 E. D. Smith, 681.

Independently of other errors, alleged and plausibly maintained by the appellant, it results that the judgment must be reversed and a new trial ordered, costs to abide the event.

Bookstaver and Bischoff, JJ., concur. '


source: Caselaw Access Project

author: Pryor, J. Bookstaver, P. J.

license: Public Domain

text:
    Jacob Klee et al., App’lts, v. Hugh J. Grant, Sheriff, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Replevin—Owner op goods attached while in possession op another
    MAY MAINTAIN.
    Where goods of one in the possession of another are taken on attachment, the right of the owner to the possession of the goods as against that owner is such a right to reduce into possession under § 1690 of the Code as will sustain replevin against the sheriff.
    52. Same—Goods delivered por examination.
    Goods delivered to one for examination with an option to buy may be retaken by the owner before exercise of the option by the proposed buyer.
    3. Same.
    A seizure by the sheriff before such exercise of option subjects him to an action of replevin at suit of the owner of the goods.
    (Bookstaver, J., dissents.)
    Appeal from judgment of the general term of the city court, affirming judgment on dismissal of the complaint.
    Action of claim and delivery.

      Sampler & Bloomfield (Samuel Fleischman, of counsel), for app’lts; Cochran & Clark (Abraham Gruber, of counsel), for resp’t.

       Reversing 43 St. Rep., 791; 51 id., 117.

   Pryor, J.

The case is before us upon a reargument, and on review of our former decision we are of opinion that it is erroneous.

The plaintiffs bring replevin against the sheriff for certain chattels of which they claim to be owners and entitled to the possession. The defendant justifies under a writ of attachment against Rothschild upon the ground that the goods were his property.

On the conclusion of the plaintiffs’ proof the complaint was dismissed, and we are to determine whether as the case stood it presented an apparent right of recovery.

Indisputably, the evidence authorized the inference that the -goods were the property of the plaintiffs, and were wrongfully taken by the defendant. E. S. T. F. Co. v. Grant, 114 N. Y., 40, 43 ; 22 St. Rep., 302. But the contention is that at the time of the seizure the plaintiffs had no right to “ reduce them into possession;” and so were barred of recovery by sub-division 3 of § 1690 of the Code of Civil Procedure.

As the complaint was dismissed against the objection of the plaintiffs, they are entitled, on review of the judgment, to the most favorable consideration of the evidence ; and the precise question for adjudication is, whether upon the proof, with all the inferences of which it was susceptible in support of the plaintiffs’ case, they had a right, at the time of the seizure by the defendant, to reduce the goods to possession? That they had such right is an inevitable conclusion.

Having shown that the goods were their property, the plaintiffs proceeded to disclose how and upon what conditions they came into the custody of Rothschild: “ A gentleman, representing himself as the buyer or clerk of M. Rothschild, doing business on White street, came to our store and requested permission to look at our line of goods, with view of making arrangements to do some business with us; this man requested to be allowed to select a certain style of goods, and wanted to- know the qualities and price; he did so select goods, and wished me to send down to their store a memorandum of them to compare them with other goods which, he said, he was getting from other houses, and that if he found he could use them he would buy them, and buy such quantities as I had or could sell him ; so we sent them down, one garment of every lot; with the price marked opposite.”

That the goods were delivered to Rothschild for examination only, and not upon any contract of purchase, is clear beyond the possibility of mistake. He was to buy them only in the event that he found he could use them. In the possession of Rothschild upon an offer of sale by the plaintiffs, the goods remained their property; and as the offer had not been accepted, the plaintiffs had a right to reclaim them. Quick v. Wheeler, 78 N. Y., 300, 304; Pollock on Contracts, 8; 2 Benjamin on Sales, § 911; Hunt v. Wyman, 100 Mass., 198. If a demand were requisite to convert the lawful possession of Rothschild into a wrongful detention, nevertheless the plaintiffs had a right to reduce the goods into-their possession. They had a right to revoke their offer of sale, and a demand would have effected such revocation; they had a right to make the demand; after that demand Rothschild would hold by wrong, and they might, by their own act, take the goods from his possession. Spencer v. McGowen, 13 Wend., 256; Dun-ham v. Wyckoff, 3 id., 280.

When nothing is requisite to one’s rightful possession but acts he may rightfully do, he certainly has a right to reduce to possession. If nought but a demand be necessary to the right of possession, the right to make the demand is a right to reduce to possession. “ To reduce to possession is to change a right existing as an actionable claim into actual custody and enjoyment.” Anderson’s Law Diet., 792.

The argument is sufficiently supported by authority. In Payne v. Batterson, 22 W. Dig., 109, an engine was sold on the condition that the note given for the purchase price might be declared due before maturity, and the engine retaken by the seller. While-in the possession of the buyer, the engine was seized on an execution against his property. Here plainly an exercise and declaration of the seller’s election to rescind was a condition precedent to his right of possession. In Wise v. Grant, 20 N. Y. Supp., 828 ; 49 St Rep., 439, goods obtained by fraud were taken from the buyer by the sheriff; and the court ruled that, at the time of seizure, the seller had a right to reduce them to possession, saying per Lawrence, J.: “ It was undoubtedly the right of the plaintiffs,, if the sale was induced by fraud on the part of the vendee, to rescind the sale and reclaim the goods. This the plaintiffs have sought to do; but it is claimed that they could not maintain the action because at the time of the seizure of the property they did not have the right to reduce it into their possession. We do not see how this contention can be successfully supported.” And yet an exercise of the option to rescind was an act still to be done before the right of possession could accrue. In Willis v. O'Brien, 3 J. & S., 536, by the terms of a chattel mortgage the goods were to remain in the possession of the mortgagor until default in payment. After such default, upon execution against the mortgagor, the sheriff seized the goods in his possession, and, held, that the mortgagee might maintain replevin against the sheriff.

The argument of the respondent assumes that the statutory phrase, “a right to rei'nce to possession,” is the equivalent, in legal effect, of a right to in mediate possession. The assumption is purely gratuitous. The n^ht of immediate possession is a familiar formula in the law: ai,1 had the legislature contemplated that right, it would have so &. id; but instead it employs, ex industria, an expression of an essentially different signification. The right of immediate possession implies a right already perfect and effectual, to the consummation of which no other act, as a demand, is requisite.

On the contrary, a right to reduce to possession imports ex vi termini a right to the completeness and operative force of which something else is still indispensable. A right of immediate possession and a right to reduce to possession are obviously not identical propositions. We are to conclude, therefore, that by the application of the different term the legislature intended a different idea.

It may be conceded that a right to reduce to possession is equipollent with a right of possession. But a right to possession may exist and yet something be needed, as a demand, to put the right in form for enforcement by action. The case before us is an apt illustration. Owners of the goods, and with no adverse title or interest in Bothschild, their bailee, the plaintiffs had, indisputably, a right to the possession of the goods, notwithstanding that before they could realize the right by action against him a demand upon him was indispensable.

Just here the fallacy of the respondent’s argument is apparent. He assumes that in order to replevin against the sheriff the plaintiffs should have had, at the time of the seizure, a right of replevin against Bothschild. But such is not the language of the Code. The only condition it imposes is, that at the time of the seizure the plaintiffs should have the right of possession against Bothschild; and since, by his levy, the sheriff succeeded only to Bothschild’s bare possession, the demand made upon the defendant consummated plaintiffs’ cause of action in replevin.

As against plaintiffs' plenary property in the goods, by what right could Bothschild pretend to retain them ? Since by none$ then plaintiffs’ right to the possession is plain and incontestable.

The fundamental infirmity in respondent’s position is that he confounds the right of possession with the right to maintain replevin, and supposes that because a demand may be necessary to the latter, it is to the former. Undoubtedly a right to possession is an indispensable condition of replevin ; but a general right of possession may exist, and yet something more, a demand for instance, be requisite to sustain the action of replevin. As between the owner of a horse and him to whom it is lent, the borrower has the actual possession and the owner the right of possession ; and while a demand is necessary to reclaim the horse by replevin, it is not a constituent of the right of possession. The demand is indispensable to convert the lawful possession into a tortious detainer ; but without such demand, the right of possession still resides in the owner of a chattel of which another has possession upon a naked bailment.

Perceiving, in the case at bar, that the plaintiffs might not maintain replevin against Rothschild without a previous demand, the respondent assumes that such demand was requisite to plaintiffs’ right of possession; but this right subsisted in plaintiffs’ absolute ownership of the goods, and the absence of any right in Rothschild to their detention against the owners. .

That the plaintiffs’ right of possession suffices to sustain the action, a review of adjudged cases leaves no room for doubt. In Clark v. Skinner, 20 Johns., 465, 470, it is stated as a general rule, that a plaintiff in replevin must have “ either the actual possession, or the right of reducing to his actual possession, at the time of the tortious taking.” In Marshall v. Davis, 1 Wend., 110,112, 113, it was held that the plaintiff must have “ either actual possession, or constructive possession, by which is meant the right to reduce the article to possession at his pleasure; ” and that if goods be taken from a bailee the owner has such right to reduce to possession, as against the wrongdoer. In Dunham v. Wyckoff, 3 Wend., 280, 281, the decision was that “ a person having the property in goods, and having the right to reduce them to actual possession, may bring replevin against an officer who takes them by virtue of .an execution out of the possession of the defendant in the execution,” the reason being, that “ the plaintiff having the property in the goods, had the constructive possession ; for the property draws to it the possession; the plaintiff, therefore, has the right to take possession at pleasure, and could have sustained trespass; and trespass and replevin in such cases are concurrent remedies.” In ■other words, a right to take possession at pleasure is a right of ' possession; and such right the owner has against a naked bailee ; i. e., one who holds possession only by his license and permission. Equally in point is Spencer v. McGowen, 13 Wend., 256 ; where, held, that “ the owner of personal property left in the possession of a third person may, by his own act, repossess himself of such property, although it be taken from the possession of such third person by virtue of a writ of replevin.”

That in the present instance the plaintiffs had a right to reduce the goods to possession at the time of their seizure by the defendant will be all the more manifest when we consider the cases in which it is held that the owner had not the right of possession. For example, observe the ratio decidendi in Savall v. Wauful, 21 Civ Pro., 18. There the plaintiff sold a pair of horses to Austin for $250, $50,to be paid down, and the balance by equal instalments in three, six, nine and twelve months. Austin was to have possession of the horses, but the title was to remain in the plaintiff until complete payment On delivery of possession Austin made the cash payment of $50, and gave four notes for $50, each payable in three, six, nine and twelve months. Then the sheriff seized the horses on execution against Austin; and in replevin by the owner, it was ruled that he had not the right to reduce them to possession. And why? Because, “at the time the sheriff made the levy, Austin, the defendant in execution, had the actual possession of the horses, and the right to retain the same until there was a default in the payment ■of some part of the purchase money. The defendant in the ■execution, Austin, the vendee, had an interest in the property which was the subject of a levy and sale upon an execution ■against him; hence, the plaintiff, at the time he commenced the action, had neither the possession nor the right to the possession of the horses, and could not, therefore, maintain replevin.”

In the case at bar, on the contrary, Rothschild", before a purchase of the goods, had no interest in them subject to levy on execution against him; nor a right to retain possession of them -against plaintiffs, the owners. He did not hold them as vendee ■subject to a condition of defeasance, but merely for examination with the privilege of buying them on a contingency that never ■occurred. In the language of the law, his possession was a naked bailment; and so while he had the actual possession, the right of possession remained in the owners, who might, at any moment, reduce them into possession. By the levy the sheriff got -only the right of Rothschild, actual possession subject to the right of possession in the owner. Hersey v. Benedict, 15 Hun, 282,285.

Reason and authority alike dictate the rule of decision to be: that in replevin by the owner against a sheriff for a seizure of goods in the custody of another against whom the process runs, the defendant stands upon the right of possession in that other; if that other has a right of possession against the owner, the action may not be maintained; but if he has not a right of possession against the owner, the action is well brought

To the argument that by denying to plaintiffs the right to recover the goods themselves they suffer no injury, because an action lies against the sheriff for conversion, Platt, J., retorts a triumphant answer in Clark v. Skinner, supra.

The conclusion is that, at the time of the seizure of the goods in controversy by the defendant, the plaintiffs had the right to reduce them into possession; and that so the action is unimpeachable.

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

Bischoff, J., concurs.

Bookstaver, P. J.

cannot concur in the conclusions arrived at by my colleagues. At common law an action of replevin was originally confined to distresses for rent and arrears, but it was gradually extended to all cases where one had taken the property of another forcibly and against his right, Clark v. Adair, 3 Harr., 113 ; Galloway v. Bird, 4 Bing., 299, provided the defendant had authority or control of the property when the action was brought Roberts v. Randel, 3 Sandf., 707. And in order to maintain the action at common law it was necessary that the taking should be tortious. If the property came into the possession of the defendant lawfully, the fact that he unlawfully detained it created no ground of action in replevin. The remedy in such case at common law was by trover or assumpsit Rich v. Baker, 3 Den., 79 ; Phelan v. Bonham, 9 Ark., 389. But this state, by statute, long ago gave the right of action in replevin for the wrongful detention as well as for the wrongful taking of property.

The distinction between the wrongful taking and the wrongful withholding, however, remains until this day, and must by reason of the inherent difference in the nature of the wrong committed. The action for the wrongful taking of property is generally known as replevin in the cepit, and for the wrongful withholding it is generally known as replevin in the detinet In the latter class of cases the right of recovery depends entirely upon the question whether the detention is wrongful, irrespective of how possession was obtained, Clark v. Griffith, 24 N. Y., 595, and will lie wherever trover can be maintained. Marshall v. Davis, 1 Wend., 109; Crocker v. Mann, 3 Mo.,472; Eveleth v. Blossom, 54 Me., 449. In the case under consideration it .cannot be for a moment questioned but that the action is in detinet and not in cepit. This from its very nature admits that the judgment debtor, Rothschild, came lawfully in the possession of the goods, and in order that the plaintiff in this action might maintain it against the judgment debtor, he must have alleged and proved a wrongful detention in some manner. This is generally done by showing a demand and a refusal to deliver possession of the property, thus making the defendant a wrongdoer.

I do not think there can be any question whatever but that if this action was against Rothschild it could not be maintained, because no demand or refusal could be shown. Can it be against a public officer who found the goods rightfully in the possession of the judgment debtor and took them from him ? My learned colleagues contend that it may, and base their contention upon the language of the third subdivision of § 1690 of the Code of Civil Procedure, which provides that replevin cannot be-maintained “ where it was seized by virtue of an execution or a warrant of attachment against the property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession.” The question then' is, what is meant by the right to reduce to possession. To reduce is to “restore,” to “replace” and “bring to a certain condition.” Cent. Diet ad verb. To reduce into possession is to take into possession; but one may not take possession unless he has the right to possession. So that in my judgment a right to reduce into possession an equivalent expression for a right of possession.

Then, upon the terms of the statute, the question is : Had the plaintiff at the time of the seizure of the goods by the defendant, a right to their possession? Giving to the plaintiffs the most favorable construction of the evidence which the dismissal of their complaint allows, the case is this: The plaintiffs delivered the goods to Rothschild for examination and with an option to purchase, and before acceptance by Rothschild of their offer to sell they had a right to revoke it and reclaim the goods. The goods being in the custody of Rothschild by permission of the plaintiffs, a demand and refusal to return them was necessary to convert his rightful possession into a wrongful detention. Scofield v. Whitelegge, 49 U.Y., 259. But before such demand and refusal the defendant took the goods by attachment. Upon this state of fact, I think it is clear that at the time of the seizure of the goods the plaintiffs had not a right to possess them, that is, to reduce them into possession. Before such right could exist, other acts were to be done by the plaintiffs and by Rothschild, namely, a demand by the former and a refusal by the latter. But before these acts were done the defendant took them, and it results, as I think, in the inevitable conclusion that the seizure of the goods by the defendant preceded the right of the plaintiff, to reduce them into possession. I cannot understand how a right may exist before the occurrence of a condition indispensable to its existence. The obvious policy of the provision of the Code referred to is that in order to maintain replevin against the sheriff for seizure of goods in the possession of another than the owner, that owner should have a right to maintain replevin against the person in possession. But as in the case at bar the plaintiffs had not such right against Rothschild, they do not have it against the defendant

The distinction attempted to be made between the right of possession and the right to reduce to possession I do not think can be sustained. The right to possession is not distinguishable in a case like this from the right to reduce to possession. Both depend upon the making of a demand for the property, which was not made. Had it been made, then the right of possession would have been clear, and could have been distinguished from the remedy which follows the right, hut never precedes it It presupposes the demand. The demand is not a part of the remedy, but precedes the remedy. Where in such case there is a refusal, there is but one remedy known to the law. He cannot ‘ take it by force, but must resort to an action. But, as I think I have shown, before such an action can be maintained, there must be a demand or its equivalent. This at once gives the right to possession and the right to reduce to possession, and not otherwise.

In such cases it has been held that even a demand for the value of the goods would not suffice to maintain the action. Thus in an action for replevin for certain sawing and molding machines the plaintiff only proved that the defendant took the machines on trial, and said if they answered his purpose he would keep and pay for them ; that he never paid for them, and that the plaintiff demanded payment several times but never demanded the machines. It was held that the action would not lie because the detention was not unlawful until the plaintiff elected to take the machines back, and had demanded them. Witherby v. Sleeper, 101 Mass., 138. And this case is, it seems to me, on all fours with ' the one under consideration. The same doctrine has been held in Arosemena v. Hinckley, 43 Super. Ct., 43, where a bill of sale of furniture payable in instalments provided that if default was made in any payment that then all payments previously made should be forfeited and the furniture should be reconveyed and forfeited to the vendor without consideration. It was held that after demand of payment and a refusal or neglect to pay a demand for the furniture was necessary before an action for its recovery could be maintained.

The authorities adduced by the plaintiffs for their position do not sustain it In Payne v. Patterson, 22 W. Dig., 109, the decision proceeded upon the express ground that the contract gave the plaintiffs the right and power to take possession of the property, so that at the time of the seizure their right to reduce to possession was clear and consummate. In Wise v. Grant, 20 N. Y. Supp., 828 ; 49 St. Rep., 439, the party in whose hands the goods were attached by the sheriff had obtained them by fraud, and the taking being tortious, no demand was necessary to entitle the owner to possession. Jessop v. Miller, 1 Keyes, 321. In Willis v. O'Brien, 3 J. & S., 536, by the terms of the contract the mortgagee was entitled to possession of the chattels upon default in payment of the debt secured, and the seizure by the sheriff was subsequent to the default, i. e., to the right of the plaintiff to reduce into possession. In E. S. T. F. Co. v. Grant, 114 N. Y., 40, 43 ; 22 St. Rep., 302, the case turned upon a question of title, and the judgment was reversed because the court improperly withheld the issue from the jury.

The subdivision of § 1690 under consideration has received attention in Savall v. Wauful, 21 Civ. Pro., 18, and the learned court there came to the same conclusion that I have in this case.

The conclusion, therefore, in my judgment, is that the former decision made by this court was correct, and that the judgment of affirmance should stand, with costs and disbursements of the re-argument to the respondent.

Judgment reversed and new trial granted, costs to abide event.


author: Pryor, J.

text:
    Lena Schmidt, an Infant, App’lt, v. Valentine Cook and John J. Radley, Resp’ts.

      (New York Common Pleas, General Term.

      Filed June 5, 1893.)

    1. Nuisance—Liability of owner of premises.
    Bare fact of ownership of real property imposes no responsibility for a nuisance on it.

      2. Same.
    Where a person maintains upon his premises anything dangerous to life or limb, and of a nature to invite the intrusion of children, he owes them a duty of precaution against harm, and is liable to'them for injury from that thing, even though their own act, if not negligent, puts in operation its hurtful agency.

      3. Same—Contributory negligence.
    It is not the contributory act merely, but the contributory negligence, of a plaintiff that defeats his recovery.
    4. Negligence—Infants.
    An infant suijwis is held only to the care proper to his age and condition.
    Appeal from order of general term of city court, reversing judgment on verdict and dismissing complaint. Action for injury from fall of a rock in the back yard of defendants’ premises, occupied by plaintiff’s father and others as a tenement house. Plaintiff was “playing piano” on the rock when it fell. Other facts are sufficiently stated in the opinion.

      Jeroloman & Arrowsmith, for app’lt; Lewis Sanders, for resp’ts.

       Reversing in part 49 St. Rep., 213

   Pryor, J.

Assuming the back yard to have been reserved by the landlord for the common use of the tenants, Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913, that the rock was a nuisance, and that the landlord let the premises with knowledge of the nuisance, then, beyond question, he would be responsible for the injury to the plaintiff if in no way caused by her own negligence.

But, the fatal defect in the plaintiff’s case is, that neither by allegation in the complaint, nor by proof on the trial, does it appear that the defendants were the landlords, or in control of the premises. True, the receipts for the rent were by John E. Morris, agent; but agent for whom ? It may be that the premises were held by the plaintiff’s father as sub-tenant; that they passed out of the possession and control of the defendant-owners before' the existence of the nuisance and for a term extending beyond the demise to the father; that the nuisance was created by the immediate landlord, and that no notice of it, actual or constructive, was imparted to the defendants; entirely consistent with the evidence is this state of fact; and, surely, it is ineffectual to affect the defendants with a liability for the plaintiff’s injury.

It is conceded, however, that the defendants were owners of the premises; but that fact alone did not make them responsible for a nuisance which they are not shown to have created" or suffered to continue. A landlord out of possession is not responsible for an after occurring nuisance unless, in some manner, he is in fault for its creation or continuance. His bare ownership will not produce that result.” Wolf v. Kilpatrick, 101 N. Y., 146, 151; Babbage v. Powers, 4 Silvern. Sup. Ct., 211,215 note ; 26 St Rep., 799. But ownership is the solitary fact in the case upon which defendants’ liability is founded.

That the complaint should have been dismissed is evident, without argument

The respondents insist, further, that the complaint should have been dismissed for the contributory negligence of the plaintiff; because it was her own act that caused the rock to fall. The so-called turn table cases are clearly against the contention; the principle they establish being, that where a person maintains upon his premises anything dangerous to life or limb and of a nature to invite the intrusion of children, he owes them, a duty of precaution against harm, and is liable to them for injury from that thing, even though their own act, if not negligent, puts in operation its hurtful agency. Barrett v. R. R. Co., 91 Cal., 296 ; Lynch v. Nurdin, 1 Q. B., 29; Railroad Co. v. Stout, 17 Wall., 657; Kansas, etc., R. R. Co. v. Fitzsimmons, 22 Kans., 686 ; Evansich v. Gulf, etc., R. R. Co., 57 Tex., 126; Koons v. St. Louis, etc., R. R. Co., 65 Mo., 592; Nagel v. Missouri, etc., R. R. Co., 75 id., 653; Williams v. Kansas City, etc., R. R. Co., 96 id., 275 ; A. & N. R. R. Co. v. Bailey, 11 Neb., 332; Kunz v. City of Troy, 104 N. Y., 344, 351; 5 St. Rep., 642.

It follows, therefore, that though the toying of the plaintiff with the rock was the occasion of its fall, contributory negligence is not a necessary inference, but may be negatived by a contrary inference that the plaintiff was in the exercise of due care. Being eleven years old and not of infirm or inferior faculties, she was sui juris, and responsible for the observance of care, not, however, the care of an adult, but only for a degree of care proper to her age and condition. Kehler v. Schwenk, 144 Pa., 348 ; Swift v. Railroad Co., 123 N. Y., 645, 650; 33 St. Rep., 604; Byrne v. Railroad Co., 83 N. Y., 620. The intimation in Tucker v. Rail-road Co., 124 N. Y., 308; 36 St. Rep., 272, that an infant sui juris is held to the care of an adult was inadvertent, and is opposed equally to reason and authority.

It is not the contributory act merely, but the contributorv negligence, of a plaintiff that defeats his recovery.

Although the complaint be bad in substance there must still be another trial; for an amendment may be allowed and farther evidence adduced.

Order affirmed so far as it reverses the judgment, and reversed so far as it dismisses the complaint, and new trial ordered, costs to abide event.

Bookstaver and Bischoff, JJ., concur.


author: Gray, J.

text:
    Clarissa J. Barrett, Resp’t, v. The American Telephone & Telegraph Co., App’lt.

      (Court of Appeals,

      Filed June 13, 1893.)

    Service—Corporations—Telegraph companies.
    The general superintendent of the work of operating the lines of a telegraph company is a managing agent within the meaning of that term as used in § 431 of the Code, and service upon him is sufficient.
    Appeal from order of the supreme court, general term, second department, affirming order denying motion to set aside the service of the summons herein.

      Melville Egleston, for app’lt; W. B. Yeomans, for resp’t.

         Affirming 31 St. Rep., 465.

   Gray, J.

The defendant seeks to set aside the service of the summons in this action for having made upon its general superintendent It is a domestic corporation, and, under § 431 of the Code, such a service, if not made upon the president, secretary, cashier, treasurer or a director, might be made upon its managing agent It appeared from the affidavits, read on behalf of the defendant company, that the person served was the general superintendent of the work of operating the lines of the company. It was said of him that he was given that title “ to distinguish him from superintendents of divisions of its lines, and from superintendents of other departments of business.” That was a sufficiently broad agency or delegation of power to constitute him a managing agent of the company. The design of the statute was to secure notice of the commencement of a suit to the corporation, and it is very apparent, from the description in the statute of the persons upon whom service might be made, that the legislature intended to facilitate such service, and only required that the person to be served should sustain such responsible and representative relations to the corporation as would be comprehended in the term “ managing agent” This language would exclude persons holding such subordinate or clerical positions as imposed no responsibility upon them; but plainly would include a person holding so responsible and representative an office as did the general superintendent of this company.

The order should be affirmed, with costs.

All concur.


text:
    William A. Sweet, App’lt, v. Henry J. Mowry et al., Resp’ts.

      (Court of Appeals,

      Filed June 13, 1893.)

    1. Appeau—Reakgument—Costs.
    Where the court of appeals grants a motion for reargument and upon the hearing again simply remits the case to the court below with an order annexed repeating the terms of the former adjudication and giving costs in this court, the award of costs relates to the second argument.

      2. Same.
    To warrant the supposition that the provisions of the remittitur were altered by the subsequent decision, there should be some language expressive of that result.
    Appeal fr~ " * J ‘‘ court, general term, fourth to modify and vacate judgments entered on remittiturs of this court. department, orders denying motions

      Charles H, Peck, for app’lt; C. L. Stone, for resp’ts.

       Affirming 49 St. Rep., 363.

   Gray, J.

The granting of the motion for a reargument and requesting the return of the remittitur were in resumption of our jurisdiction, and had no effect whatever on the proceedings already had in the court below upon the remittitur. After the re-argument was had, our decision remained unchanged and the record returned to us went back with a further remittitur, ordering and adjudging as in the first remittitur, and granting costs in this court. This left the orders and judgments below, entered upon the first remittitur, unaffected, as the result of the further proceedings in this court The second order of this court upon thereargument of the case was simply a reaffirmance of our former decision, and was not, as the appellant argues, a new and exclusive decision of the appeal. The resumption by this court of its jurisdiction of the’appeal operated simply to suspend proceedings-in the courts below. We acquired thereby the power to alter our former judgment; but this we did not do, and there was nothing-in the second remittitur to indicate that we did. Our first adjudication, as evidenced by the remittitur, was retained and again-remitted to the court below, with an order annexed, which repeated the terms of the former adjudication and then gave costs-in this court. That award of costs related, obviously, to the second argument in this court. To warrant the supposition that the provisions of the remittitur were altered by our subsequent decision, there should be some language expressive of that result

The order should be affirmed, with costs separately to respondents.

All concur.


author: Maynard, J.

text:
    Ella Weed Center, Resp’t, v. James I. Weed, App’lt.

      (Court of Appeals,

      Filed June 13, 1893.)

    Specific performance—Deed—Fraudulent representations.
    The parents of the parties having both died intestate, and plaintiff claiming to be entitled to a larger share than the others for the purpose of equality, defendant, to induce her to join in quitclaim deeds of the property, falsely represented that their mother died seized of the homestead farm and personal property, and that if the proposed deeds weie executed she would become owner of one-third of the homestead and one fourth of the personalty, and assured her attorney that the mother had made no conveyance to his knowledge, when in fact he held a conveyance from the mother of the farm and personalty which he withheld lrom record until the deeds in question were executed. Held, that his representations were equivalent to a surrender of his right of exclusive ownership under his deed in exchange for the surrender by plaintiff of her claim and her execution of the deeds, and implied an obligation on his part to perform every act necessary to make his declaration good; that the case contained all the essential elements of a contract which had been so far performed by plaintiff that equity would decree specific performance by defendant by conveying to her the interest which he had represented she would have.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff, entered' on report of a referee.

      John D. Teller, for app’lt; Chester M. Elliott, for resp’t.

       Affirming 44 St. Rep., 463.

   Maynard, J.

The substantial relief which the plaintiff has secured in this action consists of a decree adjudging that she is the equitable owner of an undivided one-third of the real property described in the complaint, of which the defendant has the legal title, and directing that he convey to her the share to which ■ she-is thus entitled. The parties are children of Charles H. Weed, who died intestate in June, 1889, seized of three parcels of real estate, and leaving, besides these parties, a widow, two daughters; and a son surviving him. At the time of his death his widow was the owner of a house and lot upon which the family resided, and known as the homestead property. The daughters were all married and lived away from home, but in or near the same village. The other son was an invalid and unmarried, and died in February, 1890, intestate. The defendant was then forty-four years of age and unmarried, and had not lived at home since he was sixteen, but had frequently visited his parents, and was at the homestead when his father died, and remained there after his death caring for the mother and the invalid brother. Mrs. Weed seems to have had a mother’s love and 'affection for all her children, and her relations with them all were friendly and cordial, but she was especially fond of the defendant; and it is evident, that she confided in him fully, and that he had the entire control and management of her affairs after her husband’s death. She died March 28, 1890, also intestate.

One of the pieces of real property owned by the father, and known as the eight-acre parcel, was in the possession of Mrs. Caroline Putnam, one of the daughters, who had occupied it since 1865, and who claimed that she had gone into possession under an agreement with her father, which had been performed on her part, that if she would live upon the property and improve it, and make her home there, he would convey it to her, and it should be her property. Subsequently, the father mortgaged the premises to the plaintiff’s husband, which mortgage was outstanding when he died, and shortly after his death an action was brought, to foreclose it, to which all his heirs at law were made parties defendant. Mrs. Putnam interposed a defense, setting up the agreement with her father, and claiming that by virtue of it she was the rightful owner of the property, and entitled to a deed free of all incumbrances.

Various attempts were made in the lifetime of the mother to settle this controversy, in which the defendant actively participated. Mrs. Putnam finally proposed that if the other heirs would convey to her their interest in the eight acres, she would pay off the mortgage, and convey to them her interest as heir at law in the other pieces of real estate owned by her. father. It was shown that these pieces were worth from $5,000 to $6,000, and it has been found that Mrs. Putnam’s lot, after paying off the mortgage, was worth $1,650.

If her proposition had been accepted, she would thus have received nearly a full equivalent in value for the exchange which she had made. The plaintiff alone strenuously objected to a settlement on these terms, giving as her principal reason that both Mrs. Putnam and the other sister, Mrs. Gilmore, had received from the father in his lifetime advancements to the amount of several thousands of dollars in excess of what she had received, and that by this arrangement she would not be placed upon an equality with the other heirs. Pending the negotiations the mother died, apparently the owner of the homestead and of the personal property of the value of $600, and the plaintiff, as one of her heirs at law, was entitled to an undivided one-fourth of whatever estate she may have left.

Mrs. Putnam's suit was noticed for trial the following week and the efforts for a compromise were renewed, in which the defendant was a prominent actor. He represented to the plaintiff that she ought now to be willing to accept of the terms proposed, because by reason of the death of Mrs. Weed she would become entitled to a share of her property in addition to that which she had in her father’s estate, or what she would acquire by the transfer from her sister. The plaintiff was still reluctant to consent to a settlement and still claimed that she should receive more in order to render her portion equal to that which the other heirs would receive. Mrs. Putnam then proposed to convey to" the plaintiff and defendant and Mrs. Gilmore her interest in the homestead, which they all assumed belonged to the mother when she died, in addition to the two pieces of real estate owned by the father, and the defendant urged the plaintiff to accept of this proposition, and stated to her that if she did, she would have a one-third interest in the homestead and her share of the personal property, and that ¡his mother had not made any will or any disposition of her property that he knew of. The plaintiff then consulted with her attorney, Mr. Wm. E. Hughitt, of Auburn, and intrusted him with the further management of the business. He had a conference with the defendant at the office of his attorney, in which he stated the terms of settlement as he understood them, to which the defendant assented.

It is manifest that both the plaintiff and her attorney suspected that owing to the confidential relations existing between defendant and his mother she might have made a will in his favor, or conveyed her property to him, and the attorney before leaving Auburn examined the records of the clerk’s office to see if any -conveyance from her had been recorded, and found none. Mr. Hughitt stated to the defendant that the plaintiff understood that the mother had made no will or any conveyance of her property, so that her children would take her estate under the law, and the defendant replied, he supposed that was so. Again, while the preparation of the papers' was in progress, the attorney, desirous of making sure of this point, went out and found the defendant and said to him, the only uncertainty about the adjustment of the matter, and the only hesitancy he had about advising acceptance of the proposition for settlement, arose out" of the possibility of Mrs. Weed’s having made a will or conveyed the homestead property; that the plaintiff had no idea that anything of the kind had been done, and that the other sisters knew of nothing of the kind, and the defendant replied : “Well, if she has done anything of the kind, I don’t know it.” Mr. Hughitt then said that under those circumstances he thought it was reasonably safe for him to say so to the plaintiff, and the defendant repeated the assurance he had given. These statements were communicated to the plaintiff through her husband, who was acting for her, and who directed Mr. Hughitt “ to go ahead and finish the papers under those circumstances.” A deed was then drawn from the defendant and plaintiff and Mrs. Gilmore, to Mrs. Putnam, of the eight-acre parcel, and a., deed from Mrs. Putnam to the three of the two other pieces of real estate belonging to the father, and of the homestead property. Defendant was present when the latter deed was drawn, and gave Mr. Hughitt the description of the homestead for insertion in the deed, in which it is also described as the same lands and premises owned and occupied by his mother at the time of her death. The deeds were completed late in the afternoon of April 3d, and given to the plaintiff to procure their execution. They were not executed the next day, because Mrs. Putnam desired to consult with her attorney before executing her deed, and there was some change to be made with respect to the furniture and household effects; but they were executed and delivered the next day, April 5th. On the afternoon of the fourth the defendant went to Auburn, and left with a friend to be placed upon record, as soon as the clerk’s office was opened on the fifth, a warranty deed executed by his mother July 24, 1889, conveying to him the homestead and all her personal property with possession to be given at the death of "the grantor. It was drawn by and acknowledged before the deiendant’s attorney; it recited a consideration of one dollar and natural love and affection, and knowledge of its existence had been withheld from the plaintiff and the other members of the family

The plaintiff testifies, and the referee has found, that she executed the deed to Mrs. Putnam upon the faith of the assurance given by the defendant that she should have a one-third interest in the homestead and her share of the personal property, and relying upon his representations with respect to the title. It also appears that after the mother’s death, and before the execution of the deeds, the sisters went to the house and made an inventory of the personal effects in the presence of the defendant, and without any objection from him or any assertion on his part of exclusive ownership of them.

Upon these facts, we think the plaintiff’s right to the relief which she has obtained' cannot be questioned. .Without considering how far the representations of the defendant might conclude him by way of an estoppel, an analysis of the transaction will disclose the presence of all the essential elements of a contract between the parties, which has been so far performed by the plaintiff that equity will decree its specific performance by the defendant.

It was, in effect, an engagement by him that if the plaintiff would convey her interest in the eight-acre parcel to Mrs. Putnam and thus secure for him, as well as for the plaintiff and Mrs. ■Oil more, a conveyance from Mrs. Putnam of her interest in the residue of his father’s estate and of the homestead property, he would assure to the plaintiff the enjoyment of an undivided third of the homestead and of an undivided fourth of the personal property. There was implied in this assurance the obligation on his part to perform every act within his power which might be necessary to make his declaration good. If the mother had not •conveyed or devised the property in her lifetime this obligation -would have been fully-met by the conveyance from Mrs. Putnam to the plaintiff and defendant and Mrs. Gilmore; but if the defendant had become possessed of the title it could only be discharged by a conveyance from him to the plaintiff of the share which he had undertaken to secure to her. We need not presume that when the transaction occurred he intended to perpetrate a fraud, upon his sister.

On the contrary, it may be inferred that he acted innocently,, when he made the representation, knowing that he had the power to fulfill its requirements either by suppressing the deed which he had secretly taken, or by transferring to the plaintiff the portion which she expected and he designed she should have. If he subsequently changed his mind and sought to withhold that which he promised to bestow, it neither extinguished her right to demand nor his duty to make full performance. Had he put liis: representations in writing under seal, virtually promising the plaintiff that if she would convey to her sister he would assure her the possession of a one-third interest in the homestead, to which he had the title, can it be doubted that equity would compel a specific performance when it appeared that the plaintiff had performed on her part, and that his promise had been the inducement of her act ? The equitable rights of the plaintiff are not less potential because the undertaking of the defendant was oral. It may be admitted that the plaintiff expected that she would derive her title to the homstead by means of heirship from an intestate mother, conjoined with a conveyance from her sister as one of the heirs, but she had no reason to fear that this expectation would be disappointed, unless the defendant had procured from the mother a secret conveyance of the property, and hence she took the precaution to exact from him a guaranty that no such conveyance had been made. The material and controlling thing upon which the minds of the parties did meet was that she should, have a one-third interest in that which was her mother’s property, and which she then believed belonged to her estate, and the defendant knew that she had such belief, and he cannot, by the assertion of a title in himself, derived from the mother, defeat the fulfilment of his own agreement.

The case shows, and the referee has found, that the statements and representations of the defendant were made to the plaintiff to induce her to consent to an adjustment of a controversy which obstructed the settlement of his father’s estate. By reason of advancements made to the other sisters, plaintiff claimed that she was entitled to a larger share than the undivided one-fourth part.

The defendant, in his testimony, admits that the plaintiff made this claim, and that in the last conversation he had with her on March 8th, before the mother’s death, she refused to consent to the settlement, unless he made up the sum of $500, in addition to the share she would have as heir at law.

With the merits of her claim we are not concerned. It is sufficient that she made it apparently in good faith; that it stood in the way of the adjustment of the father’s estate; that she was unwilling to forego it until she had received something more than her equal undivided share as heir at law, and that she did release it in the expectation of receiving an equivalent out of her mother’s estate. The case is analogous in its important features to that of De Herques v. Marti, 85 N. Y., 609. The appellant there had a deed from her mother of a house and lot and, after her -death, for the purpose of effecting a distribution of the estate, she .agreed not to make any claim of title under the deed, but that it might be treated as a part of the mother’s estate and distributed accordingly. The agreement was enforced against her, Chief Judge Folger saying (p. 610): “The effect is the same, that for the purpose of bringing about a settlement and distribution of her mother’s estate, the house at Matanzas is a part of the estate, -and is so a part of the estate as if it had never been the appellant’s. And the declaration of the appellant, whether it is to be taken as speaking of a prior agreement then recognized and restated, or as of an agreement then first made, does show forth a -contract that the appellant never had ownership, or absolute and -sole interest in the property; that is to say, a contract that she will so act, then and thereafter, as if she never, then or in the past, had ownership therein. It is an agreement founded on a good -consideration, to wit, that she shall no longer be bound by the advancement; the amicable and speedy settlement and distribution of the estate, by which she got what she preferred, that is, personal rather than real estate, and by which, the advancement being annulled, she got a share in that very Matanzas property. To be sure, no contract could make it that she never had ownership of the property; but it could make it, and it was the purpose -of the parties to make it, that, though she did once have ownership, that ownership was not to come into consideration in a settlement of the mother’s estate; it was to go as if it never had been, and nothing was to be based upon the fact that it once -existed.”

In the present case we cannot regard the representations of the defendant in any other light than as the legal equivalent of a surrender by him of his right of exclusive ownership of the homestead under his deed in exchange for the surrender by the plaintiff of her claim to an increased allowance out of the father’s estate, and for the conveyance by her to Mrs. Putnam of the eight-acre parcel. The defendant, as well as the plaintiff, was a party to the Putnam suit; was a grantee with the plaintiff in the Putnam deed; was equally interested with the other heirs in effecting an adjustment of that controversy, and has received and accepted the benefits which have flowed from the execution of the conveyance by plaintiff; and the final adjustment involved the settlement of the rights of the parties to the mother’s estate equally with that of the father’s.

Under such circumstances, we think it cannot be controverted that if a material representation is made by one party in regard to the subject-matter of the negotiation, upon which another party relies to his prejudice, and upon which it is intended that he shall rely, such representation will be given a contractual effect, and the party making it will be bound as by a promise to make it good. Fry on Specific Performance, 3d ed., p. 146, § 297; Pig-go tt v. Stratton, 1 DeG., F. & J., 33.

The judgment was sustained in the court below by the application of the doctrine of estoppel. There are difficulties in the way of upholding it upon that ground to the full extent to which relief has been awarded which we do not deem necessary to consider.

We think the plaintiff’s right to a recovery rests upon the broader foundation of a contract obligation, which the defendant should be required to perform; and for that reason the judgment is right, and should be affirmed.

Judgment affirmed, with costs.

All concurAndrews, Oh. J., and Earl, J., vote for modification by restricting the interest to be acquired by the plaintiff to-one-twelfth of the homestead property.


author: O’Brien, J.

text:
    Emily Hemmens, formerly Emily Halstead, App’lt, v. Edward B. Nelson, Resp’t.

      (Court of Appeals,

      Filed June 13, 1893.)

    1. Slander—Privileged communications.
    Defendant, who was the principal of an institution for deaf mutes, and whose wife received an obscene circular, believing that it came from plaintiff, a teacher in the institution, consulted with the chairman of the executive committee, and after a comparison of the circular with plaintiff’s handwriting by an expert, made complaint to the board, and she was discharged. Held, that the occasion was a privileged one,and that defendant was not liable in the absence of proof of malice, and the burden of showing malice was upon plaintiff.
    2. Same—Unchastity in female.
    A pleading in an action of slander charging defendant with saying that plaintiff “was in the habit of entertaining gentlemen callers at all hours of the night.” is not sufficient without an innuendo or allegation of some kind that they were used in ásense to render them actionable.
    3. Trial—Nonsuit.
    Where there is no evidence upon an issue before the jury, or the weight of evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would be set aside, it is the duty of the trial judge to nonsuit, or to direct a verdict, as the case may require.
    (Peckham and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term,, fourth department, affirming judgment entered on verdict for defendant, directed by the court.

      Oswald B. Backus, for app’lt; John B. Kernan, for resp’t.

       Affirming 36 St. Rep., 905.

   O’Brien, J.

The principal question in this case arises upon an exception taken to the direction of a verdict for the defendant upon the fifth trial of an action of slander. The defamatory charge is alleged to have been made by the defendant of arid concerning the plaintiff in the month of February, 1878, and consisted, in substance, of a statement to B. J. Beach, and other worthy citizens, that the plaintiff on January 19, 1878, mailed to the defendant’s wife, at Rome, N. Y., a sealed prepaid envelope, directed to her, in which was inclosed a printed letter or circular containing obscene and indecent matter. The defendant was, at the time, and still is the principal of the Institution for Deaf-Mutes at Borne, one of the charitable institutions of the state. The plaintiff was then the superintendent of the sewing department, and her duty was to superintend the making of clothing for the children in the institution, and also to instruct a class in sewing. The general management of the institution is committed by the statute to a board of trustees, or directors, with power to enact by-laws or rules and regulations for the government of the institution, and Mr. Beach was the president of the board.

Under the by-laws adopted the actual management is, to a great extent, devolved upon an executive committee composed of five members of the board, of which the president was always to be one. The defendant was really the executive head and manager of the institution. It was his duty and his right under the rules and regulations adopted for its government to attend the meetings of the board, to make reports in writing, and to participate in the discussions. Subject to the directions of the hoard, he had charge of the technical, moral and religious instruction of the inmates. He was required to regulate the course of instruction in the classes, examinations, exhibitions, religious services in the chapel, and was himself to have the immediate charge of the advanced class. He was required to conduct all the correspondence, employ and dismiss all persons necessary to be employed, unless officers of the institution or persons appointed by the board, and, with the approval of the executive committee, he had power to suspend any professor, officer or teacher appointed by the board. It was his duty to keep a book in which should be entered all events worthy of note relating to the institution, which was to be the property of the trustees, and submitted to them at the quarterly meetings, and always open to the inspection of the executive committee.

There is no dispute as to the fact that the defendant received the letter referred to in the regular mail of the institution. The proofs show that he gave it to his wife, to whom it appeared to be directed, and that she opened it and, after looking at its contents, nature and character, handed it back to him. An inspection of the paper indicates that it had been cut from a book or pamphlet prepared for advertising what were called female remedies of one Dr. Groff, of Syracuse. At the bottom of one of the pages it is signed “ A Lady Friend ” in pencil, the writing appearing to be that of a woman, and in another part of the paper, following an advertisement of certain appliances for females, there was written, in apparently the same hand in pencil, a statement that she, whoever the author was, had used them and that they would accomplish the desired purpose. Without further description, it is sufficient, for every purpose of this appeal, to say that it was grossly obscene and indecent, and the charge that the plaintiff was the author of it, or rather sent it to the defendant’s wife, through the mail, was defamatory and prima facie actionable. The defendant examined the writing in the body of the paper and the directions on the envelope and compared it with signatures and letters of .the plaintiff and others in the institution, which were in the office, and he then formed the opinion that the plaintiff was the person who sent it.

Having made this examination, he took the letter and papers to Mr. Beach, the chairman of the board and of the executive committee, and consulted with him in regard to the matter. In this interview it may be assumed from thé proof that the defendant expressed the opinion, in words of more or less positiveness, that the plaintiff was the person who sent the letter. Mr. Beach, after an examination of the letter and comparing it with the genuine letters and signatures of the plaintiff, which were before him, agreed with the defendant, but, for greater caution, suggested that all the papers be sent to an expert in New York for examination and his opinion. This course was adopted and all the papers were sent, and in due time returned, with the expert’s opinion that the address on the envelope and the pencil writing in the circular were written by the plaintiff. A meeting of the executive committee was then called and the plaintiff notified, and she was present at the meeting and so was the defendant. There is considerable conflict in the testimony with respect to what actually took place at the meeting and especially as to what the defendant said, but the jury could have found that he then and there stated and charged, in substance, that the plaintiff sent the letter, and she was discharged under the direction of the committee that day.

The court held that the defense of privilege contained in the answer was established, and that there was no question for the jury. The general term has repeatedly reversed judgments in the plaintiff’s favor, 24 Hun, 395; 36 Hun, 149 ; 13 St. Rep., 211,. and has finally affirmed the judgment entered upon the verdict directed against her. There can be no doubt that the occasions upon which the defendant is shown to have made the charge were privileged, the only question being as to its nature and extent. The defendant occupied an important and responsible office under the authority of the state, involving the performance of duties of the most varied and delicate nature, upon which the efficiency and welfare of the institution largely depended. It was his duty to watch and carefully observe the moral conduct, not only of the children committed to his charge, but even in a greater degree the teachers, upon whose influence and example so much, for good or evil, depended. It was essential that he should be at liberty to communicate freely 'with the governing body as to any matter touching the conduct of either the teachers or the pupils. This he could not do if hampered by the fear of penalties that could follow errors of judgment or mistakes as to who was ■or was not properly chargeable with improper conduct.

In some cases the privilege which the law gives to persons in such circumstances, to speak fr.eely, is absolute, however malicious the intent or false the charge may be. This immunity applies to words defamatory of the character of another spoken by a member of a legislative body in debate or in due course of proceedings, by counsel in arguments pertinent to the issue before the courts of justice, by military officers in reports or statements to their superiors and all acts of state. From considerations of public policy and to secure the unembarrassed and efficient administration of justice and public affairs, the law denies to the defamed party any remedy through an action for libel or slander in such cases. Hastings v. Lusk, 22 Wend., 410; Moore v. M. N. Bank, etc., 123 N. Y., 420; 34 St. Rep., 335.

The courts have refused to extend the class of cases where absolute privilege applies, and I shall assume it does not apply to this case, though it would, perhaps, be difficult to make a satisfactory distinction, founded upon principle, between the case of defamatory words in a petition to a legislative body or committee, or the reports of military officers, and the character of the charge in this case and the circumstances under which it was made. If the defendant believed that the plaintiff was the person who sent the letter, it was his duty to communicate the fact to the executive committee and the president, all of whom had a corresponding duty with respect to everything that concerned the welfare of the institution, and his statements, under such circumstances, were confidential and privileged until the plaintiff removed the privilege by proof, on her part, of actual, as it is sometimes called, express malice or malice in fact Byam v. Collins, 111 N. Y., 143; 19 St. Rep., 581; Vanderzee v. Mc-Gregor, 12 Wend., 545 ; Van Wyck v. Aspinwall, 17 N. Y., 190; Washburn v. Cooke, 3 Den., 110; Halstead v. Nelson, 36 Hun, 155; Moore v. M. N. Bank, supra.

This kind of malice which overcomes and destroys the privilege is, of course, quite distinct from that which the law, in the first instance, imputes with respect to every defamatory charge, irrespective of motive. It has been defined to be an “ indirect and wicked motive which induces the defendant to defame the plaintiff.” Odgers on L. & S., 267. Unless we can find in the record in this case some proof which would warrant the jury in finding the existence of such wicked motive on the part of the defendant, when he made the charge in question, then the direction of the learned trial judge was correct and the judgment must stand. The question is not whether the charge is true or false, nor whether the defendant had sufficient cause to believe that the plaintiff sent the letter, or acted hastily, or in a mistake, but the question is, the occasion being privileged, whether there is evidence for the jury that he knew or believed it to be false. The plaintiff may have arrived at conclusions without sufficient evidence, but the privilege protects him from liability on that ground until the plaintiff has overcome the presumption of good faith by proof of a malicious purpose to defame her character, under cover of the privilege. The plaintiff must be able to point to some evidence in the record that would warrant the jury in imputing this guilty motive to the defendant before her appeal can ■be sustained. As malice was an essential element of her not to be implied from the charge itself, but quite the contrary from the occasion on which it was made, the burden of establishing that fact was upon her. The record discloses no motive whatever on the part of the defendant for any charge against the plaintiff which he knew to be false, or did not believe to be true. We must, therefore, look through the evidence for proof of malice without any apparent reason or motive’ for it. In the first place, whoever sent the letter, there is no dispute as to its character, or the fact that the defendant received it. Having received it, nothing could be more natural on his part than to form some opinion from the facts’at hand as to who sent it He knew the plaintiff’s handwriting, or at least he supposed he did. With this knowledge, and a careful comparison of the letter with the genuine writing of the plaintiff, which he had at hand, he says that he formed the opinion that she was the person who sent the letter. Then, for greater caution, he consulted Mr. Beach, who was not only a lawyer of experience, but the president of the governing body, having general charge of the institution, and of the executive committee, and he agreed in that conclusion. Whatever statements he made to Mr. Beach, and whatever opinions he expressed, however strong or erroneous, they were of the most confidential character. But as there was still the possibility of mistake present to their minds, both concurred in the suggestion to procure the opinion of a competent expert; and it was procured, with the result already stated. Thus far there is not the slightest ground for imputing bad faith to the defendant, because every move is consistent with the conduct of a man honestly seeking for the truth.

The learned counsel for the plaintiff has collected some facts and circumstances that antedate the receipt of the letter, which he contends tend to prove malice. There is some proof that in the fall of 1877 the defendant criticised the plaintiff’s conduct and said something about discharging her. It was the defendant’s right and duty to freely criticise and even reprove the plaintiff or any other teacher whenever in his judgment it was necessary, and the' exercise of that right in the performance of that duty is not evidence of malice or of that wicked design to assail the plaintiff’s reputation without cause. If this were not so, the head of such an institution could not perform his duty without incurring the charge of acting from malicious" motiveg. 'There was evidence in the case that on the evening of January 19, 1878, the plaintiff went from Rome to Utica, returning on the 5:25 train the same day. This was for the purpose of showing that she could not have put a letter in the mail received when this one was. The absence of the plaintiff for'a very short time on the afternoon that the letter was received proves very little that is material to the case. If it had the slightest bearing on any question in the case, it certainly did not prove nor tend to prove that the defendant knew she was absent, or knew that she could not have mailed the letter, or that she did not mail it, and nothing short of such proof could have any bearing on the question of malice. There is really but one theory of the case upon which actual malice can be imputed to the defendant, and that is the one which the counsel for the plaintiff urges, and to which most of the testimony in the case is directed, that he himself sent this letter and circular to his wife. Of course this involves the further hypothesis that he sent it for the purpose of basing upon it a false charge against the plaintiff as its author and sender. It need not be said that if this theory is correct in fact, it establishes malice of the blackest kind, and if there is any proof of it the case should have been submitted to the jury.

In searching for any evidence to sustain this theory, or tending to sustain it in the slightest degree, the mind naturally looks for some motive on the part of the defendant that could possibly move him or any one to defame the plaintiff's reputation by such dark and crooked methods, and none whatever is suggested. On the contrary, the proof is that but a short time before the transaction in question she was an applicant before the board of trustees for an increase of salary, and the defendant aided and sustained her application, and it was successful. In the summer of 1877 the defendant was married and visited England with his wife. While there, he received a letter from the plaintiff, informing him in regard to the progress of affairs at the institution, and containing strong expressions of gratitude and friendship towards him. The plaintiff, on the stand, says that she was not quite sincere in these professions of gratitude and friendship. However that may be, there is not the slightest proof that the defendant understood the letter in any other sense than that plainly expressed upon its face. There is some proof of an incident connected with this letter that, in behalf of the plaintiff, it is insisted tends to prove malice.

The plaintiff testifies that in fore part of January, 1878, she went to the defendant’s house to get a key and found him sitting at a desk with a pen and the letter she had written him while in. England before him. On seeing her, she says that he gathered up the letter and put it in a drawer,, and then asked her what she wanted, to. which she replied: “ My letter that I wrote yon while in England.” He then informed her that the letter had been burned, and then she asked for the key and left The letter, as already observed, was produced at the trial and appears in the record. The plaintiff’s version of these transactions is flatly contradicted by the defendant. But assuming, as we must, that she knew the letter to be the one written by her by the glance she was able to give it, and that she demanded it when she went to the house for another purpose, it is difficult to see how it bears on the question of malice. At best it proves that the defendant gave a false excuse for not returning a letter which belonged to him and which the plaintiff bad no right, so far as appears, to demand. The fact, if it be true, that the plaintiff demanded its return, is as high evidence of malice or some sinister purpose on her part as was the defendant’s refusal to return it upon grounds that turned out to be false, and neither furnish any proof of malice.

The evidence in support of the theory that the defendant himself mailed the letter, which the learned counsel for the plaintiff claims should have been submitted to the jury, consists of two items taken from the testimony of his client. In the complaint the plaintiff stated that at the meeting of the executive committee,' when she desired to look at the contents of the letter, the defendant refused'to allow her to see it, stating that it was obscene, and not fit or proper for a lady to see, and that she did not see the contents of the letter so as to read the same. On the last trial her testimony in substance was that she took the letter in her hand and partially drew out the printed paper from the enve-' lope, when Mr. Beach snatched or took it from her, saying it was not fit for her to see. She claims that it then had writing in ink on the margin, no word of which she could give, but that in her opinion the “t” in some word was made by defendant, or at least looked like his. Her reason for this conclusion was that the defendant crossed the “ t ” in the middle, and not at the top, which was an unusual thing, and peculiar to him.

The paper when produced in court had no writing whatever on the margin, and no writing in ink upon any part of it, but the plaintiff’s explanation of that is that the margin with the writing has been cut off by some one in the interest of the defendant. An inspection of the paper lends no support to this claim, and as the defendant, and practically all the executive committee, say there never was any writing in ink on the paper, or any other writing except that in pencil already described, it can scarcely be claimed with any reason that the hurried glance which the plaintiff had of a single letter, and her opinion that it resembled the defendant’s mode of making the same, was any evidence of the important fact that the defendant’s handwriting was on the paper competent to submit to a jury. Moreover this theory is a departure from the original position of the plaintiff on the first and second trials. Then she testified that the writing was on the paper, but as she was confronted with the fact that neither writing or erasure was visible upon an inspection of the letter, on the third trial she attempted to avoid the difficulty by claiming that the margin upon which the writing was had been cut off, and this claim she subsequently adhered to. On the last trial this claim was reinforced by another and, if possible, of a still weaker character. The plaintiff testified that in her opinion the “ s ” in “ Mrs,” at the commencement of the direction on the envelope, was written by defendant There was no other word or letter on the paper that she would claim was written by him. At every trial down to the last the plaintiff testified that the direction on the envelope was, in her opinion, the writing of another lady whom she named, and who had been, or was then, connected with the institution. On the third trial her counsel in open court, and in her presence,conceded that none of the writing on the envelope was that of the defendant. To submit the case to the jury upon such evidence would in my opinion be little short of a travesty upon the administration of justice. The theory that the defendant sent this letter to his wife is devoid, of evidence or probability. It ascribes to him not only a dark and wicked design to defame the plaintiff’s reputation, but also the knowledge that he could do it with impunity, under cover of a privileged occasion, which is a necessary part of the plot, and attributes to a layman an intimate knowledge of the law of slander and libel quite extraordinary. There were so many other and simpler methods of gratifying malice, if it existed, available to the defendant, that the suggestion- to his mind of such a complicated scheme savors more of fiction than truth. Still, however improbable it may appear, if there was any evidence, of it the question was doubtless for the jury. But the only proof given was an attempt to connect the defendant with some part of the writing on the letter or envelope as the author, and this, as we have seen, utterly failed. It is now well settled that to show that the charge was false is not evidence of malice which entitles the party to have the question submitted to the jury. Fowles v. Bowen, 30 N. Y., 20.

A privileged communication may be defined to be a statement or charge, defamatory of the character of another, but made under such circumstances as to rebut the legal inference of malice. Klinck v. Colby, 46 N. Y., 427; Hamilton v. Eno, 81 id., 116; Lewis v. Chapman, 16 id., 374. The charge in question was one of that character and the burden was thrown upon the plaintiff of giving proof of actual malice sufficient to take the case to the jury. Whether the plaintiff met the requirements of the case in this respect rendered it necessary to examine the testimony 'more minutely than usually falls within the province of this court, and we think she has not.

The most that can possibly be said is that there was a scintilla of evidence on the question of malice which, under the doctrine of some older cases, was sufficient to carry the question to the jury. But this court is now firmly committed to the more modern and reasonable rule, that where there is no evidence upon an issue before the jury or the weight of evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would be set aside, it is the duty of the trial judge to nonsuit, or to direct a verdict, as the case may require. In a recent decision in which the opinion was given by Judge Gray, after an elaborate examination of the authorities, which are there collected, this court has given the fullest assent to the rule. Leinkauf v. Lombard, 137 N. Y., 417; 51 St. Rep., 63. I will only add that, in my opinion, there was much more evidence to submit to the jury in that case than can be found in the record in this upon the questions with respect to which the plaintiff’s counsel requested the submission of the case.

Another exception remains to be considered of quite a different character. In a separate cause of action it is stated in the complaint that at a date- subsequent to the transactions which have been discussed, the defendant, in the presence of another person, stated of and concerning the plaintiff, that she “ entertained gentlemen callers at late hours, and he thought it did not speak well for her, that he did not like the plaintiff for these reasonsthat she “ entertained gentlemen company at all hours of the night; that young men had been seen leaving plaintiff’s sleeping room at different hours of the night.”

On the trial, the plaintiff’s counsel offered some evidence tending to prove that the defendant, in a conversation with the person named in the complaint, used some of the words charged in the pleading, not, as he stated, to prove malice in making the other charge, but to support another and independent cause of action. The words offered were that “ she was in the habit of entertaining gentlemen callers at all hours of the night.” The court held that, standing alone, they did not necessarily impute unchastity, and were not admissible to sustain the separate cause of action. The plaintiff’s counsel excepted to the ruling. The statute now makes words imputing unchastity to a woman actionable without proof of special damages, Code Civ. Pro., § 1906, but it has not dispensed with the necessity of innuendoes pointing to an injurious intent or meaning in the use of the words.

It cannot he held that these words necessarily, and as matter of law, charge unchastity. That would depend upon who the callers were, and their purpose in calling and her purpose in receiving them. It is possible that a call upon a lady, at a later hour than that prescribed by conventional rules, by gentlemen relatives or friends, may be entirely innocent. It is quite possible also that a jury could find that the defendant intended, by the use of the words, to make a defamatory charge. The intent of the defendant and the sense in which the words were used becomes, in such cases, an important inquiry, not permissible at the trial without an allegation of some kind in the pleading that he intended to impute unchastity. Such a charge and even words of much plainer and unmistakable import were not actionable at common law without allegation and proof of special damages. Odgers on L. & S., p. 84, note a; Anonymous, 60 N. Y., 262.

It has been held that to say of a female that “ she is a bad girl,” or a “ bad woman,” was not actionable, even with an innuendo averring that the intent was to charge her with being a prostitute, unless, at the same time, there were averments and a colloquium that would warrant the innuendo. Snell v. Snow, 13 Met, 278; Fitzgerald v. Robinson, 112 Mass., 380 ; Riddell v. Thayer, 127 id., 489. While this court would not be inclined to go so far as to adhere to so strict a rule, yet we think that a pleading, in an action of slander, averring the use of words like these, that may or may not be harmless, according to the intent of the party using them and the sense in which they are used, is not sufficient without an innuendo or allegation of some kind that they were used in a sense to make them actionable.

The other exceptions in the case present no ground of error, and the j udgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur, except Peckham and Maynard, JJ., dissenting.