text:
    Orvila Turenne, App’lt, v. Wilbur F. Washburne, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Guaranty—Statute of frauds.
    Plaintiff's assignor having refused to proceed with certain, work which he was doing for one S. until he was paid a certain sum which he claimed was due, was taken by him to defendant, who held a mortgage to cover said amount and an indebtedness to himself, and said assignor testified that defendant paid him said sum, and promised that if the work was completed he would pay therefor. On cross-examination, he tesiified that defendant said he would see him paid, or guarantee payment, and that he was to be paid out of a loan to be made. It was shown that said payment was by a check drawn to the order of S. and endorsed by him, and that S. gave an order for the balance of the contract price on the persons who were to make the loan. Held, that there was no intention, on defendant’s part to enter into any personal obligation, and if there was one, it was within the statute of frauds and void.
    Appeal from judgment dismissing the plaintiff’s complaint.

      S. H. Stuart, for app’lt; W. H. Sweny, for resp’t.
   Van Brunt, P. J.

—This action was brought by the plaintiff as assignee of one Delphus F. Moisan to recover a balance due for certain stair building done by Moisan upon certain houses in the city of «New York. The answer was a general denial It appeared upon the trial that prior to July, 1891, said Moisan had made a contract with one John H. Steinmetz to do this stair building for the sum of $3,150, and that a portion of the work had been completed, and Steinmetz had paid Moisan $1,800,. who refused to go on unless he received more money, claiming that $400 more was then due him.

Steinmetz was indebted to the defendant Washburne, and gave him a mortgage to secure that indebtedness; which mortgage included the amount in which Steinmetz was indebted to Moisan and was in payment of that amount to Washburne. It would seem, although the evidence is not very explicit upon that point, that it was expected to get other mortgages upon the property oitt of which to pay the claim of 'the. plaintiff and also the money which was due to Washburne; but there not being as much money advanced as Steinmetz expected, neither Washburne nor Moisan was paid. _ _ .

_ _ It further appeared that in July, 1891, Moisan, refusing to go on unless the $400 was paid, was taken by Steinmetz to the defendant. And Moisan testified upon his direct examination that the defendant paid him the $400 due, and said to him to finish up the work and he would pay the balance of the 'money on the work as soon as he got his work done. And in another place Moisan testified that Washburne after the loan was placed said he would give him the money as quick as he could get the thing fixed. Upon cross-examination, however, Moisan varied his testimony by stating that at the time he had testified to the defendant stated that if he would go on and do the work he would see him paid or guarantee payment. And after having testified that the $400 was paid to him a check was shown to the witness drawn by Washburne to Steinmetz for $400 and endorsed by Steinmetz and one Sophy Moisan ; and the witness then stated that he did not know whether Steinmetz gave him the check or Washburne; all that he knew was that the check was put in his hands. And he then further stated that he did remember that Washburne guaranteed that if Steinmetz did not pay the balance, he would pay it himself. And in another place he testified that he was to be paid out of the loan that was to be made on the property ; that, that was the understanding; and an order was introduced in evidence given by Steinmetz upon the persons who were about to make a loan requesting them to pay $950 to Mr. Moisan on the completion of the contract. It was further proved that Moisan completed his contract, and that Washburne did not pay the $950.

Upon this condition of the evidence the complaint was dismissed upon the ground that the contract of Washburne, if any was proven, was within the statute of frauds, and that no agreement to pay had been established; and from the judgment thereupon entered this appeal is taken.

We do not see how we can interfere with the result arrived at upon the trial. It is true that Moisan, the assignor of the plaintiff, upon his direct examination swore to a direct promise upon the part of Washburne to pay if Moisan went on and completed the coiitract. But upon cross-examination it seems distinctly to appear that there was no intention upon the part of Washburne to' enter into any personal contract to pay the balance which might be due to Moisan ; and from the check and the order which wás given as part and parcel of these negotiations and agreements, it would appear .that it was the understanding of the parties that the money that Washburne was to pay was to be the proceeds of the loan which was td be obtained upon the property, and that there was no intention upon his part to enter into a personal obligation to pay. Moisan swears that the understanding was that thjs $950 was to be paid out of the proceeds of the mortgage.

It appears from Steinmetz’ testimony that the $400 which was paid was secured by a mortgage which Steinmetz had given to Washburne upon the premises in question; and as a means of getting the balance of his money Moisan accepted the order upon the persons who were to make the loan upon mortgage.

In the face of all these circumstances there does not seem to have been any 'question to go to the jury, because the plaintiff was bound by the explicit declarations of Moisan upon his cross-examination as to the nature of the obligation which Washburne took upon himself by reason of - the negotiations between himself and Moisan.

It is clear from this testimony that if there was any personal obligation it was within the statute of frauds. But it seems to us equally clear that there was no intention to enter into any personal obligation whatever; and that all that Washburne was to do was to see that Moisan.got his money out of the loans to be procured. This was very far from assuming any personal obligation to pay the balance which might be due upon the contract.

The judgment appealed from should be affirmed.

O’Brien and Patterson, JJ., concur.


source: Caselaw Access Project

author: Patterson, J.

license: Public Domain

text:
    In the Matter of the Application of David R. Hyde to be appointed Trustee under the Will of Abbie W. Russell, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Trustee—Testamentary—Appointment op.
    Where all the cestuis qui trust but one assent to the appointment of a certain person as testamentary trustee in place of one deceased, and it appears that the opposition of the objector is factious, there is no abuse of discretion in making the appointment and the decree will not be disturbed.
    Appeal from decree of surrogate appointing trustee.

      William H. Hamilton, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Patterson, J.

—By the will of Abbie W. Russell, who died in October, 1886, which will was duly admitted to probate by the surrogate of the city of New York, two trusts were created, one in favor of her brother Nathaniel M. Hyde, and the other in favor of her sister Maty M. Becker. By the terms of the trust the trustee was not only entitled to use the income of the Nathaniel Hyde trust for his support, but authority was given to use the principal for the same purpose if necessary. On the death of Nathaniel Hyde the fund set apart for that trust was to be distributed among other parties; and after the death of Mary M. Becker the trust fund held for her. benefit was to be divided between Edward H. Becker andLibbie 0. Becker. Frederick Hyde, a brother of the testatrix, was appointed trustee of both trusts; and by the terms of the will, after the death of Frederick Hyde, one Jirah Hyde was to <|>e the trustee. Frederick Hyde died in 1891, and Jirah Hyde died previously to that date.

After the death of Frederick Hyde an application was made to the surrogate’s court in the city and county of New York, and David R. Hyde 'presented his petition to be appointed trustee for both trusts in the place and stead of Frederick Hyde for the purpose of executing and carrying out such trusts. All the cestuis que trust joined in the application, or rather assented to it, except Andrew B. Hyde, who opposed it, giving as his reasons the allegéd unfitness of the petitioner by reason of pecuniary embarrassment and peculiar beliefs, which it was asserted would influence his judgment and affect his capacity to administer the trusts faithfully and intelligently. Nathaniel M. Hyde at first also assented to the appointment of the petitioner, but subsequently withdrew that assent. After hearing the petitioner and the opposing party, the surrogate made the appointment; and from the order or decree of the surrogate so made this appeal is taken.

By the provisions of § 2818 of the Code of Civil Procedure, the surrogate had the right in his sound discretion to make the appointment of the pedtioner in place of the deceased trustee. We have held, in the Matter of Adler, 60 Hun, 481; 39 St. Rep., 462, that appeals from the surrogate’s court to the general term of the supreme court do not stand upon the same footing with reference to a review on the merits of orders resting in discretion as do similar appeals from the special term of the supreme court to the general term; except in certain cases, that where a matter is within the discretion of the surrogate, his action will be reviewed in this' court only to ascertain whether there has been an abuse of discretion or a violation of justice.

We have examined this record for the purpose of ascertaining whether or not anything is to be found therein which would establish that there had been such an abuse, or whether injustice has been done by the order complained of. We can find nothing of the kind, and are satisfied that the surrogate exorcised his power wisely and properly. The active opposition coming simply, as it does, from one person, was evidently considered by the surrogate to be merely factious, in the face of the strong testimonials which were presented as to the eminent fitness of the petitioner and the wishes of the other "parties interested.

These testimonials not only come from some of the persons interested in the trust, but the strongest commendation was made of the petitioner by Mr. Justice Mayham, one of the justices of this court, by the county judge of Schoharie county, by-a magistrate and justice of the peace in that county, who had known the petitioner for more than forty years, ahd'who testified to his having been a public officer in that county who faithfully discharged his duty for many years, and from attorneys of this court who were well acquainted with him. That the opposition was also without merit may well have been inferred by the surrogate from what appears in an affidavit of the petitioner, that the objector, Andrew B. Hyde, offered to the petitioner to withdraw his opposition if he would agree to the appointment of said Andrew B. Hyde as trustee for Nathaniel M. Hyde, and have the petitioner appointed trustee for Mary M. Becker alone.

Under these facts and circumstances, we see no reason for interfering with the decision of the surrogate, and- the order appealed from must be affirmed," with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Van Brunt, P. J.

text:
    William H. Thomas et al., Resp’ts, v. Henry A. Dickinson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Fraud—Action for damages—Note given must be returned.
    Whether the action is for a rescission of the contract or for damages because oí the fraud of the defendant in inducing the plaintiff to enter into the contract, if a note has been given it must be returned. An action for damages in such case cannot be maintained until it is ascertained whether the note will be paid or not, and it must be shown that plaintiff is still the holder of the note.
    Appeal from judgment entered upon the verdict of a jury and from an order denying motion for a new trial.

      F. Bien, for app’lts; A. W. Otis, for resp’ts.
   Van Brunt, P. J.

—The complaint alleges that the defendants, with intent to deceive and defraud the plaintiffs by inducing the plaintiffs to sell goods to them, falsely and fraudulently represented to the plaintiffs that, they were solvent, and that one of the defendants, Dickinson, was worth $50,000 and his wife was worth $200,000 ; that plaintiffs,- relying upon said representations, were thereby induced to sell and deliver to the defendants certain goods of the value of $1,696.82, and that the representations so made were false; that no part of the price of the goods had been paid, to the damage of the plaintiffs $1,696.82, and for this amount judgment was demanded.

The answer denied the allegation of false representations and alleged that the goods mentioned in the complaint "were purchased upon a credit which at the time of the commencement of the action had not expired; and upon the trial it. appeared that the goods were, sold in the ordinary course of business on a credit of four months, and that the plaintiffs had received in payment thereof a note, which note was not due at the time of the commencement of the “action and had not been tendered before or after suit brought, nor at the trial. A motion was made to dismiss the complaint upon this ground, which was denied and an exception taken. The other points raised in the case it is not necessary to consider.

Upon the part of the plaintiffs it is claimed that it was not necessary to return or offer to return to the defendants at the trial the promissory note mentioned in the testimony, because a person defrauded by another may resort to one of three remedies. First. He may before suing restore or offer to restore what he has received from the other party, elect to rescind the contract and sue at law for whatever he has parted with. Ór- he may, secondly, without restoring or offering to restore what he has received, sue in equity for a rescission, in which case he must allege in his complaint his willingness to restore as a condition for being permitted to rescind, and must in fact restore or offer to restore before or at the trial. Or he may, in the third place, stand upon the contract, make no offer to rescind it,, and sue for the damages which he has suffered by the fraud of the other party in inducing him to enter into the contract. And this latter remedy is that which the plaintiffs claim to have pursued. But ttie difficulty with the plaintiffs’ case is that until it is ascertained whether or not the note in question which has been given in payment for the goods will be paid, it cannot be ascertained as to whether the plaintiffs have or will suffer any damage bv reason of the alleged false representations. And the further principle is lost sight of, that the holder of the note is the only one who can enforce any liability against the defendants. If the plaintiffs have transferred the note, and it is in the hands of a third person, they certainly have sustained no damage by reason of the false representations. If any cause of action exists, it is in favor of the holder of the note, and not the plaintiffs unless they are such holders. And it is because of this principle that the rule has obtained "that no matter what the action is, whether for a rescission of the contract or for damages because of the fraud of the "other party in. inducing them to enter into the contract, if a note has been given it must be returned, as the defendants are not required to pay damages for the fraud and pay the debt also.

If the plaintiffs’ position is correct, then in case the judgment in this action was satisfied, and therefore the goods paid for, and the note was held by a third party, they could be compelled to pay over again : which shows the falsity of the position occupied by the plaintiffs.

Their action, therefore, can only be considered as an action in disaffirmance of the contract, and either to recover the purchase price of the goods or damages for their conversion. It is conceded by the learned counsel for the respondent that in such a form of action the note should have been returned.

We think, therefore, that the ruling of the learned court below was erroneous; and that the plaintiffs could not maintain any action of the kind which the case at bar is claimed to be until it was ascertained whether the note in question would be paid or not; and, furthermore, it would be necessary for them to show that they were the holders of the evidence of debt, otherwise the defendants would be under a liability to the plaintiffs for the fraud to the full extent of the debt, and a liability to the holder of the note for the same amount.

The judgment should be reversed and a new trial ordered, with costs to appellant, to abide event.

O’Brien and Patterson, JJ., concur.


text:
    The Hecla Consolidated Gold Mining Co., Resp’t, v. William L. O’Neill, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Corporations—Contract op promoters not binding upon.
    The promoters of a mining corporation entered .into an agreement to place their interests in certain mining claims in defendant’s hands, in trust to hold the same until the company was incorporated and then to transfer them to the corporation. They at the same time agreed by paroi that they and the corporation would pay defendant a large sum for his services. Held, that such paroi agreement was a personal one on the part of the promoters, and was not binding on the company, and that the non-perform-once thereof was no defense to an action to compel the delivery of the property to, the corporation.
    Appeal from interlocutory judgment sustaining demurrer to the defendant’s answer and counterclaim.

      W. L. O'Neill, app’lt in person; J. H. Hayes, for resp’t.
   Van Brunt, P. J.

— The complaint in. this action alleges that the plaintiff is a corporation duly organized, under the laws of the state of Colorado, in August, 1891; and that in February, 1888, one Jerry Collins and one Patrick J. Hegarty were the owners of certain mining, claims situated in that state, that they exeécuted a certain instrument between themselves whereby they agreed to organize a joint stock company to be called the Heel a Consolidated Gold Mining Company, and whereby it was declared that the parties had theretofore agreed that they would absolutely transfer and assign all their several interests in the said mining properties to the defendant William L. O’Neill, as trustee, to be held by him in trust for their benefit until the organization of said company should be completed, and that forthwith thereupon the said trust properties should be absolutely assigned and transferred by said O’Neill as such trustee to said mining company.

The agreement further recited that it had been agreed as to what the capital stock of the company should be, and what proportion of stock the owners of the mining claims should have.

On the 1st of March, 1888, a further agreement was entered into between said Collins,, Hegarty and O’Neill, in which it was recited that the said Collins and Hegarty were the owners of certain mining claims (describing them). Said agreement also recited the fact of the agreement of February, 1888, and that it was expressly, desired by the parties as a further assurance to execute these presents, further assuring, assigning and conveying said mining claims to said O’Neill as trustee for the purpose and subject to the trust declared in said agreement of February 3, 1888; and also that the said O’Neill had duly accepted the trust created by said agreement, and duly executed the same in acceptance of the trust thereof, and that in order further to give effect to the intention of the parties he had consented and agreed to become a party to the agreement for the purposes therein appearing.

And by said agreement the said Collins and Hegarty thereupon absolutely transferred, assigned and conveyed to said O’Neill all said several mining claims to be held by him in trust for the purposes declared by and contained in said agreement of February 3, 1888. And it was further declared and agreed by and between the parties that the said agreement of February 3, 1888, was to be deemed part and parcel of said agreement of March 1, 1888, and to be read as part thereof, and all the conditions and agreements therein contained were to be incorporated in said deed of March 1, 1888, with a view to the further and better giving effect to.the intention of all the parties.

That the incorporation of said mining company having taken place, in pursuance of the provisions of the said trust deed a demand was made upon the defendant O’Neill to transfer said property, which he refused; and judgment is demanded that the defendant execute and deliver to the plaintiff, pursuant to said agreement and trust deed, a proper assignment of said mining claims therein described, etc.

The answer of the defendant does not deny these facts ; but alleges' that prior to the acceptance of the trust mentioned in the complaint, said Collins, acting on bis own behalf and as the agent of Hegarty, entered into an agreement under and subject to which the agreement mentioned in the complaint had been entered into, and the plaintiff took and acquired such rights and interests as it had or possessed; that said agreement was verbal, and Collins, personally, for himself and as the agent of Hegarty, expressly agreed with said O’Neill personally as trustee, that said Collins and Hegarty and their company when duly incorporated would pay to said O’Neill, for his remuneration for services as trustee, a large amount of money therein mentioned ; and also do other things named in said answer; and that the plaintiff acquired such rights as it might have subject to said agreement; and that neither Collins nor Hegarty nor the plaintiff have complied with any of the requirements of said agreement; and the defendant demanded judgment against the plaintiff dismissing the complaint, with costs, and an affirmative judgment for the alleged agreed remuneration.

The plaintiff demurred to this answer upon the ground that it did not state facts sufficient to constitute a defense, which was sustained. And from the interlocutory judgment thereupon entered this appeal is taken.

In support of the defendant’s contention it is claimed that the trust agreements were simply in part execution of the paroi agreement alleged in the answer between Collins, Hegarty and the defendant; and that the personal liability of Collins and Hegarty now rests upon the plaintiff corporation, because the corporation practically is Collins and Hegarty; and that if the corporation takes the benefit of the trust attempted to be created, it must assume the agreement to pay the trustee, and must ratify the whole transaction or no part of it.

The difficulty with the position of the defendant is that by the written agreements themselves he has agreed to do certain things, viz., upon the organization of this company to convey this property.

By this agreement, this corporation when organized became the cestui que trust, the beneficiary under the agreement, and had a right to enforce the same. It had nothing to do with the outside agreements between Collins, Hegarty and the defendant. Its rights are fixed by the trust deeds, and as far as the defendant is concerned his obligations to the plaintiff are also fixed by the trust deed, and as between these two the outside agreements could in no manner affect the rights and obligations which arose from the written contracts; because it is entirely immaterial whether the trust deeds were executed in pursuance of a paroi agreement or not; such paroi agreement was outside the trust deeds. By the trust deeds the defendant accepted this property upon certain trusts, and agreed to convey upon a certain contingency to a certain corporation when it should come into existence. That corporation having been organized now calls upon the defendant to fulfill his obligation. It is difficult to see how any agreement between Collins and Hegarty and O’Neill in regard to compensation can affect the right of the beneficiary of the trust deed to claim the property which the trustee has expressly agreed to convey. If the trustee desired to protect himself, he was bound to insert in the deed in which he agreed to convey the conditions upon which a conveyance might be claimed, the more particularly as the agreement became a binding contract between the beneficiary and the trustee the moment the beneficiary sprang into existence, and it was in the contemplation of the parties at the time of the execution of the trust deeds that such should be the case.

It further appears froip the very statement thereof that the agreement for compensation was a personal one on the part of Collins and Hegarty. And it is a familiar principle, which it does not need authority to support, that the promises of the promoters of a corporation to be organized are not contracts binding upon the corporation when it comes into existence. So, perhaps,- even if Collins had assumed to bind the corporation, which it is evident he did not, it is doubtful whether it could be enforced against the corporation. But, as already stated, the defendant has agreed to transfer this property to this corporation upon its coming into existence; and now he proposes to hold the property because it is alleged that Collins upon his own behalf and on behalf .of Hegarty agreed that he should receive a certain compensation, and it might be observed in passing that there is nothing whatever in the contract as alleged in the answer which in anywise gave a lien, or attempted to give a lien to the defends ant upon the trust property for this alleged remuneration.

The case, therefore, is that the defendant holds property which he has agreed to transfer to the corporation, and having no valid claim against the corporation by reason of any contract which Collins and Hegarty had made or could make, refuses to make such transfer according to his agreement because Collins and Hegarty have not lived up to their individual agreement.

We cannot see how such a claim can prevail. If the condition of the obligation to transfer had rested upon the compliance of Collins and Hegarty with their agreement, then another case might have been presented. But the obligation entered into upon the part of the defendant was absolutely unconditional, and this he refuses to perform.

We think, therefore, that the demurrer was well taken, and that the j udgment appealed from should be affirmed, with costs, with leave to the defendant to amend his answer upon payment of the costs below and of this appeal in twenty days.

O’Brien and Patterson, JJ., concur.


author: Per Curiam.

text:
    The Safety Electric Construction Co., Resp’t, v. Henry Creamer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

      1. Injunction—Action fob accounting under patent license.
    In an action for an accounting to ascertain what amount, if any, is due to defendant under a license of a patented invention, there being a dispute on that question, and defendant having served a notice of forfeiture, in pursuance of the terms of the license, for non-payment, an injunction against the enforcement of the forfeiture pendente lite is proper.
    2. Same.
    As the ultimate purpose of the action is not the procurement of an injunction, but an accounting, and the injunction is asked for by reason of extrinsic circumstances, it is no objection that it was not demanded in the complaint.
    Appeal from an order continuing an injunction.

      John A. Straley, for app’lt; Sumner C. Chandler, for resp’t.
   Per Curiam.

—The injunction in this case was properly maintained by the court below under all the facts and circumstances as they appear in the motion papers.

The plaintiff was the licensee of the defendant under certain letters patent-for electrical inventions which had been issued to the defendant by the United States, and as such licensee was required to pay from time to time royalties out of profits arising from the sales of machines made by it under said license. It appears from the complaint that the plaintiff, up to the 8th of December, 1891, had paid all the royalties that were due to the defendant, and that it claims that no profits were made from the sale of the machines so as to entitle the defendant to royalties after the 8th day of December, 1891, and that no royalties were due unless it may be for fixed weekly instalments of thirty dollars each, also provided for by the contract between the .parties.

It further appears from the complaint that the contract between the plaintiff and the defendant contained a clause of forfeiture, to the effect that if the plaintiff failed to perform the conditions of the contract, including the payment of guaranteed royalties of thirty dollars a week, the defendant might serve a notice upon the plaintiff, which would terminate the plaintiff’s rights sixty days after the service of such notice, unless within that period the indebtedness of the plaintiff should be paid. It further appears that on the 30th day of January, 1892, thé defendant did serve a notice of the character referred to, and that thereafter the plaintiff offered or tendered to the defendant the amount which it, the plaintiff, considered to be due under the contract, and also offered to pay any further amount which the defendant might show was due thereunder, although at the same time it denied that anything was due; that the defendant refused tcf accept any amount unless the plaintiff would pay, not only the thirty dollars a week, which was a guaranteed amount, but $500 more than that.

It is further recited in the complaint that the plaintiff is ready and willing tq pay to the defendant whatever amount may be due, and that the plaintiff offered to the defendant the opportunity to fully examine all of the plaintiff’s books, so that it might be ascertained whether or not anything more than the thirty dollars a week was due; that this offer to examine the books the defendant did not avail himself of, and that a threat is made by the defendant to insist upon ■ the forfeiture referred to. by reason of the non-payment of the demand which the defendant made. It is also stated in the complaint that this dispute existed between the plaintiff and the defendant with reference to the amount for which the former is liable for royalties, and that an account is necessary to ascertain the profits, if any there are, which were realized by the plaintiff from the sale and manufacture of machines under the contract mentioned; and the relief, and the only specific relief, prayed for in the complaint is that an accounting may be had between the plaintiff and the defendant touching the matters hereinbefore referred to, and that it be ascertained what sum or sums, if any, are due by either of the parties to the other concerning the matters relating to the contract between them, but there is also the general prayer for relief in equitable actions.

The injunction was issued on papers which clearly supported the application. On a motion to continue it pendente lite an order was made to that effect, and from that order this appeal is taken. The only question requiring consideration is as to the right of the plaintiff to an injunction pending the suit as a matter "of law: and the claim is made on behalf of the appellant that the failure of the plaintiff to ask for or demand an injunction in his complaint is fatal to its continuance.

It is entirely clear, under § 603 of the Code, .that where an injunction is the ultimate purpose of the action and is the relief to be awarded by final decree, the complaint must not only set forth the facts, but the demand for an injunction must also be made therein. But an examination of the complaint in this action will disclose that that is not the nature of the action at all. This bill is filed simply for an accounting. The plaintiff merely asks for an adjudication of the matters in dispute between it and the defendant with reference to the defendant’s right, in the first place, to royalties at all, and in the second place, if the right exists, as to the amount; or, in other words, the court is" asked to ascertain whether the liability exists, and if so to what extent. But as in the meantime the enforcement of that provision of the contract which would cause the forfeiture would destroy all the plaintiff’s rights, the injunction is asked for by reason of that circumstance, which is really extrinsic to the plaintiff’s cause of action, although the plaintiff sets forth in the complaint the facts which necessitate the taking of the account.

We are not to consider upon this appeal the sufficiency of the complaint, or the right of the plaintiff to insist upon the remedy, but only, upon extrinsic facts, as to its right to an injunction under the circumstances.

We,-therefore, are of the opinion that the injunction was properly maintained in the court below, and that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


author: O’Brien, J.

text:
    John Meredith Jones et al., Pl’ffs, v. Henry J. Newton, Assignee, Def't.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Judgment—Amendment.
    The exercise of the power of the court to amend its judgments or records should be limited to the correction of mistakes or omissions.
    3. Same—Teems—Laches.
    Where the moving party has been guilty of loches which have rendered the trial of an action abortive, he should be required as a condition of granting the amendment to pay the costs of such trial.
    Appeal from an order made at special term on the application of Turney Brothers, Limited, amending the judgment roll in this action by striking out certain parts of the referee’s report.

      E. H. Benn, for app’lt; Morris Hirsch, for resp’t.
   O’Brien, J.

—In May, 1887, Henry and Charles Van Gfelder made an assignment to Henry J. Hewton in trust for the benefit of creditors. Subsequent thereto this action was brought by plaintiff and others, creditors of the assignors, to close the trust, which resulted in a reference, at the close of which the referee made a report, to which it is necessary to refer only so far as it contains recitals relating to the action of Turney Brothers, Limited, who were creditors of the insolvent firm. The report contains three recitals affecting Turney Brothers, Limited: (1) That a copy of the printed advertisement or notice to present claims was mailed to them by the referee. (2) That they by Blumenstiel &, Hirsch, their attorneys, appeared on the reference. (3) That the assignee exhibited and filed with ■ the referee proof of their claim.

The judgment in this action was entered on January 10, 1890, the referee’s report upon the accounting proceedings directed by the judgment is dated July 7, 1890, and proof is furnished showing that on August 21, 1890, notice of the filing of such report was given to Blumenstiel & Hirsch, who were concededly the 'attorneys for Turney Brothers, Limited. On July 17, 1890, Turney Brothers commenced an action in this court to set aside the assignment as fraudulent, which action resulted in a judgment in their favor, from which an appeal was taken;, but as the result of the findings of the referee and the judgment entered in this action, this court at general term reversed the judgment and ordered a new trial, stating in their opinion : “ By filing their claim in this action for an accounting they appeared, became parties thereto, and were necessarily bound by the judgment They were entitled to notice of all subsequent proceedings. * * * And it appears from the judgment that was entered that they had such notice. Therefore, being a party to the action, having intervened for the purpose of getting the benefits of that action, whatever they might be, they were as much bound by the judgment as though they had originally been parties.”

To obviate the force of the general term decision, and upon the claim that the recitals in the referee’s report and judgment were erroneous, a motion was made to strike. them out. This resulted in the order appealed from, which provides: “ That the judg ment * * * the judgment roll, and all proceedings herein, are hereby amended nunc pro tune, by striking from the record of said judgment roll in this action the recital that Turney Bros., Limited, appeared before the referee in this action, the recital that Turney Bros., pi-oved a claim before the referee in this action, the recital that Turney Bros., Limited, had any notice whatever of any proceedings herein, and any and all recitals which in any wise connect Turney Bros., Limited, with any of the proceedings in this action.”

While we are of the opinion that the court has undoubted control and power over its own records, and may, therefore, amend its judgments or records when there has been a mistake or omission, the exercise of such power should be limited to the correction of such mistakes or omissions. Applying this rule, it is evident that while some correction was necessary in order to conform the record to the facts as they existed, the order appealed from was too broad in its scope and should be modified accordingly. We have not the judgment in this action_,before us as part of the printed record ; but in respect to the recitals in the referee’s report which have already been given and other facts appearing, it is clear that in response to the original notice of the assignee to present claims prior to the commencement of this action Turney Brothers sent to the assignee their proof of claim. It is also apparent that after the reference was ordered a copy of the printed advertisement or ndtice to present claims was mailed to Turney Brothers, and that the assignee exhibited and filed with the referee proof of claim sent him by Turney Brothers. These recitals in the report were therefore correct and should not be stricken out.

A question in dispute between the parties was as to whether or not Turney Brothers appeared upon the reference by Blumenstiel & Hirsch, their attorneys. This dispute was resolved by the learned judge below in their favor, and we see no reason for disturbing the conclusion reached by him upon this disputed fact It was, therefore, entirely proper, in view of this conclusion, that the learned judge below should direct the amendment 'of the record, .which included, among other things, the report and judgment which contained recitals that Turney Brothers had appeared before the referee in the action and that they proved their claim. But from what has been stated, it is evident that so much of the order appealed from should be reversed and modified which provides that the following recitals should be stricken out, viz.: That Turney Bros., Limited, “had any notice whatever of any proceedings herein, and any and all recitals which in any wise connect Turney Bros., Limited, with any of the proceedings in this action.”

"We think, also, that the order should be modified by inserting in the order, instead of the provision to strike out the recital that Turney Brothers proved a claim before the referee in this action, the fact, as correctly stated by the referee in his report, that the claim sent by Turney Brothers to the assignee was by the latter exhibited and filed with the referee.

The result of these modifications in the judgment roll and record is to conform the recitals to the true facts as they were- made to appear before the judge below, to the end that upon a new trial the parties may be correctly placed before the court, leaving the determination of the questions which will thus arise to that tribunal.

In addition to the modifications suggested in the order appealed from, we think that the appellant is entitled to some additional relief in the matter of costs.

The judge below might very properly have denied this motion upon the ground of ladies: The facts which were made to appear upon the trial of the action brought by Turney Brothers in respect to the recitals in the report and judgment were undoubtedly then within their knowledge, and it was their duty, instead of risking the result of a trial which, though favorable to them, was reversed upon appeal, to have first made a motion similar to the one which resulted in the order appealed from, but which they delayed making until it was pointed out by the general term that such facts were sufficient to estop them from finally succeeding in their action to set aside the assignment as fraudulent. The expenses of the trial, which was thus rendered abortive as the result of their ladies, should not fall upon the appellant here. And though the learned judge below saw fit to grant their motion, and thus relieve them from the obstacle that stood in the way of their succeeding in the action, it should have been upon such terms as were fair and just to the appellant.

Our conclusion, therefore, is that the order appealed from should be modified so as to grant the motion upon condition that the respondents pay the costs of the trial in the action of Turney Brothers, and of the appeal therein, together with ten dollars costs of this appeal, and disbursements.

Van Brunt, P. J., and Patterson, J., concur.


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    Bernard Beer, Pl’ff, v. Lionel Simpson, Def't.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Judgment—Foreign—Limitation.
    An action on a foreign judgment against a resident of this state is governed by the statute of limitations of the state where the action is brought and not by that of the state where the judgment was recovered.
    Submission of controversy without action. . Pincus Pohalski recovered judgment against Lionel Simpson, the defendant herein, in a district court of Colorado, the same being a court of record. Subsequently the judgment was assigned to the plaintiff herein. The defendant is now a resident of this State. Plaintiff, on this •agreed case, demands judgment against the defendant on the judgment so obtained in Colorado.

      Goff & Pollock, for pl’ff; M. Newburg, for def’t.
   Patterson, J.

—The question arising on this record is. presented for determination on an agreed statement submitted under § 1279 of the Code of Civil Procedure. It appears that on the 22d day of December, 1883, one Pohalski recovered a judgment against the defendant in the district court of Colorado for the county of Arapahog, that being a court of record, for the sum of $1,761.20, on which judgment execution was issued within one year from the entry thereof, which execution was returned unsatisfied. The judgment was subsequently assigned to the plaintiff. The defendant is now, and for upwards of seven years last past has been, a resident and citizen of the state of Hew York; but when he became such, or whether he was such at the date of the entry of the judgment, is not stated, nor does it appear that the plaintiff is a resident of this state. The question submitted for decision is: “Does the statute of limitations of the state of Colorado prevent a recovery in an action on the judgment in this state ? By statutes of Colorado enacted in the year 1891 it is provided concerning the limitation of time within which actions may be brought in the courts of that state as follows, viz.: “ Sec. 2900. The following actions shall be commenced within six years next after the cause of action shall accrue and not after-wards: First. All actions of debt founded upon any contract or-liability in action. Second. All actions founded upon judgments rendered in any court not being a court of record. Third.. All actions for arrears of rent. Fourth. All actions of assumpsit or on the case founded on any contract or liability, express or implied. Fifth. All actions for waste and trespass upon land. Sixth. All actions of replevin and all other actions for taking, detaining or injuring goods and chattels. Seventh. All actions on the case except for slanderous words and for libels.”

It is further provided by § 2529 of the said statutes, in substance, that all the goods, chattels and real estate of any person against whom a judgment shall be obtained in any court of record, either at law or in equity, for any debt, damages or costs, shall be liable to be sold on execution, and the judgment shall be a lien on real estate for seven years from the last day of the term of the court in which the judgment is rendered ; provided, however, that execution be issued within a year after the entry of the judgment, “and after the said seven years the same shall cease to be a lien on any real estate as against hona fide purchasers or subsequent encumbrancers by mortgage, judgment or otherwise.” There is printed in the record a provision of an act of 1883, which limits the duration of the judgment lien to six years ; but that was changed to seven years by the act of 1891. It is also provided by the laws of the state of Colorado that a'judgment recovered in a civil action may be revived by filing a petition in which shall be alleged the time the judgment was recovered, that it remains unsatisfied in whole' or in part, and stating the amount the judgment should be revived for, and verifying it as complaints in actions are verified. Upon filing-such a petition an order to show cause is issued, upon the return of which the defendant may appear and answer as in an action, “ and the court shall try and determine any issue so formed the same as any issues made by pleadings are required to be tried and decided, and hear any evidence necessary to decide the matter.” It is further provided that if the court decide to revive the judgment an order to that effect shall be made and attached to the original files in the cause, an entry thereof-made in the judgment docket and book, “ and if the petition is filed before the liens created by the original judgment have expired and the transcript of the entry is filed, etc., all rights under such judgment shall continue, and execution may issue on such revived judgment the same as on the original judgment.”

It is set forth in the agreed statement that no further or other laws of Colorado have been found bearing on the question submitted, and no judicial decisions of the tribunals of that state have been cited or referred to.

It is claimed by the defendant that under the provisions of the laws of Colorado above referred to, “the judgment is dead, barred and non-euforcible,” and cannot form the basis of an action either in that jurisdiction or this. That an action, as distinguished from the proceeding for revival by scire facias, would not lie upon it in Colorado is plain and results from the first clause of § 2900 above quoted. Although judgments of courts of record are not mentioned in terms, yet actions of debt are barred in six years. In these statutes the several kinds of actions coming within their operation are referred to by their common law designation, and under common law pleading debt was the appropriate form of action on a judgment, Andrews v. Montgomery, 19 Johns., 165, citing 1 Chitty, 94, etc., the cause of action being one arising on a record. The effect of the six years bar is not, however, that contended for by the defendant. Although an action cannot be maintained on the judgment after six years, yet the lien by express provision continues one year longer and the judgment may be revived, not necessarily within six or seven years, but if within the longer-period certain rights are preserved to the judgment creditor. It is not true therefore that at the end of six years the judgment is a nullity and all rights under it terminated, but the duration of the lien is not important in this case, as the legislation extending the term from six to ten years was after the expiration of the lien of this judgment.

But it is urged by the defendant that whatever pleas would be good to an action on the judgment if brought in Colorado would be equally available to defeat an action on it brought here; but as was held in McElmoyle v. Cohen, 13 Peters, 312, the plea of the statute of limitations to an action founded upon a judgment of another state goes to the remedy only and the lex fori prevails, and such is the settled law of this state. In Miller v. Brenham, 68 N. Y., 83, suit was brought on a California judgment. The five years bar of the statute of limitations of that state was set up as a defense.

The court said: “It is well settled in this state that a plea of the statute of limitations of the state or country where the contract is made is no bar to a suit brought in a foreign tribunal and the lex fori governs all questions under that statute. Lincoln v. Battelle, 6 Wend., 475; Ruggles v. Keeler, 3 Johns., 263; Power v. Hathaway, 43 Barb., 214; Toulandou v. Lachenmeyer, 37 How., 145.

“As is.said in Scudder v. Union Nat. Bk., 1 Otto, 406: ‘Matters respecting the remedy, such as bringing suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.’ ” It is true that in these New York cases the actions were brought against non-residents and that so far as concerns that class of defendants the rule is now changed by positive legislation. By § 390, Code Civ. Pro., it is provided that where a cause of action not involving title to or possession of realty within this state accrues against a person then not a resident, an action thereon cannot be maintained against him or his personal representatives after the expiration of the time limited by the laws of his residence except by a resident of the state and in a case where the cause of action originally accrued in favor of a resident or where before the time so limited the person in whose favor the cause of action accrued was or became a resident or assigned the cause of action to a resident who continuously thereafter owned the same.

This provision of the Code does not alter the general rule. It merely relates to actions against non-residents upon claims barred by the law of the states in which they reside, and has no application here. It does not appear in the agreed statement that the conditions as to residence of either of the parties or of the plaintiff’s assignor are or were such as to bring the case within § 390 of the Code of Civil Procedure and we are not'at liberty to draw any inferences of fact whatever. Fearing v. Irwin, 55 N. Y., 486.

The plaintiff is entitled to judgment for $1,761.20 and interest from December 22, 1883, and costs to be taxed.

Van Brunt, P. J., and O’Brien, J., concur.


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    Lorenzo Guli, Resp’t, v. Joseph I. West, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Contract—Breach—Measure oe damage.
    In the absence of a provision in the terms of sale authorizing such a proceeding for the purpose of determining the damage, the purchaser of land at auction cannot be held liable on failure to complete for the difference between the price at which he bought and that which the land brought on a re-sale. The true measure of damage is the difference between the price paid by the purchaser and the value of the property.
    3. .Same.
    To authorize a re-sale to be used in ascertaining the measure of damage it must have been made under the same conditions as the first sale.
    3. Same—Bights of vendor.
    Defendant, who purchased land at auction subject to mortgage, refused to complete the purchase because there were monthly tenants on the premises. Plaintiff made no effert to remove them, but re-sold the premises subject to such monthly tenancies and sought to hold defendant for the z difference in what they brought. Reid,' that plaintiff’s proper course was to procure the vacation of the premises and re-tender the deed or sue for specific performance, and that he was not entitled to recover the damages claimed.

      Appeal from judgment entered upon verdict and from order denying motion for new trial.

      J. H. Henshaw, for app’lt; D. Tim, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for an. alleged breach of contract for the purchase of real estate. The plaintiff, who was the owner of certain premises in the city of Brooklyn, sold the same at public auction in the city of New York to the defendant,who thereupon paid ten per cent on account of said sale, and executed a contract for the purchase. The terms of sale were that the premises were sold subject to a certain mortgage thereon and also subject to an agreement relating to property on the east. At the time the title was to be closed the appellant refused to take the same for the reason that the premises were actually occupied by tenants. It was admitted upon the part of the plaintiff that the premises were occupied by tenants, but claimed they were allowed to remain because the defendant had. told him not to remove the tenants, but to keep them on the premises. On the 16th of July, 1890, the plaintiff resold the premises at auction, but upon different terms of sale, the same being then sold subject to monthly tenants. At this sale the premises brought $1,300 less; whereupon this action was brought to recover damages in the amount of $2,000; and upon the trial, the foregoing facts being established, the jury rendered a verdict in favor of the plaintiff for $1,433.

Upon what theory the jury arrived at this amount it is impossible to determine; but it is, perhaps, unnecessary to inquire, in view of the conclusion we have come to in respect to the rights of the parties in the case. The action seems to have been brought, and the case substantially tried, upon the theory that the plaintiff was entitled to recover as damages the difference between the price at which the property sold when bought by the defendant, and that which it brought at the resale. It is true that the court did charge to the jury the correct rule of damages, but the general tenor of the charge was as stated. We are not aware of any such rule of damage unless there is a provision in the terms of sale (which is not the case here) authorizing such a proceeding for the purpose of determining the damage. The true measure of damage is the difference between the price paid by the purchaser and the value of the property; and the only evidence offered upon the part of the plaintiff to show the value of the property tended to show that the defendant had paid no more than its value at the time when he purchased, and consequently the plaintiff suffered no damage. It is true that on the resale the property was sold at a loss ; and perhaps if the resale bad been upon the same terms, it might have been some evidence to go to the jury as to what the real value was. But clearly, it was not necessarily the measure of damages as it seems to have been claimed upon the trial below.

The court was requested to charge that in order that the second. sale might be used in ascertaining the measure of damage it should have been made under equally favorable circumstances with the first sale. This the court declined to charge, leaving it with the jury to say how far the second sale, and the price obtained at the second sale, was evidence of the value of the property.

We think the defendant was-entitled to the charge as requested. If the resale was to be resorted to at all, it could only be because the conditions of the resale were the same. rl'he jury could not be permitted to speculate without any evidence to guide them as to the effect which occupancy by tenants might have.

But apart, from this the sale to- the defendant was without encumbrances except such as have been mentioned. The property was occupied by monthly tenants. At the time of the closing objection was made upon this ground. Not the slightest effort was made to remove the objection; but it is claimed that the tenants were allowed to remain because of some vague request upon the part of the defendant.

Upon examination, the plaintiff testified: “I had a conversation with Mr. West in which he stated that if the tenants were good he would like to have them remain. I don’t know whether the statements made on this subject were what prevented me from putting the tenants out. If Mr. West had told me to send the tenants away I would do so, otherwise I would keep them with me.” Then follows the statement “ I would have had the tenants, move out but for the statement of Mr. West that they were all ready to go.”

It is therefore apparent that the plaintiff was actuated by no statement of- Mr. West in respect to allowing .the tenants to remain. It was because Mr. West did not require that the tenants should be moved out in his conversation with the plaintiff that the latter concluded that they should be allowed to remain. A party cannot be held to the waiver of a condition of a contract because of loose talk of this character. There is no ground for an estoppel, as the plaintiff himself admitted that his action was not caused by any statement of the defendant in reference to the tenants. It seems to be clear that the plaintiff was acting under a misapprehension; that he had an idea that he could re-sell the premises and compel the defendant to pay the difference and the expenses of the re-sale. In this he was clearly mistaken, as no such rule of damages obtains upon public sales unless there is some such provision in the terms of sale.

The proper course for the plaintiff to have pursued would have been, if the tenants were so ready to move out as he claims them "to have been, to have procured the vacation of .thepremises when the defendant refused to take the deed upon that ground, and to have retendered the deed or brought his action for specific performance. But he seems to have assumed that the defendant was bound to take this title encumbered by the tenancies as it was, although the contract contained no such provision. It is a significant circumstance as to the willingness of the tenants to move out, that upon the resale the premises were sold subject to the monthly tenancies. r.

It is clear that the action was commenced upon a wrong theory and was tried upon a wrong theory, and that an erroneous measure of damages was adopted by the jury.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event

O’Brien and Patterson, JJ., concur.


author:
Patterson, J.
      O’Brien, J. Van Brunt, P. J.

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    Eugene H. Levy, Resp’t, v. The Beekman Publishing Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Verdict—Mistrial.
    In an action for breach of a contract of employment by -which plaintiff was to give his entire time to procuring advertisements for defendant and was to receive a salary and a commission on the advertisements secured by him, plaintiff having been discharged for cause, the jury found a verdict “ for defendant, but that plaintiff was entitled to a commission * * * on all advertisements accepted by defendant.” Held, that a general finding in favor of one party and a qualification thereof in the form of a special finding in favor of the other is unauthorized in practice, and that the result was a mistrial.
    Appeal from judgment in favor of plaintiff entered upon verdict.

      Delos McCurdy, for app’lt; R. J. Moses, Jr., for resp’t.
   Patterson, J.

—We are of opinion that the judgment entered on the verdict of .the jury in this action cannot be upheld. The plaintiff sued to recover damages for the breach of a contract of employment. He had agreed to devote his entire, time for three months to securing advertisements to be inserted in a publication issued by the defendant and was to receive a stipulated weekly salary and in addition thereto a commission of twenty-five per cent on all advertisements secured by him. After six weeks service under this contract, during which period he obtained several advertisements for the defendant, he was discharged on the asserted ground of dissatisfaction “ with the meagre results ” of his work. Ee claimed in this action compensation for the remaining six weeks and commissions on the amount of the advertisements he had procured and which the defendant had accepted. The answer is in substance a general denial.

On the trial the defendant claimed that the plaintiff himself had first broken the contract by entering into the service of another publisher and hence the dismissal was justified- One instance was proven of his having procured an advertisement for such other publisher. There was a conflict of evidence as to the relations established between the plaintiff and this third party. The former swore that there was but this one single transaction which did not interfere with his duty to the defendant, while the party referred to testified to facts which would indicate an employment incompatible with • the devotion of the plaintiff’s entire time to the service of the defendant. The learned judge left it to the jury to say whether the single act proven constituted under the circumstances a breach within the contemplation of the parties, but he instructed them that that related to the weekly salary. As to the commissions he charged that the plaintiff was entitled to recover on what was actually received by the defendant in payment for advertisements procured by the plaintiff, and that was done in view of the fact that but a small fraction of the price to be paid by the advertisers was paid in consequence of the publication being suspended before the full periods for the insertion of these advertisements had expired.

It would appear, therefore, that the learned judge considered that the plaintiff was entitled to recover some part of the commissions, although the jury might find that he was not entitled to the salary, and that the contract was severable. In this he may not have been mistaken. The contract is somewhat peculiar in expression, and is susceptible of the construction that commissions were to be paid independently of salary, and such undoubtedly was the understanding of the defendant, which fully recognized its liability to pay the commissions in the letter discharging the' plaintiff, for it is therein stated that “ as fast as the checks are received for the advertisements you secured your commissions will be forthcoming. ”

The jury, acting on the instructions of the court, brought in the following verdict: “The jury finds for the defendant; but that the plaintiff is entitled to a commission of twenty-five per cent, on all advertisements accepted by the defendant, to wit, $88.50.” Thereupon counsel for the plaintiff, considering doubtless the finding of the jury as a special verdict, moved for judgment, which was granted, the court afterwards stating that, while the verdict should be set aside on technical grounds (alluding to its being for commissions on the total value of the advertisements accepted, and not only on such sum as had been received, and therefore against the instructions), yet on reconsideration of the charge he. was satisfied the jury was right.

" We think the effect of this peculiar verdict was to produce a mis-trial. There is nothing in the practice that authorizes a gen eral verdict in favor of one party to an action and a qualification thereof in the form of a special finding in favor of the other. What was meant by this verdict probably is that the jury found the defendant was justified in dismissing the plaintiff, ana therefore the latter was not entitled to the salary, but was entitled to his earned commissions. But they have not said so, and even had they, the verdict would still be fatally defective. In an -actian to recover a sum of money only a jury may render a special verdict in its discretion. § 1187, Code Civil Procedure. Such a verdict is one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment. § 1186. It must set forth all the facts authorizing a judgment. If that is not done it will be set aside. Casey v. Dwyre, 15 Hun, 153. Here, in addition to the want of a statement, there is the singular contradiction of a general 'verdict for the defendant on the issues submitted, nullified by a finding of a specific sum on those same issues in favor of the defendant. We cannot, of course, reconcile the incongruity of such a verdict, and are compelled to reverse the judgment and grant a new trial, with costs to abide the event.

O’Brien, J.

-—I concur in the result. The opinion states that “ it would appear that the learned judge considered that the plaintiff was entitled to recover some part of the commissions, although the jury might find that he was not entitled to the salary, and that- the contract was severable. In this he may not have been mistaken.”

I think this view of the relations of the parties growing out of the contract was erroneous, and led to the error into which the jury fell by assuming that they had a right to sever the contract, which in its nature was entire, and as to part find for plaintiff, and with regard to the balance for the defendant. A reading of the contract will show that it provided for the payment of twenty-five dollars a week and twenty-five per cent on all advertisements secured for “ Chatter,” in consideration of plaintiff's devoting his entire time to securing advertisements for “ Chatter,” and rendering such other assistance as should be mutually agreed upon. There can be no doubt, upon a consideration of the language of the agreement, that it constituted but one and an entire contract between the parties; and this was the view taken by the plaintiff, who placed his right to recover the entire amount due him for the salary for the unexpired period, together with the per centage on advertisements which had been received, upon the claim that his discharge was unjustifiable. The amount to be performed by the plaintiff, and the consideration to be paid by the defendant, were made certain and fixed; and no question of apportionment could arise, except in a case where the contract is susceptible of a construction that it is not to be considered as single and entire. It has been repeatedly held that when parties make a contract which is not apportionable no part of the consideration can be recovered in an action on the contract until the whole of that for which the consideration was to be paid has been performed.

We think, therefore, that the conclusion reached by Mr. Justice Patterson was correct, for the reason stated in appellant’s brief, “ that the plaintiff could not maintain an action on this contract to recover a part of the consideration agreed to be paid for full performance, and that such an action can be supported only when there are separate contracts, and each the subject of a separate action, or where in one contract there is such a separation into parts as to give a distinct right of action for each distinct portion.”

Van Brunt, P. J.

—I do not think that the above question arose, as the parties seem to have conceded that there might be a right to these commissions without there being any valid claim for salary. I concur in result.


text:
    Julia A. Shaw, Resp’t, v. Agnes C. Bryant et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Pleading—Amendment.
    In an action to compel the trustee of certain infants to set apart and pay a portion of the income to plaintiff on a hill for hoard and necessaries furnisked to said infants, the court or referee has no power on the trial to permit an amendment of the complaint by inserting allegations of a conversion of moneys by their father as their supposed guardian, and a claim for a personal judgment against him, as this introduces a new cause of action.
    3. tHFAiTTS—Necessaries—Items must be proved.
    Where board and necessaries were furnished to a father and two infants and moneys advanced 'to each, the infants’ estate is only liable for the amounts advanced to them and debts incurred for necessaries, and positive proof that'each of the items were such should he required before it should be allowed against them.
    Appeal from j udgment entered on report of referee.

      George Norris, for app’lts; J. A. Shoudy, for resp’t.
   Patterson, J.

—The judgment entered upon the report of the referee in this action must be reversed. There are two fatal errors pointed out by the appellants. The first consists in the allowance by the referee of an amendment which radically changed the issues raised by the pleadings and allowed a new cause of action to be set up in the amended complaint.

As the original complaint was framed the action was for an injunction to restrain the Farmers’ Loan & Trust Company from paying over to the other' defendants certain moneys therein referred to; and it was also asked that the court direct the said company to pay out of trust funds in its hands belonging to the infant children of C. O’B. Bryant the amount of the claim the plaintiff asserted against them for board and lodging furnished and moneys 'advanced for the necessary support, maintenance, education and medical attendance of such infant defendants for a period intermediate the 17th June, 1882, and 2d April, 1885, and to require the said trust company to set apart and pay over to the plaintiff such portion of the annual income of the fund or of the securities in which it was invested as to the court might seem proper. Upon the answers interposed to this complaint the issues were referred. After much time spent in the trial of the case before the referee an application was made by the counsel for plaintiff to amend the complaint, and the referee ordered that it be amended by allowing allegations to be inserted therein which charged upon the defendant 0. O’B. Bryant a conversion of moneys paid by the trust to him as the supposed general guardian of his infant children to be applied to their maintenance and support, but which it was alleged he appropriated to himself;. and also allegations which would devolve upon the defendant C. O’B. Bryant a personal liability for the whole or some portion of the indebtedness the plaintiff claimed to be due her; and the amended complaint asks judgment not only that the plaintiff may have a lien upon the fund or the proceeds thereof, but also against-the defendants and each of them, except the Farmers’. Loan &. Trust Company, for $15,000 and interest, and in case the court should determine that the infant defendants were not liable to pay the whole of the amount claimed, that the plaintiff have judgment against them for the amount which should be paid by them, and against the defendant C. O’Brien Bryant for the remainder of the said $15,000.

The difference between the two complaints is most marked, and by the amended complaint a new cause of action was introduced, namely, one to enforce against the father personally the claim, or some part of it, which by the original complaint was sought to be charged only upon the funds or securities in the hands of the Farmers’ Loan & Trust Company. By this amendment the defendant C. O’B. Bryant was called upon to litigate a matter which was not in any way connected with the cause of action as set forth in the original complaint. It was entirely beyond the province of the referee to permit such an amendment That a court or referee has no power to permit on the trial an amendment to a complaint or answer which changes the cause of action or defense, or introduces a new cause of action or defense, follows from the terms of § 723 of the Code of Civil Procedure, and this view has been taken in Reeder v. Sayre, 70 N. Y., 181; Gas Light Co. v. R. R. Co., 51 Hun, 119; 24 St. Rep., 154, Price v. Brown, 98 N. Y., 388; Freeman v. Grant, 30 St. Rep., 143; Chapin v. Dobson, 78 N. Y., 74. That the amendment allowed by the referee introduces a new cause of action is beyond controversy; the original complaint being only for equitable relief and the amended complaint claiming a personal judgment against one of the defendants by reason of acts set forth in the amended complaint which would render him liable in a common law action. Such defendant is not debarred from reviewing the decision of the referee by appeal. He could not have moved against the order of the referee; as the proper way of reviewing the decision is by exception and an appeal from the judgment. Quimby v. Claflin, 77 N. Y., 270. Flor has he waived his right by answering. He did so on compulsion and under protest.

The second and quite as serious error appearing upon this record is the conclusion of the referee that the amount of the plaintiff’s demand should be divided upon some supposed equitable principle into three parts, and one of the three parts charged against each of the defendants, namely, the two infant children and C. O’B. Bryant. It appears in the proofs that the father and his two infant children boarded with the plaintiff at her hotel during the whole period between the two dates above mentioned, and that during that time bills were incurred not only for the board, lodging, education, medical attendance, and maintenance of the infant children, and for moneys advanced to them or for them to pay dressmakers’ and other bills, but that during a great part of the time the father also resided there, and moneys were advanced to him, and expenses were incurred on his account, and he became a debtor for large sums which could not be charged against the infants.

The referee- has proceeded in making this arbitrary division upon the asserted impossibility of separating the items. There should be no such insurmountable difficulty in ascertaining what was chargeable exclusively against the infants. Their estate is not to be burdened with charges except such as are actually and positively proven to be properly so chargeable. All that could be recovered against them or be made payable out of their property would be such amounts as were advanced or such' debts as were incurred for necessaries. And when the plaintiff undertook, upon the representations of their father, to supply them with such necessaries, and upon the undertaking that she would be paid out of the infant’s property, she was bound to know that the extent of the liability of the infants, or to which their property might be held, would be only for such things as would come within the description of necessaries for such infants in view of their needs -as affected by their station in life. It was the duty of the referee to require positive proof that each of the items sought to be enforced against either of these infant children came within the requirement stated. The certificate of their father that the final balance of $15,000 was correct, and the supposed statement of an account binding upon the infants by reason of that certificate, does not avail the plaintiff in any way, as the referee rightly held. Proof of each item was required. Manifestly the account includes charges against the father. He had no power to give such a certificate, and it does not estop the children or their guardians ad litem. Mr. Bryant was not a general guardian having the standing to make such a certificate; he was not authorized to receive the money from the trust company as such guardian. He had been appointed in New Jersey by an order of the court, but had never qualified, and, as was held in Foley v. Mutual Life Ins. Co., 45 St. Rep., 918, he could not do anything, either in the way of the receipt of moneys or by acts, to affect the estate or property of the infants in the alleged capacity of general guardian. It would have required perhaps some little trouble and industry on the part of the referee to pick out from the long account rendered the various items proven to be properly charged against the infants ; but that is no reason why the whole account should be massed and they held liable for two thirds of it.

We have been compelled in the examination of this case to wade through a record which consists of almost five hundred pages of what is simply a transcript of stenographer’s minutes, and nearly two hundred pages more of exhibits, and are constrained to say that we have never had the misfortune of seeing a record more carelessly compiled, or thrown together in more utter defiance of the rules of the court relating to the preparation of appeal papers. There are no less than eighty pages of this record consisting of colloquies between counsel and the referee, of arguments and affidavits made on motions to postpone hearings, of oral arguments of counsel, or incidental questions arising during the progress of the hearings before the referee, and of -matters utterly irrelevant to the merits of the cause. Everything in the way of testimony is recorded by question and answer, and not in the narrative form required by the rule of the court. We would be justified in refusing to consider the case at all on this record, and in sending it back for re-settlement, as was done in Mead v. Shea, 26 Hun, 393, and Smith v. N. Y. Cen. & Hudson R. R. R. Co., 30 id., 144, and would do so, but for the fact that the interests of the parties have been greatly compromised already by the delays had in the cause. The attention of the profession has been called time and time again to the condemnation, by the courts, of records on appeal prepared as this is, and there is no excuse for the vidlation of the rule in this particular action.

The judgment appealed from is reversed, with costs to appellants to abide the event; but if the defendants ultimately succeed, the bill for printing the case and exhibits on this appeal shall not be taxed as disbursements. A new referee must be appointed to hear and determine the cause.

Van Brunt, P. J., and O’Brien, J., concur.


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    In the Matter of the Application of The Department of Public Works, Relative to the Opening of One Hundred and Sixtieth Street Between Eleventh Avenue and Kingsbridge Road.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Municipal corporations—Assessments.
    An assessment in street opening cases is properly based on the value of the premises as estimated by the tax commissioners for the year in which the assessment was made up, and it cannot be altered because of later valuations.
    Appeal from an order confirming the report of commissioners of estimate and assessment.
    The following, is the opinion of the court below:
    Lawrence, J.—Under the decision of the general term, when this case was last before it, the commissioners were obliged to render to Mr. Buckley a substantial award. 48 Hun, 488; 16 St. Rep., 6. The commissioners state that they have carefully considered and discussed the testimony offered before them in respect to the alleged dedication of Mr. Buckley’s land, “and that the same does not under the decisions heretofore rendered by this court, show a dedication of the said land to public use.” An award is made to Mr. Buckley for the land taken for the improvement in the sum of $17,000. With that award I shall not attempt to interfere, as it is well settled in these cases that the determination of the commissioners is entitled, upon the questions of value and damage, to more credit than the verdict of a jury, for the reason that the commissioners act, or are supposed to act, upon a personal inspection of the lands taken for the proposed improvement. It was, however, I think, erroneous to include within the assessment district the parcels east of Kingsbridge road, Nos. 57, 58, 59, 60, 61, 62 and 63, for the reason that as Mr. Buckley’s buildings' had been destroyed by fire the commissioners were precluded under section 970 of the Consolidation Act from extending the area of the assessment beyond the centre line of the blocks adjacent to the improvement, and beyond the ends of the street, or avenue, or portions thereof, sought to be opened. I am of the opinion that the objection that the land designated on the Commissioners’ Benefit Map, as Ho. 2, is assessed for more than one-half of its value, as valued by the Tax Commissioners, cannot be sustained (see affidavit of Gabriel, as to the valuation for the year 1889, when the assessments were originally made up; Matter of St. Joseph’s Asylum, 69 N. Y., 153; Matter of Hebrew Asylum, 70 N. Y., 476). The report should be sent back to the commissioners with instructions to amend the same as to the' portion of the expenses upon the property beyond the limits of the proposed opening, and more than half a block on either side thereof, and when thus amended the report will be confirmed.

      James A. Deering, for app’lts; William H. Clark, for resp’t.
   Per Curiam.

—We agree with Mr. Justice Lawrence that the decision of the general term upon the original appeal in this proceeding, 48 Hun, 488; 16 St. Rep., 6, is controlling upon the question of the dedication of the land proposed to be taken.

The opinion of the presiding justice upon that appeal covered all the questions now under consideration except such as arise upon the additional facts presented to the commissioners on the re-hearing. As to these new facts and circumstances we agree with the commissioners, and also with Mr. Justice Lawrence, that they do not affect Mr. Buckley’s right to a substantial award, nor do they materially modify the facts and circumstances upon which it was held that no dedication of the land in question had been made. We think, too, that the commissioners properly assessed Mr. Banks’ lot one-half of its value as estimated by the tax commissioners for the year 1889. That was when the assessment was made up, and we can see no reason why it should be altered because of later valuations. The case cited by the appellant, Matter of Schell, 76 N. Y., 432, does not uphold his contention on this point, while the rule adopted at special term is supported by Matter of St. Joseph's Asylum, 69 N. Y., 353, and Matter of Hebrew Asylum, 70 id., 476.

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

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


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    Eugene O’Connor, Resp’t, v. William C. Jones, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Conversion—Notes—Arrest.
    An affidavit for an order of arrest on the ground of conversion of promissory notes, which states that such notes were given to defendant to have discounted and pay half the proceeds to plaintiff and pay half of the amount of the notes at maturity, for which payment security was given; that only a portion of the sum payable to plaintiff was paid; that defendant refused to return the notes on demand and refused to state what had been done with them, and ‘ ‘ wrongfully converted and disposed of them to his own use,” and that suits have been brought on such notes by persons claiming to be dona fide holders thereof; but which does not allege that the notes were not discounted before the day named or that defendant parted with them unlawfully, or that plaintiff had offered to return the money received, is insufficient to make out a case of conversion of the notes.
    Appeal from order denying motion to vacate order for the arrest of the defendant.

      George A. Stearns, for app’lt; Robert A. B. Dayton, for respt.
   O’Brien, J.

—The ground of arrest was the wrongful conversion by the defendant of personal property consisting of three promissory notes. The motion to vacate was made upon the papers on which the order of arrest was granted. It, therefore, becomes necessary to refer somewhat at length to plaintiff’s affidavit which was used in procuring the arrest of the defendant. It therein appears that on the 28th of August, 1890, plaintiff made his three promissory notes, amounting in the aggregate to $2,000, payable to his own order, which he endorsed and delivered to defendant under an agreement in writing, as follows :

“Mew York, August 28, 1890.

Received from Geo. A. Leavitt & Co., their notes, August 15th, $692.20, at 4 months; August 21st, $714.71, at 4 months, and August 25th, $593.09, at 4 months, to their order and payable at 787 Broadway, which notes I am to have discounted and pay over to Geo. A. Leavitt & Go. one-half of the proceeds, and when said notes mature I agree to pay one-half the amount of said notes and Geo. A. Leavitt & Co. are to pay the other half. I also agree to deposit with them one thousand dollars par value of the certificates of indebtedness of the West Florida & Alabama R. R. Co., to secure the payment of my half of said proceeds. In case of failure on my part to pay my half of said notes when they mature, the certificates are to be sold, and the proceeds applied to the payment thereof, and I agree to make good the difference. Should I not be able to use these notes, I agree to return them on September 15th, to Geo. A. Leavitt & .Co.

“Wm. C. Jones.

“Meil McOallum, Witness.”

The affidavit then avers that the notes were not sold to the defendant or delivered to him for any other purpose than that expressed in the receipt or agreement referred to; that the defendant paid to plaintiff the sum of $400, and no more, on account of the notes; that although a demand was made for the return of the notes, such demand was refused, coupled with a like refusal to inform plaintiff what had been done with them; that defendant “ wrongfully converted and disposed of them to his own use;” that plaintiff was unable to ascertain who held the notes until they became due, when one was presented to plaintiff for payment by one Bridgman, and the other two notes by one Aschoff, both of whom commenced suit in the city court against plaintiff, alleging that the notes had been delivered to them respectively for value before maturity, and that such actions are still pending.

With the exception of a statement as to the certificate of indebtedness mentioned in the receipt being worthless, we have given all the material statements contained in the affidavit upon which the order to arrest the defendant was granted. The question is thus presented whether these facts are sufficient to justify a conclusion that the defendant wrongfully converted and disposed of the notes.

It is undoubted law that a person who diverts an accommodation note from the purpose for which it was intended is guilty of a conversion of the note. It will not, however, be presumed that one who lawfully obtains possession of promissory notes has converted the same; and to justify an arrest the facts stated must warrant a conclusion, in order to constitute a conversion, that the notes were wrongfully or unlawfully diverted.

The receipt given by the defendant shows under what agreement he took the notes. He was to have them discounted, pay over one-half the proceeds to plaintiff, and pay one-half of the notes when they became due; and as security for the payment of his half of the proceeds the defendant deposited with plaintiff $1,000 par value of the certificates of indebtedness of the West Florida & Alabama Railroad Company. This receipt further provided that upon the failure of the defendant to pay his half, these certificates were to be sold and the proceeds applied to the payment, and the defendant was to pay the difference. A further provision was that unless the defendant was' able to use the notes, he was to return them on September 15th to the plaintiff.

It will be noticed that there is no statement that the notes were not used before the 15th of September, or that after that time, while the notes were still in defendant’s possession, a demand for their return was made. Under the rule which requires us to assume the innocence rather than the guilt of a party, and an honest rather than a fraudulent intent, we must assume, in the absence of a statement to the contrary, that the disposition of. the notes was made some time prior to September 15th.

Assuming, therefore, that some disposition was made of them by the defendant prior to the 15th, the other question remains, whether the notes were diverted by the defendant from the purpose for which they were given. Plaintiff does not state that they were not discounted; the statement is that third parties claiming to be the holders of the notes for value before maturity had commenced suit thereon. This again is entirely consistent with the view that they may have discounted these notes for the defendant. The conversion therefore in this case, if conversion it can be called, must be predicated upon the fact of the failure, after having the notes discounted, to return one-half of the proceeds to the plaintiff. Such failure may be a breach of trust or some other wrongful act on the part of the defendant, but we fail to see how from that circumstance the conclusion can be deduced that there was a wrongful conversion of the promissory notes themselves. The plaintiff received, presumably from the use made of the notes, $400; and the difference between that amount and the one-half of what would have been realized by discounting the notes correctly represents the interest the plaintiff would have had in the proceeds, and for which undoubtedly an action in some other form than one for conversion of the notes would lie in plaintiff’s favor. Having regard, however, to the interest which defendant obtained in these notes under the agreement by undertaking to procure their discount for the mutual benefit of both, his giving what was thought to be good security for the repayment of his half when the notes matured, and the intention of both parties that plaintiff should pay the notes at maturity, it would be going further than any of the reported cases to hold that the facts stated in the affidavit here made out a case of conversion.

Where a note is placed in another’s possession for a definite and specific purpose, and any other use of it is made, it is a violation of trust, and it is this abuse of trust or breach of such lawful possession which constitutes a conversion. Where, however, one intrusts promissory notes to another, permitting him to negotiate or use the same for the purpose of raising money thereon for the joint benefit of both, the parties have a joint interest-in the results or proceeds of the notes, and the arrangement between the parties contemplates that the maker of the notes is to look for the whole or a portion of the proceeds to the one to whom the notes were delivered. As was said in Decker v. Mathews, 12 N. Y., 317, quoting from the charge of Judge Duer, upon the trial: “ Although these facts might entitle the plaintiff to recover the proceeds in a different form of action, they amounted to a waiver of the alleged fraud upon which the suit for conversion was founded.” The case relied upon by plaintiff, of Hynes v. Patterson, 95 N. Y., 1, is not in point. There the notes for the conversion of which the action was brought were made by the plaintiff, and were delivered by him to the defendant’s testator under an agreement that they were to be discounted for the benefit of defendant’s testator and the proceeds, after deducting the per cent which was to be paid to plaintiff, were to be invested in certain real estate which was to be conveyed to the defendant’s testator. The defendant’s testator, instead of having the notes discounted and investing the proceeds in real estate, disposed of them in the purchase of personal property; and it was held that he was guilty of a conversion of the notes. The principle of this case follows the rule laid down iS many others, that a diversion of a note from the purpose for which it was given will constitute a conversion.

Here, if the defendant-converted the notes, he did so at the time he parted with their possession, and it is nowhere stated in the affidavit that he ever parted with them unlawfully. As already shown, it does not even appear at what date he parted with them. Under the agreement, what plaintiff was really entitled to was one-half of the proceeds to be realized upon discounting the notes, and there is no statement in the affidavit that he ever demanded the half of such proceeds. Upon the facts appearing, we do not think a case of conversion is made out, but that the most that can be claimed is that the defendant failed to pay to plaintiff something less than $600 which he was entitled to receive according to the agreement made respecting the use of the notes. If paid at maturity, he would have had a right against the defendant for contribution, which he could enforce by resort to the collateral, or by a proper action, or both, if necessary, to obtain the one-half of the notes which the defendant agreed to pay.

The statement in the affidavit that the defendant “ refused to inform this deponent what he had done with them, and wrongfully converted and disposed of them to his own use,” is the only statement that in any way charges or connects the defendant with the illegal or unlawful conversion of the notes, and the- latter is a mere statement of a conclusion.

Apart, however, from the foregoing reasons, there is another which presents an insurmountable obstacle to -fiiaintaining the arrest The plaintiff received from the defendant $400, and when he made a demand, as stated by him, for the return of the notes, there was no offer on his part to return the $400. It is clear that he could not obtain a return of the notes and hold the $400.

We are of .opinion, therefore, that-the affidavit was entirely insufficient, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order of arrest should be granted.

Van Brunt, P. J., concurs.